2004‑2005

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Corporations (Aboriginal and Torres Strait Islander) Bill 2005

 

No.      , 2005

 

(Immigration and Multicultural and Indigenous Affairs)

 

 

 

A Bill for an Act to provide for Aboriginal and Torres Strait Islander corporations, and for related purposes

 

 

 

Contents

Chapter 1—Introduction                                                                                        2

Part 1‑1—Preliminary                                                                                                           2

Division 1—Preliminary                                                                                              2

1‑1......... Short title............................................................................................ 2

1‑5......... Commencement.................................................................................. 2

1‑10....... Act binds Crown................................................................................ 2

1‑15....... Geographical application of Act......................................................... 2

1‑20....... Act applies regardless of residence, place of formation etc................ 3

1‑25....... Objects of this Act............................................................................. 3

1‑30....... Office of the Registrar of Aboriginal and Torres Strait Islander Corporations        3

1‑35....... Interpretative provisions.................................................................... 3

Part 1‑2—Overview of Act                                                                                                 4

Division 6—Overview of Act                                                                                    4

6‑1......... Overview of Act................................................................................. 4

6‑5......... Aboriginal and Torres Strait Islander corporations............................ 4

6‑10....... Basic features of an Aboriginal and Torres Strait Islander corporation 4

6‑15....... Members and observers...................................................................... 5

6‑20....... Meetings............................................................................................. 5

6‑25....... Officers............................................................................................... 5

6‑30....... Record keeping, reporting requirements and books............................ 5

6‑35....... Civil consequences of contravening civil penalty provisions............. 6

6‑40....... Lodgments and registers..................................................................... 6

6‑45....... Regulation and enforcement................................................................ 6

6‑50....... External administration....................................................................... 6

6‑55....... Deregistration and unclaimed property.............................................. 6

6‑60....... Offences.............................................................................................. 7

6‑65....... Courts and proceedings...................................................................... 7

6‑70....... Administration.................................................................................... 7

6‑75....... Registrar and Deputy Registrars of Aboriginal and Torres Strait Islander Corporations        7

6‑80....... Interpreting this Act........................................................................... 7

Chapter 2—Aboriginal and Torres Strait Islander corporations     8

Part 2‑1—Introduction                                                                                                          8

Division 16—Introduction                                                                                          8

16‑1....... What this Chapter is about................................................................. 8

16‑5....... Meaning of Aboriginal and Torres Strait Islander corporation......... 8

Part 2‑2—Applications for registration of an Aboriginal and Torres Strait Islander corporation 9

Division 21—Applications for registration of an Aboriginal and Torres Strait Islander corporation    9

21‑1....... Application for registration................................................................ 9

21‑5....... Matters to accompany application.................................................. 11

21‑10..... Registrar may seek further information............................................ 11

Part 2‑3—Decisions on applications                                                                           12

Division 26—Registrar to decide application                                                12

26‑1....... Registrar to decide application......................................................... 12

26‑5....... Registrar may grant application if application is incomplete etc..... 13

26‑10..... Registrar may grant application if some basic requirements are not met 13

26‑15..... Registrar not to register trade unions etc.......................................... 13

Division 29—What are the basic requirements for registration?       15

29‑1....... Minimum number of members requirement..................................... 15

29‑5....... Indigeneity requirement.................................................................... 15

29‑10..... Age of members requirement............................................................ 15

29‑15..... Pre‑incorporation requirement.......................................................... 15

29‑20..... Internal governance rules requirement.............................................. 16

29‑25..... Name requirement............................................................................. 17

Division 32—Decisions on applications                                                            18

32‑1....... Successful applications..................................................................... 18

32‑5....... Unsuccessful applications................................................................ 18

Part 2‑4—Registration of an Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation                                                                                                             20

Division 37—Registration of an Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation                                                                                 20

37‑1....... Registrar to register Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation    20

37‑5....... Registrar may alter registered size of corporation after registration. 21

37‑10..... Small, medium and large corporations.............................................. 22

37‑15..... When an Aboriginal and Torres Strait Islander corporation controls an entity       23

37‑20..... Counting employees......................................................................... 24

37‑25..... Accounting standards....................................................................... 24

Part 2‑5—Effects of registration                                                                                  25

Division 42—Effects of registration                                                                    25

42‑1....... Corporation comes into existence on registration............................. 25

42‑5....... Corporation’s name.......................................................................... 25

42‑10..... Members, directors, corporation secretary and contact person of corporation      25

42‑15..... Registered office............................................................................... 26

42‑20..... Document access address................................................................. 26

42‑25..... Corporation may have common seal................................................ 26

42‑30..... Vesting of property in corporation on registration.......................... 27

Chapter 3—Basic features of an Aboriginal and Torres Strait Islander corporation 29

Part 3‑1—Introduction                                                                                                        29

Division 52—Introduction                                                                                        29

52‑1....... What this Chapter is about............................................................... 29

Part 3‑2—Rules dealing with the internal governance of corporations  30

Division 57—Introduction                                                                                        30

57‑1....... What this Part is about..................................................................... 30

Division 60—What are the replaceable rules and when do they apply to a corporation?            32

60‑1....... Replaceable rules.............................................................................. 32

60‑5....... Corporation’s constitution can modify or replace replaceable rules 32

60‑10..... Effect of constitution and replaceable rules...................................... 33

60‑15..... Failure to comply with replaceable rules.......................................... 33

60‑20..... Modification by regulations............................................................. 33

60‑25..... List of replaceable rules.................................................................... 33

Division 63—What are the internal governance rules of a corporation?              36

63‑1....... Meaning of internal governance rules............................................... 36

Division 66—What are the internal governance rules requirements?   37

66‑1....... Requirements.................................................................................... 37

66‑5....... Meaning of cover the matters provided for in the replaceable rules 38

Division 69—Constitutions and amendment and replacement of constitutions                40

Subdivision 69‑A—Constitution on registration                                                40

69‑1....... Constitution of an Aboriginal and Torres Strait Islander corporation 40

Subdivision 69‑B—Constitutional changes after registration                         40

69‑5....... Overview—ways a constitution may be changed............................ 40

69‑10..... Meaning of constitutional change etc............................................... 41

69‑15..... Extra requirements for constitutional change in constitution........... 42

69‑20..... Corporation to lodge copy of constitutional changes....................... 42

69‑25..... Special administrator to lodge copy of constitutional changes......... 43

69‑30..... Registrar to determine if constitutional change should be registered 43

69‑35..... Registrar may change an Aboriginal and Torres Strait Islander corporation’s constitution on own initiative        44

69‑40..... Date of effect of constitutional change............................................. 46

Division 72—Other matters concerning constitutions etc.                    47

72‑1....... Registrar may direct corporation to lodge constitution.................... 47

72‑5....... Corporation must provide governance material to members............ 47

72‑10..... Constitution may limit powers........................................................ 48

Part 3‑3—Minimum number of members of Aboriginal and Torres Strait Islander corporations                49

Division 77—Minimum number of members of Aboriginal and Torres Strait Islander corporations   49

77‑1....... What this Part is about..................................................................... 49

77‑5....... Minimum number of members requirement..................................... 49

77‑10..... Registrar may exempt if appropriate and reasonable to do so......... 50

77‑15..... Registrar may determine a different number to number requested... 51

77‑20..... Earlier determination taken to be revoked........................................ 51

77‑25..... Notice to be given............................................................................. 51

Part 3‑4—Names                                                                                                                   52

Division 82—Introduction                                                                                        52

82‑1....... What this Part is about..................................................................... 52

Division 85—What names may a corporation have?                                  53

85‑1....... Corporation’s name requirements.................................................... 53

85‑5....... Available names................................................................................ 54

85‑10..... Acceptable abbreviations.................................................................. 55

85‑15..... Using a name and ICN on documents............................................... 56

85‑20..... Exception to requirement to have ICN on receipts.......................... 57

85‑25..... Regulations may exempt from requirement to set out information on documents  57

Division 88—How is a corporation’s name changed?                               58

88‑1....... Corporation changing its name......................................................... 58

88‑5....... Registrar’s power to direct corporation to change its name............. 58

88‑10..... If Aboriginal and Torres Strait Islander corporation becomes a registered native title body corporate  59

88‑15..... If Aboriginal and Torres Strait Islander corporation ceases to be a registered native title body corporate             60

88‑20..... Registrar must issue new certificate if name changes....................... 60

88‑25..... Effect of name change....................................................................... 61

Part 3‑5—Corporation powers and how they are exercised                         62

Division 93—Introduction                                                                                        62

93‑1....... What this Part is about..................................................................... 62

Division 96—What are a corporation’s powers?                                         63

96‑1....... Legal capacity and powers............................................................... 63

Division 99—How are a corporation’s powers exercised?                    64

99‑1....... Agent exercising a corporation’s power to make contracts etc........ 64

99‑5....... Execution of documents (including deeds) by the corporation itself 64

Part 3‑6—Assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make                                                                                                                    66

Division 104—Assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make                                                                                  66

104‑1..... Entitlement to make assumptions.................................................... 66

104‑5..... Assumptions that can be made under section 104‑1........................ 67

104‑10... Information available to the public from Registrar does not constitute constructive notice   69

Part 3‑7—Registered office or document access address                             70

Division 109—Introduction                                                                                     70

109‑1..... What this Part is about..................................................................... 70

Division 112—Registered office                                                                           71

112‑1..... General.............................................................................................. 71

112‑5..... Corporation to have registered office............................................... 71

112‑10... Registrar may change address of registered office to a director’s address               72

112‑15... Corporation’s name must be displayed............................................ 73

112‑20... Address of registered office etc........................................................ 73

Division 115—Document access address                                                        75

115‑1..... Division applies to Aboriginal and Torres Strait Islander corporations registered as small or medium corporations.......................................................................................................... 75

115‑5..... Corporation to have document access address................................. 75

115‑10... Registrar may change document access address to a director’s address  76

115‑15... Registrar may direct corporation to change the location of its document access address        77

115‑20... Address of document access address................................................ 77

Part 3‑8—Service on Aboriginal and Torres Strait Islander corporations 79

Division 120—Service on Aboriginal and Torres Strait Islander corporations 79

120‑1..... Service on Aboriginal and Torres Strait Islander corporation........... 79

Chapter 4—Members and observers                                                       81

Part 4‑1—Introduction                                                                                                        81

Division 130—Introduction                                                                                     81

130‑1..... What this Chapter is about............................................................... 81

Part 4‑2—Members                                                                                                             82

Division 135—Introduction                                                                                     82

135‑1..... What this Part is about..................................................................... 82

Division 138—Who is a member of an Aboriginal and Torres Strait Islander corporation?      83

138‑1..... Meaning of member.......................................................................... 83

Division 141—Membership of Aboriginal and Torres Strait Islander corporations       84

Subdivision 141‑A—Introduction                                                                           84

141‑1..... Overview.......................................................................................... 84

Subdivision 141‑B—Ongoing requirements relating to membership that are imposed on an Aboriginal and Torres Strait Islander corporation                                                                    84

141‑5..... Minimum number of members requirement..................................... 84

141‑10... Indigeneity requirement.................................................................... 84

141‑15... Age of members requirement............................................................ 85

Subdivision 141‑C—A person’s eligibility for membership of an Aboriginal and Torres Strait Islander corporation                                                                                                         85

141‑20... Eligibility for membership................................................................ 85

141‑25... Corporation may have other eligibility requirements for membership 86

Division 144—How to become a member of an Aboriginal and Torres Strait Islander corporation      87

144‑1..... How does a person become a member?............................................ 87

144‑5..... Application to corporation............................................................... 87

144‑10... Determination of applications for membership................................ 87

144‑15... Fees for membership and being an observer..................................... 89

Division 147—Obligations of members                                                            90

147‑1..... Obligation to contribute on winding up............................................ 90

147‑5..... Corporation may impose other member obligations........................ 90

147‑10... Liability of corporation members..................................................... 90

Division 150—How does a person cease to be a member of an Aboriginal and Torres Strait Islander corporation?                                                                                          91

Subdivision 150‑A—General                                                                                  91

150‑1..... Cessation of membership................................................................. 91

150‑5..... Resolution of disputes...................................................................... 91

Subdivision 150‑B—Resignation of membership                                               92

150‑10... Resignation....................................................................................... 92

Subdivision 150‑C—Cancellation of membership                                              92

150‑15... General.............................................................................................. 92

150‑20... Member not eligible for membership etc. (replaceable rule—see section 60‑1)      93

150‑25... Member not contactable................................................................... 95

150‑30... Member is not an Aboriginal and Torres Strait Islander person...... 96

150‑35... Member misbehaves......................................................................... 97

Division 153—Can there be different classes of members?                 98

153‑1..... Different classes of members............................................................ 98

Part 4‑3—Observers                                                                                                           99

Division 158—Observers                                                                                         99

158‑1..... What this Part is about..................................................................... 99

158‑5..... Observers.......................................................................................... 99

Part 4‑4—Protection of members’ interests                                                        101

Division 163—Rights and remedies to protect interests of members 101

163‑1..... Rights and remedies........................................................................ 101

Division 166—Oppressive conduct of affairs                                               102

166‑1..... Grounds for Court order................................................................. 102

166‑5..... Orders the Court can make............................................................. 102

166‑10... Who can apply for an order?.......................................................... 104

166‑15... Requirement for person to lodge order........................................... 104

Division 169—When may a person bring or intervene in proceedings on behalf of an Aboriginal and Torres Strait Islander corporation?                                        105

169‑1..... Bringing, or intervening in, proceedings on behalf of a corporation 105

169‑5..... Applying for and granting leave..................................................... 106

169‑10... Substitution of another person for the person granted leave.......... 107

169‑15... Effect of ratification by members................................................... 108

169‑20... Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave              109

169‑25... General powers of the Court.......................................................... 109

169‑30... Power of the Court to make costs orders....................................... 110

Division 172—What protections apply to variations or cancellations of class rights?   111

172‑1..... Varying and cancelling class rights.................................................. 111

172‑5..... Certain actions taken to vary rights etc.......................................... 112

172‑10... Variation, cancellation or modification without unanimous support of class          112

172‑15... Variation, cancellation or modification with unanimous support of class               113

Division 175—When may a member inspect a corporation’s books? 114

175‑1..... Order for inspection of books of corporation................................ 114

175‑5..... Ancillary orders.............................................................................. 115

175‑10... Disclosure of information acquired in inspection........................... 115

175‑15... Corporation or directors may allow member to inspect books (replaceable rule—see section 60‑1)     116

Part 4‑5—Registers of members and former members                                117

Division 180—Registers of members and former members               117

180‑1..... Aboriginal and Torres Strait Islander corporations to maintain register of members              117

180‑5..... Information on the register of members.......................................... 117

180‑10... Aboriginal and Torres Strait Islander corporations to maintain register of former members   118

180‑15... Information on the register of former members.............................. 118

180‑20... Location and inspection of registers............................................... 118

180‑25... Right to inspect and get copies....................................................... 119

180‑30... Aboriginal and Torres Strait Islander corporation to make register of members available at AGM        120

180‑35... Aboriginal and Torres Strait Islander corporation to give Registrar copy of register of members          120

180‑40... Correction of register of members.................................................. 121

180‑45... Evidentiary value of registers......................................................... 121

Division 183—Use of information on the register of members         122

183‑1..... Use of information on register........................................................ 122

Chapter 5—Meetings                                                                                             124

Part 5‑1—Introduction                                                                                                      124

Division 193—Introduction                                                                                   124

193‑1..... What this Chapter is about............................................................. 124

Part 5‑2—General meetings                                                                                         125

Division 198—Introduction                                                                                   125

198‑1..... What this Part is about................................................................... 125

Division 201—What are the rules concerning general meetings?   126

Subdivision 201‑A—Who may call general meetings?                                   126

201‑1..... Director may call meetings (replaceable rule—see section 60‑1)... 126

201‑5..... Request by members for directors to call general meetings............ 126

201‑10... When must directors comply with members’ request?.................. 127

201‑15... When must a requested meeting be held?....................................... 128

Subdivision 201‑B—How to call general meetings                                           128

201‑20... Amount of notice of general meetings............................................ 128

201‑25... Notice of general meeting to members, officers and observers....... 129

201‑30... Auditor entitled to notice and other communications.................... 131

201‑35... Contents of notice of general meeting............................................. 131

Subdivision 201‑C—Members’ rights to put resolutions etc. to general meeting              132

201‑40... Members’ resolutions..................................................................... 132

201‑45... Notice of members’ resolutions...................................................... 133

201‑50... Members’ statements to be distributed.......................................... 133

Subdivision 201‑D—Holding general meetings                                                135

201‑55... Purpose........................................................................................... 135

201‑60... Time and place for general meeting................................................. 135

201‑65... Technology..................................................................................... 135

201‑70... Quorum........................................................................................... 135

201‑75... Chairing general meeting (replaceable rule—see section 60‑1)....... 136

201‑80... Auditor’s right to be heard at general meetings.............................. 137

201‑85... Adjourned meetings........................................................................ 137

Subdivision 201‑E—Proxies                                                                                  138

201‑90... Who may appoint a proxy (replaceable rule—see section 60‑1)... 138

201‑95... Rights of proxies............................................................................. 138

201‑100. Appointing a proxy........................................................................ 139

201‑105. Proxy documents............................................................................ 141

201‑110. Body corporate representative....................................................... 141

Subdivision 201‑F—Voting at general meetings                                              142

201‑115. How many votes a member has (replaceable rule—see section 60‑1) 142

201‑120. Objections to right to vote (replaceable rule—see section 60‑1).... 142

201‑125. How voting is carried out (replaceable rule—see section 60‑1)..... 143

201‑130. Matters on which a poll may be demanded.................................... 143

201‑135. When a poll is effectively demanded.............................................. 143

201‑140. When and how polls must be taken (replaceable rule—see section 60‑1)               144

Subdivision 201‑G—First general meeting and annual general meetings  144

201‑145. Corporation must hold first general meeting within 3 months of registration         144

201‑150. Corporation must hold AGM........................................................ 145

201‑155. Extension of time for holding AGM............................................... 145

201‑160. Business of AGM.......................................................................... 146

201‑165. Questions and comments by members on corporation management at AGM        146

201‑170. Questions by members of auditors at AGM.................................. 146

Division 204—Resolutions without a general meeting                          147

204‑1..... Circulating resolutions.................................................................... 147

204‑5..... Resolutions of 1 member corporations........................................... 148

Part 5‑3—Directors’ meetings                                                                                     149

Division 209—Introduction                                                                                   149

209‑1..... What this Part is about................................................................... 149

Division 212—What are the rules concerning directors’ meetings? 150

212‑1..... Constitution to provide for meetings............................................. 150

212‑5..... Calling directors’ meetings (replaceable rule—see section 60‑1).... 150

212‑10... Use of technology........................................................................... 150

212‑15... Chairing directors’ meetings (replaceable rule—see section 60‑1). 150

212‑20... Quorum at directors’ meetings....................................................... 151

212‑25... Passing of directors’ resolutions (replaceable rule—see section 60‑1) 151

Division 215—Resolutions and declarations without meetings         152

215‑1..... Circulating resolutions of corporation with more than 1 director (replaceable rule—see section 60‑1)  152

215‑5..... Resolutions and declarations of 1 director corporation.................. 152

Part 5‑4—Minutes of meetings                                                                                   154

Division 220—Minutes of meetings                                                                 154

220‑1..... What this Part is about................................................................... 154

220‑5..... Minutes.......................................................................................... 154

220‑10... Members’ access to minutes.......................................................... 156

Part 5‑5—Exemption from operation of this Chapter                                     158

Division 225—Exemption from operation of this Chapter                   158

225‑1..... What this Part is about................................................................... 158

225‑5..... Exemption from the provisions of this Chapter............................. 158

225‑10... Registrar may make determination even if application is incomplete 159

225‑15... Registrar’s power to make class determinations............................ 159

225‑20... Criteria for determinations.............................................................. 160

Chapter 6—Officers                                                                                                161

Part 6‑1—Introduction                                                                                                      161

Division 235—Introduction                                                                                   161

235‑1..... What this Chapter is about............................................................. 161

Part 6‑2—Appointment, remuneration and cessation of appointment of directors                162

Division 240—Introduction                                                                                   162

240‑1..... What this Part is about................................................................... 162

Division 243—Number of directors                                                                  163

243‑1..... Minimum number of directors........................................................ 163

243‑5..... Maximum number of directors....................................................... 163

Division 246—Appointment of directors                                                       164

246‑1..... Eligibility for appointment as a director......................................... 164

246‑5..... Majority of director requirements.................................................. 164

246‑10... Consent to act as director............................................................... 165

246‑15... Corporation may appoint a director (replaceable rule—see section 60‑1)              165

246‑20... Directors may appoint other directors to make up a quorum (replaceable rule—see section 60‑1)       165

246‑25... Term of appointment..................................................................... 166

246‑30... Alternate directors (replaceable rule—see section 60‑1)................ 167

246‑35... Effectiveness of acts by directors................................................... 167

Division 249—Resignation, retirement or removal of directors       168

249‑1..... How does a person cease to be a director?..................................... 168

249‑5..... Director may resign........................................................................ 168

249‑10... Removal by members..................................................................... 168

249‑15... Removal by other directors............................................................ 170

249‑20... Removal by general meeting........................................................... 172

Division 252—Remuneration of directors                                                     173

252‑1..... Remuneration.................................................................................. 173

252‑5..... Members may obtain information about directors’ remuneration.. 173

Part 6‑3—Appointment of secretaries and contact persons                       176

Division 257—Appointment of secretaries and contact persons      176

257‑1..... What this Part is about................................................................... 176

257‑5..... Requirement to have a secretary or contact person........................ 176

257‑10... Who may be a secretary or contact person.................................... 177

257‑15... Consent to act as secretary or contact person................................ 177

257‑20... How a secretary or contact person is appointed............................ 178

257‑25... Director to be contact person in certain circumstances.................. 178

257‑30... Contact person must pass on communications received................ 178

257‑35... Secretary must pass on communications received.......................... 179

257‑40... Effectiveness of acts by secretaries................................................ 179

257‑45... Terms and conditions of office for secretaries (replaceable rule—see section 60‑1)               180

257‑50... Terms and conditions of contact person’s appointment (replaceable rule—see section 60‑1)               180

Part 6‑4—Duties and powers of directors and other officers and employees           181

Division 262—Introduction                                                                                   181

262‑1..... What this Part is about................................................................... 181

Division 265—General duties                                                                              182

265‑1..... Care and diligence—civil obligation only........................................ 182

265‑5..... Good faith—civil obligations.......................................................... 183

265‑10... Use of position—civil obligations.................................................. 183

265‑15... Use of information—civil obligations............................................. 184

265‑20... Acts done to comply with Native Title legislation obligations...... 184

265‑25... Good faith, use of position and use of information—criminal offences  185

265‑30... Interaction of sections 265‑1 to 265‑25 with other laws etc.......... 186

265‑35... Directors of wholly‑owned subsidiaries......................................... 187

265‑40... Responsibility of secretaries for certain contraventions................ 187

265‑45... Meaning of reasonable reliance on information or advice provided by others         188

265‑50... Responsibility for actions of delegate............................................ 189

Division 268—Duties in relation to disclosure of, and voting on matters involving, material personal interests                                                                                                 190

268‑1..... Material personal interest—director’s duty to disclose................. 190

268‑5..... Interest as common law holder of native title................................. 192

268‑10... Director may give other directors standing notice about an interest 192

268‑15... Interaction of sections 268‑1 and 268‑10 with other laws etc....... 194

268‑20... Restrictions on voting..................................................................... 194

268‑25... Registrar’s power to make declarations and class orders............... 196

Division 271—Duty to discharge certain trust liabilities                       198

271‑1..... Directors liable for debts and other obligations incurred by corporation as trustee                198

Division 274—Powers of directors                                                                    199

274‑1..... Powers of directors (replaceable rule—see section 60‑1)............... 199

274‑5..... Negotiable instruments (replaceable rule—see section 60‑1)......... 199

274‑10... Delegation....................................................................................... 199

274‑15... Right of access to corporation books............................................. 200

Part 6‑5—Disqualification from managing corporations                               202

Division 279—Disqualification from managing corporations               202

279‑1..... Disqualified person not to manage corporations............................ 202

279‑5..... Automatic disqualification.............................................................. 203

279‑10... Extension of period of automatic disqualification.......................... 205

279‑15... Court power of disqualification—contravention of civil penalty provision           205

279‑20... Court power of disqualification—insolvency and non‑payment of debts              206

279‑25... Court power of disqualification—repeated contraventions of Act 207

279‑30... Registrar’s power of disqualification.............................................. 208

279‑35... Court power to grant leave............................................................. 210

Part 6‑6—Member approval needed for related party benefit                 212

Division 284—Need for member approval                                                    212

284‑1..... Need for member approval for financial benefit............................. 212

284‑5..... Consequences of breach.................................................................. 212

Division 287—Exceptions to the requirement for member approval 214

287‑1..... Remuneration and reimbursement for officer or employee............ 214

287‑5..... Benefit to or by closely‑held subsidiary........................................ 215

287‑10... Benefits to members that do not discriminate unfairly.................. 216

287‑15... Court order..................................................................................... 216

Division 290—Procedure for obtaining member approval                   217

290‑1..... Resolution may specify matters by class or kind.......................... 217

290‑5..... Corporation must lodge material that will be put to members with the Registrar   217

290‑10... Requirements for explanatory statement to members.................... 218

290‑15... Registrar may comment on proposed resolution............................ 219

290‑20... Requirements for notice of meeting................................................ 219

290‑25... Other material put to members....................................................... 220

290‑30... Proposed resolution cannot be varied............................................. 221

290‑35... Voting by or on behalf of related party interested in proposed resolution             221

290‑40... Voting on the resolution................................................................. 222

290‑45... Notice of resolution to be lodged.................................................... 223

290‑50... Declaration by court of substantial compliance............................. 223

Division 293—Related parties and financial benefits                              224

293‑1..... Related parties................................................................................ 224

293‑5..... Giving a financial benefit................................................................ 225

Division 296—Interaction with other rules                                                  227

296‑1..... General duties still apply............................................................... 227

Part 6‑7—Public information about directors, secretaries and contact persons      228

Division 301—Introduction                                                                                   228

301‑1..... What this Part is about................................................................... 228

Division 304—Information to be provided                                                    229

304‑1..... Director, alternate director, secretary or contact person may notify the Registrar of resignation or retirement     229

304‑5..... Notice of name and address of directors and secretaries to the Registrar                229

304‑10... Director, alternate director, secretary and contact person must give information to corporation           231

304‑15... Address for officers........................................................................ 231

Division 307—Registrar may ask for information                                     233

307‑1..... Registrar’s power to ask for information about person’s position as director, secretary or contact person          233

Chapter 7—Record keeping, reporting requirements and books    234

Part 7‑1—Introduction                                                                                                      234

Division 317—Introduction                                                                                   234

317‑1..... What this Chapter is about............................................................. 234

Part 7‑2—Record keeping requirements                                                               235

Division 322—Record keeping requirements                                            235

322‑1..... What this Part is about................................................................... 235

322‑5..... Obligation to keep copy of constitution and records about officers, contact person, etc.      236

322‑10... Obligation to keep financial records............................................... 236

322‑15... Physical format............................................................................... 237

322‑20... Place where records are kept.......................................................... 237

322‑25... Director access................................................................................ 238

Part 7‑3—Reporting requirements                                                                            239

Division 327—Overview of reporting obligations                                     239

327‑1..... Reports that an Aboriginal and Torres Strait Islander corporation must prepare and lodge   239

Division 330—General report for each financial year                             240

330‑1..... Aboriginal and Torres Strait Islander corporation must prepare a general report each financial year     240

330‑5..... Contents of general report.............................................................. 240

330‑10... General report to be lodged with Registrar..................................... 241

Division 333—Financial and other reports required by the regulations               242

333‑1..... What this Division is about............................................................ 242

333‑5..... Regulations may require financial reports, directors’ reports and other reports to be prepared             242

333‑10... Contents of reports........................................................................ 243

333‑15... Other requirements in relation to report......................................... 244

333‑20... Aboriginal and Torres Strait Islander corporation to obtain audit report if audit required      246

Division 336—Registrar may increase reporting requirements       247

336‑1..... Registrar may require additional report, or otherwise increase reporting requirements, for particular corporation........................................................................................................ 247

336‑5..... Registrar may require additional reports, or otherwise increase reporting requirements, for class of corporation 249

Division 339—Audit of financial reports                                                        252

Subdivision 339‑A—Introduction                                                                         252

339‑1..... What this Division is about............................................................ 252

339‑5..... Application of Division.................................................................. 252

339‑10... When financial report required to comply with accounting standards 253

339‑15... When audit required to be conducted in accordance with auditing standards          253

339‑20... Lead and review auditors................................................................ 253

339‑25... Professional members of the audit team......................................... 254

Subdivision 339‑B—Conduct of the audit                                                           254

339‑30... Auditor to form opinion................................................................. 254

339‑35... Auditor obligations in relation to auditing standards...................... 255

339‑40... Auditor’s report............................................................................. 255

339‑45... Other requirements in relation to auditor’s report......................... 256

339‑50... Auditor’s independence declaration............................................... 257

339‑55... Audit working papers to be retained for 7 years............................ 259

Subdivision 339‑C—Qualification, experience and registration                   262

339‑60... Qualification and experience: individual auditor............................. 262

339‑65... Qualification and experience: audit firm......................................... 263

339‑70... Registration requirements for appointment of company as auditor 264

Subdivision 339‑D—Auditor independence                                                        266

339‑75... Independence of auditors: application of Corporations Act auditor independence provisions              266

339‑80... Independence of auditors: alternative independence requirements. 268

Subdivision 339‑E—Auditor’s powers and duties                                             268

339‑85... Auditor’s power to obtain information.......................................... 268

339‑90... Reporting to the Registrar.............................................................. 268

339‑95... Assisting auditor............................................................................. 271

Subdivision 339‑F—Appointment and removal of auditors                              272

339‑100. Appointment and removal of auditors........................................... 272

Division 342—Financial reporting to members                                          273

342‑1..... What this Division is about............................................................ 273

342‑5..... Annual financial reporting to members........................................... 273

342‑10... Deadline for reporting to members................................................. 274

Division 345—Consolidated financial report                                               275

345‑1..... Directors and officers of controlled entity to give information...... 275

345‑5..... Auditor’s power to obtain information from controlled entity...... 275

345‑10... Controlled entity to assist auditor.................................................. 275

345‑15... Application of sections 345‑1 to 345‑10 to entity that has ceased to be controlled               276

Division 348—Lodging reports                                                                           277

348‑1..... Lodging annual reports with the Registrar...................................... 277

348‑5..... Relodgment if report amended after lodgment................................ 277

Part 7‑4—Registrar may exempt from record keeping and reporting requirements           279

Division 353—Registrar may exempt from record keeping and reporting requirements           279

353‑1..... Registrar’s power to make specific exemption order..................... 279

353‑5..... Registrar may make determination even if application is incomplete 280

353‑10... Registrar’s power to make class orders.......................................... 280

Part 7‑5—Criteria for determining level of reporting requirements      281

Division 358—Criteria for determining level of reporting requirements             281

358‑1..... What this Part is about................................................................... 281

358‑5..... Criteria for determinations about level of reporting requirements.. 281

358‑10... Reporting obligations...................................................................... 282

Part 7‑6—Sanctions for contraventions of record keeping and reporting requirements    284

Division 363—Sanctions for contraventions of record keeping and reporting requirements   284

363‑1..... Sanctions......................................................................................... 284

Part 7‑7—Modifications of record keeping and reporting requirements by regulations    285

Division 368—Modifications of record keeping and reporting requirements by regulations   285

368‑1..... Modification by regulations........................................................... 285

Part 7‑8—Books                                                                                                                  286

Division 373—Introduction                                                                                   286

373‑1..... What this Part is about................................................................... 286

Division 376—When and where may books be inspected?                 287

376‑1..... Inspection of books........................................................................ 287

376‑5..... Translations of instruments and books.......................................... 288

376‑10... Court may compel compliance....................................................... 289

376‑15... Admissibility of books in evidence................................................ 289

376‑20... Form of books................................................................................ 289

376‑25... Protection of books........................................................................ 290

376‑30... Evidentiary value............................................................................ 290

376‑35... Falsification of books..................................................................... 291

Chapter 8—Civil consequences of contravening civil penalty provisions                293

Division 386—Civil consequences of contravening civil penalty provisions      293

386‑1..... Declarations of contravention......................................................... 293

386‑5..... Declaration of contravention is conclusive evidence...................... 294

386‑10... Pecuniary penalty orders................................................................ 294

386‑15... Compensation orders—civil penalty provisions............................ 294

386‑20... Who may apply for a declaration or order..................................... 295

386‑25... Time limit for application for a declaration or order...................... 296

386‑30... Civil evidence and procedure rules for declarations of contravention and civil penalty orders               296

386‑35... Civil proceedings after criminal proceedings.................................. 296

386‑40... Criminal proceedings during civil proceedings................................ 296

386‑45... Criminal proceedings after civil proceedings.................................. 297

386‑50... Evidence given in proceedings for penalty not admissible in criminal proceedings 297

386‑55... Registrar requiring person to assist................................................ 297

386‑60... Relief from liability for contravention of civil penalty provision.. 299

Chapter 9—Lodgments and registers                                                   301

Part 9‑1—Introduction                                                                                                      301

Division 396—Introduction                                                                                   301

396‑1..... What this Chapter is about............................................................. 301

Part 9‑2—Lodgments with the Registrar                                                               302

Division 401—Introduction                                                                                   302

401‑1..... What this Part is about................................................................... 302

Division 404—What is the form in which documents may be lodged? 303

404‑1..... Forms for documents to be lodged with the Registrar.................... 303

404‑5..... Signing documents lodged with the Registrar................................. 303

404‑10... Documents lodged with the Registrar electronically...................... 303

404‑15... Relodging of lost registered documents.......................................... 304

Division 407—Registrar’s powers                                                                    306

407‑1..... Registrar may refuse to receive or register documents................... 306

407‑5..... Registrar may require additional information................................. 306

407‑10... Registrar may require information from persons on a register....... 307

407‑15... Telephone or email notice of certain changes................................. 307

407‑20... Registrar may destroy or dispose of lodged documents................. 308

Division 410—Courts power if documents not lodged                           309

410‑1..... Court may make certain orders....................................................... 309

Part 9‑3—Registers                                                                                                           311

Division 415—Introduction                                                                                   311

415‑1..... What this Part is about................................................................... 311

Division 418—Registers to be kept                                                                 312

418‑1..... Registers......................................................................................... 312

418‑5..... Form of registers............................................................................. 312

418‑10... Register of Aboriginal and Torres Strait Islander Corporations..... 312

418‑15... Register of Disqualified Officers.................................................... 312

Division 421—What information may a person obtain from the Registrar?        313

421‑1..... Inspection and production of records............................................. 313

421‑5..... Requests and certification of copy or extract etc........................... 314

Division 424—Validity and use of information etc. obtained from a register      316

424‑1..... Validity of copy or extract............................................................. 316

424‑5..... Use in court proceedings etc. of documents issued by Registrar... 316

424‑10... Registrar’s certificate that person was a director etc...................... 318

Chapter 10—Regulation and enforcement                                      319

Part 10‑1—Introduction                                                                                                   319

Division 434—Introduction                                                                                   319

434‑1..... What this Chapter is about............................................................. 319

Part 10‑2—Regulation of Aboriginal and Torres Strait Islander corporations        320

Division 439—Regulation of Aboriginal and Torres Strait Islander corporations           320

439‑1..... What this Part is about................................................................... 320

439‑5..... Registrar may convene meetings of interested persons.................. 320

439‑10... Registrar may call a general meeting (other than an AGM)............ 321

439‑15... Registrar may call an AGM............................................................ 323

439‑20... Registrar may require compliance with Act etc.............................. 324

Part 10‑3—Enforcement                                                                                                  326

Division 444—Introduction                                                                                   326

444‑1..... What this Part is about................................................................... 326

Division 447—Authorised officers                                                                    327

447‑1..... Appointment of authorised officers............................................... 327

447‑5..... Identity cards.................................................................................. 327

Division 450—Purposes for which powers under this Part may be exercised   328

450‑1..... Purposes for which power under this Part may be exercised......... 328

Division 453—Examination of books and persons                                   329

453‑1..... Examination of books..................................................................... 329

453‑5..... Production of books or attendance to answer questions................ 330

Division 456—Warrants for books not produced                                      332

Subdivision 456‑A—Warrants applied for in person                                       332

456‑1..... Application for warrant to seize books not produced................... 332

456‑5..... Grant of warrant............................................................................. 332

456‑10... Powers where books produced or seized....................................... 333

Subdivision 456‑B—Warrants by telephone or other electronic means      335

456‑15... Applying for warrants by telephone or other electronic means..... 335

456‑20... Issuing warrants by telephone etc.................................................. 336

456‑25... Unsigned warrants by telephone etc. in court proceedings............ 337

Subdivision 456‑C—Offences relating to warrants by telephone or other electronic means           337

456‑30... Offence for stating incorrect names in warrants by telephone etc. 337

456‑35... Offence for unauthorised form of warrant...................................... 338

456‑40... Offence for execution etc. of unauthorised form of warrant........... 338

456‑45... Offence for giving unexecuted form of warrant.............................. 338

Subdivision 456‑D—Warrant details to be given to occupier                         339

456‑50... Details of warrant to be given to occupier etc................................ 339

Part 10‑4—Offences relating to regulatory and enforcement powers of Registrar              340

Division 461—Offences relating to regulatory and enforcement powers of Registrar  340

461‑1..... Obstructing Registrar or interfering with meeting called by Registrar etc.              340

461‑5..... False information............................................................................ 341

461‑10... Concealing books relevant to investigation..................................... 341

461‑15... Self‑incrimination............................................................................ 342

Part 10‑5—Protection for whistleblowers                                                              343

Division 466—Which disclosures qualify for protection under this Part?            343

466‑1..... Disclosures qualifying for protection............................................. 343

Division 469—Effects of disclosure                                                                  345

469‑1..... Disclosure that qualifies for protection not actionable etc............. 345

469‑5..... Victimisation prohibited................................................................. 346

469‑10... Right to compensation.................................................................... 347

Division 472—Confidentiality requirement                                                  348

472‑1..... Confidentiality requirements for corporations, corporation officers and employees and auditors         348

Chapter 11—External administration                                                   350

Part 11‑1—Introduction                                                                                                   350

Division 482—Introduction                                                                                   350

482‑1..... What this Chapter is about............................................................. 350

Part 11‑2—Special administration                                                                             352

Division 487—Special administration of Aboriginal and Torres Strait Islander corporation     352

487‑1..... Registrar may put Aboriginal and Torres Strait Islander corporation under special administration       352

487‑5..... Grounds for special administration................................................ 352

487‑10... Show cause notice procedure.......................................................... 355

487‑15... Extension of period of special administration................................ 356

487‑20... Registrar may terminate special administration.............................. 356

487‑25... References to corporation under special administration................. 356

Division 490—Appointment of special administrator                              358

490‑1..... Registrar may appoint special administrator.................................. 358

490‑5..... Period of appointment.................................................................... 358

Division 493—Notice requirements                                                                 359

493‑1..... Notice of special administration determination or appointment of special administrator       359

Division 496—Effect of appointment of special administrator on officers of the corporation    361

496‑1..... General rule that offices of directors and secretary vacated when special administrator appointed       361

496‑5..... Registrar may determine that offices not vacated in certain circumstances             361

496‑10... Powers of officers can only be exercised by, or with the consent of, special administrator   362

496‑15... Only special administrator can deal with corporation’s property. 363

496‑20... Order for compensation where officer involved in void transaction 364

Division 499—Function, duties and powers of special administrator 366

499‑1..... Function of special administrator................................................... 366

499‑5..... Powers of special administrator..................................................... 366

499‑10... Applying Corporations Act provisions to Aboriginal and Torres Strait Islander corporation that is under special administration................................................................................. 367

Division 502—Special administrator to report to Registrar                369

502‑1..... Report to Registrar......................................................................... 369

Division 505—Termination of special administrator’s appointment 370

505‑1..... Termination of appointment of special administrator.................... 370

505‑5..... Grounds for terminating appointment............................................ 371

505‑10... Registrar to appoint new special administrator in certain circumstances                371

Division 508—Transition to normal control of the corporation’s affairs at end of special administration                                                                                                                    372

508‑1..... Special administrator to ensure that there will be directors when corporation ceases to be under special administration........................................................................................................ 372

508‑5..... Election of directors to take over affairs of corporation when corporation ceases to be under special administration........................................................................................................ 373

Division 511—Miscellaneous                                                                              374

511‑1..... Remuneration of special administrator........................................... 374

Part 11‑3—Receivers, and other controllers, of property of corporations 375

Division 516—Receivers, and other controllers, of property of corporations   375

516‑1..... Applying Corporations Act receiver provisions to Aboriginal and Torres Strait Islander corporations                375

Part 11‑4—Administration of an Aboriginal and Torres Strait Islander corporation’s affairs with a view to executing a deed of corporation arrangement                                 377

Division 521—Administration of an Aboriginal and Torres Strait Islander corporation’s affairs with a view to executing a deed of corporation arrangement 377

521‑1..... Applying Corporations Act administration provisions to Aboriginal and Torres Strait Islander corporations     377

521‑5..... Administrator’s capacity to act as trustee..................................... 378

521‑10... Corporations Act administrator cannot be appointed if special administrator appointed      378

521‑15... Effect of appointment of special administrator on Corporations Act administrator              379

Part 11‑5—Winding up                                                                                                     380

Division 526—Winding up                                                                                     380

526‑1..... Court may order winding up.......................................................... 380

526‑5..... Grounds for Court ordered winding up.......................................... 380

526‑10... Acts etc. done to comply with Native Title legislation requirement 382

526‑15... Who may apply to court for winding up order.............................. 382

526‑20... Voluntary winding up..................................................................... 384

526‑25... Distribution of surplus assets in winding up by Court.................. 385

526‑30... Distribution of surplus assets in voluntary winding up................. 386

526‑35... Applying Corporations Act winding up provisions to Aboriginal and Torres Strait Islander corporations          387

526‑40... Application of Corporations Act pre‑winding up provisions....... 389

Part 11‑6—Insolvent trading                                                                                        391

Division 531—Insolvent trading                                                                         391

531‑1..... Applying Corporations Act insolvent trading provisions to Aboriginal and Torres Strait Islander corporations  391

531‑5..... Section 588G of Corporations Act prevails over conflicting Native Title legislation obligations           392

Part 11‑7—Employees’ entitlements                                                                       393

Division 536—Employees’ entitlements                                                        393

536‑1..... Applying Corporations Act employees’ entitlements provisions to Aboriginal and Torres Strait Islander corporations........................................................................................................ 393

Chapter 12—Deregistration and unclaimed property         395

Part 12‑1—Deregistration                                                                                              395

Division 546—Deregistration                                                                              395

546‑1..... Deregistration—voluntary.............................................................. 395

546‑5..... Deregistration—Registrar initiated................................................. 396

546‑10... Deregistration—following amalgamation or winding up................ 397

546‑15... Registered native title body corporate............................................ 398

546‑20... Effect of deregistration................................................................... 398

546‑25... What the Registrar does with the property.................................... 399

546‑30... Registrar’s power to fulfil outstanding obligations of deregistered corporation      400

546‑35... Claims against insurers of deregistered corporation....................... 401

546‑40... Reinstatement................................................................................. 401

Part 12‑2—Unclaimed property                                                                                  403

Division 551—Unclaimed property                                                                   403

551‑1..... Unclaimed property....................................................................... 403

551‑5..... Registrar to deal with unclaimed property..................................... 403

551‑10... Registrar and Commonwealth not liable to pay calls on shares etc. 403

551‑15... Disposition of money that is unclaimed property etc................... 404

551‑20... Establishment of the Aboriginal and Torres Strait Islander Corporations Unclaimed Money Account 404

551‑25... Credits of amounts to Account...................................................... 404

551‑30... Purposes of Account...................................................................... 404

551‑35... Claims of disposition of money to incorrect payee....................... 405

551‑40... Commonwealth or Registrar not liable for loss or damage............. 406

Chapter 13—Offences                                                                                           407

Part 13‑1—Offences about false or misleading statements etc.              407

Division 561—Offences about false or misleading statements etc. 407

561‑1..... False or misleading statements....................................................... 407

561‑5..... False information etc...................................................................... 409

Part 13‑2—General matters relating to offences                                              411

Division 566—General matters relating to offences                                411

566‑1..... Penalties for bodies corporate........................................................ 411

566‑5..... Penalty notices............................................................................... 411

566‑10... Continuing offences........................................................................ 414

566‑15... Time for instituting criminal proceedings....................................... 417

566‑20... Privilege against self‑incrimination not available to bodies corporate in certain proceedings  418

566‑25... Certain persons to assist in prosecutions....................................... 418

Chapter 14—Courts and proceedings                                                  420

Part 14‑1—Powers of courts                                                                                         420

Division 576—Powers of courts                                                                          420

576‑1..... Power to grant relief....................................................................... 420

576‑5..... Power of Court to give directions with respect to meetings ordered by the Court 421

576‑10... Appeals from decisions of receivers, liquidators etc...................... 421

576‑15... Irregularities.................................................................................... 422

576‑20... Power of Court to prohibit payment or transfer of money, financial products or other property         425

576‑25... Injunctions...................................................................................... 427

576‑30... Effect of sections 576‑20 and 576‑25............................................. 429

576‑35... Power of Court to punish for contempt of Court.......................... 429

Part 14‑2—Proceedings                                                                                                   431

Division 581—Proceedings                                                                                   431

581‑1..... The Registrar’s power to intervene in proceedings........................ 431

581‑5..... Civil proceedings not to be stayed................................................. 431

581‑10... Standard of proof............................................................................ 431

581‑15... Evidence of contravention.............................................................. 432

581‑20... Costs............................................................................................... 432

581‑25... Vesting of property........................................................................ 433

Part 14‑3—Jurisdiction and procedure of courts                                               435

Division 586—Civil jurisdiction                                                                          435

Subdivision 586‑A—Introduction                                                                         435

586‑1..... Operation of Division..................................................................... 435

Subdivision 586‑B—Conferral of jurisdiction                                                  436

586‑5..... Jurisdiction of Federal Court and State and Territory Supreme Courts  436

586‑10... Jurisdiction of Family Court and State Family Courts.................. 437

586‑15... Jurisdiction of courts (decisions to prosecute and related criminal justice process decisions made by Commonwealth officers)........................................................................................... 437

586‑20... Jurisdiction of lower courts............................................................ 439

586‑25... Appeals.......................................................................................... 440

586‑30... Courts to act in aid of each other.................................................... 441

Subdivision 586‑C—Transfer of proceedings                                                   441

586‑35... Transfer of proceedings by the Federal Court and State and Territory Supreme Courts        441

586‑40... Transfer of proceedings by Family Court and State Family Courts 443

586‑45... Transfer of proceedings in lower courts......................................... 445

586‑50... Further matters for a court to consider when deciding whether to transfer a proceeding        446

586‑55... Transfer may be made at any stage................................................ 446

586‑60... Transfer of documents.................................................................... 446

586‑65... Conduct of proceedings.................................................................. 447

586‑70... Rights of appearance...................................................................... 448

586‑75... Limitation on appeals..................................................................... 448

Subdivision 586‑D—Rules of court                                                                     448

586‑80... Rules of the Federal Court.............................................................. 448

586‑85... Rules of the Supreme Court........................................................... 449

586‑90... Rules of the Family Court.............................................................. 449

Division 589—Criminal jurisdiction                                                                  451

589‑1..... Operation of Division..................................................................... 451

589‑5..... Jurisdiction of courts...................................................................... 451

589‑10... Laws to be applied......................................................................... 454

Chapter 15—Administration                                                                          455

Part 15‑1—Introduction                                                                                                   455

Division 599—Introduction                                                                                   455

599‑1..... What this Chapter is about............................................................. 455

Part 15‑2—Protection of information                                                                       456

Division 604—Protection of information                                                        456

604‑1..... What this Part is about................................................................... 456

604‑5..... Protected information..................................................................... 456

604‑10... Registrar’s obligations in relation to protected information........... 457

604‑15... Special administrator’s obligations in relation to protected information 457

604‑20... Consultant’s obligations in relation to protected information........ 457

604‑25... Authorised use or disclosure.......................................................... 458

Part 15‑3—Protection from liability for Registrar, Minister etc.            462

Division 609—Protection from liability for Registrar, Minister etc. 462

609‑1..... Protection from liability for Minister, Registrar etc....................... 462

Part 15‑4—Review of decisions                                                                                  463

Division 614—Introduction                                                                                   463

614‑1..... What this Part is about................................................................... 463

Division 617—Reviewable decisions                                                               464

617‑1..... Reviewable decisions...................................................................... 464

617‑5..... Deadlines for making reviewable decisions..................................... 468

617‑10... Notice of reviewable decision and review rights............................. 468

Division 620—Internal review of reviewable decisions                         470

620‑1..... Registrar may reconsider reviewable decisions on own initiative... 470

620‑5..... Reconsideration of reviewable decisions........................................ 470

Division 623—AAT review of reviewable decisions                               472

623‑1..... AAT review of reviewable decisions.............................................. 472

Part 15‑5—Fees                                                                                                                   473

Division 628—Fees                                                                                                   473

628‑1..... Fees................................................................................................. 473

628‑5..... Lodgment of document without payment of fee............................ 473

628‑10... Doing act without payment of fee.................................................. 473

628‑15... Effect of sections 628‑5 and 628‑10............................................... 474

628‑20... Debt due to the Commonwealth..................................................... 474

628‑25... Payment of fee does not give right to inspect or search................. 474

Part 15‑6—Regulations                                                                                                   475

Division 633—Regulations                                                                                    475

633‑1..... General regulation making power................................................... 475

633‑5..... Regulations concerning registered native title bodies corporate..... 475

Part 15‑7—Approved forms                                                                                          478

Division 638—Approved forms                                                                           478

638‑1..... Registrar may approve forms......................................................... 478

Chapter 16—Registrar and Deputy Registrars of Aboriginal and Torres Strait Islander Corporations                                                                                   480

Part 16‑1—Introduction                                                                                                   480

Division 648—Introduction                                                                                   480

648‑1..... What this Chapter is about............................................................. 480

Part 16‑2—Appointment of the Registrar and Deputy Registrars         481

Division 653—Appointment of Registrar and Deputy Registrars    481

653‑1..... Registrar of Aboriginal and Torres Strait Islander Corporations.... 481

653‑5..... Deputy Registrars of Aboriginal and Torres Strait Islander Corporations              481

Part 16‑3—Registrar’s functions and powers                                                     482

Division 658—Registrar’s functions and powers                                      482

658‑1..... Functions of the Registrar.............................................................. 482

658‑5..... Aims of the Registrar...................................................................... 483

658‑10... Powers of the Registrar.................................................................. 483

658‑15... Registrar to have a seal................................................................... 484

658‑20... Judicial notice of certain matters.................................................... 484

Part 16‑4—Matters concerning the Registrar’s and Deputy Registrars’ appointments   485

Division 663—Matters concerning the Registrar’s and Deputy Registrars’ appointments      485

663‑1..... Registrar’s remuneration................................................................. 485

663‑5..... Resignation..................................................................................... 485

663‑10... Termination of Registrar’s appointment........................................ 485

663‑15... Termination of Deputy Registrar’s appointment.......................... 486

663‑20... Disclosure of interests.................................................................... 486

663‑25... Acting appointments...................................................................... 486

663‑30... Leave of absence............................................................................. 487

663‑35... Outside employment...................................................................... 487

Part 16‑5—Delegation                                                                                                      488

Division 668—Delegation                                                                                      488

668‑1..... Delegation by Registrar.................................................................. 488

668‑5..... Sub‑delegation by Deputy Registrar.............................................. 488

Part 16‑6—Staffing                                                                                                             490

Division 673—Staffing                                                                                              490

673‑1..... Staff assisting the Registrar and Deputy Registrar......................... 490

673‑5..... Engagement of consultants etc. by the Registrar............................ 490

Chapter 17—Interpreting this Act                                                            491

Part 17‑1—Meaning of some important concepts                                            491

Division 683—Directors and officers of Aboriginal and Torres Strait Islander corporations    491

683‑1..... Meaning of director and officer...................................................... 491

Division 686—Associates                                                                                      494

686‑1..... Effect of Division........................................................................... 494

686‑5..... Associates of bodies corporate....................................................... 494

686‑10... General............................................................................................ 494

686‑15... Exclusions....................................................................................... 495

Division 689—Subsidiaries and control                                                          496

689‑1..... What is a subsidiary....................................................................... 496

689‑5..... Control of a body corporate’s board.............................................. 496

689‑10... Matters to be disregarded............................................................... 497

689‑15... References in this Division to a subsidiary.................................... 498

689‑20... Related bodies corporate................................................................ 498

689‑25... Control............................................................................................ 498

Part 17‑2—Interpretation of other expressions                                                 500

Division 694—Interpretation of other expressions                                 500

694‑1..... Giving information.......................................................................... 500

694‑5..... Doing acts....................................................................................... 500

694‑10... Signing............................................................................................. 500

694‑15... Business affairs of a body corporate.............................................. 500

694‑20... Business affairs of a natural person................................................ 500

694‑25... Business affairs of a partnership.................................................... 501

694‑30... Business affairs of a trust............................................................... 502

694‑35... Meaning of court and Court........................................................... 502

694‑40... Entities............................................................................................ 503

694‑45... Entities connected with a corporation (including an Aboriginal and Torres Strait Islander corporation)                503

694‑50... Extension of period for doing an act............................................... 505

694‑55... Involvement in contraventions....................................................... 505

694‑60... Possession...................................................................................... 505

694‑65... Public document of a body corporate............................................. 506

694‑70... Receivers and managers.................................................................. 507

694‑75... Securities......................................................................................... 507

694‑80... Solvency and insolvency................................................................ 507

694‑85... Meaning of chief executive officer function..................................... 508

694‑90... Applications to be in writing.......................................................... 509

694‑95... Effect of certain contraventions of this Act................................... 509

694‑100. Effect of provisions empowering a person to require or prohibit conduct              509

694‑105. Calculation of time.......................................................................... 509

694‑110. Performance of functions by Registrar or Deputy Registrar includes reference to delegate etc.             510

Part 17‑3—Dictionary                                                                                                       511

Division 700—Dictionary                                                                                        511

700‑1..... Dictionary....................................................................................... 511

 

A Bill for an Act to provide for Aboriginal and Torres Strait Islander corporations, and for related purposes

Preamble

                   The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia.

                   The law is intended, for the purposes of paragraph 4 of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and the Racial Discrimination Act 1975, to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders.

The Parliament of Australia enacts:

Chapter 1—Introduction

Part 1‑1—Preliminary

Division 1—Preliminary

1‑1  Short title

                   This Act may be cited as the Corporations (Aboriginal and Torres Strait Islander) Act 2005.

1‑5  Commencement

                   This Act commences on 1 July 2006.

1‑10  Act binds Crown

             (1)  This Act (except Part 5.8 of the Corporations Act as applied by subsections 516‑1(3), 521‑1(3), 526‑35(3) and 526‑40(3)) binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.

             (2)  To avoid doubt, a reference in this section to the Crown in a particular right includes a reference to an instrumentality or agency (whether a body corporate or not) of the Crown in that right.

             (3)  However, this Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.

1‑15  Geographical application of Act

             (1)  This Act extends to the external Territories.

             (2)  Each provision of this Act applies, according to its tenor, in relation to acts and omissions outside this jurisdiction.

1‑20  Act applies regardless of residence, place of formation etc.

                   Each provision of this Act applies according to its tenor to:

                     (a)  natural persons whether:

                              (i)  resident in Australia or an external Territory or not; and

                             (ii)  Australian citizens or not; and

                     (b)  all bodies corporate and unincorporated bodies whether formed or carrying on business in Australia or an external Territory or not.

Note:       Many of the provisions in this Act apply only in relation to Aboriginal and Torres Strait Islander corporations.

1‑25  Objects of this Act

                   The objects of this Act are to:

                     (a)  provide for the Registrar of Aboriginal and Torres Strait Islander Corporations; and

                     (b)  provide for the Registrar’s functions and powers; and

                     (c)  provide for the incorporation, operation and regulation of those bodies that it is appropriate for this Act to cover; and

                     (d)  without limiting paragraph (c)—provide for the incorporation, operation and regulation of bodies that are incorporated for the purpose of becoming a registered native title body corporate; and

                     (e)  provide for the duties of officers of Aboriginal and Torres Strait Islander corporations and regulate those officers in the performance of those duties.

1‑30  Office of the Registrar of Aboriginal and Torres Strait Islander Corporations

                   There is to be, within the Department, the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations.

1‑35  Interpretative provisions

                   Chapter 17 contains the Dictionary, which sets out a list of all the terms that are defined in this Act. It also sets out the meanings of some important concepts and rules on how to interpret this Act.

 

Part 1‑2—Overview of Act

Division 6—Overview of Act

6‑1  Overview of Act

             (1)  This Act primarily provides for the incorporation and regulation of Aboriginal and Torres Strait Islander corporations.

             (2)  It also provides for the Registrar and the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations.

6‑5  Aboriginal and Torres Strait Islander corporations

             (1)  Chapter 2 provides for an application to be made to the Registrar for registration of an Aboriginal and Torres Strait Islander corporation.

             (2)  There are a number of registration requirements that must be met before the Registrar may register an Aboriginal and Torres Strait Islander corporation.

             (3)  Chapter 2 also deals with the effects of registration of an Aboriginal and Torres Strait Islander corporation on the corporation’s members, officers, contact persons and registered office.

6‑10  Basic features of an Aboriginal and Torres Strait Islander corporation

             (1)  Chapter 3 deals with the basic features of an Aboriginal and Torres Strait Islander corporation. It covers matters such as the corporation’s name, constitution and other rules applying to the corporation and the corporation’s registered office or address for document access.

             (2)  Chapter 3 also provides for the assumptions that people who deal with an Aboriginal and Torres Strait Islander corporation can make in those dealings.

6‑15  Members and observers

             (1)  Chapter 4 sets out some rules for membership of an Aboriginal and Torres Strait Islander corporation and some rules about cancelling the membership of members of the corporation. Aboriginal and Torres Strait Islander corporations have members (as opposed to shareholders) and they may also have persons who observe the operation of the corporation’s meetings (observers).

             (2)  Chapter 4 also deals with the register of members that the corporation is required to keep, and with protection of the rights and interests of members of the corporation.

6‑20  Meetings

             (1)  Chapter 5 sets out some rules for the calling and holding of general meetings and annual general meetings of an Aboriginal and Torres Strait Islander corporation.

             (2)  Chapter 5 also deals with rules concerning directors’ meetings.

6‑25  Officers

             (1)  Chapter 6 deals with officers and contact persons of an Aboriginal and Torres Strait Islander corporation.

             (2)  Importantly, Chapter 6 also deals with the duties of officers and their disqualification for breaches of those duties.

6‑30  Record keeping, reporting requirements and books

             (1)  Chapter 7 deals with the reporting requirements that are imposed on an Aboriginal and Torres Strait Islander corporation. An Aboriginal and Torres Strait Islander corporation may have to lodge a general report and may also have to lodge financial reports (depending on the corporation’s size etc.).

             (2)  Chapter 7 also deals with the books of an Aboriginal and Torres Strait Islander corporation.

6‑35  Civil consequences of contravening civil penalty provisions

                   Chapter 8 deals with the civil consequences of an officer breaching a duty imposed by this Act.

Note:          The criminal consequences are dealt with in Chapter 6.

6‑40  Lodgments and registers

             (1)  Chapter 9 deals with the requirement to lodge certain documents with the Registrar.

             (2)  Chapter 9 also deals with the registers that the Registrar may, or is required to, keep. Information on these registers is available to the public.

6‑45  Regulation and enforcement

             (1)  Chapter 10 deals with a number of regulatory powers that the Registrar may use in the regulation of Aboriginal and Torres Strait Islander corporations.

             (2)  Chapter 10 also deals with the Registrar’s powers of enforcement and the protection of whistleblowers.

6‑50  External administration

             (1)  Chapter 11 deals with the administration of an Aboriginal and Torres Strait Islander corporation by persons outside the corporation (for example, in a winding up).

             (2)  Importantly, the Registrar may appoint a special administrator for an Aboriginal and Torres Strait Islander corporation in circumstances that are vital to the continued viability of the corporation. The special administrator differs from an ordinary administrator.

6‑55  Deregistration and unclaimed property

                   Chapter 12 deals with the deregistration of an Aboriginal and Torres Strait Islander corporation and with unclaimed property.

6‑60  Offences

                   Chapter 13 deals with general offences against this Act.

6‑65  Courts and proceedings

                   Chapter 14 deals with the jurisdiction of courts to hear matters under this Act, injunctions and court proceedings.

6‑70  Administration

                   Chapter 15 deals with a number of matters concerning the general administration of this Act (for example, the protection of information and review of decisions).

6‑75  Registrar and Deputy Registrars of Aboriginal and Torres Strait Islander Corporations

             (1)  Chapter 16 deals with the appointment of the Registrar and Deputy Registrars. The Registrar is charged with the administration of this Act.

             (2)  Chapter 16 also deals with the powers and functions of the Registrar.

6‑80  Interpreting this Act

                   Chapter 17 contains the interpretation provisions of this Act and the definitions.

 

Chapter 2—Aboriginal and Torres Strait Islander corporations

Part 2‑1—Introduction

Division 16—Introduction

16‑1  What this Chapter is about

16‑5  Meaning of Aboriginal and Torres Strait Islander corporation

                   An Aboriginal and Torres Strait Islander corporation is a corporation registered under this Act.

 

Part 2‑2—Applications for registration of an Aboriginal and Torres Strait Islander corporation

Division 21—Applications for registration of an Aboriginal and Torres Strait Islander corporation

21‑1  Application for registration

             (1)  An application by a person (the applicant) for registration of an Aboriginal and Torres Strait Islander corporation must contain the following information:

                     (a)  the applicant’s name and address;

                     (b)  the corporation’s proposed name;

                     (c)  if the applicant is requesting an exemption from having to have at least 5 members—a request for the exemption specifying the proposed minimum number of members;

                     (d)  an indication of whether, for the corporation’s first financial year, the corporation is expected to be a small, medium or large corporation;

                     (e)  if the corporation is expected to be a large corporation for the corporation’s first financial year—the address of the proposed registered office;

                      (f)  if the corporation is expected to be a small or medium corporation for the corporation’s first financial year—the address of the proposed document access address;

                     (g)  the names and addresses of each person who consents in writing to become a member of the corporation;

                     (h)  the director details of each person who consents in writing to become a director of the corporation;

                      (i)  if the corporation is expected to be a small or medium corporation in respect of the corporation’s first financial year—the name and address of the person who consents in writing to be the contact person;

                      (j)  if the corporation is expected to be a large corporation in respect of the corporation’s first financial year—the name and address of the person who consents in writing to be the corporation’s secretary;

                     (k)  whether the people who are, or have been, members of the corporation are to be liable to contribute towards the payment of the debts and liabilities of the corporation and if so, the extent of the persons’ liabilities;

                      (l)  such other information that the Registrar specifies in writing in respect of the registration of the corporation;

                    (m)  such other information that is prescribed by the regulations as information that must be included in the application.

Note:          The address of the director, secretary or contact person that must be stated is usually the residential address. However, an alternative address may be stated in certain circumstances (see section 304‑15).

             (2)  The application must also:

                     (a)  identify the directors who are to hold office for only one year; and

                     (b)  if the application seeks registration of an Aboriginal and Torres Strait Islander corporation for the purpose of becoming a registered native title body corporate—indicate that purpose.

Director details

             (3)  The director details of a person who consents to become a director are the following:

                     (a)  the person’s given and family name;

                     (b)  all former given and family names of the person;

                     (c)  all other names by which the person is or was known;

                     (d)  the person’s address;

                     (e)  the person’s date and place of birth (if known);

                      (f)  a declaration in writing from the person stating that the person is eligible to be a director of an Aboriginal and Torres Strait Islander corporation.

             (4)  A specification by the Registrar under paragraph (1)(l) is not a legislative instrument.

21‑5  Matters to accompany application

                   The following must accompany an application under section 21‑1:

                     (a)  evidence of the decisions referred to in section 29‑15 (if applicable);

                     (b)  copies of the consents referred to in subsection 21‑1(1).

Note:          Under the internal governance rules requirement (see section 29‑20), a copy of the proposed constitution of a proposed corporation must also be provided to the Registrar before the time the Registrar makes a decision under section 26‑1 in respect of the application.

21‑10  Registrar may seek further information

             (1)  For the purposes of determining an application, the Registrar may request an applicant to provide such further information as the Registrar requests within the period specified by the Registrar in the request.

             (2)  The Registrar may extend a period specified under subsection (1).

             (3)  If the applicant does not comply with the request, the Registrar may treat the application as being withdrawn and notify the applicant in writing accordingly. The notice must be given within 28 days after the Registrar makes the decision to treat the application as being withdrawn.

             (4)  A request under this section must state the effect of subsection (3).

 

Part 2‑3—Decisions on applications

Division 26—Registrar to decide application

26‑1  Registrar to decide application

Registrar to decide

             (1)  The Registrar must make a decision whether or not to grant an application for registration of an Aboriginal and Torres Strait Islander corporation.

When may Registrar grant application

             (2)  The Registrar may decide to grant the application if:

                     (a)  an application under section 21‑1 has been lodged for registration of the corporation (but see section 26‑5); and

                     (b)  the application is accompanied by the matters set out in section 21‑5 (but see section 26‑5); and

                     (c)  the Registrar is satisfied that, on registration, the corporation will meet the following basic requirements set out in Division 29 (but see section 26‑10):

                              (i)  the minimum number of members requirement (see section 29‑1);

                             (ii)  the Indigeneity requirement (see section 29‑5);

                            (iii)  the age of members requirement (see section 29‑10);

                            (iv)  the pre‑incorporation requirement (see section 29‑15);

                             (v)  the internal governance rules requirement (see section 29‑20);

                            (vi)  the name requirement (see section 29‑25); and

                     (d)  section 26‑15 does not preclude the registration; and

                     (e)  the Registrar is satisfied that it is more appropriate that the corporation be registered under this Act than under the Corporations Act or a law of a State or Territory dealing with incorporated bodies; and

                      (f)  the Registrar is satisfied that registering the corporation would not be contrary to the public interest.

26‑5  Registrar may grant application if application is incomplete etc.

                   Despite paragraphs 26‑1(2)(a) and (b), the Registrar may grant the application even if the application for registration:

                     (a)  is incomplete or contains errors (as long as the applicant has provided his or her name and address in the application); or

                     (b)  some or all of the material required to accompany the application under section 21‑5 is not provided, is incomplete or contains errors.

26‑10  Registrar may grant application if some basic requirements are not met

Circumstances when Registrar may register corporation

             (1)  Despite paragraph 26‑1(2)(c), the Registrar may grant the application even if the Registrar is not satisfied that the corporation, on registration, would meet:

                     (a)  the minimum number of members requirement; or

                     (b)  the age of members requirement; or

                     (c)  the pre‑incorporation requirement.

Registrar not to register body in certain circumstances

             (2)  However, the Registrar must not grant the application and register an Aboriginal and Torres Strait Islander corporation if, on registration, the corporation would not meet:

                     (a)  the Indigeneity requirement; or

                     (b)  the internal governance rules requirement; or

                     (c)  the name requirement.

26‑15  Registrar not to register trade unions etc.

                   The following cannot be registered under this Act:

                     (a)  a trade union;

                     (b)  a body that is providing financial services (within the meaning of Chapter 7 of the Corporations Act);

                     (c)  a body of a kind prescribed in the regulations as a kind of body that must not be registered.

 

Division 29—What are the basic requirements for registration?

29‑1  Minimum number of members requirement

                   An Aboriginal and Torres Strait Islander corporation meets the minimum number of members requirement if the corporation complies with the requirement in subsection 77‑5(1).

29‑5  Indigeneity requirement

                   An Aboriginal and Torres Strait Islander corporation meets the Indigeneity requirement if the corporation has the following required number or percentage of its members who are Aboriginal and Torres Strait Islander persons:

                     (a)  if the corporation has 5 or more members—at least the percentage of members prescribed in the regulations for the purposes of this section;

                     (b)  if the corporation has fewer than 5 members but more than one member—all of the members, or all but one of the members;

                     (c)  if the corporation has only one member—that member.

Note:          For the meaning of Aboriginal and Torres Strait Islander person, see section 700‑1.

29‑10  Age of members requirement

                   An Aboriginal and Torres Strait Islander corporation meets the age of members requirement if each member of the corporation is at least 15 years of age.

29‑15  Pre‑incorporation requirement

             (1)  An Aboriginal and Torres Strait Islander corporation meets the pre‑incorporation requirement if 75% of the persons listed in the application for registration as persons who consent to become members of the corporation on registration have:

                     (a)  authorised the applicant to apply for the incorporation of the Aboriginal and Torres Strait Islander corporation; and

                     (b)  approved the proposed constitution provided to the Registrar under subsection 29‑20(2) as the constitution of the corporation; and

                     (c)  if the internal governance rules that would apply to the corporation will include one or more replaceable rules—agreed to those replaceable rules so applying; and

                     (d)  nominated, as persons who will become directors of the corporation, the persons specified in the application as persons who will become directors on registration; and

                     (e)  if the application indicates that the corporation is expected to be a small or medium corporation in respect of the corporation’s first financial year—nominated, as a person who will become a contact person of the corporation, the person specified in the application as a person who will become contact person on registration; and

                      (f)  if the application indicates that the corporation is expected to be a large corporation in respect of the corporation’s first financial year—nominated, as a person who will become the corporation’s secretary, the person specified in the application as a person who will become the corporation’s secretary on registration.

             (2)  The document evidencing the agreement under paragraph (1)(c) must:

                     (a)  refer by section or subsection number (as appropriate) to the replaceable rules that will apply without modification to the corporation; and

                     (b)  set out the terms of the replaceable rules (if any) that are being modified or replaced by the proposed constitution.

29‑20  Internal governance rules requirement

             (1)  An Aboriginal and Torres Strait Islander corporation meets the internal governance rules requirement if the corporation’s constitution complies with the requirements set out in section 66‑1.

             (2)  In addition, a copy of the corporation’s proposed constitution must be lodged before the time the Registrar makes a decision under section 26‑1 in respect of the application.

29‑25  Name requirement

                   An Aboriginal and Torres Strait Islander corporation meets the name requirement if the corporation complies with the requirements set out in section 85‑1.

 

Division 32—Decisions on applications

32‑1  Successful applications

             (1)  If the Registrar grants an application for registration of an Aboriginal and Torres Strait Islander corporation, the Registrar must:

                     (a)  register the Aboriginal and Torres Strait Islander corporation; and

                     (b)  register the corporation’s constitution; and

                     (c)  issue a certificate to the applicant that states the following:

                              (i)  the corporation’s name and ICN;

                             (ii)  that the corporation is registered under this Act;

                            (iii)  the date of the registration.

Note:          Section 37‑1 requires the Registrar to register the corporation as a small, medium or large corporation.

             (2)  The Registrar must keep a record of the registration and the constitution.

             (3)  A certificate under subsection (1) is not a legislative instrument.

32‑5  Unsuccessful applications

             (1)  If:

                     (a)  the Registrar does not grant the application; and

                     (b)  section 26‑15 does not preclude the registration;

the Registrar must, in writing:

                     (c)  notify the applicant of the decision within 28 days after the decision; and

                     (d)  invite the applicant to:

                              (i)  make such changes in the application or accompanying material that will remove the grounds for refusal; and

                             (ii)  advise the Registrar, within the time specified in the invitation, of any changes made or, if the changes are not made, of the reasons for the changes not being made.

             (2)  If the Registrar is advised under subparagraph (1)(d)(ii), the Registrar must reconsider the application.

 

Part 2‑4—Registration of an Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation

Division 37—Registration of an Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation

37‑1  Registrar to register Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation

             (1)  On the registration of an Aboriginal and Torres Strait Islander corporation, the Registrar must register the corporation as a small, medium or large corporation.

Note:          The classification determines the reports the corporation has to prepare (see Chapter 7) and whether or not the corporation must have a registered office and a corporation secretary.

             (2)  The Registrar may register the corporation as a small corporation only if:

                     (a)  the application for registration indicates; or

                     (b)  the Registrar is otherwise satisfied;

that the corporation is likely to be a small corporation in respect of its first financial year.

Note:          Subsection 37‑10(1) sets out the criteria for determining whether the corporation is a small corporation for a particular financial year.

             (3)  The Registrar may register the corporation as a medium corporation only if:

                     (a)  the application for registration indicates; or

                     (b)  the Registrar is otherwise satisfied;

that the corporation is likely to be a medium corporation in respect of its first financial year.

Note:          Subsection 37‑10(2) sets out the criteria for determining whether the corporation is a medium corporation for a particular financial year.

             (4)  The Registrar may register the corporation as a large corporation only if:

                     (a)  the application for registration indicates; or

                     (b)  the Registrar is otherwise satisfied;

that the corporation is likely to be a large corporation in respect of its first financial year.

Note:          Subsection 37‑10(3) sets out the criteria for determining whether the corporation is a large corporation for a particular financial year.

37‑5  Registrar may alter registered size of corporation after registration

             (1)  If the Registrar is satisfied that an Aboriginal and Torres Strait Islander corporation that is registered as a small corporation was in fact a medium or large corporation for the most recent financial year, the Registrar may alter the corporation’s registration so that the corporation is registered as a medium or large corporation.

             (2)  If the Registrar is satisfied that an Aboriginal and Torres Strait Islander corporation that is registered as a medium corporation was in fact a small or large corporation for the most recent financial year, the Registrar may alter the corporation’s registration so that the corporation is registered as a small or large corporation.

             (3)  If the Registrar is satisfied that an Aboriginal and Torres Strait Islander corporation that is registered as a large corporation was in fact a small or medium corporation for the most recent financial year, the Registrar may alter the corporation’s registration so that the corporation is registered as a small or medium corporation.

             (4)  An alteration to an Aboriginal and Torres Strait Islander corporation’s registration made under subsection (1), (2) or (3) is not a legislative instrument.

             (5)  The Registrar must notify an Aboriginal and Torres Strait Islander corporation in writing of an alteration made under this section.

37‑10  Small, medium and large corporations

Small corporations

             (1)  An Aboriginal and Torres Strait Islander corporation is a small corporation for a financial year if it satisfies at least 2 of the following paragraphs:

                     (a)  the consolidated gross operating income for the financial year of the corporation and the entities it controls (if any) is less than the amount prescribed in the regulations for the purposes of this paragraph;

                     (b)  the value of the consolidated gross assets at the end of the financial year of the corporation and the entities it controls (if any) is less than the amount prescribed in the regulations for the purposes of this paragraph;

                     (c)  the corporation and the entities it controls (if any) have, at the end of the financial year, fewer employees than the number of employees prescribed for the purposes of this paragraph.

Note:          A small corporation generally has reduced financial reporting requirements (see Chapter 7).

Medium corporations

             (2)  An Aboriginal and Torres Strait Islander corporation is a medium corporation for a financial year if it satisfies at least 2 of the following paragraphs:

                     (a)  the consolidated gross operating income for the financial year of the corporation and the entities it controls (if any) is equal to or more than the amount prescribed under paragraph (1)(a) but less than the amount prescribed for the purposes of this paragraph;

                     (b)  the value of the consolidated gross assets at the end of the financial year of the corporation and the entities it controls (if any) is equal to or more than the amount prescribed under paragraph (1)(b) but less than the amount prescribed for the purposes of this paragraph;

                     (c)  the corporation and the entities it controls (if any) have, at the end of the financial year, a number of employees that is equal to or more than the number prescribed under paragraph (1)(c) but fewer than the number of employees prescribed for the purposes of this paragraph.

Large corporations

             (3)  An Aboriginal and Torres Strait Islander corporation is a large corporation for a financial year if it satisfies at least 2 of the following paragraphs:

                     (a)  the consolidated gross operating income for the financial year of the corporation and the entities it controls (if any) is equal to or more than the amount prescribed for the purposes of paragraph (2)(a);

                     (b)  the value of the consolidated gross assets at the end of the financial year of the corporation and the entities it controls (if any) is equal to or more than the amount prescribed for the purposes of paragraph (2)(b);

                     (c)  the corporation and the entities it controls (if any) have, at the end of the financial year, a number of employees that is equal to or more than the number of employees prescribed for the purposes of paragraph (2)(c).

Native Title

             (4)  The native title rights and interests held by a registered native title body corporate are to be disregarded in determining the value of the assets of a registered native title body corporate.

37‑15  When an Aboriginal and Torres Strait Islander corporation controls an entity

                   In deciding, for the purposes of section 37‑10, whether an Aboriginal and Torres Strait Islander corporation controls an entity, apply the accounting standards made for the purposes of paragraph 295(2)(b) of the Corporations Act.

37‑20  Counting employees

             (1)  The regulations may prescribe one or more methods for calculating the number of employees of Aboriginal and Torres Strait Islander corporations.

             (2)  Without limiting subsection (1), regulations made under that subsection may specify:

                     (a)  that employees of a class are to be disregarded for the purposes of section 37‑10; or

                     (b)  that employees of a class are to be taken into account by treating each employee as representing a specified fraction of an employee.

37‑25  Accounting standards

                   In consolidating under section 37‑10:

                     (a)  the consolidated gross operating income; and

                     (b)  the value of consolidated gross assets;

apply the accounting standards in force at the relevant time (even if the standards do not otherwise apply to the financial year of some or all of the bodies concerned).

 

Part 2‑5—Effects of registration

Division 42—Effects of registration

42‑1  Corporation comes into existence on registration

                   An Aboriginal and Torres Strait Islander corporation comes into existence as a body corporate with perpetual succession at the beginning of the day on which it is registered.

Note:          The corporation remains in existence until it is deregistered (see Chapter 12).

42‑5  Corporation’s name

                   An Aboriginal and Torres Strait Islander corporation’s name on registration is the name specified in the certificate of registration.

42‑10  Members, directors, corporation secretary and contact person of corporation

Persons become members etc. on registration

             (1)  A person becomes a member, director, corporation secretary or contact person of an Aboriginal and Torres Strait Islander corporation on registration if the person is specified in the application with his or her consent as a proposed member, director, corporation secretary or contact person of the corporation.

Note:          A member’s name must be entered in the register of members (see section 180‑5).

If no contact person nominated in the application for registration

             (2)  If:

                     (a)  an Aboriginal and Torres Strait Islander corporation is registered as a small or medium corporation; and

                     (b)  the application for registration does not specify a person to be the contact person for the corporation;

the applicant becomes the contact person for the corporation on registration.

If person nominated in application for registration as contact person without the person’s consent

             (3)  If:

                     (a)  a person is specified in an application for registration of an Aboriginal and Torres Strait Islander corporation as the contact person for the corporation; and

                     (b)  the person is specified without his or her consent; and

                     (c)  before registration, the Registrar becomes aware of that fact;

the Registrar may determine, by notice in writing given to the applicant, that the applicant for registration is the contact person for the corporation on registration.

             (4)  A determination under subsection (3) is not a legislative instrument.

42‑15  Registered office

                   If an Aboriginal and Torres Strait Islander corporation is registered as a large corporation, the address (if any) specified in the corporation’s application for registration as the proposed registered office becomes the address of the corporation’s registered office on registration.

42‑20  Document access address

                   If an Aboriginal and Torres Strait Islander corporation is registered as a small or medium corporation, the address (if any) specified in the corporation’s application for registration as the proposed document access address becomes the corporation’s document access address on registration.

42‑25  Corporation may have common seal

             (1)  An Aboriginal and Torres Strait Islander corporation may have a common seal. If an Aboriginal and Torres Strait Islander corporation does have a common seal, the corporation must set out on it the corporation’s name and ICN.

Note 1:       An Aboriginal and Torres Strait Islander corporation may make contracts and execute documents without using a seal (see sections 99‑1 and 99‑5).

Note 2:       For abbreviations that can be used on a seal, see section 85‑10.

             (2)  An Aboriginal and Torres Strait Islander corporation may have a duplicate common seal. The duplicate must be a copy of the common seal with the words “duplicate seal” added.

             (3)  A person commits an offence if:

                     (a)  the person uses, or authorises the use of, a seal; and

                     (b)  the seal purports to be the common seal of an Aboriginal and Torres Strait Islander corporation or a duplicate; and

                     (c)  the seal does not comply with the requirements set out in subsection (1) or (2).

Penalty:  10 penalty units.

             (4)  An offence against paragraph (3)(a) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

42‑30  Vesting of property in corporation on registration

Application of section

             (1)  This section applies if an application is lodged to register an unincorporated body as an Aboriginal and Torres Strait Islander corporation.

Personal property other than land

             (2)  Upon registration, any personal property held by a person, in trust or otherwise, for or on behalf of the members of the body vests in the corporation. The property vests subject to any trust, covenant, contract or liability affecting the property (other than a trust for the members).

Estate or interest in land

             (3)  If:

                     (a)  a person holds an estate or interest in land, in trust or otherwise, for or on behalf of the members of the body; and

                     (b)  the body is registered;

that person must, upon the registration, take all action required to vest the estate or interest in the corporation. The vesting is subject to any trust (other than a trust for the members), or any covenant, contract or liability affecting the estate or interest.

             (4)  In subsection (2):

personal property does not include property consisting of an estate or interest in land.

 

Chapter 3—Basic features of an Aboriginal and Torres Strait Islander corporation

Part 3‑1—Introduction

Division 52—Introduction

52‑1  What this Chapter is about

 

Part 3‑2—Rules dealing with the internal governance of corporations

Division 57—Introduction

57‑1  What this Part is about

 

Division 60—What are the replaceable rules and when do they apply to a corporation?

60‑1  Replaceable rules

Which are the replaceable rules?

             (1)  A section or subsection whose heading contains the words “replaceable rule—see section 60‑1” is a replaceable rule.

To which corporations do the replaceable rules apply?

             (2)  The replaceable rules apply to:

                     (a)  an Aboriginal and Torres Strait Islander corporation (not being a corporation to which paragraph (b) applies) that is registered on or after the day this section commences (the commencing day); and

                     (b)  an Aboriginal and Torres Strait Islander corporation:

                              (i)  that was registered under the Aboriginal Councils and Associations Act 1976 as an Aboriginal corporation immediately before the commencing day; and

                             (ii)  that repeals its constitution after the commencing day;

except to the extent to which the rules are modified or replaced by the corporation’s constitution as provided for in section 60‑5.

60‑5  Corporation’s constitution can modify or replace replaceable rules

                   A provision of a section or subsection of a replaceable rule that applies to an Aboriginal and Torres Strait Islander corporation can be modified or replaced by the corporation’s constitution.

Note:          In modifying or replacing a replaceable rule, an Aboriginal and Torres Strait Islander corporation must ensure that the matter covered by the original replaceable rule is provided for in the corporation’s constitution. If it is not, then the constitution may not be covering the matters provided for in the replaceable rules (see section 66‑1).

60‑10  Effect of constitution and replaceable rules

             (1)  An Aboriginal and Torres Strait Islander corporation’s constitution, and any replaceable rules that apply to the corporation, have effect as a contract:

                     (a)  between the corporation and each member; and

                     (b)  between the corporation and each director and corporation secretary; and

                     (c)  between a member and each other member.

             (2)  Under the contract, each person agrees to observe and perform the requirements of the constitution and rules so far as they apply to that person.

60‑15  Failure to comply with replaceable rules

                   A failure to comply with the replaceable rules as they apply to an Aboriginal and Torres Strait Islander corporation is not of itself a contravention of this Act (so the provisions about criminal liability, civil liability and injunctions do not apply).

60‑20  Modification by regulations

             (1)  The regulations may modify the replaceable rules in relation to:

                     (a)  a specified Aboriginal and Torres Strait Islander corporation; or

                     (b)  a specified class of Aboriginal and Torres Strait Islander corporation.

             (2)  Without limiting subsection (1), the regulations may:

                     (a)  modify or repeal the replaceable rules; and

                     (b)  set out new replaceable rules.

60‑25  List of replaceable rules

                   The following table sets out the provisions of this Act that apply to Aboriginal and Torres Strait Islander corporations as replaceable rules.

 

Provisions that apply as replaceable rules
Item	Subject of provision	Provision
1	Chapter 4—Members and observers Application for membership of corporation to be in writing	subsection 144‑5(2)
2	Notice of rejection of membership application to be in writing	subsection 144‑10(7)
3	Notice of resignation from membership of corporation to be in writing	subsection 150‑10(2)
4	Member not eligible for membership etc.	section 150‑20
5	Observer is entitled to attend a general meeting of the corporation	subsection 158‑5(2)
6	Corporation or directors may allow member to inspect books	section 175‑15
7	Chapter 5—Meetings Director may call meetings	section 201‑1
8	Notice to joint members	subsection 201‑25(2)
9	When notice by post or fax is given	subsection 201‑25(5)
10	When notice under paragraph (3)(e) is given	subsection 201‑25(6)
11	Quorum for meeting of members of corporation	subsection 201‑70(1)
12	Corporations with 10 members or less	subsection 201‑70(2)
13	Adjourned meeting	subsection 201‑70(5)
14	No quorum at resumed meeting	subsection 201‑70(6)
15	Chairing general meeting	section 201‑75
16	Business at adjourned meetings	subsection 201‑85(2)
17	Who may appoint a proxy	section 201‑90
18	How many votes a member has	section 201‑115
19	Objections to right to vote	section 201‑120
20	How voting is carried out	section 201‑125
21	When and how polls must be taken	section 201‑140
22	Calling directors’ meetings	section 212‑5
23	Chairing directors’ meetings	section 212‑15
24	Passing of directors’ resolutions	section 212‑25
25	Circulating resolutions of corporation with more than 1 director	section 215‑1
26	Chapter 6—Officers Corporation may appoint a director	section 246‑15
27	Directors may appoint other directors to make up a quorum	section 246‑20
28	Directors appointed on registration	subsection 246‑25(1)
29	Director may be reappointed	subsection 246‑25(3)
30	Alternate directors	section 246‑30
31	Written notice to be given of resignation as director of corporation	subsection 249‑5(2)
32	Terms and conditions of office for secretaries	section 257‑45
33	Terms and conditions of contact person’s appointment	section 257‑50
34	Powers of directors	section 274‑1
35	Negotiable instruments	section 274‑5

 

Division 63—What are the internal governance rules of a corporation?

63‑1  Meaning of internal governance rules

                   The following constitute the internal governance rules of an Aboriginal and Torres Strait Islander corporation:

                     (a)  the replaceable rules (if any) applying to the corporation;

                     (b)  the rules (if any) in the corporation’s constitution that modify or replace some or all of the replaceable rules;

                     (c)  the other rules dealing with the internal governance of the corporation that are in the corporation’s constitution.

 

Division 66—What are the internal governance rules requirements?

66‑1  Requirements

             (1)  The following are the internal governance rules requirements for an Aboriginal and Torres Strait Islander corporation.

             (2)  The corporation must have a constitution written in English that sets out the corporation’s objects.

             (3)  The corporation’s constitution must cover the matters that this Act specifies must be covered in the corporation’s constitution.

             (4)  The internal governance rules must cover the matters that are provided for in the replaceable rules (see section 66‑5).

             (5)  The internal governance rules must also be:

                     (a)  internally consistent; and

                     (b)  adequate and workable, given the context in which the corporation operates; and

                     (c)  consistent with this Act; and

                     (d)  consistent with the Native Title legislation if:

                              (i)  an application for registration of an Aboriginal and Torres Strait Islander corporation seeks registration of the corporation for the purpose of becoming a registered native title body corporate; or

                             (ii)  the corporation is a registered native title body corporate.

             (6)  The corporation must meet the requirements at all times after registration.

Note 1:       An application for registration of an Aboriginal and Torres Strait Islander corporation may not be successful unless the corporation, on registration, is complying with the requirements (see section 29‑20).

Note 2:       If an Aboriginal and Torres Strait Islander corporation is making a change to its constitution and the Registrar is of the opinion that the corporation’s internal governance rules, after the change, would not comply with the internal governance rules requirements, the Registrar may refuse to register the change (see section 69‑30).

66‑5  Meaning of cover the matters provided for in the replaceable rules

If all replaceable rules apply or all are replaced

             (1)  The internal governance rules of an Aboriginal and Torres Strait Islander corporation cover the matters provided for in the replaceable rules if:

                     (a)  all of the replaceable rules apply to the corporation; or

                     (b)  none of the replaceable rules apply to the corporation and the corporation’s constitution covers all of the matters provided for in the replaceable rules.

If some replaceable rules apply and some are modified or replaced

             (2)  The internal governance rules of an Aboriginal and Torres Strait Islander corporation also cover the matters provided for in the replaceable rules if:

                     (a)  some of the replaceable rules apply to the corporation; and

                     (b)  the corporation’s constitution provides for the matters covered by the replaceable rules that the corporation has modified or replaced.

Corporation may also have other rules unrelated to the replaceable rules in its constitution

             (3)  To avoid doubt, and subject to the internal governance rules requirements, nothing in this Part precludes the constitution of an Aboriginal and Torres Strait Islander corporation providing for a matter that is in addition to those matters provided for in the replaceable rules.

Regulations may modify section

             (4)  The regulations may modify this section.

             (5)  Without limiting subsection (4), the regulations may provide for further situations in which the internal governance rules of an Aboriginal and Torres Strait Islander corporation cover the matters provided for in the replaceable rules.

 

Division 69—Constitutions and amendment and replacement of constitutions

Subdivision 69‑A—Constitution on registration

69‑1  Constitution of an Aboriginal and Torres Strait Islander corporation

             (1)  The constitution of an Aboriginal and Torres Strait Islander corporation is the constitution that is registered in respect of the corporation.

Note:          75% of the persons specified in the application for registration as persons who consent to become members must approve the constitution before the application for registration is lodged (see section 29‑15).

             (2)  A constitution is an instrument (other than this Act):

                     (a)  constituting, or defining the constitution of, an Aboriginal and Torres Strait Islander corporation; or

                     (b)  governing the activities of such a corporation or its members.

Subdivision 69‑B—Constitutional changes after registration

69‑5  Overview—ways a constitution may be changed

Corporation wants to change its constitution

             (1)  For an Aboriginal and Torres Strait Islander corporation to change its constitution, the following steps must be complied with:

                     (a)  the corporation must pass a special resolution effecting the change;

                     (b)  if, under the corporation’s constitution, there are further steps that must also be complied with to make a constitutional change—those steps must be complied with (see section 69‑15);

                     (c)  the corporation must lodge certain documents (see section 69‑20);

                     (d)  the Registrar must make certain decisions in respect of the constitutional change and, if appropriate, must register the change (see section 69‑30).

Note:          The constitutional change takes effect when it is registered (see section 69‑40).

Court may change a constitution

             (2)  The court may also change an Aboriginal and Torres Strait Islander corporation’s constitution (see section 166‑5).

Note:          The constitutional change takes effect as provided for in paragraph 69‑40(b).

Registrar may change a constitution

             (3)  The Registrar may also change an Aboriginal and Torres Strait Islander corporation’s constitution (see section 69‑35).

Note 1:       If the Registrar changes a constitution under section 69‑35, the steps in subsection (1) of this section do not apply.

Note 2:       The constitutional change takes effect when it is registered (see section 69‑40).

Special administrator may change a constitution

             (4)  A special administrator for an Aboriginal and Torres Strait Islander corporation may also change the corporation’s constitution (see section 499‑5).

Note 1:       If the special administrator changes a constitution under section 499‑5, the steps in paragraphs (1)(a), (b) and (c) of this section do not apply (but the administrator must lodge the change with the Registrar under section 69‑25 and the Registrar must take the steps in section 69‑30).

Note 2:       The constitutional change takes effect when it is registered (see section 69‑40).

69‑10  Meaning of constitutional change etc.

             (1)  For the purposes of this Act, an Aboriginal and Torres Strait Islander corporation’s constitution is changed if:

                     (a)  the constitution is repealed and a new constitution is substituted; or

                     (b)  a provision of the constitution is repealed and a new provision is substituted; or

                     (c)  a provision of the constitution is repealed; or

                     (d)  a new provision is added to the constitution; or

                     (e)  a provision of the constitution is modified.

             (2)  The particular constitutional change is:

                     (a)  in the case of paragraph (1)(a)—the new constitution; and

                     (b)  in the case of paragraphs (1)(b) and (d)—the repeal (if any) and the new provision; and

                     (c)  in the case of paragraph (1)(c)—the repeal; and

                     (d)  in the case of paragraph (1)(e)—the modification.

69‑15  Extra requirements for constitutional change in constitution

             (1)  An Aboriginal and Torres Strait Islander corporation’s constitution may provide that a change to its constitution does not have any effect unless a requirement specified in the constitution relating to that constitutional change has been complied with.

             (2)  Unless the constitution provides otherwise, the corporation may modify or repeal a requirement described in subsection (1) only if the requirement is itself complied with.

Note:          Section 69‑40 deals with when the constitutional change takes effect.

69‑20  Corporation to lodge copy of constitutional changes

             (1)  If no requirement of a kind mentioned in section 69‑15 is specified in the corporation’s constitution, within 28 days after the special resolution is passed, the corporation must lodge with the Registrar:

                     (a)  a copy of the special resolution; and

                     (b)  a copy of those parts of the minutes of the meeting at which the special resolution was passed that relate to the passing of the special resolution; and

                     (c)  a directors’ statement (see subsection (4)); and

                     (d)  a copy of the constitutional change.

Penalty:  5 penalty units.

             (2)  If a constitutional change is not to have effect until a requirement specified in the corporation’s constitution has been complied with, the corporation must lodge the documents referred to in subsection (1) in addition to proof that the requirement has been met within 28 days after the requirement has been met.

Penalty:  5 penalty units.

             (3)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  The Registrar may direct the corporation to lodge a consolidated copy of the corporation’s constitution. The consolidation must set out the constitution as it will be if the Registrar registers the constitutional change.

             (5)  A directors’ statement is a statement signed by:

                     (a)  2 directors of the corporation; or

                     (b)  if there is only 1 director—that director;

to the effect that the special resolution was passed in accordance with the internal governance rules.

Note:          See also section 265‑40 for offences committed by the secretary of an Aboriginal and Torres Strait Islander corporation.

69‑25  Special administrator to lodge copy of constitutional changes

                   If the special administrator of an Aboriginal and Torres Strait Islander corporation changes the corporation’s constitution under section 499‑5, the special administrator must lodge a copy of the change with the Registrar.

69‑30  Registrar to determine if constitutional change should be registered

Registrar to decide

             (1)  The Registrar must decide whether to register a constitutional change lodged under section 69‑20 or 69‑25.

Changed internal governance rules must comply with the internal governance rules requirement

             (2)  The Registrar must not register the change unless the Registrar is satisfied that, with the constitutional change, the internal governance rules of the corporation would comply with the internal governance rule requirements.

Proposed change after Registrar’s change

             (3)  In addition to being satisfied as required by subsection (2), the Registrar must not register a constitutional change lodged after the Registrar has changed the constitution under section 69‑35 unless the Registrar is satisfied that:

                     (a)  the lodged change is consistent with the change made by the Registrar, taking into account the Registrar’s reasons for making that change; and

                     (b)  the reasons for the Registrar making that change are no longer applicable.

If Registrar is not satisfied

             (4)  If the Registrar is not satisfied as required by this section, the Registrar must:

                     (a)  refuse to register the change; and

                     (b)  notify the corporation or special administrator concerned in writing of the decision within 28 days after that decision.

If Registrar is satisfied

             (5)  If the Registrar is satisfied as required by this section, the Registrar must register the change within 28 days after making the decision.

69‑35  Registrar may change an Aboriginal and Torres Strait Islander corporation’s constitution on own initiative

             (1)  The Registrar may, on his or her own initiative, change an Aboriginal and Torres Strait Islander corporation’s constitution in the circumstances set out in subsection (2) or (3).

             (2)  The Registrar may change the constitution if the Registrar is satisfied that the corporation is not meeting the internal governance rules requirements.

Note:          Section 66‑1 sets out the requirements.

             (3)  The Registrar may change the constitution if the Registrar is satisfied that:

                     (a)  the conduct of the corporation’s affairs; or

                     (b)  an actual or proposed act or omission by or on behalf of the corporation; or

                     (c)  a resolution, or a proposed resolution, of members or a class of members of the corporation;

is either:

                     (d)  contrary to the interests of the members as a whole; or

                     (e)  oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.

             (4)  The changes that the Registrar may make are the changes that the Registrar considers appropriate having regard to the internal governance rules requirements and the circumstances of the particular corporation.

             (5)  If the corporation is a registered native title body corporate, the Registrar must not change the constitution on the basis of:

                     (a)  an act (or omission from doing an act); or

                     (b)  a proposed act (or omission from doing an act);

if an officer or employee of the corporation does (or refrains from doing), or proposes to do (or refrain from doing), the act:

                     (c)  in good faith; and

                     (d)  with the belief that doing (or refraining from doing) the act is necessary to ensure that the corporation complies with a Native Title legislation obligation.

             (6)  The Registrar makes the change by registering it.

             (7)  If the Registrar changes the constitution, the Registrar must give the corporation written notice within 28 days after registration of the changes:

                     (a)  stating that the Registrar has changed the constitution; and

                     (b)  setting out the terms of the change.

             (8)  In making a change under this section, the Registrar does not have to comply with paragraph 69‑5(1)(a) (special resolution), section 69‑15 (satisfying extra requirements in constitution), section 69‑20 (corporation to lodge copy of changes) or section 69‑30 (Registrar to determine if constitutional change should be registered).

69‑40  Date of effect of constitutional change

                   A constitutional change takes effect:

                     (a)  if it is the result of a special resolution—on the day the change is registered; or

                     (b)  if it is the result of a Court order made under section 166‑5:

                              (i)  on the date on which the order is made if it specifies no later date; or

                             (ii)  on a date specified by the order; or

                     (c)  if the Registrar has made the change—on the day the change is registered; or

                     (d)  if a special administrator has made the change—on the day the change is registered.

 

Division 72—Other matters concerning constitutions etc.

72‑1  Registrar may direct corporation to lodge constitution

             (1)  The Registrar may direct an Aboriginal and Torres Strait Islander corporation to lodge a copy of its constitution.

Note:          Under section 322‑5, an Aboriginal and Torres Strait Islander corporation must keep an up‑to‑date copy of its constitution.

             (2)  A direction made under subsection (1) is not a legislative instrument.

72‑5  Corporation must provide governance material to members

Corporation must provide member with constitution etc.

             (1)  If a member of an Aboriginal and Torres Strait Islander corporation asks for a copy of the corporation’s constitution or internal governance framework rules, the corporation must provide to the member a copy of the corporation’s internal governance framework rules:

                     (a)  free of charge; and

                     (b)  within 7 days.

Penalty:  5 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Registered office

             (3)  An Aboriginal and Torres Strait Islander corporation that is registered as a large corporation must make available for inspection by members and officers at its registered office, its internal governance framework rules. The rules must be available for inspection each business day from at least 10 am to 12 noon and from at least 2 pm to 4 pm.

Note:          Failure to comply with this subsection is an offence under section 376‑1.

Document access address

             (4)  An Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation must make available for inspection by members and officers at its document access address, its internal governance framework rules. The rules must be made available for inspection within 7 days of a member’s or officer’s written request for inspection.

Note:          Failure to comply with this subsection is an offence under section 376‑1.

             (5)  A corporation must make rules available under subsections (3) and (4) free of charge.

Penalty:  5 penalty units.

             (6)  An offence against subsection (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (7)  The internal governance framework rules of an Aboriginal and Torres Strait Islander corporation are:

                     (a)  the corporation’s constitution; and

                     (b)  any replaceable rules that apply to the corporation; and

                     (c)  any other material concerning the internal governance of the corporation that is prescribed.

72‑10  Constitution may limit powers

             (1)  An Aboriginal and Torres Strait Islander corporation’s constitution may contain an express restriction on, or a prohibition of, the corporation’s exercise of any of its powers. The exercise of a power by the corporation is not invalid merely because it is contrary to an express restriction or prohibition in the corporation’s constitution.

             (2)  An act of the corporation is not invalid merely because it is contrary to or beyond the objects set out in the corporation’s constitution.

 

Part 3‑3—Minimum number of members of Aboriginal and Torres Strait Islander corporations

Division 77—Minimum number of members of Aboriginal and Torres Strait Islander corporations

77‑1  What this Part is about

77‑5  Minimum number of members requirement

Minimum number of members

             (1)  An Aboriginal and Torres Strait Islander corporation must have the following minimum number of members:

                     (a)  at least 5 members; or

                     (b)  the lesser number of members determined under subsection (2), (3) or (4).

Request in application for registration for exemption from at least 5 members

             (2)  If:

                     (a)  an application for registration of an Aboriginal and Torres Strait Islander corporation is to be made; and

                     (b)  the corporation is to have fewer than 5 members;

the applicant for registration must, in the application under section 21‑1, request that the Registrar:

                     (c)  exempt the corporation from having at least 5 members; and

                     (d)  determine the corporation to have the lesser minimum number of members specified in the application.

Request after registration if determination under subsection (2) is in force

             (3)  If:

                     (a)  the Registrar has determined a lesser number of members under subsection (2) in respect of an Aboriginal and Torres Strait Islander corporation and the determination is in force; and

                     (b)  after registration of the corporation, the corporation wants to have fewer members than the number determined;

the corporation may request the Registrar in writing to:

                     (c)  exempt the corporation from having the number previously determined; and

                     (d)  determine the corporation to have the lesser minimum number of members specified in the application.

Request after registration if no determination under subsection (2) is in force

             (4)  If:

                     (a)  an Aboriginal and Torres Strait Islander corporation is required to have at least 5 members; and

                     (b)  after registration of the corporation, the corporation wants to have fewer than 5 members;

the corporation may request the Registrar in writing to:

                     (c)  exempt the corporation from having at least 5 members; and

                     (d)  determine the corporation to have the lesser minimum number of members specified in the application.

77‑10  Registrar may exempt if appropriate and reasonable to do so

                   The Registrar may grant an exemption on a request under subsection 77‑5(2), (3) or (4) and allow a lesser number if the Registrar is satisfied that it is appropriate and reasonable in the circumstances to do so.

Note:          For example, the Registrar may grant an exemption if the corporation was formed as a result of a court order.

77‑15  Registrar may determine a different number to number requested

                   In determining a lesser minimum number of members on a request under subsection 77‑5(2), (3) or (4), the Registrar may determine a number that is higher or lower than the number requested (so long as the number is less than 5).

77‑20  Earlier determination taken to be revoked

                   If the Registrar grants an exemption on a request under subsection 77‑5(3), the determination referred to in paragraph 77‑5(3)(a) is taken to be revoked.

77‑25  Notice to be given

             (1)  If the Registrar grants an exemption under section 77‑10, the Registrar must notify the applicant or corporation, as the case may be, in writing of the exemption and the minimum number of members that the corporation is instead required to have.

             (2)  If the Registrar does not grant the exemption, the Registrar must notify the applicant or corporation, as the case may be, in writing that the exemption has not been granted.

 

Part 3‑4—Names

Division 82—Introduction

82‑1  What this Part is about

 

Division 85—What names may a corporation have?

85‑1  Corporation’s name requirements

             (1)  The requirements concerning an Aboriginal and Torres Strait Islander corporation’s name are set out in the following subsections.

             (2)  The corporation may have as its name:

                     (a)  a name that is available (see section 85‑5); or

                     (b)  the expression “Indigenous Corporation Number” followed by the corporation’s ICN.

             (3)  The corporation must have as part of its name one of the following sets of words:

                     (a)  “Aboriginal corporation”;

                     (b)  “Torres Strait Islander corporation”;

                     (c)  “Aboriginal and Torres Strait Islander corporation”;

                     (d)  “Torres Strait Islander and Aboriginal corporation”;

                     (e)  “Indigenous corporation”.

             (4)  If the corporation is a registered native title body corporate, then the corporation must also have as part of its name the words “registered native title body corporate”.

             (5)  If abbreviations are used in its name, the corporation must use only the abbreviations that are acceptable (see section 85‑10).

             (6)  If the corporation is not a registered native title body corporate the corporation must not:

                     (a)  have the term “registered native title body corporate” as part of its name; or

                     (b)  include the abbreviation “RNTBC” in its name.

             (7)  The requirements must be met by an Aboriginal and Torres Strait Islander corporation at all times after registration.

Note:          The requirements must be complied with on registration of an Aboriginal and Torres Strait Islander corporation (see section 29‑25).

85‑5  Available names

Name is available unless identical or unacceptable

             (1)  A name is available unless the name is:

                     (a)  identical (under rules set out in the regulations) to a name that is:

                              (i)  used in an application for registration under this Act; or

                             (ii)  registered under this Act for another Aboriginal and Torres Strait Islander corporation; or

                            (iii)  registered under the Corporations Act; or

                            (iv)  reserved for a company under section 152 of the Corporations Act; or

                     (b)  identical (under rules set out in the regulations) to a name that is included on the national business names register in respect of another individual or body who is not the person applying to have the name; or

                     (c)  unacceptable for registration under the regulations.

Registrar may consent to a name being available

             (2)  The Registrar may consent in writing to a name being available to a corporation even if the name is:

                     (a)  identical to a name:

                              (i)  that is used in another current application for registration under this Act; or

                             (ii)  registered under this Act for another Aboriginal and Torres Strait Islander corporation; or

                            (iii)  registered under the Corporations Act; or

                            (iv)  reserved for a company under section 152 of the Corporations Act; or

                             (v)  that is included on the national business names register; or

                     (b)  unacceptable for registration under the regulations.

             (3)  The Registrar’s consent may be given subject to conditions.

Note:          If the corporation breaches a condition, the Registrar may direct it to change its name under section 88‑5.

             (4)  The regulations may specify that a particular unacceptable name is available if:

                     (a)  a specified public authority, or an instrumentality or agency of the Crown in right of the Commonwealth, a State or an internal Territory has consented to the corporation using or assuming the name; or

                     (b)  the corporation is otherwise permitted to use or assume the name by or under:

                              (i)  an Act of the Commonwealth, a State or an internal Territory; or

                             (ii)  a specified provision of an Act of the Commonwealth, a State or an internal Territory.

The consent of the authority, instrumentality or agency may be given subject to conditions.

Note:          If the consent is withdrawn, the corporation ceases to be permitted or the corporation breaches a condition, the Registrar may direct it to change its name under section 88‑5.

85‑10  Acceptable abbreviations

             (1)  The abbreviations set out in the following table may be used:

                     (a)  instead of words that this Act requires to be part of an Aboriginal and Torres Strait Islander corporation’s name, or to be included in a document or on an Aboriginal and Torres Strait Islander corporation’s common seal; and

                     (b)  instead of words that are part of an Aboriginal and Torres Strait Islander corporation’s name; and

                     (c)  with or without full stops.

 

Acceptable abbreviations
	Word	Abbreviation
1	Australian	Aust
2	Number	No
3	and	&
4	Indigenous Corporation Number	ICN
5	Australian Business Number	ABN
6	registered native title body corporate	RNTBC

             (2)  If an Aboriginal and Torres Strait Islander corporation’s name includes any of these abbreviations, the word corresponding to the abbreviation may be used instead.

85‑15  Using a name and ICN on documents

             (1)  An Aboriginal and Torres Strait Islander corporation must set out its name on all its public documents and negotiable instruments.

             (2)  Subject to sections 85‑20 and 85‑25, if the corporation’s ICN is not used in its name, the corporation must also set out with its name, or with one of the references to its name, the expression “Indigenous Corporation Number” followed by the corporation’s ICN.

             (3)  If the corporation’s name appears on 2 or more pages of the document or instrument, this must be done on the first of those pages.

Note 1:       If an Aboriginal and Torres Strait Islander corporation has a common seal, its name and ICN must be set out on the seal (see section 42‑25).

Note 2:       An Aboriginal and Torres Strait Islander corporation that is registered as a large corporation must display its name at its registered office and at places at which the corporation carries on business (see section 112‑15).

Note 3:       Section 85‑10 provides that “ICN” is an acceptable abbreviation of “Indigenous Corporation Number”.

             (4)  An Aboriginal and Torres Strait Islander corporation commits an offence if it contravenes subsection (1), (2) or (3).

Penalty:  10 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

85‑20  Exception to requirement to have ICN on receipts

                   An Aboriginal and Torres Strait Islander corporation does not have to set out the expression “Indigenous Corporation Number” followed by its ICN on a receipt (for example, a cash register receipt) that sets out information recorded in the machine that produced the receipt.

85‑25  Regulations may exempt from requirement to set out information on documents

                   The regulations may exempt an Aboriginal and Torres Strait Islander corporation, or a specified class of Aboriginal and Torres Strait Islander corporation, from the requirement in subsection 85‑15(2) to set out information on its public documents and negotiable instruments.

 

Division 88—How is a corporation’s name changed?

88‑1  Corporation changing its name

             (1)  If an Aboriginal and Torres Strait Islander corporation wants to change its name, it must:

                     (a)  pass a special resolution adopting a new name; and

                     (b)  lodge an application in writing with the Registrar.

             (2)  The corporation must lodge:

                     (a)  a copy of the special resolution; and

                     (b)  a copy of those parts of the minutes of the meeting at which the special resolution was passed that relate to the passing of the special resolution;

with the Registrar within 28 days after the resolution is passed.

Penalty:  5 penalty units.

Note:          See also section 265‑40 for offences committed by the secretary of an Aboriginal and Torres Strait Islander corporation.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  If the proposed name complies with the requirements in section 85‑1, the Registrar must change the corporation’s name by altering the details of the corporation’s registration to reflect the change. The change of name takes effect when the Registrar alters the details of the corporation’s registration.

88‑5  Registrar’s power to direct corporation to change its name

             (1)  The Registrar may direct an Aboriginal and Torres Strait Islander corporation in writing to change its name within 2 months if:

                     (a)  the name should not have been registered; or

                     (b)  the corporation has breached a condition under subsection 85‑5(3) on the availability of the name; or

                     (c)  a consent given under subsection 85‑5(4) to use or assume the name has been withdrawn; or

                     (d)  the corporation has breached a condition on a consent given under subsection 85‑5(4); or

                     (e)  the corporation ceases to be permitted to use or assume the name (as referred to in paragraph 85‑5(4)(b)).

             (2)  The corporation must comply with the direction within 2 months after being given it by doing everything necessary to change its name under section 88‑1.

Penalty:  50 penalty units or 12 months imprisonment, or both.

             (3)  If the corporation does not comply with subsection (2), the Register may change the corporation’s name to its ICN and any other words that section 85‑1 requires, by altering the details of the corporation’s registration to reflect the change.

             (4)  A change of name under subsection (3) takes effect when the Registrar alters the details of the corporation’s registration.

             (5)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (6)  A direction under subsection (1) is not a legislative instrument.

88‑10  If Aboriginal and Torres Strait Islander corporation becomes a registered native title body corporate

Notice required

             (1)  If an Aboriginal and Torres Strait Islander corporation becomes a registered native title body corporate, the corporation must, within 28 days after becoming registered, notify the Registrar in writing accordingly.

Registrar to change registration

             (2)  If:

                     (a)  the Registrar is notified under subsection (1) that the corporation has become a registered native title body corporate; or

                     (b)  the Registrar otherwise becomes aware of that fact;

the Registrar must change the corporation’s name by altering the details of the corporation’s registration to include the words “registered native title body corporate” in the corporation’s name.

When name change takes effect

             (3)  A change of name under subsection (2) takes effect when the Registrar alters the details of the corporation’s registration.

88‑15  If Aboriginal and Torres Strait Islander corporation ceases to be a registered native title body corporate

Notice required

             (1)  If an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate (RNTBC) ceases to be a RNTBC, the corporation must, within 28 days after ceasing to be a RNTBC, notify the Registrar in writing accordingly.

Registrar to change registration

             (2)  If:

                     (a)  the Registrar is notified under subsection (1) that the corporation has ceased to be a RNTBC; or

                     (b)  the Registrar otherwise becomes aware of that fact;

the Registrar must change the corporation’s name by altering the details of the corporation’s registration to delete the words “registered native title body corporate” from the corporation’s name.

When name change takes effect

             (3)  A change of name under subsection (2) takes effect when the Registrar alters the details of the corporation’s registration.

88‑20  Registrar must issue new certificate if name changes

             (1)  If the Registrar changes an Aboriginal and Torres Strait Islander corporation’s name, he or she must give to the corporation a new certificate of registration. The corporation’s new name is the name specified in the certificate of registration issued under this section.

Note 1:       An Aboriginal and Torres Strait Islander corporation’s name may be changed under section 88‑1, 88‑5, 88‑10 or 88‑15.

Note 2:       For the evidentiary value of a certificate of registration, see subsection 424‑5(2).

             (2)  A certificate under subsection (1) is not a legislative instrument.

88‑25  Effect of name change

             (1)  The changing of an Aboriginal and Torres Strait Islander corporation’s name does not:

                     (a)  create a new legal entity; or

                     (b)  affect the corporation’s existing property, rights or obligations; or

                     (c)  render defective any legal proceedings by or against the corporation.

             (2)  Any legal proceedings that could have been continued or begun by or against the corporation in its former name may be continued or begun by or against it in its new name.

 

Part 3‑5—Corporation powers and how they are exercised

Division 93—Introduction

93‑1  What this Part is about

 

Division 96—What are a corporation’s powers?

96‑1  Legal capacity and powers

             (1)  An Aboriginal and Torres Strait Islander corporation has the legal capacity and powers of an individual within and outside Australia.

             (2)  An Aboriginal and Torres Strait Islander corporation also has all the powers of a body corporate, including the power to, if the corporation’s constitution permits, distribute any of the corporation’s property among the members, in kind or otherwise.

             (3)  An Aboriginal and Torres Strait Islander corporation’s legal capacity to do something is not affected by the fact that the corporation’s interests are not, or would not be, served by doing it.

             (4)  For the avoidance of doubt, this section does not:

                     (a)  authorise an Aboriginal and Torres Strait Islander corporation to do an act that is prohibited by a law of a State or Territory; or

                     (b)  give an Aboriginal and Torres Strait Islander corporation a right that a law of a State or Territory denies to the corporation.

 

Division 99—How are a corporation’s powers exercised?

99‑1  Agent exercising a corporation’s power to make contracts etc.

             (1)  An Aboriginal and Torres Strait Islander corporation’s power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the corporation’s express or implied authority and on behalf of the corporation. The power may be exercised without using a common seal.

             (2)  This section does not affect the operation of a law that requires a particular procedure to be complied with in relation to the contract.

99‑5  Execution of documents (including deeds) by the corporation itself

             (1)  An Aboriginal and Torres Strait Islander corporation may execute a document without using a common seal if the document is signed by:

                     (a)  2 directors of the corporation; or

                     (b)  a director and a corporation secretary (if any) of the corporation; or

                     (c)  if the corporation has only 1 director—that director.

Note:          If an Aboriginal and Torres Strait Islander corporation executes a document in this way, people will be able to rely on the assumptions in subsection 104‑5(6) for dealings in relation to the corporation.

             (2)  An Aboriginal and Torres Strait Islander corporation with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by:

                     (a)  2 directors of the corporation; or

                     (b)  a director and a corporation secretary of the corporation; or

                     (c)  for an Aboriginal and Torres Strait Islander corporation that has only 1 director—that director.

Note:          If an Aboriginal and Torres Strait Islander corporation executes a document in this way, people will be able to rely on the assumptions in subsection 104‑5(7) for dealings in relation to the corporation.

             (3)  An Aboriginal and Torres Strait Islander corporation may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) or (2).

             (4)  This section does not limit the ways in which an Aboriginal and Torres Strait Islander corporation may execute a document (including a deed).

 

Part 3‑6—Assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make

Division 104—Assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make

104‑1  Entitlement to make assumptions

             (1)  A person is entitled to make the assumptions in section 104‑5 in relation to dealings with an Aboriginal and Torres Strait Islander corporation. The corporation is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

             (2)  A person is entitled to make the assumptions in section 104‑5 in relation to dealings with another person who has, or purports to have, directly or indirectly acquired title to property from an Aboriginal and Torres Strait Islander corporation. The corporation and the other person are not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

             (3)  The assumptions may be made even if an officer or agent of the corporation acts fraudulently, or forges a document, in connection with the dealings.

             (4)  A person is not entitled to make an assumption in section 104‑5 if at the time of the dealings the person knew or suspected that the assumption was incorrect.

104‑5  Assumptions that can be made under section 104‑1

Constitution and replaceable rules complied with

             (1)  A person may assume that the corporation’s constitution and any provisions of this Act that apply to the corporation as replaceable rules, have been complied with.

Director or corporation secretary

             (2)  A person may assume that anyone who appears, from information provided by the corporation that is available to the public from the Registrar, to be a director or a corporation secretary of the corporation:

                     (a)  has been duly appointed; and

                     (b)  has authority to exercise the powers and perform the duties customarily exercised or performed by a director or corporation secretary of a similar Aboriginal and Torres Strait Islander corporation.

Contact person

             (3)  A person may assume that anyone who appears, from information that is available to the public from the Registrar to be the contact person of the corporation, is the contact person.

Officer or agent

             (4)  A person may assume that anyone who is held out by the corporation to be an officer or agent of the corporation:

                     (a)  has been duly appointed; and

                     (b)  has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent of a similar Aboriginal and Torres Strait Islander corporation.

Proper performance of duties

             (5)  A person may assume that the officers and agents of the corporation properly perform their duties to the corporation.

Document duly executed without seal

             (6)  A person may assume that a document has been duly executed by the corporation if the document appears to have been signed in accordance with subsection 99‑5(1). For the purposes of making the assumption, a person may also assume that anyone who signs the document and states next to his or her signature that he or she is the only director of the corporation is the only director of the corporation.

Document duly executed with seal

             (7)  A person may assume that a document has been duly executed by the corporation if:

                     (a)  the corporation’s common seal appears to have been fixed to the document in accordance with subsection 99‑5(2); and

                     (b)  the fixing of the common seal appears to have been witnessed in accordance with that subsection.

For the purposes of making the assumption, a person may also assume that anyone who witnesses the fixing of the common seal and states next to his or her signature that he or she is the only director of the corporation is the only director of the corporation.

Officer or agent with authority to warrant that document is genuine or true copy

             (8)  A person may assume that an officer or agent of the corporation who has authority to issue a document or a certified copy of a document on its behalf also has authority to warrant that the document is genuine or is a true copy.

             (9)  Without limiting the generality of this section, the assumptions that may be made under this section apply for the purposes of this section.

104‑10  Information available to the public from Registrar does not constitute constructive notice

                   A person is not taken to have information about an Aboriginal and Torres Strait Islander corporation merely because the information is available to the public from the Registrar.

 

Part 3‑7—Registered office or document access address

Division 109—Introduction

109‑1  What this Part is about

 

Division 112—Registered office

112‑1  General

Application of Division

             (1)  This Division applies to an Aboriginal and Torres Strait Islander corporation if it is registered as a large corporation.

Small and medium corporations not to have registered office

             (2)  An Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation must not have a registered office.

112‑5  Corporation to have registered office

             (1)  An Aboriginal and Torres Strait Islander corporation that is registered as a large corporation must have a registered office in Australia.

Note:          A document may be served on a large corporation by leaving it at, or posting it to, the corporation’s registered office (see section 120‑1).

             (2)  If the corporation has one or more places of business in Australia, one of those places must be its registered office.

             (3)  The corporation must lodge notice of a change of address of its registered office with the Registrar not later than 28 days after the date on which the change occurs.

Note:          If the corporation is not to be the occupier of premises at the address of its new registered office, the notice must state that the occupier has consented to the address being specified in the notice and has not withdrawn that consent (see section 112‑20).

             (4)  A notice of change of address takes effect when the changed address is included on the Register of Aboriginal and Torres Strait Islander Corporations.

             (5)  The corporation commits an offence if the corporation does not have a registered office in Australia.

Penalty:  5 penalty units.

             (6)  The corporation commits an offence if:

                     (a)  the corporation has one or more places of business in Australia; and

                     (b)  one of those places of business is not the corporation’s registered office.

Penalty:  5 penalty units.

             (7)  The corporation commits an offence if:

                     (a)  the corporation’s registered office address changes; and

                     (b)  the corporation does not lodge the notice required by subsection (3) within 28 days after the change.

Penalty:  5 penalty units.

             (8)  An offence against subsection (5) or (6) or paragraph (7)(b) is an offence of strict liability.

Note 1:       For strict liability, see section 6.1 of the Criminal Code.

Note 2:       See also section 265‑40 for offences committed by the secretary of an Aboriginal and Torres Strait Islander corporation.

112‑10  Registrar may change address of registered office to a director’s address

             (1)  If the corporation does not occupy the premises at the address of its registered office, the corporation must be able to show the Registrar the occupier’s written consent to the corporation’s use of those premises as its registered office.

Note:          The Registrar can require the corporation to produce the consent (see section 112‑20).

             (2)  The corporation commits an offence if it contravenes subsection (1).

Penalty:  5 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  If the Registrar becomes aware that the occupier of those premises:

                     (a)  has not consented to the use of the premises as the address of the corporation’s registered office; or

                     (b)  has withdrawn the consent;

the Registrar may:

                     (c)  give written notice to a director of the corporation who resides in Australia that the Registrar intends to change the address of the corporation’s registered office to the director’s address; and

                     (d)  if the Registrar is not notified of the address of the corporation’s proposed new registered office under section 112‑5 within 14 days after the notice under that section is sent—change the address of the corporation’s registered office to the address of that director.

             (5)  A notice under paragraph (4)(c) is not a legislative instrument.

112‑15  Corporation’s name must be displayed

             (1)  The corporation must display its name and ICN prominently at its registered office. The corporation must also display its name and ICN at every place at which the corporation carries on business if that place is open to the public.

             (2)  The corporation commits an offence if the corporation fails to prominently display its name and ICN:

                     (a)  at its registered office; or

                     (b)  at a place at which the corporation carries on business that is open to the public.

Penalty:  10 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

112‑20  Address of registered office etc.

             (1)  If a provision of this Act requires a notice to be lodged of, or information in an application to specify:

                     (a)  the address of an office, or of a proposed office, of an Aboriginal and Torres Strait Islander corporation or other person; or

                     (b)  a change in the situation and address of an office of an Aboriginal and Torres Strait Islander corporation or other person;

the notice or information must specify the matters set out in subsections (2) and (3).

             (2)  The notice or information must specify the full address, or the full new address, as the case requires, of the relevant office including, where applicable, the number of the room and of the floor or level of the building in which the office is situated.

             (3)  If:

                     (a)  the notice or application relates to the address or situation of an office of an Aboriginal and Torres Strait Islander corporation; and

                     (b)  the address specified in accordance with paragraph (1)(a) is the address of premises that the corporation will not occupy;

the notice or information must include a written statement to the effect that the person who occupies those premises:

                     (c)  has consented in writing to the address being specified in the notice or application; and

                     (d)  has not withdrawn that consent.

             (4)  The Registrar may require a person who has lodged a notice or application that includes a statement under subsection (3) to produce to the Registrar the consent referred to in the statement.

             (5)  A requirement under subsection (4) is not a legislative instrument.

 

Division 115—Document access address

115‑1  Division applies to Aboriginal and Torres Strait Islander corporations registered as small or medium corporations

                   This Division applies to an Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation.

115‑5  Corporation to have document access address

             (1)  The corporation must have a document access address in Australia.

Note 1:       Certain documents must be kept at this address and must be available for inspection at this address.

Note 2:       The document access address in not an address at which documents can be served on the corporation. See section 120‑1 for the addresses at which documents can be served on the corporation.

             (2)  The corporation must lodge notice of a change of address of its document access address with the Registrar not later than 28 days after the date on which the change occurs.

Note:          If the corporation is not to be the occupier of premises at the address of its document access address, the notice must state that the occupier has consented to the address being specified in the notice and has not withdrawn that consent (see section 115‑20).

             (3)  A notice of change of address takes effect from the later of:

                     (a)  the seventh day after the notice was lodged; or

                     (b)  a later day specified in the notice as the date from which the change is to take effect.

             (4)  The corporation commits an offence if the corporation does not have a document access address in Australia.

Penalty:  5 penalty units.

             (5)  The corporation commits an offence if:

                     (a)  the corporation’s document access address changes; and

                     (b)  the corporation does not lodge the notice required by subsection (2) within 28 days after the change.

Penalty:  5 penalty units.

             (6)  An offence against subsection (4) or paragraph (5)(b) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

115‑10  Registrar may change document access address to a director’s address

             (1)  If the corporation does not occupy the premises at the address of its document access address, the corporation must be able to show the Registrar the occupier’s written consent to the corporation’s use of those premises as its document access address.

Note:          The Registrar can require the corporation to produce the consent (see section 115‑20).

             (2)  The corporation commits an offence if it fails to comply with a request by the Registrar to show the Registrar that consent.

Penalty:  5 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  If the Registrar becomes aware that the occupier of those premises:

                     (a)  has not consented to the use of the premises as the address of the corporation’s document access address; or

                     (b)  has withdrawn the consent;

the Registrar may:

                     (c)  give written notice to a director of the corporation who resides in Australia that the Registrar intends to change the address of the corporation’s document access address to the director’s address; and

                     (d)  if the Registrar is not notified of the address of the corporation’s proposed new document access address under section 115‑5 within 14 days after the notice under that section is sent—change the address of the corporation’s document access address to the address of that director.

             (5)  A notice under paragraph (4)(c) is not a legislative instrument.

115‑15  Registrar may direct corporation to change the location of its document access address

             (1)  If the Registrar is satisfied that the corporation’s document access address is not in an area that allows the corporation’s members appropriate access to the corporation’s books, the Registrar may direct the corporation to change its document access address so that it is within the area specified in the direction.

             (2)  The direction must:

                     (a)  be given by notice in writing to the corporation; and

                     (b)  specify the period within which the direction must be complied with.

             (3)  The period specified under paragraph (2)(b) must be at least 28 days after the day on which the notice is given to the corporation.

             (4)  The corporation commits an offence if it does not comply with the direction.

Penalty:  5 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (6)  A direction under subsection (1) is not a legislative instrument.

115‑20  Address of document access address

             (1)  If a provision of this Act requires a notice to be lodged of, or information in an application to specify:

                     (a)  the address of the document access address, or of a proposed document access address, of an Aboriginal and Torres Strait Islander corporation; or

                     (b)  a change in the situation and address of the document access address of an Aboriginal and Torres Strait Islander corporation;

the notice or information must specify the matters set out in subsections (2) and (3).

             (2)  The notice or information must specify the full address, or the full new address, as the case requires, of the document access address including, where applicable, the number of the room and of the floor or level of the building in which the document access address is situated.

             (3)  If the address specified in accordance with paragraph (1)(a) is the address of premises that the corporation will not occupy, the notice or information must include a written statement to the effect that:

                     (a)  the person who occupies those premises has consented in writing to the address being specified in the notice or application; and

                     (b)  has not withdrawn that consent.

             (4)  The Registrar may require a person who has lodged a notice or application that includes a statement under subsection (3) to produce to the Registrar the consent referred to in the statement.

             (5)  A requirement under subsection (4) is not a legislative instrument.

 

Part 3‑8—Service on Aboriginal and Torres Strait Islander corporations

Division 120—Service on Aboriginal and Torres Strait Islander corporations

120‑1  Service on Aboriginal and Torres Strait Islander corporation

             (1)  A notice, demand, summons, writ or other document or process may be served on an Aboriginal and Torres Strait Islander corporation by:

                     (a)  if the corporation is registered as a large corporation—leaving it at, or posting it to, the corporation’s registered office; or

                     (b)  if the corporation is registered as a large corporation—serving a copy of the document personally on the corporation secretary; or

                     (c)  if the corporation is registered as a small or medium corporation—serving a copy of the document personally on the contact person or by sending it by post to his or her address; or

                     (d)  serving a copy of the document personally on a director; or

                     (e)  if a liquidator of the corporation has been appointed—leaving it at, or posting it to, the address of the liquidator’s office in the most recent notice of that address lodged with the Registrar; or

                      (f)  if an administrator of the corporation has been appointed—leaving it at, or posting it to, the address of the special administrator in the most recent notice of that address lodged with the Registrar; or

                     (g)  if a special administrator of the corporation has been appointed—leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with the Registrar.

             (2)  The address for service of the contact person is the address that is on the Register of Aboriginal and Torres Strait Islander Corporations for the contact person.

             (3)  The Registrar may change the address on the register in respect of the registered office or contact person if:

                     (a)  the Registrar is notified of a new address by the corporation or contact person; or

                     (b)  the Registrar otherwise becomes aware that the corporation or contact person has a new address.

Note:          This subsection also applies to a director’s address that has become the corporation’s registered office under section 112‑10 and to a director who has become a contact person under section 257‑25.

 

Chapter 4—Members and observers

Part 4‑1—Introduction

Division 130—Introduction

130‑1  What this Chapter is about

 

Part 4‑2—Members

Division 135—Introduction

135‑1  What this Part is about

 

Division 138—Who is a member of an Aboriginal and Torres Strait Islander corporation?

138‑1  Meaning of member

             (1)  A person is a member of an Aboriginal and Torres Strait Islander corporation if the person:

                     (a)  is a member of the corporation on its registration; or

                     (b)  agrees to become a member of the corporation after its registration and his or her name is entered on the register of members.

Note:          Section 180‑5 requires the corporation to enter the names and addresses of all of its members on the register of members.

             (2)  A person referred to in paragraph (1)(b) becomes a member when his or her name is entered on the register of members.

Note:          Under section 42‑10, a person who is specified in the application for registration of an Aboriginal and Torres Strait Islander corporation as a member of the corporation becomes a member on registration of the corporation.

 

Division 141—Membership of Aboriginal and Torres Strait Islander corporations

Subdivision 141‑A—Introduction

141‑1  Overview

             (1)  There are ongoing requirements relating to the membership of an Aboriginal and Torres Strait Islander corporation that are imposed on the corporation (see Subdivision 141‑B).

             (2)  These requirements have implications for the eligibility of persons for membership of Aboriginal and Torres Strait Islander corporations (see section 141‑20).

             (3)  In addition, an Aboriginal and Torres Strait Islander corporation may impose additional eligibility requirements for membership of the corporation (see section 141‑25).

Subdivision 141‑B—Ongoing requirements relating to membership that are imposed on an Aboriginal and Torres Strait Islander corporation

141‑5  Minimum number of members requirement

                   An Aboriginal and Torres Strait Islander corporation must meet the minimum number of members requirement set out in section 77‑5 at all times.

Note:          Section 26‑1 also requires the minimum number of members requirement (explained in section 29‑1) to be met at registration of the corporation.

141‑10  Indigeneity requirement

             (1)  An Aboriginal and Torres Strait Islander corporation must meet the Indigeneity requirement set out in section 29‑5 at all times.

Note:          Section 26‑1 also requires the Indigeneity requirement (explained in section 29‑5) to be met at registration of the corporation.

             (2)  However, the corporation’s constitution may provide that the corporation must have a number or percentage of persons who are Aboriginal and Torres Strait Islander persons that is higher than the number or percentage required in the Indigeneity requirement.

             (3)  An Aboriginal and Torres Strait Islander corporation that does increase the number or percentage of persons that are required to be Aboriginal and Torres Strait Islander persons is not in breach of subsection (1) only because that increased number or percentage is not attained.

141‑15  Age of members requirement

             (1)  An Aboriginal and Torres Strait Islander corporation must meet the age of members requirement set out in section 29‑10 at all times.

Note 1:       The requirement is that the members of the corporation be at least 15 years of age.

Note 2:       Section 29‑10 also requires the age of members requirement to be met at registration of the corporation.

             (2)  However, the corporation’s constitution may provide that the members of the corporation must be at least of an age that is older than 15 years.

             (3)  An Aboriginal and Torres Strait Islander corporation that does increase the minimum age of members is not in breach of subsection (1) only because some members are younger than that increased minimum age.

Subdivision 141‑C—A person’s eligibility for membership of an Aboriginal and Torres Strait Islander corporation

141‑20  Eligibility for membership

                   An individual who is at least 15 years of age is eligible for membership of an Aboriginal and Torres Strait Islander corporation.

141‑25  Corporation may have other eligibility requirements for membership

                   The constitution of an Aboriginal and Torres Strait Islander corporation may provide for other eligibility requirements for membership of the corporation.

 

Division 144—How to become a member of an Aboriginal and Torres Strait Islander corporation

144‑1  How does a person become a member?

                   A person becomes a member of an Aboriginal and Torres Strait Islander corporation if:

                     (a)  the person applies as provided for in section 144‑5; and

                     (b)  the person is eligible for membership; and

                     (c)  the application is accepted as provided for in section 144‑10; and

                     (d)  the person is entered on the register of members (see subsection 144‑10(5)).

144‑5  Application to corporation

             (1)  A person (the applicant) who wants to become a member of an Aboriginal and Torres Strait Islander corporation must apply to the corporation.

Application to be in writing (replaceable rule—see section 60‑1)

             (2)  The application must be in writing.

144‑10  Determination of applications for membership

             (1)  The directors are responsible for deciding membership applications in respect of an Aboriginal and Torres Strait Islander corporation.

             (2)  The directors must not accept an application for membership of the corporation unless:

                     (a)  the applicant applies for membership in the required manner; and

                     (b)  the applicant meets the eligibility for membership requirements of the corporation.

Discretion to refuse to accept membership application

             (3)  The directors may refuse to accept the membership application even if paragraphs (2)(a) and (b) are complied with.

Circumstances when application not to be accepted

             (4)  However, the directors must not accept the application if, by accepting the application, the corporation would be in breach of the requirement in section 141‑10 (to at all times be complying with the Indigeneity requirement).

If application accepted, entry on the register of members

             (5)  If the directors accept the application, the corporation must enter the member on the register of members. Subject to subsection (8), the corporation must do so within 14 days of the acceptance.

Penalty:  5 penalty units.

Corporation to give notice if application not accepted

             (6)  If the directors decide not to accept the application, the corporation must notify the person of the decision and the reasons for it.

Notice to be in writing (replaceable rule—see section 60‑1)

             (7)  The notice must be in writing.

No admission to membership before a general meeting has been held

             (8)  If:

                     (a)  the applicant applies for membership after a notice has been given for the holding of a general meeting; and

                     (b)  the meeting has not been held at the time that the directors consider the application;

then the corporation must not enter the person on the register of members until after the general meeting has been held.

Penalty:  5 penalty units.

             (9)  An offence against subsection (5) or (8) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

144‑15  Fees for membership and being an observer

             (1)  Unless an Aboriginal and Torres Strait Islander corporation’s constitution provides otherwise, the corporation must not impose fees in respect of membership of the corporation or in respect of being an observer of the corporation.

Note:          Section 158‑5 deals with observers.

             (2)  If the corporation’s constitution provides for the charging of such fees, the fees, and the amount of the fees, are to be determined by the corporation by resolution in general meeting.

 

Division 147—Obligations of members

147‑1  Obligation to contribute on winding up

                   If an Aboriginal and Torres Strait Islander corporation’s constitution provides that the members must contribute to the property of the corporation on winding up then the members must so contribute. Otherwise, the members are not liable to contribute.

147‑5  Corporation may impose other member obligations

                   The constitution of an Aboriginal and Torres Strait Islander corporation may provide for other obligations that attach to membership of the corporation.

147‑10  Liability of corporation members

If application for registration says members are not to be liable for debts of the body

             (1)  If the application for registration of an Aboriginal and Torres Strait Islander corporation states that people who are members and former members are not to be liable to contribute towards the payment of the debts and liabilities of the corporation, the members and former members are not liable so to contribute.

If application for registration says members are to be liable for debts of the body

             (2)  If the application for registration states that people who are members and former members are to be liable to contribute towards the payment of the debts and liabilities of the corporation on a particular basis, the members and former members are liable so to contribute on that basis.

 

Division 150—How does a person cease to be a member of an Aboriginal and Torres Strait Islander corporation?

Subdivision 150‑A—General

150‑1  Cessation of membership

Ways a membership ceases

             (1)  This Division deals with the various ways in which a person ceases to be a member of an Aboriginal and Torres Strait Islander corporation. The various ways are:

                     (a)  if the person resigns as a member of the corporation (see Subdivision 150‑B); or

                     (b)  if the person dies; or

                     (c)  if the person’s membership of the corporation is cancelled (see Subdivision 150‑C); or

                     (d)  if the member is a body corporate and the body corporate ceases to exist.

When a person ceases to be a member

             (2)  A person ceases to be a member when the member’s name is removed from the register of members as a current member of the corporation.

150‑5  Resolution of disputes

                   The constitution of an Aboriginal and Torres Strait Islander corporation must provide for the resolution of disputes internal to the operation of the corporation.

Subdivision 150‑B—Resignation of membership

150‑10  Resignation

Resignation to be given to corporation

             (1)  A member of an Aboriginal and Torres Strait Islander corporation may resign as a member by notice given to the corporation.

Notice to be in writing (replaceable rule—see section 60‑1)

             (2)  The notice must be in writing.

Register to be amended within 14 days of resignation

             (3)  Within 14 days after receiving the notice, the corporation must remove the member’s name from the register of members as a current member of the corporation.

Penalty:  5 penalty units.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Subdivision 150‑C—Cancellation of membership

150‑15  General

Eligibility for membership etc. (replaceable rule—see section 60‑1)

             (1)  Section 150‑20 is a replaceable rule that provides a model for the cancellation of membership on the grounds of ineligibility for membership or failure to pay fees.

Note:          As a replaceable rule, section 150‑20 can be modified or replaced by an Aboriginal and Torres Strait Islander corporation and replaced in whole or in part by a provision that suits the corporation’s particular circumstances (subject to the internal governance rules requirements).

Specific grounds for cancellation of membership

             (2)  Sections 150‑25, 150‑30 and 150‑35 deal with cancellation of membership on the grounds that:

                     (a)  the member is uncontactable (see section 150‑25); and

                     (b)  the member is not an Aboriginal and Torres Strait Islander person (see section 150‑30); and

                     (c)  the member has misbehaved (see section 150‑35).

If a membership is to be cancelled on any of the grounds set out in these sections, the only way the membership may be cancelled is as provided for in the applicable section.

Register to be amended within 14 days of membership being cancelled

             (3)  Within 14 days after the cancellation of membership, the corporation must remove the member’s name from the register of members as a current member of the corporation.

Penalty:  5 penalty units.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

150‑20  Member not eligible for membership etc. (replaceable rule—see section 60‑1)

Cancellation of membership if member is not eligible etc.

             (1)  The directors of an Aboriginal and Torres Strait Islander corporation may, by resolution, cancel the membership of a member of the corporation if:

                     (a)  either:

                              (i)  the member is not eligible for membership; or

                             (ii)  the member has ceased to be eligible for membership of the corporation; or

                     (b)  the member has not paid his or her membership fees (if any).

Member to be given notice

             (2)  Before cancelling the membership, the directors must give the member notice in writing:

                     (a)  stating that the directors intend to cancel the membership for the reasons specified in the notice; and

                     (b)  stating that the member has 14 days to object to the cancellation of the membership; and

                     (c)  stating that the objection must be:

                              (i)  in writing; and

                             (ii)  given to the corporation within the period of 14 days from the day the notice is given.

Penalty:  10 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

If member does not object

             (4)  If the member does not object as provided for in paragraph (2)(c), the directors must cancel the membership.

If member does object

             (5)  If the member does object as provided for in paragraph (2)(c):

                     (a)  the directors must not cancel the membership; and

                     (b)  only the corporation by resolution in general meeting may cancel the membership.

Notice of resolution to be given

             (6)  If the membership is cancelled, the directors must give the member a copy of the resolution (being either the resolution of the directors or the resolution of the general meeting) as soon as practicable after the resolution has been passed.

Penalty:  5 penalty units.

             (7)  An offence against subsection (6) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

150‑25  Member not contactable

Operation of section

             (1)  This section operates despite section 150‑20 or any provision of an Aboriginal and Torres Strait Islander corporation’s constitution.

Membership may be cancelled if not contactable

             (2)  If the membership of a member of an Aboriginal and Torres Strait Islander corporation is to be cancelled on the ground that the member is not contactable, the membership may only be cancelled on that ground if the cancellation is effected in the manner and circumstances set out in subsection (3).

Manner and circumstances

             (3)  The membership may be cancelled by special resolution in general meeting if:

                     (a)  the corporation has not been able to contact the member at the address for the member that is entered on the register of members; and

                     (b)  the corporation has not been able to contact that person at that address for a continuous period of 2 years prior to the meeting; and

                     (c)  the corporation has made 2 or more reasonable attempts to otherwise contact the member during that 2 year period but has been unable to.

Notice

             (4)  If the corporation does so cancel the membership, the directors must send the member a copy of the resolution at the last known address of the member, as soon as practicable after the resolution has been passed.

Penalty:  5 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

150‑30  Member is not an Aboriginal and Torres Strait Islander person

Operation of section

             (1)  This section operates despite section 150‑20 or any provision of an Aboriginal and Torres Strait Islander corporation’s constitution.

Membership may be cancelled if not an Aboriginal and Torres Strait Islander person

             (2)  If it is a requirement for eligibility for membership of an Aboriginal and Torres Strait Islander corporation that a member be an Aboriginal and Torres Strait Islander person, a member’s membership may only be cancelled on the ground that the person is not such a person if the cancellation is effected in the manner and circumstance set out in subsection (3).

Manner and circumstances

             (3)  The corporation, by special resolution in general meeting, may cancel the membership of the member if the general meeting is satisfied that the member is not an Aboriginal and Torres Strait Islander person.

Notice

             (4)  If the corporation does so cancel the membership, the directors must give the member a copy of the resolution as soon as practicable after the resolution has been passed.

Penalty:  5 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

150‑35  Member misbehaves

Operation of section

             (1)  This section operates despite section 150‑20 or any provision of an Aboriginal and Torres Strait Islander corporation’s constitution.

Membership may be cancelled if member misbehaves

             (2)  If the membership of a member of an Aboriginal and Torres Strait Islander corporation is to be cancelled on the grounds that the member has misbehaved, the membership may only be cancelled on that ground if the cancellation is affected in the manner and circumstance provided for in subsection (3).

Manner and circumstances

             (3)  The corporation may cancel the membership by special resolution in general meeting if the general meeting is satisfied that member has behaved in a manner that significantly interfered with the operation of the corporation or of corporation meetings.

Notice

             (4)  If the corporation does so cancel the membership, the directors must give the member a copy of the resolution as soon as practicable after the resolution has been passed.

Penalty:  5 penalty units.

 

Division 153—Can there be different classes of members?

153‑1  Different classes of members

             (1)  An Aboriginal and Torres Strait Islander corporation’s constitution may provide that the corporation has different classes of members.

             (2)  The corporation’s constitution may provide that different rights may attach to different classes of membership.

Note:          The rule under section 201‑115 that, subject to those different rights, each member has 1 vote on a show of hands and, on a poll, 1 vote is a replaceable rule.

 

Part 4‑3—Observers

Division 158—Observers

158‑1  What this Part is about

158‑5  Observers

Corporation may have observers

             (1)  An Aboriginal and Torres Strait Islander corporation’s constitution may provide for the corporation to have observers.

Entitlement of observer to attend general meeting (replaceable rule—see section 60‑1)

             (2)  An observer is entitled to attend a general meeting of the corporation but is not a member of the corporation.

Note:          Only members of an Aboriginal and Torres Strait Islander corporation may vote at a meeting of the corporation (see section 201‑115).

Other matters for which constitution must provide if corporation has observers

             (3)  If the constitution provides for the corporation to have observers, the constitution must also provide for the following matters:

                     (a)  the application process for becoming an observer of the corporation;

                     (b)  the eligibility criteria for becoming an observer of the corporation;

                     (c)  the obligations (if any) imposed on an observer of the corporation;

                     (d)  the rights (if any) that an observer has in relation to the corporation;

                     (e)  how an observer ceases to be an observer of the corporation.

 

Part 4‑4—Protection of members’ interests

Division 163—Rights and remedies to protect interests of members

163‑1  Rights and remedies

                   The rights and remedies that are conferred by this Part to protect the interests of members of Aboriginal and Torres Strait Islander corporations are:

                     (a)  the right to seek a Court order concerning oppressive conduct of the affairs of the corporation as provided for in Division 166; and

                     (b)  the right to bring or intervene in proceedings on behalf of the corporation as provided for in Division 169; and

                     (c)  the rights relating to the changing of class rights as provided for in Division 172; and

                     (d)  the right to apply to the Court for an order to inspect the corporation’s books as provided for in Division 175.

 

Division 166—Oppressive conduct of affairs

166‑1  Grounds for Court order

             (1)  Subject to subsection (2), the Court may make an order under section 166‑5 if:

                     (a)  the conduct of an Aboriginal and Torres Strait Islander corporation’s affairs; or

                     (b)  an actual or proposed act or omission by or on behalf of an Aboriginal and Torres Strait Islander corporation; or

                     (c)  a resolution, or a proposed resolution, of members or a class of members of an Aboriginal and Torres Strait Islander corporation;

is either:

                     (d)  contrary to the interests of the members as a whole; or

                     (e)  oppressive to, unfairly prejudicial to or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.

             (2)  If the corporation is a registered native title body corporate, the Court must not make an order under subsection 166‑5(1) on the basis of:

                     (a)  an act (or omission from doing an act); or

                     (b)  a proposed act (or omission from doing an act);

if an officer or employee of the corporation does (or refrains from doing), or proposes to do (or refrain from doing), the act:

                     (c)  in good faith; and

                     (d)  with the belief that doing (or refraining from doing) the act is necessary to ensure that the corporation complies with a Native Title legislation obligation.

166‑5  Orders the Court can make

             (1)  The Court can make any order under this section that it considers appropriate in relation to the corporation, including the following:

                     (a)  an order that the corporation be wound up;

                     (b)  an order that the corporation’s existing constitution be modified or repealed and replaced;

                     (c)  an order regulating the conduct of the corporation’s affairs in the future;

                     (d)  an order for the corporation to institute, prosecute, defend or discontinue specified proceedings;

                     (e)  an order appointing a receiver, or a receiver and manager, of any or all of the corporation’s property;

                      (f)  an order restraining a person from engaging in specified conduct or from doing a specified act;

                     (g)  an order requiring a person to do a specified act.

Order that the corporation be wound up

             (2)  If an order that the corporation be wound up is made under this section, the provisions of this Act relating to the winding up of Aboriginal and Torres Strait Islander corporations apply:

                     (a)  as if the order were made under section 526‑1; and

                     (b)  with such changes as are necessary.

Without limiting this, section 526‑35 (which applies certain provisions of the Corporations Act) applies to the winding up.

Changes to constitution made after order that are inconsistent with the Court ordered change

             (3)  If:

                     (a)  the constitution of the corporation is changed by an order made under this section; and

                     (b)  after the order, a change to the constitution is proposed; and

                     (c)  the proposed change is inconsistent with the change made by the order;

the Registrar must not register the proposed change unless:

                     (d)  the order states that the constitution can be changed; or

                     (e)  the leave of the court is obtained by:

                              (i)  in any case—the Registrar; or

                             (ii)  if the change is not to be made under section 69‑35—the corporation.

Note:          See section 69‑10 for the meaning of changed in relation to an Aboriginal and Torres Strait Islander corporation’s constitution.

166‑10  Who can apply for an order?

                   An application for an order under section 166‑5 in relation to an Aboriginal and Torres Strait Islander corporation may be made by:

                     (a)  a member of the corporation, even if the application relates to an act or omission that is against:

                              (i)  the member in a capacity other than as a member; or

                             (ii)  another member in that member’s capacity as a member; or

                     (b)  a person who has ceased to be a member of the corporation if the application relates to the circumstances in which the person ceased to be a member; or

                     (c)  a person whom the Registrar thinks appropriate having regard to investigations the Registrar is conducting or has conducted into:

                              (i)  the corporation’s affairs; or

                             (ii)  matters connected with the corporation’s affairs; or

                     (d)  the Registrar.

166‑15  Requirement for person to lodge order

             (1)  If an order is made under section 166‑5, the applicant must lodge a copy of the order with the Registrar within 14 days after it is made.

             (2)  Subsection (1) does not apply if the applicant is the Registrar.

             (3)  A person commits an offence if the person contravenes subsection (1).

Penalty:  50 penalty units or imprisonment for 12 months, or both.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

 

Division 169—When may a person bring or intervene in proceedings on behalf of an Aboriginal and Torres Strait Islander corporation?

169‑1  Bringing, or intervening in, proceedings on behalf of a corporation

             (1)  A person who is:

                     (a)  either:

                              (i)  a member, former member, or person entitled to be registered as a member of an Aboriginal and Torres Strait Islander corporation or of a related body corporate; or

                             (ii)  an officer or former officer of the corporation; or

                            (iii)  the Registrar; and

                     (b)  acting with leave granted under section 169‑5;

may:

                     (c)  bring proceedings on behalf of an Aboriginal and Torres Strait Islander corporation; or

                     (d)  intervene in any proceedings to which an Aboriginal and Torres Strait Islander corporation is a party for the purpose of taking responsibility on behalf of the corporation for those proceedings, or for a particular step in those proceedings (for example, compromising or settling them).

             (2)  Proceedings brought on behalf of the corporation must be brought in the corporation’s name.

             (3)  Any right a person may have otherwise had at general law to bring, or intervene in, proceedings on behalf of an Aboriginal and Torres Strait Islander corporation is abolished.

Note:          This section does not prevent a person bringing, or intervening in, proceedings on the person’s own behalf in respect of a personal right.

169‑5  Applying for and granting leave

Who may apply for leave?

             (1)  A person referred to in paragraph 169‑1(1)(a) may apply to the Court for leave to bring, or to intervene in, proceedings.

Court to grant the application in certain circumstances

             (2)  The Court must grant the application if it is satisfied that:

                     (a)  it is probable that the corporation will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them; and

                     (b)  the applicant is acting in good faith; and

                     (c)  it is in the best interests of the corporation that the applicant be granted leave; and

                     (d)  if the applicant is applying for leave to bring proceedings—there is a serious question to be tried; and

                     (e)  either:

                              (i)  at least 14 days before making the application, the applicant gave written notice to the corporation of the intention to apply for leave and of the reasons for applying; or

                             (ii)  it is appropriate to grant leave even though subparagraph (i) is not satisfied.

This subsection has effect subject to subsections (3) and (5).

When leave is not in the best interests of the corporation

             (3)  A rebuttable presumption that granting leave is not in the best interests of the corporation arises if it is established that:

                     (a)  the proceedings are:

                              (i)  by the corporation against a person who is not a related party of the corporation; or

                             (ii)  by such a person against the corporation;

                            (including any appeal from a decision made in proceedings by or against the corporation); and

                     (b)  the corporation has decided:

                              (i)  not to bring the proceedings; or

                             (ii)  not to defend the proceedings; or

                            (iii)  to discontinue, settle or compromise the proceedings; and

                     (c)  all of the directors who participated in that decision:

                              (i)  acted in good faith for a proper purpose; and

                             (ii)  did not have a material personal interest in the decision; and

                            (iii)  informed themselves about the subject matter of the decision to the extent they reasonably believed to be appropriate; and

                            (iv)  rationally believed that the decision was in the best interests of the corporation.

Note:          Related party is defined in section 293‑1.

             (4)  A director’s belief that the decision was in the best interests of the corporation is a rational one unless the belief is one that no reasonable person in his or her position would hold.

Decision taken to give effect to Native Title legislation obligation

             (5)  The Court must not grant the application if:

                     (a)  the corporation has decided:

                              (i)  not to bring the proceedings; or

                             (ii)  not to defend the proceedings; or

                            (iii)  to discontinue, settle or compromise the proceedings; and

                     (b)  an officer or employee of the corporation made that decision:

                              (i)  in good faith; and

                             (ii)  with the belief that making the decision was necessary to ensure that the corporation complies with a Native Title legislation obligation.

169‑10  Substitution of another person for the person granted leave

             (1)  Any of the following persons may apply to the Court for an order that the person be substituted for a person to whom leave has been granted under section 169‑5:

                     (a)  a member, former member, or a person entitled to be registered as a member of the corporation or of a related body corporate;

                     (b)  an officer, or former officer of the corporation;

                     (c)  the Registrar.

When may Court make order

             (2)  The Court may make the order if it is satisfied that:

                     (a)  the applicant is acting in good faith; and

                     (b)  it is appropriate to make the order in all the circumstances.

             (3)  An order substituting one person for another has the effect that:

                     (a)  the grant of leave is taken to have been made in favour of the substituted person; and

                     (b)  if the other person has already brought the proceedings or intervened—the substituted person is taken to have brought those proceedings or to have made that intervention.

169‑15  Effect of ratification by members

             (1)  If the members of an Aboriginal and Torres Strait Islander corporation ratify or approve conduct, the ratification or approval:

                     (a)  does not prevent a person from bringing or intervening in proceedings with leave under section 169‑5 or from applying for leave under that section; and

                     (b)  does not have the effect that proceedings brought or intervened in with leave under section 169‑5 must be determined in favour of the defendant, or that an application for leave under that section must be refused.

Effect of ratification on court

             (2)  If the members of an Aboriginal and Torres Strait Islander corporation ratify or approve conduct, the Court may take the ratification or approval into account in deciding what order or judgment (including as to damages) to make in:

                     (a)  proceedings brought or intervened in with leave under section 169‑5; or

                     (b)  in relation to an application for leave under that section.

             (3)  In doing this, it must have regard to:

                     (a)  how well‑informed about the conduct the members were when deciding whether to ratify or approve the conduct; and

                     (b)  whether the members who ratified or approved the conduct were acting for proper purposes.

169‑20  Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave

                   Proceedings brought or intervened in with leave must not be discontinued, compromised or settled without the leave of the Court.

169‑25  General powers of the Court

             (1)  The Court may make any orders, and give any directions, that it considers appropriate in relation to proceedings brought or intervened in with leave, or an application for leave, including:

                     (a)  interim orders; and

                     (b)  directions about the conduct of the proceedings, including requiring mediation; and

                     (c)  an order directing the corporation, or an officer of the corporation, to do, or not to do, any act; and

                     (d)  an order appointing an independent person to investigate, and report to the Court on:

                              (i)  the financial affairs of the corporation; or

                             (ii)  the facts or circumstances which gave rise to the cause of action the subject of the proceedings; or

                            (iii)  the costs incurred in the proceedings by the parties to the proceedings and the person granted leave.

Persons appointed under paragraph (1)(d) may inspect books

             (2)  A person appointed by the Court under paragraph (1)(d) is entitled, on giving reasonable notice to the corporation, to inspect any books of the corporation for any purpose connected with his or her appointment.

Remuneration and expenses for persons appointed under paragraph (1)(d)

             (3)  If the Court appoints a person under paragraph (1)(d):

                     (a)  the Court must also make an order stating who is liable for the remuneration and expenses of the person appointed; and

                     (b)  the Court may vary the order at any time; and

                     (c)  the persons who may be made liable under the order, or the order as varied, are:

                              (i)  all or any of the parties to the proceedings or application; and

                             (ii)  the corporation; and

                     (d)  if the order, or the order as varied, makes 2 or more persons liable, the order may also determine the nature and extent of the liability of each of those persons.

             (4)  Subsection (3) does not affect the powers of the Court as to costs.

169‑30  Power of the Court to make costs orders

             (1)  The Court may at any time make any orders it considers appropriate about the costs of the following persons in relation to proceedings brought or intervened in with leave under section 169‑5 or an application for leave under that section:

                     (a)  the person who applied for or was granted leave;

                     (b)  the corporation;

                     (c)  any other party to the proceedings or application.

             (2)  An order under this section may require indemnification for costs.

 

Division 172—What protections apply to variations or cancellations of class rights?

172‑1  Varying and cancelling class rights

If constitution sets out procedure

             (1)  If an Aboriginal and Torres Strait Islander corporation’s constitution sets out the procedure for varying or cancelling rights of members in a class of members, those rights may be varied or cancelled only in accordance with the procedure. The procedure may be changed only if the procedure itself is complied with.

If constitution does not set out procedure

             (2)  If an Aboriginal and Torres Strait Islander corporation’s constitution does not set out the procedure for varying or cancelling rights of members in a class of members, those rights may be varied or cancelled only by special resolution of the corporation and:

                     (a)  by special resolution passed at a meeting of the class of members whose rights are being varied or cancelled; or

                     (b)  with the written consent of members with at least 75% of the votes in the class.

Notice of variation

             (3)  The corporation must give written notice of the variation or cancellation to the members of the class within 7 days after the variation or cancellation is made.

             (4)  The corporation commits an offence if it contravenes subsection (3).

Penalty:  5 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

172‑5  Certain actions taken to vary rights etc

             (1)  If the members in a class of members of an Aboriginal and Torres Strait Islander corporation are divided into further classes of members and, after the division, the rights of all of those members are not the same:

                     (a)  the division is taken to vary the rights of every member who was in the class existing before the division; and

                     (b)  members who have the same rights after the division form a separate class.

             (2)  If the rights of some of the members in a class of members are varied:

                     (a)  the variation is taken to vary the rights of every other member who was in the class existing before the variation; and

                     (b)  members who have the same rights after the variation form a separate class.

172‑10  Variation, cancellation or modification without unanimous support of class

             (1)  If members in a class of members of an Aboriginal and Torres Strait Islander corporation do not all agree (whether by resolution or written consent) to:

                     (a)  a variation or cancellation of their rights; or

                     (b)  a modification of the corporation’s constitution (if any) to allow their rights to be varied or cancelled;

members with at least 10% of the votes in the class may apply to the Court to have the variation, cancellation or modification set aside.

             (2)  An application may only be made within 28 days after the variation, cancellation or modification is made.

             (3)  The variation, cancellation or modification takes effect:

                     (a)  if no application is made to the Court to have it set aside—28 days after the variation, cancellation or modification is made; or

                     (b)  if an application is made to the Court to have it set aside—when the application is withdrawn or finally determined.

             (4)  The members of the class who want to have the variation, cancellation or modification set aside may appoint one or more of themselves to make the application on their behalf. The appointment must be in writing.

             (5)  The Court may set aside the variation, cancellation or modification if it is satisfied that it would unfairly prejudice the applicants. However, the Court must confirm the variation, cancellation or modification if the Court is not satisfied of unfair prejudice.

             (6)  Within 14 days after the Court makes an order, the corporation must lodge a copy of the order with the Registrar.

             (7)  The corporation commits an offence if it contravenes subsection (6).

Penalty:  5 penalty units.

             (8)  An offence against subsection (6) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

172‑15  Variation, cancellation or modification with unanimous support of class

                   If the members in a class of members of an Aboriginal and Torres Strait Islander corporation all agree (whether by resolution or written consent) to the variation, cancellation or modification, it takes effect:

                     (a)  if no later date is specified in the resolution or consent—on the date of the resolution or consent; or

                     (b)  on a later date specified in the resolution or consent.

 

Division 175—When may a member inspect a corporation’s books?

175‑1  Order for inspection of books of corporation

             (1)  On application by a member of an Aboriginal and Torres Strait Islander corporation, the Court may make an order:

                     (a)  authorising the applicant to inspect books of the corporation; or

                     (b)  authorising another person (whether a member or not) to inspect books of the corporation on the applicant’s behalf.

The Court may only make the order if it is satisfied that the applicant is acting in good faith and that the inspection is to be made for a proper purpose.

             (2)  A person authorised to inspect books may make copies of the books unless the Court orders otherwise.

             (3)  A person who:

                     (a)  is granted leave under section 169‑5; or

                     (b)  applies for leave under that section; or

                     (c)  is eligible to apply for leave under that section;

may apply to the Court for an order under this section.

             (4)  On application, the Court may make an order authorising:

                     (a)  the applicant to inspect books of the corporation; or

                     (b)  another person to inspect books of the corporation on the applicant’s behalf.

             (5)  The Court may make the order only if it is satisfied that:

                     (a)  the applicant is acting in good faith; and

                     (b)  the inspection is to be made for a purpose connected with:

                              (i)  applying for leave under section 169‑5; or

                             (ii)  bringing or intervening in proceedings with leave under that section.

             (6)  A person authorised to inspect books may make copies of the books unless the Court orders otherwise.

             (7)  If the person authorised by the Court under paragraph (1)(b) or paragraph (4)(b) is the Registrar, the Registrar may appoint another person to inspect the books of the corporation on the Registrar’s behalf.

175‑5  Ancillary orders

                   If the Court makes an order under section 175‑1, the Court may make any other orders it considers appropriate, including either or both of the following:

                     (a)  an order limiting the use that a person who inspects books may make of information obtained during the inspection;

                     (b)  an order limiting the right of a person who inspects books to make copies in accordance with subsection 175‑1(2).

175‑10  Disclosure of information acquired in inspection

             (1)  A person who inspects books on behalf of an applicant under section 175‑1 must not disclose information obtained during the inspection.

             (2)  Subsection (1) does not apply to the extent that the disclosure is to:

                     (a)  the Registrar; or

                     (b)  the applicant.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

             (3)  A person commits an offence if the person contravenes subsection (1).

Penalty:  50 penalty units or imprisonment for 12 months, or both.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

175‑15  Corporation or directors may allow member to inspect books (replaceable rule—see section 60‑1)

                   The directors of an Aboriginal and Torres Strait Islander corporation, or the corporation by a resolution passed at a general meeting, may authorise a member to inspect books of the corporation.

 

Part 4‑5—Registers of members and former members

Division 180—Registers of members and former members

180‑1  Aboriginal and Torres Strait Islander corporations to maintain register of members

             (1)  An Aboriginal and Torres Strait Islander corporation must set up and maintain a register of members.

             (2)  An Aboriginal and Torres Strait Islander corporation commits an offence if it contravenes subsection (1).

Penalty:  10 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

180‑5  Information on the register of members

             (1)  The register of members must contain the following information about each member:

                     (a)  the member’s given and family name;

                     (b)  all other names by which the member is or was known;

                     (c)  the member’s address;

                     (d)  the date on which the entry of the member’s name in the register is made.

             (2)  If:

                     (a)  the corporation’s constitution allows for members who are not Aboriginal and Torres Strait Islander persons; and

                     (b)  a member is not an Aboriginal and Torres Strait Islander person;

the entry for the member in the register must also indicate that the member is not an Aboriginal and Torres Strait Islander person.

180‑10  Aboriginal and Torres Strait Islander corporations to maintain register of former members

             (1)  An Aboriginal and Torres Strait Islander corporation must set up and maintain a register of former members.

             (2)  An Aboriginal and Torres Strait Islander corporation commits an offence if it contravenes subsection (1).

Penalty:  10 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

180‑15  Information on the register of former members

                   The register of former members must contain the following information about each person who stopped being a member of the corporation within the last 7 years:

                     (a)  the person’s given and family name; and

                     (b)  all other names by which the person is or was known; and

                     (c)  the person’s address; and

                     (d)  the date on which the person stopped being a member.

180‑20  Location and inspection of registers

             (1)  An Aboriginal and Torres Strait Islander corporation must keep the register of members and the register of former members at:

                     (a)  the corporation’s registered office if the corporation is registered as a large corporation; or

                     (b)  the corporation’s document access address if the corporation is registered as a small or medium corporation.

Penalty:  10 penalty units.

             (2)  The register must be open for inspection by any person.

             (3)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

180‑25  Right to inspect and get copies

Right to inspect

             (1)  Any person has a right to inspect an Aboriginal and Torres Strait Islander corporation’s register of members and register of former members.

Note 1:       A corporation commits an offence under section 376‑1 if it does not allow inspection of a register.

Note 2:       Other provisions that are relevant to the inspection of a register are:

(a)           section 180‑45 (evidentiary value); and

(b)           section 376‑1 (place and times for inspection); and

(c)           section 376‑20 (form).

             (2)  If a register is not kept on computer, the corporation must allow the person to inspect the register itself.

             (3)  If a register is kept on a computer, the corporation must (unless the person and the corporation agree that the person can access the information by computer) allow the person to inspect a hard copy of the information on the register.

Inspection fees

             (4)  A member of the corporation may inspect the register without charge. Other people may inspect the register only on payment of any fee (up to the prescribed amount) required by the corporation.

Right to get copies

             (5)  The corporation must give a person a copy of the register (or a part of the register) within 7 days if the person:

                     (a)  asks for the copy; and

                     (b)  pays any fee (up to the prescribed amount) required by the corporation.

The Registrar may allow a longer period to comply with the request.

Penalty:  10 penalty units.

             (6)  An offence against subsection (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

180‑30  Aboriginal and Torres Strait Islander corporation to make register of members available at AGM

             (1)  An Aboriginal and Torres Strait Islander corporation must:

                     (a)  make the register available for inspection by members at the AGM; and

                     (b)  ask each member attending the AGM to:

                              (i)  check the entry for that member in the register; and

                             (ii)  inform the corporation of any corrections that need to be made to that entry.

Penalty:  10 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

180‑35  Aboriginal and Torres Strait Islander corporation to give Registrar copy of register of members

             (1)  The Registrar may, at any time, request the corporation to give him or her a copy of the register of members as at the date when the copy is given to the Registrar, and the corporation must comply with the request within 14 days or such longer period as the Registrar specifies.

Note:          An Aboriginal and Torres Strait Islander corporation must give a general report to the Registrar in respect of each financial year. That report must include details of the names and addresses of the corporation’s members: see sections 330‑1 and 330‑5.

             (2)  An Aboriginal and Torres Strait Islander corporation commits an offence if it contravenes subsection (1).

Penalty:  10 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note 1:       For strict liability, see section 6.1 of the Criminal Code.

Note 2:       See also section 265‑40 for offences committed by the secretary of an Aboriginal and Torres Strait Islander corporation.

180‑40  Correction of register of members

             (1)  The corporation, or a person aggrieved, may apply to the Court to have the register of members or the register of former members corrected.

             (2)  If the Court orders the corporation to correct the register, it may also order the corporation to compensate a party to the application for loss or damage suffered.

180‑45  Evidentiary value of registers

                   In the absence of evidence to the contrary, the register of members and the register of former members are proof of the matters shown in the registers under this Part.

 

Division 183—Use of information on the register of members

183‑1  Use of information on register

             (1)  A person must not:

                     (a)  use information about a person obtained from a register of members to contact or send material to the person; or

                     (b)  disclose information of that kind knowing that the information is likely to be used to contact or send material to the person.

Note:          An example of using information to send material to a person is putting a person’s name and address on a mailing list for advertising material.

             (2)  Subsection (1) does not apply if the use or disclosure of the information is:

                     (a)  relevant to the person’s membership of the corporation or the exercise of the person’s rights as a member of the corporation; or

                     (b)  approved by the corporation.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

             (3)  A person commits an offence if the person contravenes subsection (1).

Penalty:  10 penalty units.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (5)  A person who contravenes subsection (1) is liable to compensate anyone else who suffers loss or damage because of the contravention.

             (6)  A person who makes a profit from a contravention of subsection (1) owes a debt to the corporation. The amount of the debt is the amount of the profit.

             (7)  If a person owes a debt under subsection (6) to the corporation:

                     (a)  the debt may be recovered by the corporation as a debt due to it; and

                     (b)  any amount paid or recovered in respect of the debt forms part of the corporation’s property.

 

Chapter 5—Meetings

Part 5‑1—Introduction

Division 193—Introduction

193‑1  What this Chapter is about

 

Part 5‑2—General meetings

Division 198—Introduction

198‑1  What this Part is about

 

Division 201—What are the rules concerning general meetings?

Subdivision 201‑A—Who may call general meetings?

201‑1  Director may call meetings (replaceable rule—see section 60‑1)

                   A director of an Aboriginal and Torres Strait Islander corporation may call a general meeting of the corporation.

201‑5  Request by members for directors to call general meetings

Which members may make a request?

             (1)  The directors of an Aboriginal and Torres Strait Islander corporation must call and arrange to hold a general meeting on the request of at least the required number of members under subsection (4).

             (2)  The request must:

                     (a)  be in writing; and

                     (b)  state any resolution to be proposed at the meeting; and

                     (c)  be signed by the members making the request; and

                     (d)  nominate a member (the nominated member) to be the contact member on behalf of the members making the request; and

                     (e)  be given to the corporation.

             (3)  Separate copies of a document setting out the request may be used for signing by members if the wording of the request is identical in each copy.

             (4)  The required number of members for an Aboriginal and Torres Strait Islander corporation is the greater of:

                     (a)  5 members of the corporation; or

                     (b)  10% of the members of the corporation.

             (5)  The regulations may prescribe a different number of members for the purposes of applying paragraph (4)(a) to:

                     (a)  a particular Aboriginal and Torres Strait Islander corporation; or

                     (b)  a particular class of Aboriginal and Torres Strait Islander corporation.

Without limiting this, the regulations may specify the number as a percentage of the number of members of the corporation.

             (6)  The regulations may prescribe a different percentage for the purposes of applying paragraph (4)(b) to:

                     (a)  a particular Aboriginal and Torres Strait Islander corporation; or

                     (b)  a particular class of Aboriginal and Torres Strait Islander corporation.

201‑10  When must directors comply with members’ request?

             (1)  If the directors resolve:

                     (a)  that the request under section 201‑5 is frivolous or unreasonable; or

                     (b)  that complying with the request would be contrary to the interests of the members as a whole;

a director, on behalf of all of the directors, may apply to the Registrar for permission to deny the request.

             (2)  The application must:

                     (a)  be in writing; and

                     (b)  set out the ground on which the application is made; and

                     (c)  be made within 21 days after the request is made.

             (3)  The directors must, as soon as is practicable after making the application, give the nominated member notice that an application has been made under subsection (1).

             (4)  The Registrar must:

                     (a)  determine the application within 21 days after receiving it; and

                     (b)  notify the director, the corporation and the nominated member in writing of the outcome of the determination.

201‑15  When must a requested meeting be held?

No application to Registrar under section 201‑10

             (1)  If a director has not applied to the Registrar under section 201‑10 in respect of the request, the directors must call the requested meeting within 21 days after the request is given to the corporation.

Application to Registrar under section 201‑10

             (2)  If:

                     (a)  a director has applied under section 201‑10 in respect of the request; and

                     (b)  the Registrar’s decision is that the ground is not made out;

the directors must call the meeting within 21 days after being notified of the Registrar’s determination.

Subdivision 201‑B—How to call general meetings

201‑20  Amount of notice of general meetings

General rule

             (1)  Subject to subsection (2), at least 21 days notice must be given of a general meeting. However, an Aboriginal and Torres Strait Islander corporation’s constitution may specify a longer minimum period of notice.

Calling meetings on shorter notice

             (2)  An Aboriginal and Torres Strait Islander corporation:

                     (a)  may call an AGM on shorter notice, if all the members of the corporation agree beforehand; and

                     (b)  may call any other general meeting on shorter notice, if at least 95% of the members of the corporation agree beforehand.

An Aboriginal and Torres Strait Islander corporation cannot call an AGM or other general meeting on shorter notice if it is a meeting of the kind referred to in subsection (3) or (4).

Shorter notice not allowed—removing or appointing director

             (3)  At least 21 days notice must be given of a general meeting at which a resolution will be moved to:

                     (a)  remove a director under section 249‑10; or

                     (b)  appoint a director in place of a director removed under that section.

Shorter notice not allowed—removing auditor

             (4)  At least 21 days notice must be given of a general meeting at which a resolution will be moved to remove an auditor.

201‑25  Notice of general meeting to members, officers and observers

Notice to members, officers and observers individually

             (1)  Written notice of a general meeting must be given by the corporation individually to the following persons:

                     (a)  each member entitled to vote at the meeting;

                     (b)  each director;

                     (c)  the corporation secretary (if any);

                     (d)  the contact officer (if any);

                     (e)  any observer entitled to attend the meeting.

Note:          A failure to give notice to a member might not invalidate the meeting (see section 576‑15).

Notice to joint members (replaceable rule—see section 60‑1)

             (2)  Notice to joint members must be given to the joint member named first in the register of members.

How notice is given

             (3)  The corporation may give the notice of meeting to a member:

                     (a)  personally; or

                     (b)  by sending it by post to the address for the member in the register of members or the alternative address (if any) nominated by the member; or

                     (c)  by sending it to the fax number or electronic address (if any) nominated by the member; or

                     (d)  by sending it to the member by other electronic means (if any) nominated by the member; or

                     (e)  by notifying the member in accordance with subsection (4); or

                      (f)  by any other means that the corporation’s constitution (if any) permits.

Note:          A defect in the notice given may not invalidate a meeting (see section 576‑15).

             (4)  If the member nominates:

                     (a)  an electronic means (the nominated notification means) by which the member may be notified that notices of meeting are available; and

                     (b)  an electronic means (the nominated access means) the member may use to access notices of meeting;

the corporation may give the member notice of the meeting by notifying the member (using the nominated notification means):

                     (c)  that the notice of meeting is available; and

                     (d)  how the member may use the nominated access means to access the notice of meeting.

This subsection does not limit subsection (3).

When notice by post or fax is given (replaceable rule—see section 60‑1)

             (5)  A notice of meeting sent by post is taken to be given 3 days after it is posted. A notice of meeting sent by fax, or other electronic means, is taken to be given on the business day after it is sent.

When notice under paragraph (3)(e) is given (replaceable rule—see section 60‑1)

             (6)  A notice of meeting given to a member under paragraph (3)(e) is taken to be given on the business day after the day on which the member is notified that the notice of meeting is available.

201‑30  Auditor entitled to notice and other communications

             (1)  An Aboriginal and Torres Strait Islander corporation must give its auditor (if any):

                     (a)  notice of a general meeting in the same way that a member of the corporation is entitled to receive notice; and

                     (b)  any other communications relating to the general meeting that a member of the corporation is entitled to receive.

Penalty:  5 penalty units.

Note:          An auditor may authorise a representative to attend a meeting (see subsection 201‑80(4).

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

201‑35  Contents of notice of general meeting

             (1)  A notice of a general meeting must:

                     (a)  set out the place, date and time for the meeting (and, if the meeting is to be held in 2 or more places, the technology that will be used to facilitate this); and

                     (b)  state the general nature of the meeting’s business; and

                     (c)  if a special resolution is to be proposed at the meeting—set out an intention to propose the special resolution and state the resolution; and

                     (d)  if a member is entitled to appoint a proxy—contain a statement setting out the following information:

                              (i)  that the member has a right to appoint a proxy;

                             (ii)  whether or not the proxy needs to be a member of the corporation;

                            (iii)  that a member who is entitled to cast 2 or more votes may appoint 2 proxies and may specify the proportion or number of votes each proxy is appointed to exercise.

Note:          There may be other requirements for disclosure to members.

             (2)  The information included in the notice of meeting must be worded and presented in a clear, concise and effective manner.

Subdivision 201‑C—Members’ rights to put resolutions etc. to general meeting

201‑40  Members’ resolutions

             (1)  Notice of a resolution that they propose to move at a general meeting may be given to an Aboriginal and Torres Strait Islander corporation by at least the required number of members under subsection (4).

             (2)  The notice must:

                     (a)  be in writing; and

                     (b)  set out the wording of the proposed resolution; and

                     (c)  be signed by the members proposing to move the resolution.

             (3)  Separate copies of a document setting out the notice may be used for signing by members if the wording of the notice is identical in each copy.

             (4)  The required number of members for an Aboriginal and Torres Strait Islander corporation is the greater of:

                     (a)  5 members of the corporation; or

                     (b)  10% of the members of the corporation.

             (5)  The regulations may prescribe a different number of members for the purposes of applying paragraph (4)(a) to:

                     (a)  a particular Aboriginal and Torres Strait Islander corporation; or

                     (b)  a particular class of Aboriginal and Torres Strait Islander corporation.

Without limiting this, the regulations may specify the number as a percentage of the number of members of the corporation.

             (6)  The regulations may prescribe a different percentage for the purposes of applying paragraph (4)(b) to:

                     (a)  a particular Aboriginal and Torres Strait Islander corporation; or

                     (b)  a particular class of Aboriginal and Torres Strait Islander corporation.

201‑45  Notice of members’ resolutions

             (1)  If an Aboriginal and Torres Strait Islander corporation has been given notice of a resolution under section 201‑40, the resolution is to be considered at the next general meeting that occurs more than 28 days after the notice is given.

             (2)  The corporation must give all its members notice of the resolution at the same time, or as soon as practicable afterwards, and in the same way, as it gives notice of a general meeting.

             (3)  The corporation is responsible for the cost of giving members notice of the resolution.

             (4)  The corporation need not give notice of the resolution if it is defamatory.

201‑50  Members’ statements to be distributed

             (1)  Members may request an Aboriginal and Torres Strait Islander corporation to give to all its members a statement provided by the members making the request about:

                     (a)  a resolution that is proposed to be moved at a general meeting; or

                     (b)  any other matter that may be properly considered at a general meeting.

             (2)  The request must be made by at least the required number of members under subsection (8).

             (3)  The request must be:

                     (a)  in writing; and

                     (b)  signed by the members making the request; and

                     (c)  given to the corporation.

             (4)  Separate copies of a document setting out the request may be used for signing by members if the wording of the request is identical in each copy.

             (5)  After receiving the request, the corporation must distribute to all its members a copy of the statement at the same time, or as soon as practicable afterwards, and in the same way, as it gives notice of the general meeting.

             (6)  The corporation is responsible for the cost of making the distribution.

             (7)  The corporation need not comply with the request if the statement is defamatory.

             (8)  The required number of members for an Aboriginal and Torres Strait Islander corporation is the greater of:

                     (a)  5 members of the corporation; or

                     (b)  10% of the members of the corporation.

             (9)  The regulations may prescribe a different number of members for the purposes of applying paragraph (8)(a) to:

                     (a)  a particular Aboriginal and Torres Strait Islander corporation; or

                     (b)  a particular class of Aboriginal and Torres Strait Islander corporation.

Without limiting this, the regulations may specify the number as a percentage of the number of members of the corporation.

           (10)  The regulations may prescribe a different percentage for the purposes of applying paragraph (8)(b) to:

                     (a)  a particular Aboriginal and Torres Strait Islander corporation; or

                     (b)  a particular class of Aboriginal and Torres Strait Islander corporation.

Subdivision 201‑D—Holding general meetings

201‑55  Purpose

                   A general meeting must be held for a proper purpose.

201‑60  Time and place for general meeting

                   A general meeting must be held at a reasonable time and place.

201‑65  Technology

                   An Aboriginal and Torres Strait Islander corporation may hold a general meeting at 2 or more venues using any technology that gives the members as a whole a reasonable opportunity to participate.

Note:          See section 576‑15 for the consequences of a member not being given a reasonable opportunity to participate.

201‑70  Quorum

Quorum (replaceable rule—see section 60‑1)

             (1)  If an Aboriginal and Torres Strait Islander corporation has 11 or more members, the quorum for a meeting of the corporation’s members is the lesser of:

                     (a)  10 members; or

                     (b)  the greater of:

                              (i)  the number of members holding 10% of the voting rights; or

                             (ii)  2 members.

Corporations with 10 members or less (replaceable rule—see section 60‑1)

             (2)  If an Aboriginal and Torres Strait Islander corporation has 10 members or less, the quorum for a meeting of the corporation’s members is 2 members.

Quorum to be present

             (3)  The quorum must be present at all times during the meeting.

How to determine if quorum is present

             (4)  In determining whether a quorum is present, count individuals attending as proxies or body corporate representatives. However, if a member has appointed more than 1 proxy or representative, count only 1 of them. If an individual is attending both as a member and as a proxy or body corporate representative, count them only once.

Note 1:       For rights to appoint proxies, see section 201‑90.

Note 2:       For body corporate representatives, see section 201‑110.

Adjourned meeting (replaceable rule—see section 60‑1)

             (5)  A meeting of the corporation’s members that does not have a quorum present within 1 hour after the time for the meeting set out in the notice of meeting is adjourned to the same time of the same day in the next week, and to the same place, unless the directors specify otherwise.

No quorum at resumed meeting (replaceable rule—see section 60‑1)

             (6)  If no quorum is present at the resumed meeting within 1 hour after the time for the meeting, the meeting is dissolved.

201‑75  Chairing general meeting (replaceable rule—see section 60‑1)

             (1)  The directors may elect an individual to chair general meetings.

             (2)  The directors at a general meeting must elect an individual present to chair the meeting (or part of it) if an individual has not already been elected by the directors to chair it or, having been elected, is not available to chair it, or declines to act, for the meeting (or part of the meeting).

             (3)  The members at a general meeting must elect a member present to chair the meeting (or part of it) if:

                     (a)  a chair has not previously been elected by the directors to chair the meeting; or

                     (b)  a previously elected chair is not available, or declines to act, for the meeting (or part of the meeting).

             (4)  The chair must adjourn a general meeting if the members present with a majority of votes at the meeting agree or direct that the chair must do so.

201‑80  Auditor’s right to be heard at general meetings

             (1)  If an Aboriginal and Torres Strait Islander corporation has an auditor, the auditor is entitled to attend any general meeting of the corporation.

Note:          See section 333‑20 for when a financial report is required to be audited.

             (2)  The auditor is entitled to be heard at the meeting on any part of the business of the meeting that concerns the auditor in the auditor’s capacity as auditor.

             (3)  The auditor is entitled to be heard even if:

                     (a)  the auditor retires at the meeting; or

                     (b)  the meeting passes a resolution to remove the auditor from office.

             (4)  The auditor may authorise a person in writing as the auditor’s representative for the purpose of attending and speaking at any general meeting.

Note:          At an AGM, members may ask the auditor questions (see section 201‑170).

201‑85  Adjourned meetings

When resolution passed

             (1)  A resolution passed at a general meeting resumed after an adjournment is passed on the day it was passed.

Business at adjourned meetings (replaceable rule—see section 60‑1)

             (2)  Only unfinished business is to be transacted at a general meeting resumed after an adjournment.

Subdivision 201‑E—Proxies

201‑90  Who may appoint a proxy (replaceable rule—see section 60‑1)

Who may appoint proxy

             (1)  A member of an Aboriginal and Torres Strait Islander corporation who is entitled to attend and cast a vote at a general meeting may appoint a person as the member’s proxy to attend and vote for the member at the meeting.

Proxy may be individual or a body corporate

             (2)  The person appointed as the member’s proxy may be an individual or a body corporate.

Note:          A body corporate may appoint a representative to exercise the powers that the body corporate may exercise as the member’s proxy (see section 201‑110).

             (3)  The appointment may specify the proportion or number of votes that the proxy may exercise.

201‑95  Rights of proxies

Rights of proxies

             (1)  A proxy appointed to attend and vote for a member has the same rights as the member:

                     (a)  to speak at the meeting; and

                     (b)  to vote (but only to the extent allowed by the appointment); and

                     (c)  join in a demand for a poll.

Proxy’s right to vote

             (2)  An Aboriginal and Torres Strait Islander corporation’s constitution may provide that a proxy is not entitled to vote on a show of hands.

Note:          Even if the proxy is not entitled to vote on a show of hands, they may make or join in the demand for a poll.

Effect of member’s presence on proxy’s authority

             (3)  An Aboriginal and Torres Strait Islander corporation’s constitution may provide for the effect that a member’s presence at a meeting has on the authority of a proxy appointed to attend and vote for the member. However, if the constitution does not deal with this, a proxy’s authority to speak and vote for a member at a meeting is suspended while the member is present at the meeting.

Exercise of proxies

             (4)  A person must not exercise proxies for more than the number of members:

                     (a)  prescribed in the regulations for the purposes of this subsection; or

                     (b)  worked out using the method prescribed in the regulations for the purposes of this subsection.

Penalty:  5 penalty units.

             (5)  To avoid doubt, a contravention of subsection (4) does not affect the validity of the votes cast.

201‑100  Appointing a proxy

             (1)  An appointment of a proxy is valid if it is signed, or otherwise authenticated in a manner prescribed by the regulations, by the member of the Aboriginal and Torres Strait Islander corporation making the appointment and contains the following information:

                     (a)  the member’s name and address;

                     (b)  the corporation’s name;

                     (c)  the proxy’s name or the name of the office held by the proxy;

                     (d)  the meetings at which the appointment may be used.

An appointment may be a standing one.

             (2)  The regulations made for the purposes of subsection (1) may prescribe different requirements for the authentication of an appointment given to the corporation by different means (electronic or otherwise).

             (3)  The corporation’s constitution may provide that an appointment is valid even if it contains only some of the information required by subsection (1).

             (4)  An undated appointment is taken to have been dated on the day it is given to the corporation.

             (5)  An appointment may specify the way the proxy is to vote on a particular resolution. If it does:

                     (a)  the proxy need not vote on a show of hands, but if the proxy does so, the proxy must vote that way; and

                     (b)  if the proxy has 2 or more appointments that specify different ways to vote on the resolution—the proxy must not vote on a show of hands; and

                     (c)  if the proxy is the chair—the proxy must vote on a poll, and must vote that way; and

                     (d)  if the proxy is not the chair—the proxy need not vote on a poll, but if the proxy does so, the proxy must vote that way.

If a proxy is also a member, this subsection does not affect the way that the person can cast any votes they hold as a member.

Note:          An Aboriginal and Torres Strait Islander corporation’s constitution may provide that a proxy is not entitled to vote on a show of hands (see subsection 201‑95(2)).

             (6)  A person who contravenes subsection (5) commits an offence, but only if the person’s appointment as a proxy resulted from the corporation sending to members:

                     (a)  a list of persons willing to act as proxies; or

                     (b)  a proxy appointment form holding the person out as being willing to act as a proxy.

Penalty:  5 penalty units.

             (7)  An offence against subsection (6) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (8)  An appointment does not have to be witnessed.

             (9)  A later appointment revokes an earlier one if both appointments could not be validly exercised at the meeting.

201‑105  Proxy documents

Documents to be received by corporation before meeting

             (1)  For an appointment of a proxy for a meeting of members of an Aboriginal and Torres Strait Islander corporation to be effective, the following documents must be received by the corporation at least 48 hours before the meeting:

                     (a)  the proxy’s appointment;

                     (b)  if the appointment is signed, or otherwise authenticated in a manner prescribed by regulations made for the purposes of subsection 201‑100(1), by the appointor’s attorney—the authority under which the appointment was signed or authenticated or a certified copy of the authority.

Documents received following adjournment of meeting

             (2)  If a meeting of the corporation’s members has been adjourned, an appointment and any authority received by the corporation at least 48 hours before the resumption of the meeting are effective for the resumed part of the meeting.

Constitution or notice of meeting may provide for different notification period

             (3)  The corporation’s constitution or the notice of meeting may reduce the period of 48 hours referred to in subsection (1) or (2).

201‑110  Body corporate representative

             (1)  A body corporate may appoint an individual as a representative to exercise all or any of the powers the body corporate may exercise:

                     (a)  at meetings of an Aboriginal and Torres Strait Islander corporation’s members; or

                     (b)  at meetings of creditors; or

                     (c)  relating to resolutions to be passed without meetings; or

                     (d)  in the capacity of a member’s proxy appointed under section 201‑90.

The appointment may be a standing one.

             (2)  The appointment may set out restrictions on the representative’s powers. If the appointment is to be by reference to a position held, the appointment must identify the position.

             (3)  A body corporate may appoint more than 1 representative but only 1 representative may exercise the body’s powers at any one time.

             (4)  Unless otherwise specified in the appointment, the representative may exercise, on the body corporate’s behalf, all of the powers that the body could exercise at a meeting or in voting on a resolution.

Note:          For resolutions of members without meetings, see Division 204.

Subdivision 201‑F—Voting at general meetings

201‑115  How many votes a member has (replaceable rule—see section 60‑1)

             (1)  At a general meeting, each member of an Aboriginal and Torres Strait Islander corporation has 1 vote, both on a show of hands and a poll.

Chair’s casting vote

             (2)  The chair has a casting vote, and also, if he or she is a member, any vote he or she has as a member.

Note 1:       The chair may be precluded from voting, for example, by a conflict of interest.

Note 2:       For rights to appoint proxies, see section 201‑90.

201‑120  Objections to right to vote (replaceable rule—see section 60‑1)

                   A challenge to a right to vote at a general meeting:

                     (a)  may only be made at the meeting; and

                     (b)  must be determined by the chair, whose decision is final.

201‑125  How voting is carried out (replaceable rule—see section 60‑1)

             (1)  A resolution put to the vote at a general meeting must be decided on a show of hands unless a poll is demanded.

             (2)  Before a vote is taken the chair must inform the meeting whether any proxy votes have been received and how the proxy votes are to be cast.

             (3)  On a show of hands, a declaration by the chair is conclusive evidence of the result, provided that the declaration reflects the show of hands and the votes of the proxies received. Neither the chair nor the minutes need to state the number or proportion of the votes recorded in favour or against.

Note:          Even though the chair’s declaration is conclusive of the voting results, the members present may demand a poll (see section 201‑130).

201‑130  Matters on which a poll may be demanded

             (1)  Subject to subsection (2), at a general meeting, a poll may be demanded on any resolution.

             (2)  An Aboriginal and Torres Strait Islander corporation’s constitution may provide that a poll cannot be demanded on any resolution concerning:

                     (a)  the election of the chair of a meeting; or

                     (b)  the adjournment of a meeting.

             (3)  A demand for a poll may be withdrawn.

201‑135  When a poll is effectively demanded

             (1)  At a general meeting, a poll may be demanded by:

                     (a)  at least 5 members entitled to vote on the resolution; or

                     (b)  members with at least 5% of the votes that may be cast on the resolution on a poll; or

                     (c)  the chair.

Note:          A proxy may join in the demand for a poll (see paragraph 201‑95(1)(c)).

             (2)  An Aboriginal and Torres Strait Islander corporation’s constitution may provide that fewer members or members with a lesser percentage of votes may demand a poll.

             (3)  The poll may be demanded:

                     (a)  before a vote is taken; or

                     (b)  before the voting results on a show of hands are declared; or

                     (c)  immediately after the voting results on a show of hands are declared.

201‑140  When and how polls must be taken (replaceable rule—see section 60‑1)

             (1)  At a general meeting, a poll demanded on a matter other than the election of a chair or the question of an adjournment must be taken when and in the manner the chair directs.

             (2)  At a general meeting, a poll on the election of a chair or on the question of an adjournment must be taken immediately.

Subdivision 201‑G—First general meeting and annual general meetings

201‑145  Corporation must hold first general meeting within 3 months of registration

             (1)  An Aboriginal and Torres Strait Islander corporation must hold a general meeting of members within 3 months after the corporation is registered.

Penalty:  10 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

201‑150  Corporation must hold AGM

             (1)  An Aboriginal and Torres Strait Islander corporation must hold an AGM within 5 months after the end of its financial year.

Penalty:  10 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  An AGM is to be held in addition to any other meetings held by an Aboriginal and Torres Strait Islander corporation in the year.

             (4)  An Aboriginal and Torres Strait Islander corporation that has only 1 member is not required to hold an AGM under this section.

201‑155  Extension of time for holding AGM

             (1)  An Aboriginal and Torres Strait Islander corporation may lodge an application with the Registrar to extend the period within which section 201‑150 requires the corporation to hold an AGM.

             (2)  If the corporation applies before the end of the period within which the corporation would otherwise be required to hold an AGM, the Registrar may, by written notice to the corporation, extend the period. The Registrar must specify the period of the extension.

             (3)  An Aboriginal and Torres Strait Islander corporation granted an extension under subsection (2) must hold its AGM within the extended period.

Penalty:  10 penalty units.

             (4)  The Registrar may impose conditions on the extension and the corporation must comply with those conditions.

Penalty:  10 penalty units.

             (5)  An offence against subsection (3) or (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

201‑160  Business of AGM

                   The business of an AGM may include any of the following, even if not referred to in the notice of meeting:

                     (a)  the consideration of the reports that under Chapter 7 are required to be laid before the AGM;

                     (b)  the election of directors;

                     (c)  the appointment and remuneration of the auditor (if any).

201‑165  Questions and comments by members on corporation management at AGM

             (1)  The chair of an AGM must allow a reasonable opportunity for the members as a whole at the meeting to ask questions about or make comments on the management of the corporation.

Penalty:  5 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

201‑170  Questions by members of auditors at AGM

             (1)  If an Aboriginal and Torres Strait Islander corporation’s auditor (if any) or the auditor’s representative is at an AGM, the chair of the meeting must allow a reasonable opportunity for the members as a whole at the meeting to ask the auditor or the auditor’s representative questions relevant to:

                     (a)  the conduct of the audit; and

                     (b)  the preparation and content of the auditor’s report; and

                     (c)  the accounting policies adopted by the corporation in relation to the preparation of the financial statements; and

                     (d)  the independence of the auditor in relation to the conduct of the audit.

Penalty:  5 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

 

Division 204—Resolutions without a general meeting

204‑1  Circulating resolutions

             (1)  An Aboriginal and Torres Strait Islander corporation may pass a resolution without a general meeting being held if all the members entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document. Each member of a joint membership must sign.

             (2)  Subsection (1) does not apply to a resolution to remove an auditor.

             (3)  Separate copies of a document may be used for signing by members if the wording of the resolution and statement is identical in each copy.

             (4)  The resolution is passed when the last member signs.

             (5)  An Aboriginal and Torres Strait Islander corporation that passes a resolution under this section without holding a meeting satisfies any requirement in this Act:

                     (a)  to give members information or a document relating to the resolution—by giving members that information or document with the document to be signed; and

                     (b)  to lodge with the Registrar a copy of a notice of meeting to consider the resolution—by lodging a copy of the document to be signed by members; and

                     (c)  to lodge a copy of a document that accompanies a notice of meeting to consider the resolution—by lodging a copy of the information or documents referred to in paragraph (a).

             (6)  The passage of the resolution satisfies any requirement in this Act, or the corporation’s constitution, that the resolution be passed at a general meeting.

             (7)  This section does not affect any rule of law relating to the assent of members not given at a general meeting.

Note 1:       Passage of a resolution under this section must be recorded in the corporation’s minute books (see section 220‑5).

Note 2:       A body corporate representative may sign a circulating resolution (see section 201‑110).

204‑5  Resolutions of 1 member corporations

             (1)  An Aboriginal and Torres Strait Islander corporation that has only 1 member may pass a resolution by the member recording it and signing the record.

             (2)  If this Act requires information or a document relating to the resolution to be lodged with the Registrar, that requirement is satisfied by lodging the information or document with the resolution that is passed.

Note 1:       Passage of a resolution under this section must be recorded in the corporation’s minute books (see section 220‑5).

Note 2:       A body corporate representative may sign such a resolution (see section 201‑110).

 

Part 5‑3—Directors’ meetings

Division 209—Introduction

209‑1  What this Part is about

 

Division 212—What are the rules concerning directors’ meetings?

212‑1  Constitution to provide for meetings

                   The constitution of an Aboriginal and Torres Strait Islander corporation must specify how often directors’ meetings are to be held.

212‑5  Calling directors’ meetings (replaceable rule—see section 60‑1)

                   A directors’ meeting may be called by a director giving reasonable notice individually to every other director.

Note:          A director who has appointed an alternate director may ask for the notice to be given to the alternate director (see subsection 246‑30(2)).

212‑10  Use of technology

                   A directors’ meeting may be called or held using any technology consented to by all the directors. The consent may be a standing one. A director may only withdraw his or her consent within a reasonable period before the meeting.

212‑15  Chairing directors’ meetings (replaceable rule—see section 60‑1)

             (1)  The directors may elect a director to chair their meetings. The directors may determine the period for which the director is to be the chair.

             (2)  The directors must elect a director present to chair a meeting, or part of it, if:

                     (a)  a director has not already been elected to chair the meeting; or

                     (b)  a previously elected chair is not available, or declines to act, for the meeting or the part of the meeting.

212‑20  Quorum at directors’ meetings

                   The quorum for a directors’ meeting is a majority of the directors and the quorum must be present at all times during the meeting.

Note:          For resolutions of 1 director Aboriginal and Torres Strait Islander corporations without meetings, see section 215‑5.

212‑25  Passing of directors’ resolutions (replaceable rule—see section 60‑1)

             (1)  A resolution of the directors must be passed by a majority of the votes cast by directors entitled to vote on the resolution.

             (2)  The chair has a casting vote if necessary in addition to any vote he or she has as a director.

 

Division 215—Resolutions and declarations without meetings

215‑1  Circulating resolutions of corporation with more than 1 director (replaceable rule—see section 60‑1)

Resolutions

             (1)  If an Aboriginal and Torres Strait Islander corporation has more than 1 director, the directors of the corporation may pass a resolution without a directors’ meeting being held if all the directors entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document.

Copies

             (2)  Separate copies of a document may be used for signing by directors if the wording of the resolution and statement is identical in each copy.

When the resolution is passed

             (3)  The resolution is passed when the last director signs.

Note:          Passage of a resolution under this section must be recorded in the corporation’s minute books (see section 220‑5).

215‑5  Resolutions and declarations of 1 director corporation

Resolutions

             (1)  The director of an Aboriginal and Torres Strait Islander corporation that has only 1 director may pass a resolution by recording it and signing the record.

Declarations

             (2)  The director of an Aboriginal and Torres Strait Islander corporation that has only 1 director may make a declaration by recording it and signing the record. Recording and signing the declaration satisfies any requirement in this Act that the declaration be made at a directors’ meeting.

Note:          Passage of a resolution or the making of a declaration under this section must be recorded in the corporation’s minute books (see section 220‑5).

 

Part 5‑4—Minutes of meetings

Division 220—Minutes of meetings

220‑1  What this Part is about

220‑5  Minutes

             (1)  An Aboriginal and Torres Strait Islander corporation must keep minute books in which it records within 1 month:

                     (a)  proceedings and resolutions of general meetings; and

                     (b)  proceedings and resolutions of directors’ meetings (including meetings of a committee of directors); and

                     (c)  resolutions passed by members without a meeting; and

                     (d)  resolutions passed by directors without a meeting; and

                     (e)  if the corporation has only 1 director—the making of declarations by the director.

Penalty:  10 penalty units.

Note:          For resolutions and declarations without meetings, see Divisions 204 and 215.

             (2)  The minutes of the whole, or a part, of the meeting may be kept:

                     (a)  in writing; or

                     (b)  by means of an audio, or audio‑visual, recording.

             (3)  If the minutes of the whole, or a part, of the meeting are kept by means of an audio, or audio‑visual, recording of the meeting, the corporation must ensure that, on the recording:

                     (a)  each person attending the meeting states his or her name; and

                     (b)  if a person attending the meeting holds a proxy—the person states the name of the person for whom the person is acting as proxy.

Penalty:  10 penalty units.

             (4)  If the minutes of the whole, or a part, of the meeting (the first meeting) are kept in writing, the corporation must ensure that either:

                     (a)  the chair of the meeting; or

                     (b)  the chair of the next meeting;

signs those minutes within a reasonable time after the first meeting.

Penalty:  10 penalty units.

             (5)  If the minutes of the whole, or a part, of the meeting (the first meeting) are kept by means of an audio, or audio‑visual, recording, the corporation must ensure that either:

                     (a)  the chair of the meeting; or

                     (b)  the chair of the next meeting;

signs a declaration under subsection (6) within a reasonable time after the first meeting.

Penalty:  10 penalty units.

             (6)  The declaration under this subsection must:

                     (a)  identify the audio, or audio‑visual, recording; and

                     (b)  if the recording is not a recording of the whole of the meeting—identify the part of the meeting that is recorded; and

                     (c)  declare that the recording constitutes the minutes of the meeting or that part of the meeting.

             (7)  The corporation must ensure that minutes of the passing of a resolution without a meeting are signed by a director within a reasonable time after the resolution is passed.

Penalty:  10 penalty units.

             (8)  The director of an Aboriginal and Torres Strait Islander corporation with only 1 director must sign the minutes of the making of a declaration by the director within a reasonable time after the declaration is made.

Penalty:  10 penalty units.

             (9)  An Aboriginal and Torres Strait Islander corporation must keep its minute books at:

                     (a)  its registered office if it is registered as a large corporation; or

                     (b)  its document access address if it is registered as a small or medium corporation.

Penalty:  10 penalty units.

           (10)  An offence against subsection (1), (3), (4), (5), (7), (8) or (9) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

           (11)  A minute that is recorded and signed in accordance with this section is evidence of the proceeding, resolution or declaration to which it relates, unless the contrary is proved.

220‑10  Members’ access to minutes

             (1)  An Aboriginal and Torres Strait Islander corporation that is registered as a large corporation must make available for inspection by members, at its registered office, the minute books for the meetings of its members and for resolutions of members passed without meetings. The books must be made available for inspection each business day from at least 10 am to 12 noon and from at least 2 pm to 4 pm.

Note:          Failing to comply with this subsection is an offence under section 376‑1.

             (2)  An Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation must make available for inspection by members, at its document access address, the minute books for the meetings of its members and for resolutions of members passed without meetings. The books must be made available within 7 days of a member’s written request for inspection.

Note:          Failing to comply with this subsection is an offence under section 376‑1.

             (3)  A corporation must make minutes available under subsections (1) and (2) free of charge.

Penalty:  5 penalty units.

             (4)  A member of an Aboriginal and Torres Strait Islander corporation may ask the corporation in writing for a copy of:

                     (a)  any minutes of a meeting of the corporation’s members or an extract of the minutes; or

                     (b)  any minutes of a resolution passed by members without a meeting.

Note:          The member may ask the corporation for an English translation under subsection 376‑5(3) if the minutes are not in the English language.

             (5)  If the corporation does not require the member to pay for the copy, the corporation must send it:

                     (a)  within 14 days after the member asks for it; or

                     (b)  within any longer period that the Registrar approves.

Penalty:  5 penalty units.

             (6)  If the corporation requires payment for the copy, the corporation must send it:

                     (a)  within 14 days after the corporation receives the payment; or

                     (b)  within any longer period that the Registrar approves.

The amount of any payment the corporation requires cannot exceed the prescribed amount.

Penalty:  5 penalty units.

             (7)  An offence against subsection (3), (4) or (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

 

Part 5‑5—Exemption from operation of this Chapter

Division 225—Exemption from operation of this Chapter

225‑1  What this Part is about

225‑5  Exemption from the provisions of this Chapter

             (1)  On an application made in accordance with subsection (2) in relation to an Aboriginal and Torres Strait Islander corporation, the Registrar may make a determination in writing exempting any of the following from the provisions of this Chapter specified in the Registrar’s determination:

                     (a)  the corporation itself;

                     (b)  the directors of the corporation.

Note:          For the criteria for making orders under this section, see section 225‑20.

             (2)  The application must:

                     (a)  specify the provisions in relation to which the exemption is being sought; and

                     (b)  be authorised by a resolution of the directors; and

                     (c)  be in writing and signed by a director; and

                     (d)  be lodged with the Registrar.

             (3)  The determination may:

                     (a)  be expressed to be subject to conditions; and

                     (b)  be indefinite or limited to a specified period.

             (4)  The Registrar may, in writing, revoke, vary or suspend the determination.

             (5)  The Registrar must give the applicant written notice within 28 days of the making, revocation, variation or suspension of the determination.

             (6)  A determination under subsection (1), or a revocation, variation or suspension under subsection (4), is not a legislative instrument.

225‑10  Registrar may make determination even if application is incomplete

                   Despite subsection 225‑5(2), the Registrar may make a determination even if the application does not specify the provisions in relation to which the exemption is being sought.

225‑15  Registrar’s power to make class determinations

             (1)  The Registrar may determine in writing that:

                     (a)  a specified Aboriginal and Torres Strait Islander corporation or a specified class of Aboriginal and Torres Strait Islander corporation; and

                     (b)  the directors of a specified Aboriginal and Torres Strait Islander corporation or of a specified class of Aboriginal and Torres Strait Islander corporation (as the case may be);

are exempted from the provisions of this Chapter specified in the Registrar’s determination.

Note:          For the criteria for making orders under this section, see section 225‑20.

             (2)  The determination may:

                     (a)  be expressed to be subject to conditions; and

                     (b)  be indefinite or limited to a specified period.

             (3)  The Registrar may, in writing, revoke, vary or suspend the determination.

             (4)  Notice of the making, revocation, variation or suspension of a determination in relation to a specified class of Aboriginal and Torres Strait Islander corporation, or the directors of a specified class of Aboriginal and Torres Strait Islander corporation, must be published in the Gazette.

             (5)  A determination under subsection (1) in relation to:

                     (a)  a specified class of Aboriginal and Torres Strait Islander corporation; or

                     (b)  the directors of a specified class of Aboriginal and Torres Strait Islander corporation;

is a legislative instrument.

             (6)  A determination under subsection (1) in relation to:

                     (a)  a specified Aboriginal and Torres Strait Islander corporation; or

                     (b)  the directors of a specified Aboriginal and Torres Strait Islander corporation;

is not a legislative instrument.

225‑20  Criteria for determinations

             (1)  In making a determination under section 225‑5 or 225‑15, the Registrar must be satisfied that the requirements of provisions of this Chapter would:

                     (a)  be inappropriate in the circumstances; or

                     (b)  impose unreasonable burdens.

Unreasonable burden

             (2)  In deciding for the purposes of subsection (1) if the provisions impose an unreasonable burden on the corporation or corporations, the Registrar is to have regard to:

                     (a)  the expected costs of complying with the obligations; and

                     (b)  the expected benefits of having the corporation or corporations comply with the obligations; and

                     (c)  any practical difficulties that the corporation or corporations face in complying effectively with the obligations; and

                     (d)  any other matters that the Registrar considers relevant.

 

Chapter 6—Officers

Part 6‑1—Introduction

Division 235—Introduction

235‑1  What this Chapter is about

 

Part 6‑2—Appointment, remuneration and cessation of appointment of directors

Division 240—Introduction

240‑1  What this Part is about

 

Division 243—Number of directors

243‑1  Minimum number of directors

Corporations with 1 member

             (1)  An Aboriginal and Torres Strait Islander corporation that has 1 member must have at least 1 director.

Corporations with 2 members

             (2)  An Aboriginal and Torres Strait Islander corporation that has 2 members must have at least 2 directors.

Corporations with more than 2 members

             (3)  An Aboriginal and Torres Strait Islander corporation that has more than 2 members must have at least 3 directors.

243‑5  Maximum number of directors

                   An Aboriginal and Torres Strait Islander corporation must not have more than:

                     (a)  12 directors; or

                     (b)  if the regulations prescribe a different number of directors for the purpose of this paragraph—that number of directors.

 

Division 246—Appointment of directors

246‑1  Eligibility for appointment as a director

             (1)  Only an individual who is at least 18 years of age may be appointed as a director of an Aboriginal and Torres Strait Islander corporation.

             (2)  An individual who is disqualified from managing Aboriginal and Torres Strait Islander corporations under Part 6‑5 may only be appointed as a director of an Aboriginal and Torres Strait Islander corporation if the appointment is made:

                     (a)  with permission granted by the Registrar under section 279‑30; or

                     (b)  with leave granted by the Court under section 279‑35.

             (3)  Unless an Aboriginal and Torres Strait Islander corporation’s constitution provides otherwise, the following may be appointed as a director of the corporation:

                     (a)  an individual who is not a member of the corporation;

                     (b)  an individual who is not an Aboriginal and Torres Strait Islander person.

246‑5  Majority of director requirements

             (1)  A majority of the directors of an Aboriginal and Torres Strait Islander corporation must be individuals who are Aboriginal and Torres Strait Islander persons.

             (2)  A majority of the directors of the corporation must ordinarily reside in Australia.

             (3)  A majority of the directors of the corporation must be members of the corporation.

             (4)  A majority of the directors of the corporation must not be employees of the corporation.

             (5)  If a person is performing a chief executive officer function in relation to the corporation, the person may be a director of the corporation but cannot chair the directors’ meetings. The person counts as an employee for the purposes of determining under subsection (4) whether a majority of directors are employees.

Note:          For the meaning of chief executive officer function, see section 694‑85.

246‑10  Consent to act as director

             (1)  An Aboriginal and Torres Strait Islander corporation contravenes this subsection if a person does not give the corporation a signed consent to act as a director of the corporation before being appointed.

Penalty:  10 penalty units.

             (2)  The corporation must keep the consent.

Penalty:  5 penalty units.

             (3)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

246‑15  Corporation may appoint a director (replaceable rule—see section 60‑1)

                   An Aboriginal and Torres Strait Islander corporation may appoint a person as a director by resolution passed in general meeting.

246‑20  Directors may appoint other directors to make up a quorum (replaceable rule—see section 60‑1)

Appointment by other directors

             (1)  Subject to section 243‑5 (maximum number of directors), the directors of an Aboriginal and Torres Strait Islander corporation may appoint a person as a director.

             (2)  A person can be appointed under subsection (1) in order to make up a quorum for a directors’ meeting even if the total number of directors of the corporation is not enough to make up that quorum.

Confirmation by next AGM

             (3)  If a person is appointed under subsection (1), the corporation must confirm the appointment by resolution at the corporation’s next AGM. If the appointment is not confirmed, the person ceases to be a director of the corporation at the end of the AGM.

246‑25  Term of appointment

Directors appointed on registration (replaceable rule—see section 60‑1)

             (1)  If a director has been identified in the application for registration of an Aboriginal and Torres Strait Islander corporation as a director who is to be appointed for only one year, the director’s appointment ends at the first AGM that occurs more than one year after the date of the corporation’s registration.

Other directors

             (2)  Subject to subsection (4), a director of an Aboriginal and Torres Strait Islander corporation must not be appointed for a period exceeding 2 years.

Director may be reappointed (replaceable rule—see section 60‑1)

             (3)  A director is eligible for reappointment.

Appointments continue to next general meeting

             (4)  If the terms of appointment of all of the directors of an Aboriginal and Torres Strait Islander corporation expire so that there are no directors appointed at a particular time, the terms are extended until the next general meeting occurring after the expiry of the term of the director whose appointment was last to expire.

246‑30  Alternate directors (replaceable rule—see section 60‑1)

             (1)  With the other directors’ approval, a director may appoint an alternate to exercise some or all of the director’s powers for a specified period.

             (2)  If the appointing director requests the Aboriginal and Torres Strait Islander corporation to give the alternate notice of directors’ meetings, the corporation must do so.

             (3)  When an alternate exercises the director’s powers, the exercise of the powers is just as effective as if the powers were exercised by the director.

             (4)  The appointing director may terminate the alternate’s appointment at any time.

             (5)  An appointment or its termination must be in writing. A copy must be given to the corporation.

Note:          The Registrar must be given notice of the appointment and termination of appointment of an alternate (see subsections 304‑5(3) and (6)).

246‑35  Effectiveness of acts by directors

             (1)  An act done by a director is effective even if his or her appointment, or the continuance of the appointment, is invalid because the Aboriginal and Torres Strait Islander corporation or director did not comply with the corporation’s constitution or any provision of this Act.

             (2)  Subsection (1) does not deal with the question whether an effective act by a director:

                     (a)  binds the corporation in its dealings with other people; or

                     (b)  makes the corporation liable to another person.

Note:          The kinds of acts that this section validates are those that are only legally effective if the person doing them is a director (for example, calling a meeting of the corporation’s members or signing a document to be lodged with the Registrar or minutes of a meeting). Division 104 contains rules about the assumptions people are entitled to make when dealing with an Aboriginal and Torres Strait Islander corporation and its officers.

 

Division 249—Resignation, retirement or removal of directors

249‑1  How does a person cease to be a director?

                   A person ceases to be a director of an Aboriginal and Torres Strait Islander corporation if:

                     (a)  the person dies; or

                     (b)  the person resigns as a director of the corporation as provided for in section 249‑5; or

                     (c)  the term of the person’s appointment as a director of the corporation expires; or

                     (d)  the person is removed as a director of the corporation by the members of the corporation as provided for in section 249‑10; or

                     (e)  the person is removed as a director of the corporation by the other directors of the corporation as provided for in section 249‑15; or

                      (f)  the person becomes disqualified from managing corporations under Part 6‑5.

249‑5  Director may resign

             (1)  A director of an Aboriginal and Torres Strait Islander corporation may resign as a director of the corporation by giving notice of resignation to the corporation.

Written notice to be given (replaceable rule—see section 60‑1)

             (2)  The notice must be in writing.

249‑10  Removal by members

Resolution for removal of director

             (1)  An Aboriginal and Torres Strait Islander corporation may, by resolution in general meeting, remove a director from office despite anything in:

                     (a)  the corporation’s constitution; or

                     (b)  an agreement between the corporation and the director; or

                     (c)  an agreement between any or all members of the corporation and the director.

Note:          See sections 201‑1 and 201‑5 for the rules on who may call meetings, sections 201‑20 to 201‑30 on how to call meetings and sections 201‑40 to 201‑50 for rules on members’ resolutions.

Notice of intention to move resolution for removal of director

             (2)  Notice of intention to move the resolution must be given to the corporation at least 21 days before the meeting is to be held. However, if the corporation calls a meeting after the notice of intention is given under this subsection, the meeting may pass the resolution even though the meeting is held less than 21 days after the notice of intention is given.

Note:          Short notice of the meeting cannot be given for this resolution (see subsection 201‑20(3)).

Director to be informed

             (3)  The corporation must give the director a copy of the notice as soon as practicable after it is received.

Penalty:  5 penalty units.

Director’s right to put case to members

             (4)  The director is entitled to put his or her case to members by:

                     (a)  giving the corporation a written statement for circulation to members (see subsections (5) and (6)); and

                     (b)  speaking to the motion at the meeting (whether or not the director is a member of the corporation).

Circulation of statement

             (5)  The written statement is to be circulated by the corporation to members by:

                     (a)  sending a copy to everyone to whom notice of the meeting is sent if there is time to do so; or

                     (b)  if there is not time to comply with paragraph (a)—having the statement distributed to members attending the meeting and read out at the meeting before the resolution is voted on.

Penalty:  5 penalty units.

             (6)  The written statement does not have to be circulated to members if it is defamatory.

Time of retirement

             (7)  If a person is appointed to replace a director removed under this section, the time at which:

                     (a)  the replacement director; or

                     (b)  any other director;

is to retire is to be worked out as if the replacement director had become director on the day on which the replaced director was last appointed a director.

             (8)  An offence against subsection (3) or (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

249‑15  Removal by other directors

             (1)  The only ground on which the directors of an Aboriginal and Torres Strait Islander corporation may remove a director from office is that he or she fails without reasonable excuse to attend 3 or more consecutive directors’ meetings. The directors may remove the director by resolution.

             (2)  Subsection (1) operates despite anything in:

                     (a)  the corporation’s constitution; or

                     (b)  an agreement between the corporation and the director; or

                     (c)  an agreement between any or all members of the corporation and the director.

Director to be given notice

             (3)  Before removing the director, the directors must give the director concerned notice in writing:

                     (a)  stating that the directors intend to remove the director concerned from office because he or she has failed without reasonable excuse to attend 3 or more consecutive directors’ meetings; and

                     (b)  stating that the director concerned has 14 days to object to the removal; and

                     (c)  stating that the objection must be:

                              (i)  in writing; and

                             (ii)  given to the corporation within the period of 14 days from the day the notice is given.

Penalty:  5 penalty units.

             (4)  An offence against subsection (3) is an offence of strict liability offence.

Note:          For strict liability, see section 6.1 of the Criminal Code.

If director does not object

             (5)  If the director does not object as provided for in paragraph (3)(c), the directors must remove the director from the office.

If director does object

             (6)  If the director does object as provided for in paragraph (3)(c), the directors cannot remove the director from office.

Notice of resolution to be given

             (7)  If the director concerned is removed from office, the corporation must give him or her a copy of the resolution as soon as practicable after the applicable resolution has been passed.

Penalty:  5 penalty units.

Time of retirement

             (8)  If a person is appointed to replace a director removed under this section, the time at which:

                     (a)  the replacement director; or

                     (b)  any other director;

is to retire is to be worked out as if the replacement director had become director on the day on which the replaced director was last appointed a director.

             (9)  An offence against subsection (7) is a strict liability offence.

Note:          For strict liability, see section 6.1 of the Criminal Code.

249‑20  Removal by general meeting

             (1)  If the director objects as provided for in paragraph 249‑15(3)(c), the corporation by resolution in general meeting may remove the director from office.

Notice of resolution to be given

             (2)  If the director concerned is removed from office, the corporation must give him or her a copy of the resolution as soon as practicable after the applicable resolution has been passed.

Penalty:  5 penalty units.

Time of retirement

             (3)  If a person is appointed to replace a director removed under this section, the time at which:

                     (a)  the replacement director; or

                     (b)  any other director;

is to retire is to be worked out as if the replacement director had become director on the day on which the replaced director was last appointed a director.

             (4)  An offence against subsection (2) is a strict liability offence.

Note:          For strict liability, see section 6.1 of the Criminal Code.

 

Division 252—Remuneration of directors

252‑1  Remuneration

             (1)  Unless the constitution of an Aboriginal and Torres Strait Islander corporation provides otherwise, the directors of the corporation are not to be paid remuneration.

Note:          If a director is an employee of the corporation, the director is not precluded from receiving remuneration as an employee.

             (2)  If an Aboriginal and Torres Strait Islander corporation’s constitution permits the payment of remuneration, the remuneration is to be determined by the corporation by resolution in general meeting.

Expenses

             (3)  The corporation may pay the directors’ travelling and other expenses that the directors properly incur:

                     (a)  in attending directors’ meetings or any meetings of committees of directors; and

                     (b)  in attending any general meetings of the corporation; and

                     (c)  in connection with the corporation’s business.

252‑5  Members may obtain information about directors’ remuneration

             (1)  An Aboriginal and Torres Strait Islander corporation must disclose the remuneration and expenses paid to each director of the corporation or a subsidiary (if any) by the corporation or by an entity controlled by the corporation if the corporation is directed to disclose that information by at least the required number of members under subsection (7).

Penalty:  5 penalty units.

             (2)  The corporation must also disclose the remuneration and expenses paid to each director of the corporation or a subsidiary (if any) by the corporation or by an entity controlled by the corporation if the Registrar directs the corporation in writing to disclose that information.

Penalty:  5 penalty units.

             (3)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  Under subsection (1) or (2), the corporation must disclose all remuneration and expenses paid to the director, regardless of whether it is paid to the director as a director or in another capacity.

             (5)  The corporation must comply with the direction under subsection (1) or (2) as soon as practicable by:

                     (a)  preparing a statement of the remuneration and expenses of each director of the corporation or a subsidiary for the last financial year before the direction was given; and

                     (b)  having the statement audited; and

                     (c)  either:

                              (i)  in the case of a direction under subsection (1)—sending a copy of the audited statement to each person entitled to receive notice of general meetings of the corporation; or

                             (ii)  in the case of a direction under subsection (2)—sending a copy of the audited statement to each person entitled to receive notice of general meetings of the corporation and to the Registrar.

             (6)  If the Registrar directs the corporation under subsection (2) to disclose the remuneration and expenses paid to a director, the remuneration and expenses may be entered on the Register of Aboriginal and Torres Strait Islander Corporations.

             (7)  The required number of members for an Aboriginal and Torres Strait Islander corporation is the greater of:

                     (a)  5 members of the corporation; or

                     (b)  10% of the members of the corporation.

             (8)  The regulations may prescribe a different number of members for the purposes of applying paragraph (7)(a) to:

                     (a)  a particular Aboriginal and Torres Strait Islander corporation; or

                     (b)  a particular class of Aboriginal and Torres Strait Islander corporation.

             (9)  The regulations may prescribe a different percentage for the purposes of applying paragraph (7)(b) to:

                     (a)  a particular Aboriginal and Torres Strait Islander corporation; or

                     (b)  a particular class of Aboriginal and Torres Strait Islander corporation.

           (10)  A direction under subsection (2) is not a legislative instrument.

 

Part 6‑3—Appointment of secretaries and contact persons

Division 257—Appointment of secretaries and contact persons

257‑1  What this Part is about

257‑5  Requirement to have a secretary or contact person

Secretary

             (1)  An Aboriginal and Torres Strait Islander corporation that is registered as a large corporation must have at least one secretary. At least one of the secretaries must ordinarily reside in Australia.

Contact person

             (2)  An Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation must have a contact person. The contact person must ordinarily reside in Australia.

             (3)  An Aboriginal and Torres Strait Islander corporation commits an offence if the corporation does not comply with subsection (1) or (2).

Penalty:  5 penalty units.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

257‑10  Who may be a secretary or contact person

             (1)  Only an individual who is at least 18 years of age may be appointed as a secretary or contact person of an Aboriginal and Torres Strait Islander corporation.

             (2)  A person who is disqualified from managing an Aboriginal and Torres Strait Islander corporation under Part 6‑5 may only be appointed as a secretary or contact person if the appointment is made:

                     (a)  with permission granted by the Registrar under subsection 279‑30(7); or

                     (b)  with leave granted by the Court under section 279‑35.

257‑15  Consent to act as secretary or contact person

Secretary

             (1)  An Aboriginal and Torres Strait Islander corporation contravenes this subsection if a person does not give the corporation a signed consent to act as secretary of the corporation before being appointed.

Penalty:  5 penalty units.

Contact person

             (2)  An Aboriginal and Torres Strait Islander corporation contravenes this subsection if a person does not give the corporation a signed consent to act as contact person of the corporation before being appointed.

Penalty:  5 penalty units.

             (3)  The corporation must keep the consent.

Penalty:  5 penalty units.

             (4)  An offence against subsection (1), (2) or (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

257‑20  How a secretary or contact person is appointed

                   A secretary or contact person is to be appointed by the directors.

Note:          An Aboriginal and Torres Strait Islander corporation must notify the Registrar of the appointment within 28 days (see subsection 304‑5(1)).

257‑25  Director to be contact person in certain circumstances

             (1)  If the Registrar has not been able to contact the contact person of an Aboriginal and Torres Strait Islander corporation for a period of 28 days or longer, the Registrar may determine, by notice in writing given to the corporation:

                     (a)  that the person who is not contactable ceases to be the contact person from the date specified in the determination; and

                     (b)  that the new contact person of the corporation is the director specified in the determination; and

                     (c)  that the new contact person’s appointment takes effect from the date the person’s name is entered on the Register of Aboriginal and Torres Strait Islander Corporations as contact person of the corporation.

             (2)  A notice under subsection (1) is not a legislative instrument.

257‑30  Contact person must pass on communications received

                   A person commits an offence if:

                     (a)  either:

                              (i)  the person has been appointed with his or her consent as contact person of an Aboriginal and Torres Strait Islander corporation; or

                             (ii)  the person was determined to be the contact person of an Aboriginal and Torres Strait Islander corporation under section 257‑25; and

                     (b)  while the person is entered on the Register of Aboriginal and Torres Strait Islander Corporations as the contact person of the corporation the person receives a communication for the corporation; and

                     (c)  the person fails to pass the communication on to at least one of directors of the corporation within 14 days after receiving the communication.

Penalty:  10 penalty units.

257‑35  Secretary must pass on communications received

                   A person commits an offence if:

                     (a)  the person has been appointed with his or her consent to be the secretary of an Aboriginal and Torres Strait Islander corporation; and

                     (b)  while the person is entered on the Register of Aboriginal and Torres Strait Islander Corporations as the secretary of the corporation the person receives a communication for the corporation; and

                     (c)  the person fails to pass the communication on to at least one of directors of the corporation within 14 days after receiving the communication.

Penalty:  10 penalty units.

257‑40  Effectiveness of acts by secretaries

             (1)  An act done by a secretary is effective even if his or her appointment, or the continuance of his or her appointment, is invalid because the Aboriginal and Torres Strait Islander corporation or secretary did not comply with the corporation’s constitution or any provision of this Act.

             (2)  Subsection (1) does not deal with the question whether an effective act by a secretary:

                     (a)  binds the corporation in its dealings with other people; or

                     (b)  makes the corporation liable to another person.

Note:          The kinds of acts that this section validates are those that are only legally effective if the person doing them is a secretary (for example, signing and sending out a notice of a meeting of directors if the corporation’s constitution authorises the secretary to do so or signing a document to be lodged with the Registrar). Division 104 contains rules about the assumptions people are entitled to make when dealing with an Aboriginal and Torres Strait Islander corporation and its officers.

257‑45  Terms and conditions of office for secretaries (replaceable rule—see section 60‑1)

                   A secretary holds office on the terms and conditions (including as to remuneration) that the directors determine.

257‑50  Terms and conditions of contact person’s appointment (replaceable rule—see section 60‑1)

                   A contact person’s appointment is subject to the terms and conditions (including as to remuneration) that the directors determine.

 

Part 6‑4—Duties and powers of directors and other officers and employees

Division 262—Introduction

262‑1  What this Part is about

Note:          Section 683‑1 defines both director and officer. Officer includes, as well as directors and secretaries, some other people who manage the corporation or its property (such as receivers and liquidators).

 

Division 265—General duties

265‑1  Care and diligence—civil obligation only

Care and diligence—directors and other officers

             (1)  A director or other officer of an Aboriginal and Torres Strait Islander corporation must exercise his or her powers and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if that reasonable person:

                     (a)  were a director or officer of an Aboriginal and Torres Strait Islander corporation in the corporation’s circumstances; and

                     (b)  occupied the office held by, and had the same responsibilities within the corporation as, the director or officer.

Note 1:       This subsection is a civil penalty provision (see section 386‑1).

Note 2:       Section 265‑20 makes special provision for actions done to comply with Native Title legislation obligations.

Business judgment rule

             (2)  A director or other officer of an Aboriginal and Torres Strait Islander corporation who makes a business judgment is taken to meet the requirements of subsection (1), and the director’s or officer’s equivalent duties at common law and in equity, in respect of the judgment if he or she:

                     (a)  makes the judgment in good faith for a proper purpose; and

                     (b)  does not have a material personal interest in the subject matter of the judgment; and

                     (c)  informs himself or herself about the subject matter of the judgment to the extent he or she reasonably believes to be appropriate; and

                     (d)  rationally believes that the judgment is in the best interests of the corporation.

The director’s or officer’s belief that the judgment is in the best interests of the corporation is a rational one unless the belief is one that no reasonable person in the director’s or officer’s position would hold.

Note:          This subsection only operates in relation to duties under this section and the equivalent duties at common law or in equity (including the duty of care that arises under the common law principles governing liability for negligence). It does not operate in relation to duties under any other provision of this Act or under any other laws.

             (3)  Business judgment is any decision to take or not take action in respect of a matter relevant to the business operations of the corporation.

265‑5  Good faith—civil obligations

Good faith—directors and other officers

             (1)  A director or other officer of an Aboriginal and Torres Strait Islander corporation must exercise his or her powers and discharge his or her duties:

                     (a)  in good faith in the best interests of the corporation; and

                     (b)  for a proper purpose.

Note 1:       This subsection is a civil penalty provision (see section 386‑1).

Note 2:       Section 265‑20 makes special provision for actions done to comply with Native Title legislation obligations.

Note 3:       Section 265‑35 deals with the situation of directors of wholly‑owned subsidiaries.

             (2)  A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note 1:       Section 694‑55 defines involved in.

Note 2:       This subsection is a civil penalty provision (see section 386‑1).

265‑10  Use of position—civil obligations

Use of position—directors, other officers and employees

             (1)  A director, secretary, other officer or employee of an Aboriginal and Torres Strait Islander corporation must not improperly use his or her position to:

                     (a)  gain an advantage for himself or herself or someone else; or

                     (b)  cause detriment to the corporation.

Note 1:       This subsection is a civil penalty provision (see section 386‑1).

Note 2:       Section 265‑20 makes special provision for actions done to comply with Native Title legislation obligations.

Note 3:       The contact person for the corporation is covered by the reference to an employee of the corporation.

             (2)  A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note 1:       Section 694‑55 defines involved in.

Note 2:       This subsection is a civil penalty provision (see section 386‑1).

265‑15  Use of information—civil obligations

Use of information—directors, other officers and employees

             (1)  A person who obtains information because he or she is, or has been, a director or other officer or employee of an Aboriginal and Torres Strait Islander corporation must not improperly use the information to:

                     (a)  gain an advantage for himself or herself or someone else; or

                     (b)  cause detriment to the corporation.

Note 1:       This duty continues after the person stops being an officer or employee of the corporation.

Note 2:       This subsection is a civil penalty provision (see section 386‑1).

Note 3:       Section 265‑20 makes special provision for actions done to comply with Native Title legislation obligations.

Note 4:       The contact person for the corporation is covered by the reference to an employee of the corporation.

             (2)  A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note 1:       Section 694‑55 defines involved in.

Note 2:       This subsection is a civil penalty provision (see section 386‑1).

265‑20  Acts done to comply with Native Title legislation obligations

                   A person who is a director or other officer, or an employee, of an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate does not contravene subsection 265‑1(1), 265‑5(1), 265‑10(1) or 265‑15(1), and does not breach the person’s equivalent duties at common law and in equity, merely because of doing (or refraining from doing) a particular act if the person does (or refrains from doing) the act:

                     (a)  in good faith; and

                     (b)  with the belief that doing (or refraining from doing) the act is necessary to ensure that the corporation complies with a Native Title legislation obligation.

265‑25  Good faith, use of position and use of information—criminal offences

Good faith—directors and other officers

             (1)  A director or other officer of an Aboriginal and Torres Strait Islander corporation commits an offence if he or she:

                     (a)  is reckless; or

                     (b)  is intentionally dishonest;

and fails to exercise his or her powers and discharge his or her duties:

                     (c)  in good faith in the best interests of the corporation; or

                     (d)  for a proper purpose.

Penalty:  2,000 penalty units or imprisonment for 5 years, or both.

             (2)  A director or other officer of an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate does not contravene subsection (1) merely because of doing (or refraining from doing) a particular act if the director or other officer does (or refrains from doing) the act:

                     (a)  in good faith; and

                     (b)  with the belief that doing (or refraining from doing) the act is necessary to ensure that the corporation complies with a Native Title legislation obligation.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Use of position—directors, other officers and employees

             (3)  A director, other officer or employee of an Aboriginal and Torres Strait Islander corporation commits an offence if he or she uses his or her position dishonestly:

                     (a)  with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the corporation; or

                     (b)  recklessly as to whether the use may result in him or her or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.

Penalty:  2,000 penalty units or imprisonment for 5 years, or both.

Use of information—directors, other officers and employees

             (4)  A person who obtains information because he or she is, or has been, a director or other officer or employee of an Aboriginal and Torres Strait Islander corporation commits an offence if he or she uses the information dishonestly:

                     (a)  with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the corporation; or

                     (b)  recklessly as to whether the use may result in him or her or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.

Penalty:  2,000 penalty units or imprisonment for 5 years, or both.

265‑30  Interaction of sections 265‑1 to 265‑25 with other laws etc.

             (1)  Sections 265‑1 to 265‑25:

                     (a)  have effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of the person’s office or employment in relation to an Aboriginal and Torres Strait Islander corporation; and

                     (b)  do not prevent the commencement of civil proceedings for a breach of a duty or in respect of a liability referred to in paragraph (a).

             (2)  This section:

                     (a)  does not apply to subsections 265‑1(2) and (3) to the extent to which they operate on the duties at common law and in equity that are equivalent to the requirements of subsection 265‑1(1); and

                     (b)  does not apply to section 265‑20 to the extent to which it operates on the duties at common law and in equity that are equivalent to the requirements of subsections 265‑1(1), 265‑5(1), 265‑10(1) and 265‑15(1).

265‑35  Directors of wholly‑owned subsidiaries

                   A director of an Aboriginal and Torres Strait Islander corporation that is a wholly‑owned subsidiary of a body corporate is taken to act in good faith in the best interests of the subsidiary if:

                     (a)  the constitution of the subsidiary expressly authorises the director to act in the best interests of the holding body corporate; and

                     (b)  the director acts in good faith in the best interests of the holding body corporate; and

                     (c)  the subsidiary is not insolvent at the time the director acts and does not become insolvent because of the director’s act.

265‑40  Responsibility of secretaries for certain contraventions

             (1)  A secretary of an Aboriginal and Torres Strait Islander corporation commits an offence if the corporation contravenes:

                     (a)  subsection 69‑20(1) or (2) (requirement to lodge copy of constitutional changes); or

                     (b)  section 88‑1 (requirement to lodge material about change of name); or

                     (c)  subsection 112‑5(5), (6) or (7) (requirements about registered office); or

                     (d)  section 180‑35 (requirement to give copy of register of members); or

                     (d)  subsection 304‑5(1), (3), (5) or (6) (requirement to lodge details of directors and secretaries); or

                     (e)  section 330‑10 (requirement to lodge general report); or

                      (f)  section 348‑1 (requirement to lodge annual report).

Penalty:  5 penalty units.

             (2)  An offence based on subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  A person does not contravene subsection (1) if they show that they took all reasonable steps to ensure that the corporation complied with the section.

Note:          A defendant bears a legal burden in relation to a matter mentioned in subsection (3) (see section 13.4 of the Criminal Code).

265‑45  Meaning of reasonable reliance on information or advice provided by others

                   If:

                     (a)  a director of an Aboriginal and Torres Strait Islander corporation relies on information, or professional or expert advice, given or prepared by:

                              (i)  an employee of the corporation whom the director believes on reasonable grounds to be reliable and competent in relation to the matters concerned; or

                             (ii)  a professional adviser or expert in relation to matters that the director believes on reasonable grounds to be within the person’s professional or expert competence; or

                            (iii)  another director or officer in relation to matters within the director’s or officer’s authority; or

                            (iv)  a committee of directors on which the director did not serve in relation to matters within the committee’s authority; and

                     (b)  the reliance was made:

                              (i)  in good faith; and

                             (ii)  after making an independent assessment of the information or advice, having regard to the director’s knowledge of the corporation and the complexity of the structure and operations of the corporation; and

                     (c)  the reasonableness of the director’s reliance on the information or advice arises in proceedings brought to determine whether a director has performed a duty under this Part or an equivalent general law duty;

the director’s reliance on the information or advice is taken to be reasonable unless the contrary is proved.

265‑50  Responsibility for actions of delegate

             (1)  If the directors of an Aboriginal and Torres Strait Islander corporation delegate a power under section 274‑10, each director is responsible for the exercise of the power by the delegate as if the power had been exercised by the directors themselves.

             (2)  A director of an Aboriginal and Torres Strait Islander corporation is not responsible under subsection (1) if:

                     (a)  the director believed on reasonable grounds at all times that the delegate would exercise the power in conformity with the duties imposed on directors of the corporation by this Act and the corporation’s constitution (if any); and

                     (b)  the director believed:

                              (i)  on reasonable grounds; and

                             (ii)  in good faith; and

                            (iii)  after making proper inquiry if the circumstances indicated the need for inquiry;

                            that the delegate was reliable and competent in relation to the power delegated.

 

Division 268—Duties in relation to disclosure of, and voting on matters involving, material personal interests

268‑1  Material personal interest—director’s duty to disclose

Director’s duty to notify other directors of material personal interest when conflict arises

             (1)  A director of an Aboriginal and Torres Strait Islander corporation who has a material personal interest in a matter that relates to the affairs of the corporation must give the other directors notice of the interest unless subsection (3) or section 268‑5 says otherwise.

Penalty:  10 penalty units or imprisonment for 3 months, or both.

             (2)  For an offence against subsection (1), strict liability applies to the circumstance, that the director of an Aboriginal and Torres Strait Islander corporation has a material personal interest in a matter that relates to the affairs of the corporation.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  The director does not need to give notice of an interest under subsection (1) if:

                     (a)  the interest:

                              (i)  arises because the director is a member of the corporation and is held in common with the other members of the corporation; or

                             (ii)  arises in relation to the director’s remuneration as a director of the corporation; or

                            (iii)  relates to a contract the corporation is proposing to enter into that is subject to approval by the members and will not impose any obligation on the corporation if it is not approved by the members; or

                            (iv)  arises merely because the director is a guarantor or has given an indemnity or security for all or part of a loan (or proposed loan) to the corporation; or

                             (v)  arises merely because the director has a right of subrogation in relation to a guarantee or indemnity referred to in subparagraph (iv); or

                            (vi)  relates to a contract that insures, or would insure, the director against liabilities the director incurs as an officer of the corporation (but only if the contract does not make the corporation or a related body corporate the insurer); or

                           (vii)  is in a contract, or proposed contract, with, or for the benefit of, or on behalf of, a related body corporate and arises merely because the director is a director of the related body corporate; or

                     (b)  all the following conditions are satisfied:

                              (i)  the director has already given notice of the nature and extent of the interest and its relation to the affairs of the corporation under subsection (1);

                             (ii)  if a person who was not a director of the corporation at the time when the notice under subsection (1) was given is appointed as a director of the corporation—the notice is given to that person;

                            (iii)  the nature or extent of the interest has not materially increased above that disclosed in the notice; or

                     (c)  the director has given a standing notice of the nature and extent of the interest under section 268‑10 and the notice is still effective in relation to the interest.

Note:          Subparagraph (b)(ii)—the notice may be given to the person referred to in this subparagraph by someone other than the director to whose interests it relates (for example, by the secretary).

             (4)  The notice required by subsection (1) must:

                     (a)  give details of:

                              (i)  the nature and extent of the interest; and

                             (ii)  the relation of the interest to the affairs of the corporation; and

                     (b)  be given at a directors’ meeting as soon as practicable after the director becomes aware of the director’s interest in the matter.

The details must be recorded in the minutes of the meeting.

Effect of contravention by director

             (5)  A contravention of this section by a director does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.

Section does not apply to single director corporation

             (6)  This section does not apply to an Aboriginal and Torres Strait Islander corporation that has only 1 director.

268‑5  Interest as common law holder of native title

             (1)  This section applies if:

                     (a)  an Aboriginal and Torres Strait Islander corporation is a registered native title body corporate; and

                     (b)  a director of the corporation has a particular interest as one of the common law holders of native title, being native title:

                              (i)  which the corporation holds in trust for the common law holders of the native title; or

                             (ii)  for which the corporation acts as agent or representative for the common law holders of the native title.

             (2)  The director does not need to give the other directors notice of the interest under subsection 268‑1(1).

             (3)  A failure to give the other directors notice of the interest does not breach any general law rule about conflicts of interest.

268‑10  Director may give other directors standing notice about an interest

Power to give notice

             (1)  A director of an Aboriginal and Torres Strait Islander corporation who has an interest in a matter may give the other directors standing notice of the nature and extent of the interest in the matter in accordance with subsection (2). The notice may be given at any time and whether or not the matter relates to the affairs of the corporation at the time the notice is given.

Note:          The standing notice may be given to the other directors before the interest becomes a material personal interest.

             (2)  The notice under subsection (1) must:

                     (a)  give details of the nature and extent of the interest; and

                     (b)  be given:

                              (i)  at a directors’ meeting (either orally or in writing); or

                             (ii)  to the other directors individually in writing.

The standing notice is given under subparagraph (b)(ii) when it has been given to every director.

Standing notice must be tabled at meeting if given to directors individually

             (3)  If the standing notice is given to the other directors individually in writing, it must be tabled at the next directors’ meeting after it is given.

Nature and extent of interest must be recorded in minutes

             (4)  The director must ensure that the nature and extent of the interest disclosed in the standing notice is recorded in the minutes of the meeting at which the standing notice is given or tabled.

Dates of effect and expiry of standing notice

             (5)  The standing notice:

                     (a)  takes effect as soon as it is given; and

                     (b)  ceases to have effect if a person who was not a director of the corporation at the time when the notice was given is appointed as a director of the corporation.

A standing notice that ceases to have effect under paragraph (b) commences to have effect again if it is given to the person referred to in that paragraph.

Note:          The notice may be given to the person referred to in paragraph (b) by someone other than the director to whose interests it relates (for example, by the secretary).

Effect of material increase in nature or extent of interest

             (6)  The standing notice ceases to have effect in relation to a particular interest if the nature or extent of the interest materially increases above that disclosed in the notice.

Effect of contravention by director

             (7)  A contravention of this section by a director does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.

268‑15  Interaction of sections 268‑1 and 268‑10 with other laws etc.

                   Sections 268‑1 and 268‑10 have effect in addition to, and not in derogation of:

                     (a)  any general law rule about conflicts of interest; and

                     (b)  any provision in an Aboriginal and Torres Strait Islander corporation’s constitution (if any) that restricts a director from:

                              (i)  having a material personal interest in a matter; or

                             (ii)  holding an office or possessing property;

                            involving duties or interests that conflict with the director’s duties or interests as a director.

268‑20  Restrictions on voting

Restrictions on voting and being present

             (1)  A director of an Aboriginal and Torres Strait Islander corporation who has a material personal interest in a matter that is being considered at a directors’ meeting must not:

                     (a)  be present while the matter is being considered at the meeting; or

                     (b)  vote on the matter.

Penalty:  5 penalty units.

             (2)  Subsection (1) does not apply if:

                     (a)  subsection (4) or (5) allows the director to be present; or

                     (b)  subsection 268‑5(2) applies in relation to the interest; or

                     (c)  for any other reason, the interest does not need to be disclosed under section 268‑1.

Note 1:       A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Note 2:       Because section 268‑5 provides that certain interests a director has as a common law holder of native title do not need to be disclosed, those interests will not prevent the director from being present and voting.

             (3)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Participation with approval of other directors

             (4)  The director may be present and vote if directors who do not have a material personal interest in the matter have passed a resolution that:

                     (a)  identifies the director, the nature and extent of the director’s interest in the matter and its relation to the affairs of the corporation; and

                     (b)  states that those directors are satisfied that the interest should not disqualify the director from voting or being present.

Participation with Registrar’s approval

             (5)  The director may be present and vote if he or she is so entitled under a declaration or order made by the Registrar under section 268‑25.

Director may consider or vote on resolution to deal with matter at general meeting

             (6)  If there are not enough directors to form a quorum for a directors’ meeting because of subsection (1), 1 or more of the directors (including those who have a material personal interest in that matter) may call a general meeting and the general meeting may pass a resolution to deal with the matter.

Effect of contravention by director

             (7)  A contravention by a director of:

                     (a)  this section; or

                     (b)  a condition attached to a declaration or order made by the Registrar under section 268‑25;

does not affect the validity of any resolution.

268‑25  Registrar’s power to make declarations and class orders

Registrar’s power to make specific declarations

             (1)  The Registrar may declare in writing that a director of an Aboriginal and Torres Strait Islander corporation who has a material personal interest in a matter that is being, or is to be, considered at a directors’ meeting may, despite the director’s interest:

                     (a)  be present while the matter is being considered at the meeting; or

                     (b)  vote on the matter; or

                     (c)  both be present and vote.

             (2)  A declaration under subsection (1) is not a legislative instrument.

             (3)  However, the Registrar may only make the declaration if:

                     (a)  the number of directors entitled to be present and vote on the matter would be less than the quorum for a directors’ meeting if the director were not allowed to vote on the matter at the meeting; and

                     (b)  the matter needs to be dealt with urgently, or there is some other compelling reason for the matter being dealt with at the directors’ meeting, rather than by a general meeting called under subsection 268‑20(6).

             (4)  A declaration under subsection (1) may:

                     (a)  apply to all or only some of the directors; or

                     (b)  specify conditions that the corporation or director must comply with.

Registrar’s power to make class orders

             (5)  The Registrar may make an order in writing that enables directors who have a material personal interest in a matter to be present while the matter is being considered at a directors’ meeting, vote on that matter, or both be present and vote. The order may be made in respect of a specified class of Aboriginal and Torres Strait Islander corporation, directors, resolutions or interests.

             (6)  An order made under subsection (5) in respect of a class of Aboriginal and Torres Strait Islander corporation is a legislative instrument.

             (7)  The order may be expressed to be subject to conditions.

             (8)  Notice of the making, revocation or suspension of the order must be published in the Gazette.

 

Division 271—Duty to discharge certain trust liabilities

271‑1  Directors liable for debts and other obligations incurred by corporation as trustee

             (1)  A person who is a director of an Aboriginal and Torres Strait Islander corporation when it incurs a liability while acting, or purporting to act, as trustee, is liable to discharge the whole or a part of the liability if the corporation:

                     (a)  has not discharged, and cannot discharge, the liability or that part of it; and

                     (b)  is not entitled to be fully indemnified against the liability out of trust assets solely because of one or more of the following:

                              (i)  a breach of trust by the corporation;

                             (ii)  the corporation’s acting outside the scope of its powers as trustee;

                            (iii)  a term of the trust denying, or limiting, the corporation’s right to be indemnified against the liability.

The person is liable both individually and jointly with the corporation and anyone else who is liable under this subsection.

Note:          The person will not be liable under this subsection merely because there are insufficient trust assets out of which the corporation can be indemnified.

             (2)  The person is not liable under subsection (1) if the person would be entitled to have been fully indemnified by 1 of the other directors against the liability had all the directors of the corporation been trustees when the liability was incurred.

             (3)  The person is not liable under subsection (1) merely because of doing (or refraining from doing) a particular act if the director does (or refrains from doing) the act:

                     (a)  in good faith; and

                     (b)  with the belief that doing (or refraining from doing) the act is necessary to ensure that the corporation complies with a Native Title legislation obligation.

 

Division 274—Powers of directors

274‑1  Powers of directors (replaceable rule—see section 60‑1)

             (1)  The business of an Aboriginal and Torres Strait Islander corporation is to be managed by or under the direction of the directors.

             (2)  The directors may exercise all the powers of the corporation except any powers that this Act or the corporation’s constitution requires the corporation to exercise in general meeting.

Note:          For example, the directors may enter into contracts and borrow money.

274‑5  Negotiable instruments (replaceable rule—see section 60‑1)

             (1)  Any 2 directors of an Aboriginal and Torres Strait Islander corporation that has 2 or more directors, or the director of an Aboriginal and Torres Strait Islander corporation that has only 1 director, may sign, draw, accept, endorse or otherwise execute a negotiable instrument.

             (2)  The directors may determine that a negotiable instrument may be signed, drawn, accepted, endorsed or otherwise executed in a different way.

274‑10  Delegation

             (1)  Unless the corporation’s constitution provides otherwise, the directors of an Aboriginal and Torres Strait Islander corporation may by resolution delegate any of their powers to:

                     (a)  a committee of directors; or

                     (b)  a director; or

                     (c)  an employee of the corporation; or

                     (d)  any other person.

             (2)  The delegate must exercise the powers delegated in accordance with any directions of the directors.

             (3)  The exercise of the power by the delegate is as effective as if the directors had exercised it.

274‑15  Right of access to corporation books

Right while director

             (1)  A person who is a director of an Aboriginal and Torres Strait Islander corporation may inspect the books of the corporation (other than its financial records) for the purposes of a legal proceeding:

                     (a)  to which the person is a party; or

                     (b)  that the person proposes in good faith to bring; or

                     (c)  that the person has reason to believe will be brought against him or her.

Note 1:       Section 322‑25 gives the director a right of access to financial records.

Note 2:       See also section 376‑1.

Right during 7 years after ceasing to be director

             (2)  A person who has ceased to be a director of an Aboriginal and Torres Strait Islander corporation may inspect the books of the corporation (including its financial records) for the purposes of a legal proceeding:

                     (a)  to which the person is a party; or

                     (b)  that the person proposes in good faith to bring; or

                     (c)  that the person has reason to believe will be brought against them.

This right continues for 7 years after the person ceased to be a director of the corporation.

Note:          See also section 376‑1.

Right to take copies

             (3)  A person authorised to inspect books under this section for the purposes of a legal proceeding may make copies of the books for the purposes of those proceedings.

Corporation not to refuse access

             (4)  An Aboriginal and Torres Strait Islander corporation must allow a person to exercise the person’s rights to inspect or take copies of the books under this section.

Interaction with other rules

             (5)  This section does not limit any right of access to corporation books that a person has apart from this section.

 

Part 6‑5—Disqualification from managing corporations

Division 279—Disqualification from managing corporations

279‑1  Disqualified person not to manage corporations

             (1)  A person who is disqualified from managing Aboriginal and Torres Strait corporations under this Part commits an offence if:

                     (a)  the person makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of an Aboriginal and Torres Strait Islander corporation; or

                     (b)  the person exercises the capacity to affect significantly an Aboriginal and Torres Strait Islander corporation’s financial standing; or

                     (c)  the person communicates instructions or wishes (other than advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation) to the directors of an Aboriginal and Torres Strait Islander corporation:

                              (i)  knowing that the directors are accustomed to act in accordance with the person’s instructions or wishes; or

                             (ii)  intending that the directors will act in accordance with those instructions or wishes.

Penalty:  50 penalty units or imprisonment for 12 months, or both.

             (2)  For an offence against subsection (1), strict liability applies to the circumstance that the person is disqualified from managing Aboriginal and Torres Strait Islander corporations under this Part.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  If the corporation is a registered native title body corporate, a person who is a common law holder of native title does not contravene subsection (1) merely because the directors of the corporation do (or refrain from doing) a particular act:

                     (a)  in good faith; and

                     (b)  with the belief that doing (or refraining from doing) the act is necessary to ensure that the corporation complies with a Native Title legislation obligation.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code).

             (4)  It is a defence to a contravention of subsection (1) if the person had permission to manage the corporation under either section 279‑30 or 279‑35 and the person’s conduct was within the terms of that permission.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (4) (see subsection 13.3(3) of the Criminal Code).

             (5)  A person ceases to be a director, alternate director or a secretary of an Aboriginal and Torres Strait Islander corporation if:

                     (a)  the person becomes disqualified from managing Aboriginal and Torres Strait Islander corporations under this Part; and

                     (b)  the person is not given permission to manage the corporation under section 279‑30 or 279‑35.

Note:          If a person ceases to be a director, alternate director or a secretary under subsection (5), the corporation must notify the Registrar (see subsection 304‑5(5)).

279‑5  Automatic disqualification

Convictions

             (1)  A person becomes disqualified from managing Aboriginal and Torres Strait Islander corporations if the person:

                     (a)  is convicted on indictment of an offence that:

                              (i)  concerns the making, or participation in making, of decisions that affect the whole or a substantial part of the business of an Aboriginal and Torres Strait Islander corporation; or

                             (ii)  concerns an act that has the capacity to affect significantly the financial standing of an Aboriginal and Torres Strait Islander corporation; or

                     (b)  is convicted of an offence that:

                              (i)  is a contravention of this Act and is punishable by imprisonment for a period greater than 12 months; or

                             (ii)  involves dishonesty and is punishable by imprisonment for at least 3 months; or

                     (c)  is convicted of an offence against the law of a foreign country that is punishable by imprisonment for a period greater than 12 months.

The offences covered by paragraph (a) and subparagraph (b)(ii) include offences against the law of a foreign country.

             (2)  The period of disqualification under subsection (1) starts on the day the person is convicted and lasts for:

                     (a)  if the person does not serve a term of imprisonment—5 years after the day on which the person is convicted; or

                     (b)  if the person serves a term of imprisonment—5 years after the day on which the person is released from prison.

Bankruptcy or personal insolvency agreement

             (3)  A person is disqualified from managing Aboriginal and Torres Strait Islander corporations if the person is an undischarged bankrupt under the law of Australia, its external territories or another country.

             (4)  A person is disqualified from managing Aboriginal and Torres Strait Islander corporations if:

                     (a)  the person has executed a personal insolvency agreement under:

                              (i)  Part X of the Bankruptcy Act 1966; or

                             (ii)  a similar law of an external Territory or a foreign country; and

                     (b)  the terms of the agreement have not been fully complied with.

Disqualification under Corporations Act

             (5)  A person is disqualified from managing Aboriginal and Torres Strait Islander corporations at a particular time if the person is, at that time, disqualified from managing Corporations Act corporations under Part 2D.6 of the Corporations Act.

279‑10  Extension of period of automatic disqualification

             (1)  This section applies if:

                     (a)  under subsection 279‑5(1); or

                     (b)  as a result of the operation of subsection 206B(1) of the Corporations Act and subsection 279‑5(5) of this Act;

a person is disqualified from managing Aboriginal and Torres Strait Islander corporations on being convicted of an offence.

             (2)  On application by the Registrar, the Court may extend by up to an additional 15 years the period of disqualification.

             (3)  The Registrar must apply:

                     (a)  before the period of disqualification begins; or

                     (b)  before the end of the first year of the disqualification.

             (4)  The Registrar may apply only once in relation to the disqualification.

             (5)  In determining whether an extension is justified (and if so, for how long), the Court may have regard to any matters that the Court considers appropriate.

279‑15  Court power of disqualification—contravention of civil penalty provision

             (1)  On application by the Registrar, the Court may disqualify a person from managing Aboriginal and Torres Strait Islander corporations for a period that the Court considers appropriate if:

                     (a)  a declaration is made under:

                              (i)  section 386‑1 (civil penalty provision) that the person has contravened a civil penalty provision; or

                             (ii)  section 1317E of the Corporations Act (civil penalty provision) that the person has contravened a corporation/scheme civil penalty provision (within the meaning of that Act); and

                     (b)  the Court is satisfied that the disqualification is justified.

             (2)  In determining whether the disqualification is justified, the Court may have regard to:

                     (a)  the person’s conduct in relation to the management, business or property of any Aboriginal and Torres Strait Islander corporation or Corporations Act corporation; and

                     (b)  any other matters that the Court considers appropriate.

279‑20  Court power of disqualification—insolvency and non‑payment of debts

             (1)  On application by the Registrar, the Court may disqualify a person from managing Aboriginal and Torres Strait Islander corporations for up to 20 years if:

                     (a)  within the last 7 years, the person has been an officer of 2 or more corporations when they have failed in the circumstances referred to in subsection (2); and

                     (b)  each of those corporations was either an Aboriginal and Torres Strait Islander corporation or Corporations Act corporation; and

                     (c)  the Court is satisfied that:

                              (i)  the manner in which each of the corporations was managed was wholly or partly responsible for the corporation failing; and

                             (ii)  the disqualification is justified.

             (2)  For the purposes of subsection (1), the circumstances are:

                     (a)  a Court orders the corporation to be wound up under:

                              (i)  section 526‑1 of this Act; or

                             (ii)  section 459B of the Corporations Act;

                            because the Court is satisfied that the corporation is insolvent; or

                     (b)  the corporation enters into voluntary liquidation and creditors are not fully paid or are unlikely to be fully paid; or

                     (c)  the corporation executes:

                              (i)  a deed of corporation arrangement; or

                             (ii)  a deed of company arrangement (within the meaning of the Corporations Act);

                            and creditors are not fully paid or are unlikely to be fully paid; or

                     (d)  the corporation ceases to carry on business and creditors are not fully paid or are unlikely to be fully paid; or

                     (e)  a levy of execution against the corporation is not satisfied; or

                      (f)  a receiver, receiver and manager, or provisional liquidator is appointed in relation to the corporation; or

                     (g)  the corporation enters into a compromise or arrangement with its creditors under Part 5.1 of the Corporations Act; or

                     (h)  the corporation is wound up and a liquidator lodges a report under subsection 533(1) of the Corporations Act (including that section as applied by section 526‑35 of this Act) about the corporation’s inability to pay its debts.

Note:          To satisfy paragraph (h), the corporation must begin to be wound up while the person is an officer or within 12 months after the person ceases to be an officer. However, the report under subsection 533(1) of the Corporations Act may be lodged by the liquidator at a time that is more than 12 months after the person ceases to be an officer. Sections 513A to 513D of the Corporations Act contain rules about when a winding up begins.

             (3)  For the purposes of subsection (1), a person is an officer of a Corporations Act corporation if the person is an officer of that corporation for the purposes of the Corporations Act.

             (4)  In determining whether the disqualification is justified, the Court may have regard to:

                     (a)  the person’s conduct in relation to the management, business or property of any Aboriginal and Torres Strait Islander corporation or Corporations Act corporation; and

                     (b)  any other matters that the Court considers appropriate.

279‑25  Court power of disqualification—repeated contraventions of Act

             (1)  On application by the Registrar, the Court may disqualify a person from managing Aboriginal and Torres Strait Islander corporations for the period that the Court considers appropriate if:

                     (a)  the person:

                              (i)  has at least twice been an officer of a body corporate that has contravened this Act or the Corporations Act while the person was an officer of the body corporate and each time the person has failed to take reasonable steps to prevent the contravention; or

                             (ii)  has at least twice contravened this Act or the Corporations Act while the person was an officer of a body corporate; or

                            (iii)  has been an officer of a body corporate and has done something that would have contravened subsection 265‑1(1) or section 265‑5 if the body corporate had been an Aboriginal and Torres Strait Islander corporation; or

                     (b)  the Court is satisfied that the disqualification is justified.

             (2)  For the purposes of subsection (1), a person is an officer of a Corporations Act corporation if the person is an officer of that corporation for the purposes of the Corporations Act.

             (3)  In determining whether the disqualification is justified, the Court may have regard to:

                     (a)  the person’s conduct in relation to the management, business or property of any Aboriginal and Torres Strait Islander corporation or Corporations Act corporation; and

                     (b)  any other matters that the Court considers appropriate.

279‑30  Registrar’s power of disqualification

Power to disqualify

             (1)  The Registrar may disqualify a person from managing Aboriginal and Torres Strait Islander corporations for up to 5 years if:

                     (a)  within 7 years immediately before the Registrar gives a notice under subparagraph (b)(i):

                              (i)  the person has been an officer of 2 corporations; and

                             (ii)  each of those corporations was either an Aboriginal and Torres Strait Islander corporation or a Corporations Act corporation; and

                            (iii)  while the person was an officer, or within 12 months after the person ceased to be an officer of those corporations, each of the corporations was wound up and a liquidator lodged a report under subsection 533(1) of the Corporations Act (including that section as applied by section 526‑35 of this Act) about the corporation’s inability to pay its debts; and

                     (b)  the Registrar has given the person:

                              (i)  a written notice requiring them to demonstrate why the person should not be disqualified; and

                             (ii)  an opportunity to be heard on the question; and

                     (c)  the Registrar is satisfied that the disqualification is justified.

             (2)  A notice under subsection (1) is not a legislative instrument.

             (3)  For the purposes of subsection (1), a person is an officer of a Corporations Act corporation if the person is an officer of that corporation for the purposes of the Corporations Act.

Grounds for disqualification

             (4)  In determining whether disqualification is justified, the Registrar:

                     (a)  must have regard to whether any of the Aboriginal and Torres Strait Islander corporations or Corporations Act corporations mentioned in subsection (1) were related to one another; and

                     (b)  may have regard to:

                              (i)  the person’s conduct in relation to the management, business or property of any Aboriginal and Torres Strait Islander corporation or Corporations Act corporation; and

                             (ii)  whether the disqualification would be in the public interest; and

                            (iii)  any other matters that the Registrar considers appropriate.

Notice of disqualification

             (5)  If the Registrar disqualifies a person from managing Aboriginal and Torres Strait Islander corporations under this section, the Registrar must give a written notice to the person advising the person of the disqualification.

Start of disqualification

             (6)  The disqualification takes effect from the time when a notice referred to in subsection (5) is served on the person.

Registrar power to grant leave

             (7)  The Registrar may give a person whom:

                     (a)  the Registrar has disqualified from managing Aboriginal and Torres Strait Islander corporations under this Part; or

                     (b)  ASIC has disqualified from managing corporations under Part 2D.6 of the Corporations Act;

written permission to manage a particular Aboriginal and Torres Strait Islander corporation or corporations. The permission may be expressed to be subject to conditions and exceptions determined by the Registrar.

             (8)  A permission under subsection (7) is not a legislative instrument.

279‑35  Court power to grant leave

             (1)  A person who is disqualified from managing Aboriginal and Torres Strait Islander corporations may apply to the Court for leave to manage:

                     (a)  Aboriginal and Torres Strait Islander corporations; or

                     (b)  a particular class of Aboriginal and Torres Strait Islander corporation; or

                     (c)  a particular Aboriginal and Torres Strait Islander corporation.

             (2)  Subsection (1) does not apply if the person:

                     (a)  was disqualified by the Registrar under section 279‑30; or

                     (b)  was disqualified under subsection 279‑5(5) because ASIC disqualified the person from managing corporations under section 206F of the Corporations Act.

             (3)  The person must lodge a notice with the Registrar at least 21 days before commencing the proceedings.

             (4)  The order granting leave may be expressed to be subject to exceptions and conditions determined by the Court.

Note:          If the Court grants the person leave to manage the corporation, the person may be appointed as a director (see subsection 246‑1(2)) or secretary (see subsection 257‑10(2)) of the corporation.

             (5)  The person must lodge with the Registrar a copy of any order granting leave within 14 days after the order is made.

             (6)  On application by the Registrar, the Court may revoke the leave. The order revoking leave does not take effect until it is served on the person.

 

Part 6‑6—Member approval needed for related party benefit

Division 284—Need for member approval

284‑1  Need for member approval for financial benefit

             (1)  For an Aboriginal and Torres Strait Islander corporation, or an entity that the corporation controls, to give a financial benefit to a related party of the corporation:

                     (a)  the corporation or entity must:

                              (i)  obtain the approval of the corporation’s members in the way set out in Division 290; and

                             (ii)  give the benefit within 15 months after the approval; or

                     (b)  the giving of the benefit must fall within an exception set out in Division 287.

Note:          Section 293‑1 defines related party, section 700‑1 defines entity, section 689‑25 defines control and section 293‑5 affects the meaning of giving a financial benefit.

             (2)  If:

                     (a)  the giving of the benefit is required by a contract; and

                     (b)  the making of the contract was approved in accordance with subparagraph (1)(a)(i) as a financial benefit given to the related party; and

                     (c)  the contract was made:

                              (i)  within 15 months after that approval; or

                             (ii)  before that approval, if the contract was conditional on the approval being obtained;

member approval for the giving of the benefit is taken to have been given and the benefit need not be given within the 15 months.

284‑5  Consequences of breach

             (1)  If the corporation or entity contravenes section 284‑1:

                     (a)  the contravention does not affect the validity of any contract or transaction connected with the giving of the benefit; and

                     (b)  the corporation or entity does not commit an offence.

Note:          A Court may order an injunction to stop the corporation or entity giving the benefit to the related party (see section 576‑25).

             (2)  A person contravenes this subsection if they are involved in a contravention of section 284‑1 by a corporation or entity.

Note 1:       This subsection is a civil penalty provision (see section 386‑1).

Note 2:       Section 694‑55 defines involved in.

             (3)  A person commits an offence if they are involved in a contravention of section 284‑1 by a corporation or entity and the involvement is dishonest.

Penalty:  2,000 penalty units or imprisonment for 5 years, or both.

 

Division 287—Exceptions to the requirement for member approval

287‑1  Remuneration and reimbursement for officer or employee

Benefits that are reasonable remuneration to employees

             (1)  Member approval is not needed to give a financial benefit if:

                     (a)  the benefit is remuneration to a related party as an employee of the following:

                              (i)  the corporation;

                             (ii)  an entity that the corporation controls;

                            (iii)  an entity that controls the corporation;

                            (iv)  an entity that is controlled by an entity that controls the corporation; and

                     (b)  to give the remuneration would be reasonable given:

                              (i)  the circumstances of the corporation or entity giving the remuneration; and

                             (ii)  the related party’s circumstances (including the responsibilities involved in the employment, the employee’s experience and performance record and the employee’s length of service).

Remuneration of officers

             (2)  If an Aboriginal and Torres Strait Islander corporation’s constitution provides for the remuneration of officers, member approval is not needed to give a financial benefit if:

                     (a)  the benefit is remuneration to a related party as a director or officer of the following:

                              (i)  the corporation;

                             (ii)  an entity that the corporation controls;

                            (iii)  an entity that controls the corporation;

                            (iv)  an entity that is controlled by an entity that controls the corporation; and

                     (b)  to give the remuneration would be reasonable given:

                              (i)  the circumstances of the corporation or entity giving the remuneration; and

                             (ii)  the related party’s circumstances (including the responsibilities involved in the office, the officer’s experience and performance record and the officer’s length of service).

Benefits that are payments of expenses incurred

             (3)  Member approval is not needed to give a financial benefit if:

                     (a)  the benefit is payment of expenses incurred or to be incurred, or reimbursement for expenses incurred, by a related party in performing duties as an officer or employee of the following:

                              (i)  the corporation;

                             (ii)  an entity that the corporation controls;

                            (iii)  an entity that controls the corporation;

                            (iv)  an entity that is controlled by an entity that controls the corporation; and

                     (b)  to give the benefit would be reasonable in the circumstances of the corporation or entity giving the remuneration.

             (4)  For the purposes of this section:

                     (a)  a contribution made by an Aboriginal and Torres Strait Islander corporation or related body corporate to a fund for the purpose of making provision for, or obtaining, superannuation benefits for an officer of the corporation or related body corporate, or for dependants of an officer of the corporate or related body corporate, is remuneration provided by the body to the officer of the body; and

                     (b)  a financial benefit given to a person because of the person ceasing to hold an office or employment as an officer or employee of a body corporate is remuneration paid or provided to the person in a capacity as an officer of the body.

287‑5  Benefit to or by closely‑held subsidiary

             (1)  Member approval is not needed to give a financial benefit if the benefit is given:

                     (a)  by a body corporate to a closely‑held subsidiary of the body; or

                     (b)  by a closely‑held subsidiary of a body corporate to the body or an entity it controls.

             (2)  For the purposes of this section, a body corporate is a closely‑held subsidiary of another body corporate if, and only if, no member of the first‑mentioned body is a person other than:

                     (a)  the other body; or

                     (b)  a nominee of the other body; or

                     (c)  a body corporate that is a closely‑held subsidiary of the other body because of any other application or applications of this subsection; or

                     (d)  a nominee of a body referred to in paragraph (c).

             (3)  For the purposes of subsection (2), disregard shares that are not voting shares.

287‑10  Benefits to members that do not discriminate unfairly

                   Member approval is not needed to give a financial benefit if:

                     (a)  the benefit is given to the related party in the related party’s capacity as a member of the corporation; and

                     (b)  giving the benefit does not discriminate unfairly against the other members of the corporation.

287‑15  Court order

                   Member approval is not needed to give a financial benefit under an order of a court.

 

Division 290—Procedure for obtaining member approval

290‑1  Resolution may specify matters by class or kind

                   A resolution under this Division may specify anything either in particular or by reference to class or kind.

290‑5  Corporation must lodge material that will be put to members with the Registrar

             (1)  At least 14 days before the notice convening the relevant meeting is given, the Aboriginal and Torres Strait Islander corporation must lodge:

                     (a)  a proposed notice of meeting setting out the text of the proposed resolution; and

                     (b)  a proposed explanatory statement satisfying section 290‑10; and

                     (c)  any other document that is proposed to accompany the notice convening the meeting and that relates to the proposed resolution; and

                     (d)  any other document that any of the following proposes to give to members of the corporation before or at the meeting:

                              (i)  the corporation;

                             (ii)  a related party of the corporation to whom the proposed resolution would permit a financial benefit to be given;

                            (iii)  an associate of the corporation or of such a related party;

                            and can reasonably be expected to be material to a member in deciding how to vote on the proposed resolution.

Penalty:  5 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  If, when the notice convening the meeting is given, the Registrar:

                     (a)  has approved in writing a period of less than 14 days for the purposes of subsection (1); and

                     (b)  has not revoked the approval by written notice to the corporation;

subsection (1) applies as if the reference to 14 days were a reference to the approved period.

             (4)  An approval under subsection (3) is not a legislative instrument.

             (5)  The Registrar may give and revoke approvals for the purposes of subsection (3).

290‑10  Requirements for explanatory statement to members

             (1)  The proposed explanatory statement lodged under section 290‑5 must be in writing and set out:

                     (a)  the related parties to whom the proposed resolution would permit financial benefits to be given; and

                     (b)  the nature of the financial benefits; and

                     (c)  in relation to each director of the corporation:

                              (i)  if the director wanted to make a recommendation to members about the proposed resolution—the recommendation and his or her reasons for it; or

                             (ii)  if not—why not; or

                            (iii)  if the director was not available to consider the proposed resolution—why not; and

                     (d)  in relation to each such director:

                              (i)  whether the director had an interest in the outcome of the proposed resolution; and

                             (ii)  if so—what it was; and

                     (e)  all other information that:

                              (i)  is reasonably required by members in order to decide whether or not it is in the corporation’s interests to pass the proposed resolution; and

                             (ii)  is known to the corporation or to any of its directors.

             (2)  An example of the kind of information referred to in paragraph (1)(e) is information about what, from an economic and commercial point of view, are the true potential costs and detriments of, or resulting from, giving financial benefits as permitted by the proposed resolution, including (without limitation):

                     (a)  opportunity costs; and

                     (b)  taxation consequences (such as liability to fringe benefits tax); and

                     (c)  benefits forgone by whoever would give the benefits.

Note:          Sections 265‑1 and 265‑5 require an officer of a corporation to act honestly and to exercise care and diligence. These duties extend to preparing an explanatory statement under this section. Section 561‑5 creates offences where false and misleading material relating to a corporation’s affairs is made available or furnished to members.

290‑15  Registrar may comment on proposed resolution

             (1)  Within 14 days after the corporation lodges documents under section 290‑5, the Registrar may give to the corporation written comments on those documents (other than comments about whether the proposed resolution is in the corporation’s best interests).

             (2)  Comments under subsection (1) are not legislative instruments.

             (3)  The Registrar must keep a copy of the written comments it gives to a corporation under subsection (1) and sections 421‑1 and 421‑5 apply to the copy as if it were a document lodged with the Registrar.

             (4)  The fact that the Registrar has given particular comments, or has declined to give comments, under subsection (1) does not in any way affect the performance or exercise of any of the Registrar’s functions and powers.

290‑20  Requirements for notice of meeting

             (1)  The notice convening the meeting:

                     (a)  must be the same, in all material respects, as the proposed notice lodged under section 290‑5; and

                     (b)  must be accompanied by an explanatory statement that is the same, in all material respects, as the proposed explanatory statement lodged under that section; and

                     (c)  must be accompanied by a document that is, or documents that are, the same, in all material respects, as the document or documents (if any) lodged under paragraph 290‑5(1)(c); and

                     (d)  if the Registrar has given to the corporation, under section 290‑15, comments on the documents lodged under section 290‑5—must be accompanied by a copy of those comments; and

                     (e)  must not be accompanied by any other documents.

Penalty:  5 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

290‑25  Other material put to members

             (1)  Each document (if any) that:

                     (a)  did not accompany the notice convening the meeting; and

                     (b)  was given to members of the corporation before or at the meeting by:

                              (i)  the corporation; or

                             (ii)  a related party of the corporation to whom the proposed resolution would permit a financial benefit to be given; or

                            (iii)  an associate of the corporation or of such a related party; and

                     (c)  can reasonably be expected to have been material to a member in deciding how to vote on the proposed resolution;

must be the same, in all material respects, as a document lodged under paragraph 290‑5(1)(d).

Penalty:  5 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

290‑30  Proposed resolution cannot be varied

                   The resolution must be the same as the proposed resolution set out in the proposed notice lodged under section 290‑5.

290‑35  Voting by or on behalf of related party interested in proposed resolution

             (1)  At a general meeting, a vote on a proposed resolution under this Division must not be cast (in any capacity) by or on behalf of:

                     (a)  a related party of the corporation to whom the resolution would permit a financial benefit to be given; or

                     (b)  an associate of such a related party.

             (2)  Subsection (1) does not prevent the casting of a vote if:

                     (a)  it is cast by a person as a proxy appointed by writing that specifies how the proxy is to vote on the proposed resolution; and

                     (b)  it is not cast on behalf of a related party or associate of a kind referred to in subsection (1).

             (3)  The regulations may prescribe cases where subsection (1) does not apply.

             (4)  The Registrar may by writing declare that:

                     (a)  subsection (1) does not apply to a specified proposed resolution; or

                     (b)  subsection (1) does not prevent the casting of a vote, on a specified proposed resolution, by a specified entity, or on behalf of a specified entity;

but may only do so if satisfied that the declaration will not cause unfair prejudice to the interests of any member of the corporation.

             (5)  A declaration in force under subsection (4) has effect accordingly.

             (6)  A declaration under subsection (4) is not a legislative instrument.

             (7)  If a vote is cast in contravention of subsection (1), the related party or associate, as the case may be, contravenes this subsection, whether or not the proposed resolution is passed.

Penalty:  200 penalty units or imprisonment for 5 years, or both.

             (8)  For the purposes of this section, a vote is cast on behalf of an entity if, and only if, it is cast:

                     (a)  as proxy for the entity; or

                     (b)  otherwise on behalf of the entity; or

                     (c)  in respect of a share in respect of which the entity has:

                              (i)  power to vote; or

                             (ii)  power to exercise, or control the exercise of, a right to vote.

             (9)  Subject to subsection 290‑40(1), a contravention of this section does not affect the validity of a resolution.

           (10)  This section has effect despite:

                     (a)  anything else in:

                              (i)  this Act; or

                             (ii)  any other law (including the general law) of a State or Territory; or

                     (b)  anything in a body corporate’s constitution.

290‑40  Voting on the resolution

             (1)  If any votes on the resolution are cast in contravention of subsection 290‑35(1), it must be the case that the resolution would still be passed even if those votes were disregarded.

             (2)  If a poll was duly demanded on the question that the resolution be passed, subsections (3) and (4) apply in relation to voting on the poll.

             (3)  In relation to each member of the corporation who voted on the resolution in person, the corporation must record in writing:

                     (a)  the member’s name; and

                     (b)  how many votes the member cast for the resolution and how many against.

Penalty:  5 penalty units.

             (4)  In relation to each member of the corporation who voted on the resolution by proxy, or by a representative authorised under section 201‑110, the corporation must record in writing:

                     (a)  the member’s name; and

                     (b)  in relation to each person who voted as proxy, or as such a representative, for the member:

                              (i)  the person’s name; and

                             (ii)  how many votes the person cast on the resolution as proxy, or as such a representative, for the member; and

                            (iii)  how many of those votes the person cast for the resolution and how many against.

Penalty:  5 penalty units.

             (5)  For 7 years after the day when a resolution under this Division is passed, the corporation must retain the records it made under this section in relation to the resolution.

Penalty:  5 penalty units.

             (6)  An offence against subsection (3), (4) or (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

290‑45  Notice of resolution to be lodged

                   The corporation must lodge a notice setting out the text of the resolution within 28 days after the resolution is passed.

290‑50  Declaration by court of substantial compliance

             (1)  The Court may declare that the conditions provided for in this Division have been satisfied if it finds that they have been substantially satisfied.

             (2)  A declaration may be made only on the application of an interested person.

 

Division 293—Related parties and financial benefits

293‑1  Related parties

Controlling entities

             (1)  An entity that controls an Aboriginal and Torres Strait Islander corporation is a related party of the corporation.

Directors and their spouses

             (2)  The following persons are related parties of an Aboriginal and Torres Strait Islander corporation:

                     (a)  directors of the corporation;

                     (b)  directors (if any) of an entity that controls the corporation;

                     (c)  if the corporation is controlled by an entity that is not a body corporate—each of the persons making up the controlling entity;

                     (d)  spouses and de facto spouses of the persons referred to in paragraphs (a), (b) and (c).

Relatives of directors and spouses

             (3)  The following relatives of persons referred to in subsection (2) are related parties of the Aboriginal and Torres Strait Islander corporation:

                     (a)  parents;

                     (b)  children.

Entities controlled by other related parties

             (4)  An entity controlled by a related party referred to in subsection (1), (2) or (3) is a related party of the Aboriginal and Torres Strait Islander corporation unless the entity is also controlled by the corporation.

Related party in previous 6 months

             (5)  An entity is a related party of an Aboriginal and Torres Strait Islander corporation at a particular time if the entity was a related party of the corporation of a kind referred to in subsection (1), (2), (3) or (4) at any time within the previous 6 months.

Entity has reasonable grounds to believe it will become related party in future

             (6)  An entity is a related party of an Aboriginal and Torres Strait Islander corporation at a particular time if the entity believes or has reasonable grounds to believe that it is likely to become a related party of the corporation of a kind referred to in subsection (1), (2), (3) or (4) at any time in the future.

Acting in concert with related party

             (7)  An entity is a related party of an Aboriginal and Torres Strait Islander corporation if the entity acts in concert with a related party of the corporation on the understanding that the related party will receive a financial benefit if the corporation gives the entity a financial benefit.

293‑5  Giving a financial benefit

             (1)  In determining what constitutes giving a financial benefit:

                     (a)  give a broad interpretation to financial benefits being given, even if criminal or civil penalties may be involved; and

                     (b)  the economic and commercial substance of conduct is to prevail over its legal form; and

                     (c)  disregard any consideration that is or may be given for the benefit, even if the consideration is adequate.

             (2)  Giving a financial benefit includes the following:

                     (a)  giving a financial benefit indirectly, for example, through 1 or more interposed entities;

                     (b)  giving a financial benefit by making an informal agreement, oral agreement or an agreement that has no binding force;

                     (c)  giving a financial benefit that does not involve paying money (for example by conferring a financial advantage).

             (3)  The following are examples of giving a financial benefit to a related party:

                     (a)  giving or providing the related party finance or property;

                     (b)  buying an asset from or selling an asset to the related party;

                     (c)  leasing an asset from or to the related party;

                     (d)  supplying services to or receiving services from the related party;

                     (e)  issuing securities or granting an option to the related party;

                      (f)  taking up or releasing an obligation of the related party.

 

Division 296—Interaction with other rules

296‑1  General duties still apply

                   A director is not relieved from any of his or her duties under this Act (including sections 265‑1 and 265‑25), or his or her fiduciary duties, in connection with a transaction merely because the transaction is authorised by a provision of this Part or is approved by a resolution of members under a provision of this Part.

 

Part 6‑7—Public information about directors, secretaries and contact persons

Division 301—Introduction

301‑1  What this Part is about

 

Division 304—Information to be provided

304‑1  Director, alternate director, secretary or contact person may notify the Registrar of resignation or retirement

             (1)  If a director, alternate director, secretary or contact person of an Aboriginal and Torres Strait Islander corporation retires or resigns, he or she may give the Registrar written notice of the retirement or resignation.

             (2)  To be effective, a notice of resignation must be accompanied by a copy of the letter of resignation given to the corporation.

             (3)  Nothing in this section affects the corporation’s obligations to notify the Registrar of the resignation or retirement.

304‑5  Notice of name and address of directors and secretaries to the Registrar

New directors or secretaries

             (1)  An Aboriginal and Torres Strait Islander corporation must lodge with the Registrar a notice of the personal details of a director, secretary or contact person within 28 days after he or she is appointed.

Note 1:       If a person becomes a director, secretary or contact person under section 42‑10 there is no appointment and no notice is required under this subsection.

Note 2:       If a person who was appointed as an alternate director becomes a director under the terms of his or her appointment as an alternate director, there is no appointment as a director and no notice is required under this subsection.

Penalty:  10 penalty units.

             (2)  Subsection (1) does not apply if a contact person is appointed by the Registrar under section 257‑25.

New alternate directors

             (3)  An Aboriginal and Torres Strait Islander corporation must lodge with the Registrar a notice of:

                     (a)  the personal details of a person who is appointed as an alternate director; and

                     (b)  the terms of his or her appointment (including terms about when the alternate director is to act as a director);

within 28 days after his or her appointment as an alternate director.

Penalty:  10 penalty units.

Personal details

             (4)  The personal details of a director, alternate director, secretary or contact person are:

                     (a)  his or her given and family names; and

                     (b)  all of his or her former given and family names; and

                     (c)  all other names by which he or she is or was known; and

                     (d)  his or her date and place of birth; and

                     (e)  his or her address.

Note:          For address see section 304‑15.

Changes in details

             (5)  The corporation must lodge with the Registrar notice of any change in the personal details of a director, alternate director, secretary or contact person within 28 days after the change.

Penalty:  10 penalty units.

Notice required if person stops being a director etc.

             (6)  If a person stops being a director, alternate director, secretary or contact person of the corporation, the corporation must lodge with the Registrar notice of the fact within 28 days.

Penalty:  10 penalty units.

             (7)  Subsection (6) does not apply if the person was an alternate director who stopped being a director in accordance with the terms of his or her appointment as an alternate director.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

             (8)  An offence against subsection (1), (3), (5) or (6) is an offence of strict liability.

Note 1:       For strict liability, see section 6.1 of the Criminal Code.

Note 2:       See also section 265‑40 for offences committed by the secretary of an Aboriginal and Torres Strait Islander corporation.

304‑10  Director, alternate director, secretary and contact person must give information to corporation

             (1)  A director, alternate director, secretary or contact person must give the corporation any information the corporation needs to comply with subsection 304‑5(1) or (3) within 14 days after his or her initial appointment unless he or she has previously given the information to the corporation.

Penalty:  10 penalty units.

             (2)  A director, alternate director, secretary or contact person must give the corporation any information the corporation needs to comply with subsection 304‑5(5) within 14 days after any change in his or her personal details.

Penalty:  10 penalty units.

             (3)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

304‑15  Address for officers

Address is normally residential address

             (1)  A person’s address for the purposes of an application under section 21‑1 or notice under subsection 304‑5(1), (3) or (5) must be his or her usual residential address unless he or she is entitled to have an alternative address substituted for his or her usual residential address under subsection (2).

Entitlement to have alternative address

             (2)  The person is entitled to have an alternative address substituted for his or her usual residential address if:

                     (a)  his or her name, but not his or her residential address, is on an electoral roll under the Commonwealth Electoral Act 1918 because of section 104 of that Act; or

                     (b)  his or her name is not on an electoral roll under that Act and the Registrar determines, in writing, that including his or her residential address in the notice or application would put at risk his or her personal safety or the personal safety of members of his or her family.

This alternative address must be in Australia and be one at which documents can be served on the person. At any particular time, a person is entitled to have only 1 alternative address under this section.

             (3)  A determination under paragraph (2)(b) is not a legislative instrument.

             (4)  A person who takes advantage of subsection (2) must:

                     (a)  before or at the same time as the alternative address is first included in an application or notice, lodge with the Registrar notice of the person’s usual residential address; and

                     (b)  lodge with the Registrar notice of any change in the person’s usual residential address within 14 days after the change.

Penalty:  5 penalty units.

             (5)  If a court gives a judgment for payment of a sum of money against a person who is taking advantage of subsection (2), the Registrar may give details of the person’s usual residential address to an officer of the court for the purposes of enforcing the judgment debt.

             (6)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

 

Division 307—Registrar may ask for information

307‑1  Registrar’s power to ask for information about person’s position as director, secretary or contact person

             (1)  The Registrar may ask a person, in writing, to inform the Registrar:

                     (a)  whether the person is a director, secretary or contact person of a particular Aboriginal and Torres Strait Islander corporation; and

                     (b)  if the person is no longer a director, secretary or contact person of the corporation—the date on which the person stopped being a director, secretary or contact person.

             (2)  The person must give the information to the Registrar in writing by the date specified in the request.

Penalty:  10 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  A request under subsection (1) is not a legislative instrument.

 

Chapter 7—Record keeping, reporting requirements and books

Part 7‑1—Introduction

Division 317—Introduction

317‑1  What this Chapter is about

 

Part 7‑2—Record keeping requirements

Division 322—Record keeping requirements

322‑1  What this Part is about

322‑5  Obligation to keep copy of constitution and records about officers, contact person, etc.

                   An Aboriginal and Torres Strait Islander corporation must keep:

                     (a)  an up‑to‑date copy of its constitution (incorporating changes to the constitution); and

                     (b)  written records relating to:

                              (i)  the names and addresses of the corporation’s current officers and secretary or contact person (as the case may be); and

                             (ii)  the corporation’s registered office (if any); and

                            (iii)  the corporation’s document access address (if any); and

                            (iv)  such other matters about the corporation as are set out in the regulations.

Note:          An Aboriginal and Torres Strait Islander corporation is also required to maintain a register of members and a register of former members under Part 4‑5.

322‑10  Obligation to keep financial records

             (1)  An Aboriginal and Torres Strait Islander corporation must keep written financial records that:

                     (a)  correctly record and explain its transactions and financial position and performance; and

                     (b)  would enable true and fair financial reports to be prepared and audited.

The obligation to keep financial records of transactions extends to transactions undertaken as trustee.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

Note:          Section 700‑1 defines financial records.

Period for which records must be retained

             (2)  The financial records must be retained for 7 years after the transactions covered by the records are completed.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

Strict liability offences

             (3)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

322‑15  Physical format

             (1)  If the records that an Aboriginal and Torres Strait Islander corporation is required to keep under this Division are kept in electronic form, the records must be convertible into hard copy. Hard copy must be made available, within a reasonable time, to a person who is entitled to inspect the records.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

322‑20  Place where records are kept

             (1)  If an Aboriginal and Torres Strait Islander corporation is registered as a large corporation, the records that the corporation is required to keep under this Division must be kept at the corporation’s registered office.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (2)  If an Aboriginal and Torres Strait Islander corporation is registered as a small or medium corporation, the records that the corporation is required to keep under this Division must be kept at the corporation’s document access address.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (3)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

322‑25  Director access

Personal access

             (1)  A director of an Aboriginal and Torres Strait Islander corporation has a right of access to the records that the corporation is required to keep under this Division.

Note:          See also section 376‑1.

Court order for inspection on director’s behalf

             (2)  On application by a director, the Court may authorise a person to inspect the records on the director’s behalf.

             (3)  A person authorised to inspect records may make copies of the records unless the Court orders otherwise.

             (4)  The Court may make any other orders it considers appropriate, including either or both of the following:

                     (a)  an order limiting the use that a person who inspects the records may make of information obtained during the inspection;

                     (b)  an order limiting the right of a person who inspects the records to make copies in accordance with subsection (3).

 

Part 7‑3—Reporting requirements

Division 327—Overview of reporting obligations

327‑1  Reports that an Aboriginal and Torres Strait Islander corporation must prepare and lodge

             (1)  The reports that an Aboriginal and Torres Strait Islander corporation has to prepare are:

                     (a)  a general report in relation to each financial year (see Division 330); and

                     (b)  any reports (which might include a financial report, or directors’ report, for a financial year) that are required by the regulations (see Division 333); and

                     (c)  any reports that are required by the Registrar (see Division 336).

             (2)  All these reports must be lodged with the Registrar (see Division 348).

             (3)  A financial report may need to be audited (see paragraphs 333‑15(2)(a), 336‑1(7)(a) and 336‑5(7)(a)). If it does:

                     (a)  Division 339 makes provision in relation to the conduct of the audit; and

                     (b)  the auditor’s report must be lodged with the Registrar.

Subdivision 339‑F allows regulations to be made in relation to the appointment and removal of auditors.

             (4)  Financial reports, directors’ reports and auditors’ reports must be given to members (see Division 342).

             (5)  Other reports that the corporation is required to prepare may also have to be given to members (see subsection 333‑15(3) and paragraphs 336‑1(6)(a) and 336‑5(6)(a)).

 

Division 330—General report for each financial year

330‑1  Aboriginal and Torres Strait Islander corporation must prepare a general report each financial year

                   An Aboriginal and Torres Strait Islander corporation must prepare a general report in respect of each financial year.

Note 1:       The corporation may be exempted from this requirement under Part 7‑4.

Note 2:       Unless exempted, failure to lodge the general report with the Registrar is an offence (see section 330‑10).

330‑5  Contents of general report

             (1)  A general report must:

                     (a)  set out the following details as at the end of the financial year:

                              (i)  the names and addresses of each of the corporation’s members;

                             (ii)  the names and addresses of each of the corporation’s directors;

                            (iii)  the name and address of the corporation’s secretary if the corporation is registered as a large corporation;

                            (iv)  the name and address of the corporation’s contact person if the corporation is registered as a small or medium corporation;

                             (v)  the address of the corporation’s registered office if the corporation is registered as a large corporation;

                            (vi)  the address of the corporation’s document access address if the corporation is registered as a small or medium corporation; and

                     (b)  contain any other information required by the regulations; and

                     (c)  comply with any further requirements imposed by the regulations.

             (2)  Without limiting paragraph (1)(c), the regulations:

                     (a)  may require that the general report be accompanied by a declaration by a particular officer, or officers, of the corporation; and

                     (b)  may require that a declaration in relation to the report be based on a resolution of the corporation’s directors; and

                     (c)  may require the general report to be prepared in a particular manner.

330‑10  General report to be lodged with Registrar

             (1)  The corporation must lodge the general report with the Registrar.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

Note:          See also section 265‑40 for offences committed by the secretary of an Aboriginal and Torres Strait Islander corporation.

             (2)  The time for lodgment is:

                     (a)  within 3 months after the end of the financial year; or

                     (b)  such longer period as is prescribed by the regulations.

             (3)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

 

Division 333—Financial and other reports required by the regulations

333‑1  What this Division is about

333‑5  Regulations may require financial reports, directors’ reports and other reports to be prepared

             (1)  The regulations may require reports to be prepared by:

                     (a)  a specified Aboriginal and Torres Strait Islander corporation; or

                     (b)  a specified class of Aboriginal and Torres Strait Islander corporation.

             (2)  Regulations made for the purposes of subsection (1) may require an Aboriginal and Torres Strait Islander corporation, or each Aboriginal and Torres Strait Islander corporation included in a class of Aboriginal and Torres Strait Islander corporation, to prepare a report:

                     (a)  for a particular period or periods; or

                     (b)  in relation to circumstances as they exist at a particular date or dates.

This subsection does not limit subsection (1).

             (3)  Regulations made for the purposes of subsection (1) may require an Aboriginal and Torres Strait Islander corporation, or each Aboriginal and Torres Strait Islander corporation included in a class of Aboriginal and Torres Strait Islander corporation, to prepare either or both of the following:

                     (a)  a financial report for a financial year;

                     (b)  a directors’ report for a financial year.

This subsection does not limit subsection (1).

First financial year

             (4)  The first financial year for an Aboriginal and Torres Strait Islander corporation starts on the day on which it is registered and ends:

                     (a)  on the 30 June next following that day if the corporation is registered between 1 July and 31 December; and

                     (b)  on the second 30 June next following that day if the corporation is registered between 1 January and 30 June.

Financial year after the first

             (5)  Subsequent financial years must:

                     (a)  start at the end of the previous financial year; and

                     (b)  be 12 months long.

333‑10  Contents of reports

General

             (1)  A section 333‑5 report must contain the information required by the regulations.

             (2)  Regulations made for the purposes of subsection (1) may impose a requirement by applying, adopting or incorporating (with or without modification) provisions of the accounting standards as in force from time to time. This subsection does not limit subsection (1).

Financial reports

             (3)  If a section 333‑5 report is a financial report for a financial year, regulations made for the purposes of subsection (1) may impose one or more of the following requirements:

                     (a)  a requirement that the financial report is to consist of the financial statements, financial notes and declarations specified in:

                              (i)  the regulations; or

                             (ii)  the accounting standards as in force from time to time (with the modifications (if any) specified in the regulations);

                     (b)  a requirement that the financial report deal with the financial affairs of another corporation or entity or a consolidated entity of which the corporation is a member;

                     (c)  a requirement that the financial report give a true and fair view of:

                              (i)  the financial position and performance of the corporation; and

                             (ii)  the financial position and performance of any other corporation or entity whose financial affairs are required to be reported on in the financial report or a consolidated entity of which the corporation is a member.

This subsection does not limit subsection (1).

333‑15  Other requirements in relation to report

Manner of preparing report

             (1)  The regulations may require a section 333‑5 report to be prepared in the manner required by the regulations.

Manner of preparing financial report

             (2)  If a section 333‑5 report is a financial report, regulations made for the purposes of subsection (1) of this section may do one or more of the following:

                     (a)  require that the financial report, or a part of it, be audited;

                     (b)  require that the auditor be:

                              (i)  an individual auditor who has particular qualifications or experience; or

                             (ii)  an audit firm that has a member or members who have particular qualifications or experience; or

                            (iii)  an authorised audit company;

                     (c)  require that a person may only participate in the conduct of the audit in a particular capacity if the person has the qualifications or experience specified in the regulations;

                     (d)  require that the audit of the financial report, or a part of it, be conducted in accordance with the auditing standards;

                     (e)  require that the financial report, or a part of it, must be prepared in compliance with the accounting standards;

                      (f)  require that the corporation’s directors make a declaration of the kind specified in the regulations in respect of the financial report;

                     (g)  require that a declaration by the directors in relation to the financial report must only be made after each person who performs a particular function in relation to the corporation has given the directors a declaration of a kind specified in the regulations in respect of the financial report;

                     (h)  require that specified officers of the corporation sign the financial report.

This subsection does not limit subsection (1).

Note:          Paragraph (a)—Division 339 deals with the audit of a financial report.

Giving report to members

             (3)  If a section 333‑5 report is not a financial report or a directors’ report for a financial year, the regulations may:

                     (a)  require the corporation to give a copy of the report to each of its members; and

                     (b)  specify the time within which, and the manner in which, the report is to be given to the members.

Note:          An Aboriginal and Torres Strait Islander corporation is required to provide copies of a financial report or a directors’ report to members under Division 342.

333‑20  Aboriginal and Torres Strait Islander corporation to obtain audit report if audit required

                   If:

                     (a)  a section 333‑5 report in relation to an Aboriginal and Torres Strait Islander corporation is a financial report; and

                     (b)  the corporation is required by:

                              (i)  regulations made for the purposes of section 333‑15; or

                             (ii)  a determination by the Registrar under section 336‑1 or 336‑5;

                            to have the report, or a part of the report, audited;

the corporation must obtain an auditor’s report in relation to the report or that part of the report.

 

Division 336—Registrar may increase reporting requirements

336‑1  Registrar may require additional report, or otherwise increase reporting requirements, for particular corporation

Additional report or additional reporting requirements

             (1)  The Registrar may:

                     (a)  determine, in writing, that a particular Aboriginal and Torres Strait Islander corporation must prepare a report in addition to any general report or section 333‑5 reports the corporation is required to prepare; or

                     (b)  determine, in writing, that a particular Aboriginal and Torres Strait Islander corporation must:

                              (i)  include particular additional information in a general report or section 333‑5 report; or

                             (ii)  meet particular additional requirements in relation to the manner in which a general report or section 333‑5 report is to be prepared; or

                            (iii)  provide a general report or section 333‑5 report to its members; or

                            (iv)  provide a general report or section 333‑5 report to its members within the time, and in the manner, specified in the determination.

Note:          See Part 7‑5 for the criteria the Registrar must apply in deciding whether to make a determination under this subsection.

             (2)  A determination under subsection (1) is not a legislative instrument.

Additional reports

             (3)  A determination under paragraph (1)(a) must specify:

                     (a)  the information to be included in the report; and

                     (b)  any other requirements to be met in relation to the manner in which the report is prepared.

             (4)  A determination under paragraph (1)(a) may require the report to be prepared:

                     (a)  for a particular period or periods; or

                     (b)  in relation to circumstances as they exist as at particular date or dates.

This subsection does not limit subsection (3).

             (5)  The determination may require the report to be prepared for all periods of a particular kind that start or end on or after a date specified in the determination. This subsection does not limit subsection (3).

             (6)  A determination under paragraph (1)(a) may:

                     (a)  specify that the report is to be provided to the corporation’s members; and

                     (b)  specify the time by which, and the manner in which, the report is to be provided to the corporation’s members.

Additional requirements for financial report

             (7)  If a section 333‑5 report is a financial report, the Registrar may determine under paragraph (1)(b) that one or more of the following requirements must be met in relation to the report:

                     (a)  a requirement that the report, or a part of it, be audited;

                     (b)  a requirement that the auditor be:

                              (i)  an individual auditor who has particular qualifications or experience; or

                             (ii)  an audit firm that has a member or members who have particular qualifications or experience; or

                            (iii)  an authorised audit company;

                     (c)  a requirement that a person may only participate in the conduct of the audit in a particular capacity if the person has the qualifications or experience specified in the regulations;

                     (d)  a requirement that the audit of the report, or a part of it, be conducted in accordance with the auditing standards.

This subsection does not limit paragraph (1)(b).

Determination

             (8)  A determination under subsection (1) may be in respect of a past or future period but if it is in respect of a past period, the determination must be made no later than 6 years after the end of that period.

             (9)  The Registrar may, in writing, revoke, vary or suspend a determination under subsection (1).

           (10)  A revocation, variation or suspension under subsection (9) is not a legislative instrument.

Notice of determination

           (11)  The Registrar must give the corporation written notice of the making, revocation, variation or suspension of the determination.

336‑5  Registrar may require additional reports, or otherwise increase reporting requirements, for class of corporation

Additional reports or additional reporting requirement

             (1)  The Registrar may:

                     (a)  make a determination in writing requiring a particular class of Aboriginal and Torres Strait Islander corporation to prepare a report in addition to any general report or section 333‑5 report the corporations are required to prepare; or

                     (b)  make a determination in writing requiring a particular class of Aboriginal and Torres Strait Islander corporation to:

                              (i)  include particular additional information in a general report or section 333‑5 report; or

                             (ii)  meet particular additional requirements in relation to the manner in which a general report or section 333‑5 report is prepared; or

                            (iii)  provide a general report or section 333‑5 report to their members; or

                            (iv)  provide a general report or section 333‑5 report to their members within the time, and in the manner, specified in the determination.

Note:          See Part 7‑5 for the criteria the Registrar must apply in deciding whether to make a determination under this subsection.

             (2)  A determination under subsection (1) is a legislative instrument.

Additional reports

             (3)  A determination under paragraph (1)(a) must specify:

                     (a)  the information to be included in the report; and

                     (b)  any other requirements to be met in relation to the manner in which the report is prepared.

             (4)  A determination under paragraph (1)(a) may require the report to be prepared:

                     (a)  for a particular period or periods; or

                     (b)  in relation to circumstances as they exist as at a particular date or dates.

This subsection does not limit subsection (3).

             (5)  The determination may require the report to be prepared for all periods of a particular kind that start or end on or after a date specified in the determination. This subsection does not limit subsection (4).

             (6)  A determination under paragraph (1)(a) may:

                     (a)  specify that the report is to be provided to the corporations’ members; and

                     (b)  specify the time within which, and manner in which, the report is to be provided to the members.

Additional requirements for financial report

             (7)  If the section 333‑5 report is a financial report, the Registrar may determine under paragraph (1)(b) that one or more of the following requirements are to be met in relation to the report:

                     (a)  a requirement that the financial report, or a part of it, be audited;

                     (b)  a requirement that the auditor be:

                              (i)  an individual auditor who has particular qualifications or experience; or

                             (ii)  an audit firm that has a member or members who have particular qualifications or experience; or

                            (iii)  an authorised audit company;

                     (c)  a requirement that a person may only participate in the conduct of the audit in a particular capacity if the person has the qualifications or experience specified in the regulations;

                     (d)  a requirement that the audit of the report, or a part of it, be conducted in accordance with the auditing standards.

This subsection does not limit paragraph (1)(b).

Determinations

             (8)  A determination under subsection (1):

                     (a)  may be expressed to be subject to conditions; and

                     (b)  may be in respect of a past or future period but if it is in respect of a past period, the determination must be made no later than 6 years after the end of that period.

             (9)  The Registrar may, in writing, revoke, vary or suspend a determination under subsection (1).

Notice of determinations

           (10)  Notice of the making, revocation, variation or suspension of a determination under subsection (1) must be published in the Gazette.

 

Division 339—Audit of financial reports

Subdivision 339‑A—Introduction

339‑1  What this Division is about

339‑5  Application of Division

             (1)  This Division applies if:

                     (a)  an auditor undertakes an audit of a financial report, or a part of a financial report, of an Aboriginal and Torres Strait Islander corporation; and

                     (b)  one of the following requires the report, or that part of the report, to be audited:

                              (i)  this Act;

                             (ii)  regulations made for the purposes of section 333‑15;

                            (iii)  a determination by the Registrar under section 336‑1 or 336‑5.

             (2)  If only a part of the report is required to be audited, this Division applies as if references to the financial report were references to that part of the financial report.

339‑10  When financial report required to comply with accounting standards

                   A financial report is required to comply with the accounting standards if one of the following requires the report to comply with the accounting standards:

                     (a)  an applied provision of the Corporations Act;

                     (b)  regulations made for the purposes of section 333‑15;

                     (c)  a determination by the Registrar under section 336‑1 or 336‑5.

339‑15  When audit required to be conducted in accordance with auditing standards

                   An audit is required to be conducted in accordance with the auditing standards if one of the following requires the audit to be conducted in accordance with the auditing standards:

                     (a)  an applied provision of the Corporations Act;

                     (b)  regulations made for the purposes of section 333‑15;

                     (c)  a determination by the Registrar under section 336‑1 or 336‑5.

339‑20  Lead and review auditors

Lead auditor

             (1)  If an audit firm or audit company conducts an audit of a financial report of an Aboriginal and Torres Strait Islander corporation, the lead auditor for the audit is the registered company auditor who is primarily responsible to the audit firm or the audit company for the conduct of the audit.

Review auditor

             (2)  If an individual auditor, audit firm or audit company conducts an audit of a financial report of an Aboriginal and Torres Strait Islander corporation, the review auditor for the audit is the registered company auditor (if any) who is primarily responsible to the individual auditor, the audit firm or the audit company for reviewing the conduct of the audit.

339‑25  Professional members of the audit team

                   If an individual auditor, audit firm or audit company conducts an audit of a financial report of an Aboriginal and Torres Strait Islander corporation, the professional members of the audit team are:

                     (a)  any registered company auditor who participates in the conduct of the audit; and

                     (b)  any other person who participates in the conduct of the audit and, in the course of doing so, exercises professional judgment in relation to the application of or compliance with:

                              (i)  accounting standards; or

                             (ii)  auditing standards; or

                            (iii)  the provisions of this Act dealing with financial reporting and the conduct of audits; and

                     (c)  any other person who is in a position to directly influence the outcome of the audit because of the role they play in the design, planning, management, supervision or oversight of the audit.

Subdivision 339‑B—Conduct of the audit

339‑30  Auditor to form opinion

                   The auditor of a financial report must form an opinion about:

                     (a)  whether the financial report is in accordance with:

                              (i)  this Act; and

                             (ii)  any applicable regulations made for the purposes of sections 333‑10 and 333‑15; and

                            (iii)  any applicable determinations made by the Registrar under section 336‑1 or 336‑5; and

                     (b)  whether the auditor has been given all information, explanations and assistance necessary for the conduct of the audit; and

                     (c)  whether the corporation has kept financial records sufficient to enable the financial report to be prepared and audited; and

                     (d)  whether the corporation has kept other records and registers as required by this Act; and

                     (e)  any other matter specified in the regulations.

339‑35  Auditor obligations in relation to auditing standards

             (1)  This section applies if the audit of a financial report is required to be conducted in accordance with the auditing standards.

             (2)  If an individual auditor, or an audit company, conducts the audit of the financial report, the individual auditor or audit company must conduct the audit in accordance with the auditing standards.

Penalty:  50 penalty units.

             (3)  If an audit firm, or an audit company, conducts the audit of the financial report, the lead auditor for the audit must ensure that the audit is conducted in accordance with the auditing standards.

Penalty:  50 penalty units.

             (4)  An offence against subsection (2) or (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

339‑40  Auditor’s report

             (1)  The auditor of a financial report must prepare a report for the corporation’s members on whether the auditor is of the opinion that the financial report is in accordance with:

                     (a)  this Act; and

                     (b)  any applicable regulations made for the purposes of sections 333‑10 and 333‑15; and

                     (c)  any applicable determinations made by the Registrar under section 336‑1 or 336‑5.

If not of that opinion, the auditor’s report must say why.

Penalty:  50 penalty units.

             (2)  If:

                     (a)  the financial report is required to comply with the accounting standards; and

                     (b)  the auditor is of the opinion that the financial report does not comply with an accounting standard;

the auditor’s report must, to the extent it is practicable to do so, quantify the effect that non‑compliance has on the financial report. If it is not practicable to quantify the effect fully, the report must say why.

Penalty:  50 penalty units.

             (3)  The auditor’s report must describe:

                     (a)  any defect or irregularity in the financial report; and

                     (b)  any deficiency, failure or shortcoming in respect of the matters referred to in paragraph 339‑30(b), (c) or (d).

Penalty:  50 penalty units.

             (4)  If the audit of the financial report is required to be conducted in accordance with some or all of the auditing standards, the auditor’s report must include any statements or disclosures required by those auditing standards.

Penalty:  50 penalty units.

             (5)  The auditor’s report must contain any other information required by the regulations.

             (6)  The report must specify the date on which it is made.

Penalty:  50 penalty units.

             (7)  An offence against subsection (1), (3), (4) or (6) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

339‑45  Other requirements in relation to auditor’s report

                   The auditor’s report must be prepared in the manner required by the regulations.

339‑50  Auditor’s independence declaration

Application of section

             (1)  This section applies if:

                     (a)  section 339‑75 applies in relation to the audit of a financial report of the Aboriginal and Torres Strait Islander corporation; or

                     (b)  regulations made for the purposes of section 339‑80 provide for auditor independence requirements to be met in relation to the audit of a financial report of the Aboriginal and Torres Strait Islander corporation.

Contravention by individual auditor

             (2)  If the auditor is an individual auditor, the auditor must give the directors of the corporation either:

                     (a)  a written declaration that, to the best of the auditor’s knowledge and belief, there have been:

                              (i)  no contraventions of the auditor independence requirements of this Act in relation to the audit; and

                             (ii)  no contraventions of any applicable code of professional conduct in relation to the audit; or

                     (b)  a written declaration that, to the best of the individual auditor’s knowledge and belief, the only contraventions of:

                              (i)  the auditor independence requirements of this Act in relation to the audit; or

                             (ii)  any applicable code of professional conduct in relation to the audit;

                            are those contraventions the details of which are set out in the declaration.

Penalty:  10 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Contravention by lead auditor

             (4)  If the auditor is an audit firm or audit company, the lead auditor for the audit must give the directors of the corporation:

                     (a)  a written declaration that, to the best of the lead auditor’s knowledge and belief, there have been:

                              (i)  no contraventions of the auditor independence requirements of this Act in relation to the audit; and

                             (ii)  no contraventions of any applicable code of professional conduct in relation to the audit; or

                     (b)  a written declaration that, to the best of the lead auditor’s knowledge and belief, the only contraventions of:

                              (i)  the auditor independence requirements of this Act in relation to the audit; or

                             (ii)  any applicable code of professional conduct in relation to the audit;

                            are those contraventions details of which are set out in the declaration.

Penalty:  10 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (6)  The declaration under subsection (2) or (4):

                     (a)  must be given when the audit report is given to the directors of the corporation; and

                     (b)  must be signed by the person making the declaration.

Self‑incrimination

             (7)  An individual is not excused from giving a declaration under subsection (2) or (4) on the ground that giving the declaration might tend to incriminate the individual or expose the individual to a penalty.

Use/derivative use indemnity

             (8)  However, neither:

                     (a)  the information included in the declaration; nor

                     (b)  any information, document or thing obtained as a direct or indirect consequence of including the information in the declaration;

is admissible in evidence against the individual in any criminal proceedings, or in any proceedings that would expose the person to a penalty, other than:

                     (c)  proceedings for an offence against section 561‑1 or 561‑5 in relation to the declaration; or

                     (d)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to the declaration.

339‑55  Audit working papers to be retained for 7 years

Application of section

             (1)  This section applies if the audit is required to be conducted in accordance with the auditing standards.

Offence by individual auditor or audit company

             (2)  The auditor commits an offence if:

                     (a)  the auditor is an individual auditor or an audit company; and

                     (b)  the auditor does not retain all audit working papers prepared by or for, or considered or used by, the auditor in accordance with the requirements of the auditing standards until:

                              (i)  the end of 7 years after the date of the audit report prepared in relation to the audit to which the audit working papers relate; or

                             (ii)  an earlier date determined for the audit working papers by the Registrar under subsection (7).

Penalty:  50 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Offence by member of audit firm

             (4)  A person (the defendant) commits an offence if:

                     (a)  the auditor is an audit firm; and

                     (b)  the audit firm fails, at a particular time, to retain all audit working papers prepared by or for, or considered or used by, the audit firm in accordance with the requirements of the auditing standards until:

                              (i)  the end of 7 years after the date of the audit report prepared in relation to the audit to which the documents relate; or

                             (ii)  the earlier date determined by the Registrar for the audit working papers under subsection (7); and

                     (c)  the defendant is a member of the firm at that time.

Penalty:  50 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note 1:       For strict liability, see section 6.1 of the Criminal Code.

Note 2:       Subsection (6) provides a defence.

Defence

             (6)  A member of an audit firm does not commit an offence at a particular time under subsection (4) if the member either:

                     (a)  does not know at that time of the circumstances that constitute the contravention of subsection (4); or

                     (b)  knows of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (6) (see subsection 13.3(3) of the Criminal Code).

Earlier retention date for audit working papers

             (7)  The Registrar may, on application by a person, determine, in writing, an earlier date for the audit working papers for the purposes of paragraphs (2)(b) and (4)(b) if:

                     (a)  the auditor is an individual auditor and the auditor:

                              (i)  dies; or

                             (ii)  ceases to be a registered company auditor; or

                     (b)  the auditor is an audit firm and the firm is dissolved (otherwise than simply as part of a reconstitution of the firm because of the death, retirement or withdrawal of a member or members or because of the admission of a new member or members); or

                     (c)  the auditor is an audit company and the company:

                              (i)  is wound up; or

                             (ii)  ceases to be an authorised audit company.

             (8)  A determination under subsection (7) is not a legislative instrument.

             (9)  In deciding whether to make a determination under subsection (7), the Registrar must have regard to:

                     (a)  whether the Registrar or ASIC is inquiring into or investigating any matters in respect of:

                              (i)  the auditor; or

                             (ii)  the audited body for the audit to which the documents relate; and

                     (b)  whether the professional accounting bodies have any investigations or disciplinary action pending in relation to the auditor; and

                     (c)  whether civil or criminal proceedings in relation to:

                              (i)  the conduct of the audit; or

                             (ii)  the contents of the financial report to which the audit working papers relate;

                            have been, or are about to be, commenced; and

                     (d)  any other relevant matter.

Audit working papers kept in electronic form

           (10)  For the purposes of this section, if audit working papers are in electronic form they are taken to be retained only if they are convertible into hard copy.

Subdivision 339‑C—Qualification, experience and registration

339‑60  Qualification and experience: individual auditor

             (1)  An individual contravenes this section if:

                     (a)  one of the following imposes a requirement in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333‑15;

                            (iii)  a determination by the Registrar under section 336‑1 or 336‑5; and

                     (b)  the requirement is that, if the auditor is an individual auditor, the auditor must have particular qualification or experience; and

                     (c)  the individual acts as auditor in relation to the financial report or that part of it; and

                     (d)  the individual does not have the qualification or experience referred to in paragraph (b).

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (2)  An individual contravenes this section if:

                     (a)  one of the following requires that a person may only participate in a particular capacity in the conduct of the audit of a financial report of an Aboriginal and Torres Strait Islander corporation if the person has particular qualifications or experience:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333‑15;

                            (iii)  a determination by the Registrar under section 336‑1 or 336‑5; and

                     (b)  the individual participates in that capacity in the conduct of the audit of the financial report; and

                     (c)  the individual does not have those qualifications or that experience.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

339‑65  Qualification and experience: audit firm

             (1)  A person (the defendant) contravenes this subsection if:

                     (a)  one of the following imposes a requirement in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333‑15;

                            (iii)  a determination by the Registrar under section 336‑1 or 336‑5; and

                     (b)  the requirement is that, if the auditor is an audit firm, the audit firm must have a member or members who have particular qualifications or experience; and

                     (c)  at a particular time, a firm acts as auditor in relation to the financial report or a part of it; and

                     (d)  at that time, the firm does not have a member or members who satisfy the requirement referred to in paragraph (b); and

                     (e)  the defendant is a member of the firm at that time; and

                      (f)  the defendant is aware of the circumstances referred to in paragraphs (c) and (d) at that time.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (2)  A person (the defendant) contravenes this subsection if:

                     (a)  one of the following imposes a requirement in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333‑15;

                            (iii)  a determination by the Registrar under section 336‑1 or 336‑5; and

                     (b)  the requirement is that, if the auditor is an audit firm, the audit firm must have a member or members who have particular qualifications or experience; and

                     (c)  at a particular time, a firm acts as auditor in relation to the financial report or a part of it; and

                     (d)  at that time, the firm does not satisfy the requirement referred to in paragraph (b); and

                     (e)  the defendant is a member of the firm at that time.

Penalty:  10 penalty units.

             (3)  For the purposes of an offence based on subsection (2), strict liability applies to the physical elements of the offence specified in paragraphs (2)(a) and (b).

Note 1:       For strict liability, see section 6.1 of the Criminal Code.

Note 2:       Subsection (4) provides a defence.

             (4)  A member of an audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member either:

                     (a)  does not know at that time of the circumstances that constitute the contravention of subsection (2); or

                     (b)  does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (4) (see subsection 13.3(3) of the Criminal Code).

339‑70  Registration requirements for appointment of company as auditor

             (1)  A company contravenes this subsection if:

                     (a)  one of the following imposes a requirement in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333‑15;

                            (iii)  a determination by the Registrar under section 336‑1 or 336‑5; and

                     (b)  the requirement is that, if the auditor is a company, the company must be an authorised audit company; and

                     (c)  the company acts as auditor in relation to the report or a part of it; and

                     (d)  the company is not an authorised audit company.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (2)  A person (the defendant) contravenes this subsection if:

                     (a)  one of the following imposes a requirement in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333‑15;

                            (iii)  a determination by the Registrar under section 336‑1 or 336‑5; and

                     (b)  the requirement is that, if the auditor is a company, the company must be an authorised audit company; and

                     (c)  at a particular time, a company acts as auditor in relation to the report or a part of it; and

                     (d)  at that time, the company is not an authorised audit company; and

                     (e)  the defendant is a director of the company at that time; and

                      (f)  the defendant is aware of the circumstances referred to in paragraphs (c) and (d) at that time.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (3)  A person (the defendant) contravenes this subsection if:

                     (a)  one of the following imposes a requirement in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333‑15;

                            (iii)  a determination by the Registrar under section 336‑1 or 336‑5; and

                     (b)  the requirement is that, if the auditor is a company, the company must be an authorised audit company; and

                     (c)  at a particular time, a company acts as auditor in relation to the report or that part of it; and

                     (d)  at that time, the company is not an authorised audit company; and

                     (e)  the defendant is a director of the company at that time.

Penalty:  10 penalty units.

             (4)  For the purposes of an offence based on subsection (3), strict liability applies to the physical elements of the offence specified in paragraphs (3)(c) and (d).

Note 1:       For strict liability, see section 6.1 of the Criminal Code.

Note 2:       Subsection (5) provides a defence.

             (5)  A director of a company does not commit an offence at a particular time because of a contravention of subsection (3) if the director either:

                     (a)  does not know at that time of the circumstances that constitute the contravention of subsection (3); or

                     (b)  knows of those circumstances at that time but takes all reasonable steps to correct the contravention of subsection (3) as soon as possible after the director becomes aware of those circumstances.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Subdivision 339‑D—Auditor independence

339‑75  Independence of auditors: application of Corporations Act auditor independence provisions

Application of section

             (1)  This section applies in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation if:

                     (a)  one of the following imposes a requirement in relation to the audit:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333‑15;

                            (iii)  a determination by the Registrar under section 336‑1 or 336‑5; and

                     (b)  the requirement is that the auditor be:

                              (i)  an individual auditor who is a registered company auditor; or

                             (ii)  an audit firm that has at least one member who is a registered company auditor who is ordinarily resident in Australia; or

                            (iii)  an authorised audit company.

             (2)  The Corporations Act auditor independence provisions apply in relation to the audit as if:

                     (a)  references in those provisions to an audited body were references to an Aboriginal and Torres Strait Islander corporation; and

                     (b)  references in those provisions to a company were references to an Aboriginal and Torres Strait Islander corporation.

The Corporations Act auditor independence provisions apply with the modifications set out in the regulations.

             (3)  Regulations made for the purposes of subsection (2) must not:

                     (a)  increase, or have the effect of increasing, the maximum penalty for any offence; or

                     (b)  widen, or have the effect of widening, the scope of any offence.

             (4)  In this Act:

Corporations Act auditor independence provisions means:

                     (a)  Division 3 of Part 2M.4 of the Corporations Act; and

                     (b)  the provisions of that Act (including Parts 1.2 and 9.4 and Schedule 3 but not including Parts 1.1, 1.1A and 9.4A) to the extent to which they relate to the operation of Part 2M.4 of that Act; and

                     (c)  the regulations made under that Act for the purposes of Part 2M.4 of that Act and the provisions referred to in paragraph (b).

339‑80  Independence of auditors: alternative independence requirements

             (1)  This section applies in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation if section 339‑75 does not apply to the audit.

             (2)  The regulations may provide for auditor independence requirements to be met in relation to the audit.

             (3)  Without limiting subsection (2), the regulations may:

                     (a)  specify as a requirement that a person comply with any applicable code of professional conduct in relation to the audit; or

                     (b)  provide that a person commits an offence in particular circumstances if the auditor independence requirements are not met.

             (4)  Regulations made for the purposes of paragraph (3)(b) must not prescribe penalties exceeding 50 penalty units for contraventions of the regulations.

Subdivision 339‑E—Auditor’s powers and duties

339‑85  Auditor’s power to obtain information

                   The auditor:

                     (a)  has a right of access at all reasonable times to the books of the corporation; and

                     (b)  may require any officer to give the auditor information, explanations or other assistance for the purposes of the audit.

A request under paragraph (b) must be a reasonable one.

339‑90  Reporting to the Registrar

Contravention by individual auditor

             (1)  If the auditor is an individual, the auditor commits an offence if:

                     (a)  the auditor is aware of circumstances that:

                              (i)  the auditor has reasonable grounds to suspect amount to a contravention of this Act; or

                             (ii)  amount to an attempt, in relation to the audit, by any person to unduly influence, coerce, manipulate or mislead a person involved in the conduct of the audit (see subsection (6)); or

                            (iii)  amount to an attempt, by any person, to otherwise interfere with the proper conduct of the audit; and

                     (b)  if subparagraph (a)(i) applies:

                              (i)  the contravention is a significant one; or

                             (ii)  the contravention is not a significant one and the auditor believes that the contravention has not been or will not be adequately dealt with by commenting on it in the auditor’s report or bringing it to the attention of the directors; and

                     (c)  the auditor does not notify the Registrar in writing of those circumstances as soon as practicable, and in any case within 28 days, after the auditor becomes aware of those circumstances.

Penalty:  50 penalty units or imprisonment for 12 months, or both.

Contravention by audit company

             (2)  If the auditor is an audit company, the auditor commits an offence if:

                     (a)  the lead auditor for the audit is aware of circumstances that:

                              (i)  the lead auditor has reasonable grounds to suspect amount to a contravention of this Act; or

                             (ii)  amount to an attempt, in relation to the audit, by any person to unduly influence, coerce, manipulate or mislead a person involved in the conduct of the audit (see subsection (6)); or

                            (iii)  amount to an attempt, by any person, to otherwise interfere with the proper conduct of the audit; and

                     (b)  if subparagraph (a)(i) applies:

                              (i)  the contravention is a significant one; or

                             (ii)  the contravention is not a significant one and the lead auditor believes that the contravention has not been or will not be adequately dealt with by commenting on it in the auditor’s report or bringing it to the attention of the directors; and

                     (c)  the lead auditor does not notify the Registrar in writing of those circumstances as soon as practicable, and in any case within 28 days, after the lead auditor becomes aware of those circumstances.

Penalty:  50 penalty units or imprisonment for 12 months, or both.

Contravention by lead auditor

             (3)  A person commits an offence if:

                     (a)  the person is the lead auditor for the audit; and

                     (b)  the person is aware of circumstances that:

                              (i)  the person has reasonable grounds to suspect amount to a contravention of this Act; or

                             (ii)  amount to an attempt, in relation to the audit, by any person to unduly influence, coerce, manipulate or mislead a person involved in the conduct of the audit (see subsection (6)); or

                            (iii)  amount to an attempt, by any person, to otherwise interfere with the proper conduct of the audit; and

                     (c)  if subparagraph (b)(i) applies:

                              (i)  the contravention is a significant one; or

                             (ii)  the contravention is not a significant one and the person believes that the contravention has not been or will not be adequately dealt with by commenting on it in the auditor’s report or bringing it to the attention of the directors; and

                     (d)  the person does not notify the Registrar in writing of those circumstances as soon as practicable, and in any case within 28 days, after the person becomes aware of those circumstances.

Penalty:  50 penalty units or imprisonment for 12 months, or both.

Significant contraventions

             (4)  In determining for the purposes of this section whether a contravention of this Act is a significant one, have regard to:

                     (a)  the level of penalty provided for in relation to the contravention; and

                     (b)  the effect that the contravention has, or may have, on:

                              (i)  the overall financial position of the corporation; or

                             (ii)  the adequacy of the information available about the overall financial position of the corporation; and

                     (c)  any other relevant matter.

             (5)  Without limiting paragraph (4)(a), a penalty provided for in relation to a contravention of a provision of Part 7‑2 or 7‑3, includes a penalty imposed on a director, because of the operation of section 363‑1, for failing to take reasonable steps to comply with, or to secure compliance with, that provision.

Person involved in an audit

             (6)  A person involved in the conduct of an audit is:

                     (a)  the auditor; or

                     (b)  the lead auditor for the audit; or

                     (c)  the review auditor for the audit; or

                     (d)  a professional member of the audit team for the audit; or

                     (e)  any other person involved in the conduct of the audit.

339‑95  Assisting auditor

             (1)  An officer of an Aboriginal and Torres Strait Islander corporation must:

                     (a)  allow the auditor access to the books of the corporation; and

                     (b)  give the auditor any information, explanation or assistance required under section 339‑85.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

Note:          Books include registers and documents generally (not only the accounting “books”) (see the definition of books in section 700‑1).

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Subdivision 339‑F—Appointment and removal of auditors

339‑100  Appointment and removal of auditors

             (1)  The regulations may make provision in relation to the appointment and removal of auditors for Aboriginal and Torres Strait Islander corporations.

             (2)  Without limiting subsection (1), the regulations:

                     (a)  may impose an obligation to replace an auditor who ceases to be auditor; and

                     (b)  may give the Registrar the power to appoint an auditor in particular circumstances; and

                     (c)  may provide for the process by which an auditor is appointed; and

                     (d)  may provide for the process by which an auditor’s appointment may be terminated; and

                     (e)  may provide that an auditor may resign only with the consent of the Registrar.

 

Division 342—Financial reporting to members

342‑1  What this Division is about

342‑5  Annual financial reporting to members

             (1)  An Aboriginal and Torres Strait Islander corporation that is required to prepare:

                     (a)  a financial report for a financial year; or

                     (b)  a directors’ report for a financial year;

must give each member of the corporation a copy of the report.

Penalty:  10 penalty units.

             (2)  An Aboriginal and Torres Strait Islander corporation that is required to have a financial report, or a part of a financial report, for a financial year audited must give each member of the corporation a copy of the auditor’s report.

Penalty:  10 penalty units.

             (3)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Sending reports

             (4)  An Aboriginal and Torres Strait Islander corporation may send a report referred to in subsection (1) or (2) to a member using an electronic means if the member has nominated that means as one by which the member may be sent reports referred to in that subsection.

             (5)  If a member of an Aboriginal and Torres Strait Islander corporation nominates:

                     (a)  an electronic means (the nominated notification means) by which the member may be notified that reports referred to in subsection (1) or (2) are available; and

                     (b)  an electronic means (the nominated access means) the member may use to access those reports;

the corporation may send a report referred to in that subsection to the member by notifying the member (using the nominated notification means):

                     (c)  that the report is available; and

                     (d)  how the member may make use of the nominated access means to access the report.

             (6)  Subsections (4) and (5) do not limit subsection (1) or (2).

342‑10  Deadline for reporting to members

                   An Aboriginal and Torres Strait Islander corporation must send the reports referred to in subsections 342‑5(1) and (2) to members by the earlier of:

                     (a)  21 days before the next AGM after the end of the financial year; or

                     (b)  4 months after the end of the financial year.

Note:          For the deadline for holding an AGM, see section 201‑150.

 

Division 345—Consolidated financial report

345‑1  Directors and officers of controlled entity to give information

             (1)  If an Aboriginal and Torres Strait Islander corporation has to prepare a consolidated financial report, a director or officer of a controlled entity must give the corporation all information requested that is necessary to prepare the consolidated financial report.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (2)  An offence based on subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

345‑5  Auditor’s power to obtain information from controlled entity

             (1)  An auditor who audits a consolidated financial report:

                     (a)  has a right of access at all reasonable times to the books of any controlled entity; and

                     (b)  may require any officer of the entity to give the auditor information, explanations or other assistance for the purposes of the audit.

A request under paragraph (b) must be a reasonable one.

             (2)  The information, explanations or other assistance required under paragraph (1)(b) is to be given at the expense of the Aboriginal and Torres Strait Islander corporation whose financial report is being audited.

345‑10  Controlled entity to assist auditor

             (1)  If an Aboriginal and Torres Strait Islander corporation has to prepare a consolidated financial report, an officer or auditor of a controlled entity must:

                     (a)  allow the auditor for the corporation access to the controlled entity’s books; and

                     (b)  give the auditor any information, explanation or assistance required under section 345‑5.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (2)  An offence based on subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

345‑15  Application of sections 345‑1 to 345‑10 to entity that has ceased to be controlled

                   Sections 345‑1, 345‑5 and 345‑10 apply to the preparation or audit of a financial report that covers a controlled entity even if the entity is no longer controlled by the Aboriginal and Torres Strait Islander corporation whose financial report is being prepared or audited.

 

Division 348—Lodging reports

348‑1  Lodging annual reports with the Registrar

             (1)  An Aboriginal and Torres Strait Islander corporation that has to prepare or obtain a report under this Part (other than a general report) must lodge the report with the Registrar.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

Note:          See also section 265‑40 for offences committed by the secretary of an Aboriginal and Torres Strait Islander corporation.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  The time for lodgment is:

                     (a)  within 3 months after the end of the financial year if the report is:

                              (i)  a financial report for a financial year; or

                             (ii)  a directors’ report for a financial year; or

                            (iii)  an auditor’s report on a financial report for a financial year; or

                     (b)  the time provided for by:

                              (i)  the regulations if the report is any other section 333‑5 report; or

                             (ii)  the determination by the Registrar under section 336‑1 or 336‑5 if the report is not a section 333‑5 report.

348‑5  Relodgment if report amended after lodgment

             (1)  If a financial report or a directors’ report is amended after it is lodged with the Registrar, the corporation must:

                     (a)  lodge the amended report with the Registrar within 14 days after the amendment; and

                     (b)  give a copy of the amended report free of charge to any member who asks for it.

Penalty:  10 penalty units.

             (2)  If the amendment is a material one, the corporation must also notify each member as soon as practicable of:

                     (a)  the nature of the amendment; and

                     (b)  the member’s right to obtain a copy of the amended report under subsection (1).

Penalty:  10 penalty units.

             (3)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

 

Part 7‑4—Registrar may exempt from record keeping and reporting requirements

Division 353—Registrar may exempt from record keeping and reporting requirements

353‑1  Registrar’s power to make specific exemption order

             (1)  On an application made in accordance with subsection (4) in relation to an Aboriginal and Torres Strait Islander corporation, the Registrar may make an order in writing relieving any of the following from specified requirements of Part 7‑2 or 7‑3:

                     (a)  the directors;

                     (b)  the corporation;

                     (c)  the auditor.

Note:          See Part 7‑5 for the criteria the Registrar must apply in deciding whether to make a determination under this subsection.

             (2)  An order under subsection (1) is not a legislative instrument.

             (3)  The order may:

                     (a)  be expressed to be subject to conditions; and

                     (b)  be indefinite or limited to a specified period.

             (4)  The application must:

                     (a)  specify the provision or provisions in relation to which the exemption is being sought; and

                     (b)  be authorised by a resolution of the directors; and

                     (c)  be in writing and signed by a director; and

                     (d)  be lodged with the Registrar.

             (5)  The Registrar may, in writing, revoke, vary or suspend the order.

             (6)  A revocation, variation or suspension under subsection (5) is not a legislative instrument.

             (7)  The Registrar must give the applicant written notice of the making, revocation, variation or suspension of the order.

353‑5  Registrar may make determination even if application is incomplete

                   Despite subsection 353‑1(4), the Registrar may make a determination under section 353‑1 even if the application does not specify the provisions in relation to which the exemption is being sought.

353‑10  Registrar’s power to make class orders

             (1)  The Registrar may make an order in writing in respect of a specified class of Aboriginal and Torres Strait Islander corporation relieving any of the following from all or specified requirements of Part 7‑2 or 7‑3:

                     (a)  directors;

                     (b)  the corporations themselves;

                     (c)  auditors of the corporations.

Note:          See Part 7‑5 for the criteria the Registrar must apply in deciding whether to make a determination under this subsection.

             (2)  An order under subsection (1) in relation to a specified class of Aboriginal and Torres Strait Islander corporation is a legislative instrument.

             (3)  The order may:

                     (a)  be expressed to be subject to conditions; and

                     (b)  be indefinite or limited to a specified period.

             (4)  The Registrar may, in writing, revoke, vary or suspend the order.

             (5)  Notice of the making, revocation, variation or suspension of the order must be published in the Gazette.

 

Part 7‑5—Criteria for determining level of reporting requirements

Division 358—Criteria for determining level of reporting requirements

358‑1  What this Part is about

358‑5  Criteria for determinations about level of reporting requirements

Criteria

             (1)  The Registrar must have regard to:

                     (a)  whether the current reporting obligations make a financial report or other report misleading; and

                     (b)  whether the current reporting obligations are, or the proposed reporting obligations would be, appropriate in the circumstances (see subsection (2)); and

                     (c)  whether the current reporting obligations impose, or the proposed reporting obligations would impose, unreasonable burdens (see subsection (3)).

Appropriateness of obligations in the circumstances

             (2)  In deciding for the purposes of subsection (1) whether the current reporting obligations are, or the proposed reporting requirements would be, appropriate in the circumstances, the Registrar is to have regard to:

                     (a)  the services (if any) provided by the corporation or corporations; and

                     (b)  the consequences if the corporation or corporations stopped providing those services; and

                     (c)  whether the corporation or corporations are regarded by the Registrar as being of a high risk of becoming insolvent or of failing to comply with the reporting requirements under the Act (because of the corporation’s or corporations’ purposes, structures, or compliance histories); and

                     (d)  any other matter the Registrar considers relevant.

Unreasonable burden

             (3)  In deciding for the purposes of subsection (1) whether the current reporting obligations impose, or the proposed reporting obligations would impose, an unreasonable burden on the corporation or corporations, the Registrar is to have regard to:

                     (a)  the expected costs of complying with the obligations; and

                     (b)  the expected benefits of having the corporation or corporations comply with the obligations; and

                     (c)  any practical difficulties that the corporation or corporations face in complying effectively with the obligations; and

                     (d)  any unusual aspects of the operation of the corporation or corporations during the financial year concerned; and

                     (e)  any other matters that the Registrar considers relevant.

             (4)  In assessing expected benefits under paragraph (3)(b), the Registrar is to take account of:

                     (a)  the number of creditors and potential creditors; and

                     (b)  the position of creditors and potential creditors (in particular, their ability to independently obtain financial information about the corporation or corporations); and

                     (c)  the nature and extent of the liabilities of the corporation or corporations.

358‑10  Reporting obligations

             (1)  The current reporting obligations are the obligations that the corporation or corporations would have under Part 7‑2 or 7‑3 if the determination were not to be made.

             (2)  The proposed reporting obligations are the obligations that the corporation or corporations would have under Part 7‑2 or 7‑3 if the determination were to be made.

 

Part 7‑6—Sanctions for contraventions of record keeping and reporting requirements

Division 363—Sanctions for contraventions of record keeping and reporting requirements

363‑1  Sanctions

             (1)  A director of an Aboriginal and Torres Strait Islander corporation contravenes this section if he or she fails to take all reasonable steps to comply with, or to secure compliance with, Parts 7‑2 and 7‑3.

Note:          This section is a civil penalty provision (see section 386‑1).

             (2)  A person commits an offence if he or she contravenes subsection (1) and the contravention is dishonest.

Penalty:  2,000 penalty units or imprisonment for 5 years, or both.

             (3)  Subsection (1) does not apply to section 339‑85, 339‑95, 345‑5 or 345‑10.

             (4)  This section does not affect the application of the provisions of this Chapter to a director as an officer.

 

Part 7‑7—Modifications of record keeping and reporting requirements by regulations

Division 368—Modifications of record keeping and reporting requirements by regulations

368‑1  Modification by regulations

                   The regulations may modify the operation of Parts 7‑2 and 7‑3 in relation to:

                     (a)  a specified Aboriginal and Torres Strait Islander corporation; or

                     (b)  all Aboriginal and Torres Strait Islander corporations of a specified class.

 

Part 7‑8—Books

Division 373—Introduction

373‑1  What this Part is about

 

Division 376—When and where may books be inspected?

376‑1  Inspection of books

             (1)  This section applies if:

                     (a)  this Act requires that a book of an Aboriginal and Torres Strait Islander corporation is to be available for inspection generally; or

                     (b)  a person has a right under this Act to inspect a book of an Aboriginal and Torres Strait Islander corporation.

             (2)  If the book is required to be kept at the corporation’s registered office, the corporation must make the book available for inspection at the registered office each business day from at least 10 am to 12 noon and from at least 2 pm to 4 pm.

Penalty:  5 penalty units.

             (3)  If the book is required to be kept at the corporation’s document access address, the corporation must make the book available for inspection at the document access address within 7 days after the person seeking to inspect the book asks the corporation in writing to inspect the book.

Penalty:  10 penalty units.

             (4)  An offence against subsection (2) or (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (5)  A person permitted by this Act to inspect a book may make copies of, or take extracts from, the book and any person who refuses or fails to allow a person so permitted to make a copy of, or take an extract from, the book commits an offence.

Penalty:  5 penalty units.

             (6)  An offence against subsection (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

376‑5  Translations of instruments and books

             (1)  If:

                     (a)  this Act requires a person to lodge an instrument (including any certificate, contract or other document) or a certified copy of such an instrument; and

                     (b)  the instrument is not written in English;

the person must lodge at the same time a certified translation of the instrument into English.

Penalty:  5 penalty units.

             (2)  If under this Act:

                     (a)  an Aboriginal and Torres Strait Islander corporation is required to make an instrument (including any certificate, contract or other document) available for inspection; and

                     (b)  the instrument is not written in English;

the corporation must keep a certified translation of the instrument into English at:

                     (c)  its registered office if it is registered as a large corporation; or

                     (d)  its document access address if it is registered as a small or medium corporation.

Penalty:  5 penalty units.

             (3)  If:

                     (a)  a person has a right to inspect a book of an Aboriginal and Torres Strait Islander corporation; and

                     (b)  the book, or a part of the book, is not in English; and

                     (c)  the person asks the corporation to give the person an English translation of the book or that part of the book;

the corporation must give the person (free of charge) an English translation of the book, or that part of the book, within a reasonable time after the person asks for it.

Penalty:  5 penalty units.

             (4)  To avoid doubt, subsection (3) applies even if the book concerned includes minutes that are kept by means of an audio, or audio‑visual, recording.

             (5)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

376‑10  Court may compel compliance

             (1)  If any person in contravention of this Act refuses to permit the inspection of any book or to supply a copy of any book, the Court may by order compel an immediate inspection of the book or order the copy to be supplied.

             (2)  The reference in subsection (1) to a copy of a book includes a reference to an English translation of a book or a part of a book.

376‑15  Admissibility of books in evidence

             (1)  A book kept by an Aboriginal and Torres Strait Islander corporation under a requirement of this Act is:

                     (a)  admissible in evidence in any proceeding; and

                     (b)  prima facie evidence of any matter stated or recorded in the book.

             (2)  A document purporting to be a book kept by an Aboriginal and Torres Strait Islander corporation is, unless the contrary is proved, taken to be a book kept as mentioned in subsection (1).

376‑20  Form of books

             (1)  A book that is required by this Act to be kept or prepared may be kept or prepared:

                     (a)  by making entries in a bound or loose‑leaf book; or

                     (b)  by recording or storing the matters concerned by means of a mechanical, electronic or other device; or

                     (c)  in any other manner approved by the Registrar.

             (2)  Subsection (1) does not authorise a book to be kept or prepared by a mechanical, electronic or other device unless:

                     (a)  the matters recorded or stored will be capable, at any time, of being reproduced in a written form; or

                     (b)  a reproduction of those matters is kept in a written form approved by the Registrar.

376‑25  Protection of books

             (1)  An Aboriginal and Torres Strait Islander corporation must take all reasonable precautions for guarding against damage to, destruction of or falsification of or in, and for discovery of falsification of or in, any book or part of a book required by this Act to be kept or prepared by the corporation.

             (2)  The regulations may prescribe further precautions that an Aboriginal and Torres Strait Islander corporation must take for the purposes of subsection (1).

             (3)  If an Aboriginal and Torres Strait Islander corporation records or stores any matters by means of a mechanical, electronic or other device, any duty imposed by this Act:

                     (a)  to make a book containing those matters available for inspection; or

                     (b)  to provide copies of the whole or a part of a book containing those matters;

is to be construed as a duty:

                     (c)  to make the matters available for inspection in written form; or

                     (d)  to provide a document containing a clear reproduction in writing of the whole or part of them.

             (4)  The regulations may provide for how up to date the information contained in an instrument prepared for the purposes of subsection (3) must be.

376‑30  Evidentiary value

             (1)  If:

                     (a)  because of this Act, a book that this Act requires to be kept or prepared is prima facie evidence of a matter; and

                     (b)  the book, or a part of the book, is kept or prepared by recording or storing matters (including that matter) by means of a mechanical, electronic or other device;

a written reproduction of that matter as so recorded or stored is prima facie evidence of that matter.

             (2)  A writing that purports to reproduce a matter recorded or stored by means of a mechanical, electronic or other device is, unless the contrary is established, taken to be a reproduction of that matter.

376‑35  Falsification of books

             (1)  A person commits an offence if the person:

                     (a)  is an officer, former officer, employee, former employee, member or former member of an Aboriginal and Torres Strait Islander corporation; and

                     (b)  engages in conduct that results in the concealment, destruction, mutilation or falsification of any books of or belonging to the corporation.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

             (2)  If matter that is used or intended to be used in connection with the affairs of an Aboriginal and Torres Strait Islander corporation is recorded or stored in an illegible form by means of a mechanical device, an electronic device or any other device, a person who:

                     (a)  records or stores by means of that device matter that the person knows to be false or misleading in a material particular; or

                     (b)  engages in conduct that results in the destruction, removal or falsification of matter that is recorded or stored by means of that device, or has been prepared for the purpose of being recorded or stored, or for use in compiling or recovering other matter to be recorded or stored by means of that device; or

                     (c)  having a duty to record or store matter by means of that device, fails to record or store the matter by means of that device:

                              (i)  with intent to falsify any entry made or intended to be compiled, wholly or in part, from matter so recorded or stored; or

                             (ii)  knowing that the failure so to record or store the matter will render false or misleading in a material particular other matter so recorded or stored;

contravenes this subsection.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

             (3)  It is a defence to a charge arising under subsection (1) or (2) if the defendant proves that the defendant acted honestly and that in all the circumstances the act or omission constituting the offence should be excused.

Note:          A defendant bears a legal burden in relation to the matter mentioned in subsection (3) (see section 13.4 of the Criminal Code).

 

Chapter 8—Civil consequences of contravening civil penalty provisions

  

Division 386—Civil consequences of contravening civil penalty provisions

386‑1  Declarations of contravention

Meaning of civil penalty provisions and declarations

             (1)  If a Court is satisfied that a person has contravened 1 of the following provisions, it must make a declaration of contravention:

                     (a)  subsections 265‑1(1), 265‑5(1) and (2), 265‑10(1) and (2) and 265‑15(1) and (2) (officers’ duties);

                     (b)  subsection 284‑5(2) (related parties rules);

                     (c)  subsection 363‑1(1) (requirements for record keeping and reports);

                     (d)  subsection 588G(2) of the Corporations Act (as applied by section 531‑1 of this Act) (insolvent trading).

These provisions are the civil penalty provisions.

Note:          Once a declaration has been made, the Registrar can then seek a pecuniary penalty order (section 386‑10) or a disqualification order (section 279‑15).

Declarations to specify certain matters

             (2)  A declaration of contravention must specify the following:

                     (a)  the Court that made the declaration;

                     (b)  the civil penalty provision that was contravened;

                     (c)  the person who contravened the provision;

                     (d)  the conduct that constituted the contravention;

                     (e)  the Aboriginal and Torres Strait Island corporation affected by the contravention.

386‑5  Declaration of contravention is conclusive evidence

                   A declaration of contravention is conclusive evidence of the matters referred to in subsection 386‑1(2).

386‑10  Pecuniary penalty orders

Pecuniary penalties

             (1)  A Court may order a person to pay the Commonwealth a pecuniary penalty of up to $200,000 if:

                     (a)  a declaration of contravention by the person has been made under section 386‑1; and

                     (b)  the contravention:

                              (i)  materially prejudices the interests of the Aboriginal and Torres Strait Islander corporation affected by the contravention or the interests of its members; or

                             (ii)  materially prejudices the ability of the Aboriginal and Torres Strait Islander corporation affected by the contravention to pay its creditors; or

                            (iii)  is serious.

Penalty a civil debt etc.

             (2)  The penalty is a civil debt payable to the Commonwealth. The Registrar, or the Commonwealth, may enforce the order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.

386‑15  Compensation orders—civil penalty provisions

Compensation for damage suffered

             (1)  A Court may order a person to compensate an Aboriginal and Torres Strait Islander corporation for damage suffered by the corporation if:

                     (a)  the person has contravened a civil penalty provision in relation to the corporation; and

                     (b)  the damage resulted from the contravention.

The order must specify the amount of the compensation.

Note:          An order may be made under this subsection whether or not a declaration of contravention has been made under section 386‑1.

Damage includes profits

             (2)  In determining the damage suffered by the corporation for the purposes of making a compensation order, include profits made by any person resulting from the contravention.

Recovery of damage

             (3)  A compensation order may be enforced as if it were a judgment of the Court.

386‑20  Who may apply for a declaration or order

Application by Registrar

             (1)  The Registrar may apply for a declaration of contravention, a pecuniary penalty order or a compensation order.

Application by corporation

             (2)  The Aboriginal and Torres Strait Islander corporation affected by the contravention of a civil penalty provision may apply for a compensation order.

Note:          An application for a compensation order may be made whether or not a declaration of contravention has been made under section 386‑1.

             (3)  The Aboriginal and Torres Strait Islander corporation affected by the contravention of a civil penalty provision may intervene in an application for a declaration of contravention or a pecuniary penalty order in relation to the corporation. The corporation is entitled to be heard on all matters other than whether the declaration or order should be made.

No one else may apply

             (4)  No person may apply for a declaration of contravention, a pecuniary penalty order or a compensation order unless permitted by this section.

Note:          In certain circumstances, a person may bring proceedings in the name of an Aboriginal and Torres Strait Islander corporation (see Division 169).

             (5)  Subsection (4) does not exclude the operation of the Director of Public Prosecutions Act 1983.

386‑25  Time limit for application for a declaration or order

                   Proceedings for a declaration of contravention, a pecuniary penalty order or a compensation order, may be started no later than 6 years after the contravention.

386‑30  Civil evidence and procedure rules for declarations of contravention and civil penalty orders

                   The Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for:

                     (a)  a declaration of contravention; or

                     (b)  a pecuniary penalty order.

386‑35  Civil proceedings after criminal proceedings

                   A court must not make a declaration of contravention or a pecuniary penalty order against a person for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

386‑40  Criminal proceedings during civil proceedings

             (1)  Proceedings for a declaration of contravention or pecuniary penalty order against a person are stayed if:

                     (a)  criminal proceedings are started or have already been started against the person for an offence; and

                     (b)  the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

             (2)  The proceedings for the declaration or order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the declaration or order are dismissed.

386‑45  Criminal proceedings after civil proceedings

                   Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether:

                     (a)  a declaration of contravention has been made against the person; or

                     (b)  a pecuniary penalty order has been made against the person; or

                     (c)  a compensation order has been made against the person; or

                     (d)  the person has been disqualified from managing an Aboriginal and Torres Strait Islander corporation under Part 6‑5.

386‑50  Evidence given in proceedings for penalty not admissible in criminal proceedings

                   Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:

                     (a)  the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.

386‑55  Registrar requiring person to assist

             (1)  The Registrar may require a person to give all reasonable assistance in connection with:

                     (a)  an application for a declaration of contravention or a pecuniary penalty order; or

                     (b)  criminal proceedings for an offence against this Act.

             (2)  A requirement under subsection (1) is not a legislative instrument.

             (3)  The Registrar can require the person to assist in connection with an application for a declaration or order if, and only if:

                     (a)  it appears to the Registrar that someone other than the person required to assist may have contravened a civil penalty provision; and

                     (b)  the Registrar suspects or believes that the person required to assist can give information relevant to the application.

             (4)  The Registrar can require the person to assist in connection with criminal proceedings if, and only if:

                     (a)  it appears to the Registrar that the person required to assist is unlikely to be a defendant in the proceedings; and

                     (b)  the person required to assist is, in relation to a person who is or should be a defendant in the proceedings:

                              (i)  an employee or agent (including a banker or auditor) of the other person; or

                             (ii)  if the other person is a body corporate—an officer or employee of the other person; or

                            (iii)  if the other person is an individual—a partner of the other person.

             (5)  The Registrar can require the person to assist regardless of whether:

                     (a)  an application for the declaration or penalty order has actually been made; or

                     (b)  criminal proceedings for the offence have actually begun.

             (6)  The person cannot be required to assist if they are or have been a lawyer for:

                     (a)  in an application for a declaration or penalty order—the person suspected of the contravention; or

                     (b)  in criminal proceedings—a defendant or likely defendant in the proceedings.

             (7)  The requirement to assist must be given in writing.

             (8)  The Court may order the person to comply with the requirement in a specified way. Only the Registrar may apply to the Court for an order under this subsection.

Note:          The person must comply with the requirement and may commit an offence if they do not, even if there is no order under this subsection (see section 694‑100).

386‑60  Relief from liability for contravention of civil penalty provision

             (1)  This section:

                     (a)  applies to proceedings for a contravention of a civil penalty provision, including proceedings under:

                              (i)  section 386‑15; or

                             (ii)  section 588M or 588W of the Corporations Act (as applied by section 531‑1 of this Act); and

                     (b)  does not apply to proceedings for an offence, except so far as the proceedings relate to the question whether the court should make an order under section 588K of the Corporations Act (as applied by section 531‑1 of this Act).

             (2)  If:

                     (a)  proceedings to which this section applies are brought against a person; and

                     (b)  in the proceedings it appears to the court that the person has, or may have, contravened a civil penalty provision but that:

                              (i)  the person has acted honestly; and

                             (ii)  having regard to all the circumstances of the case (including, where applicable, those connected with the person’s appointment as an officer, or employment as an employee, of an Aboriginal and Torres Strait Islander corporation), the person ought fairly to be excused for the contravention;

the court may relieve the person either wholly or partly from a liability to which the person would otherwise be subject, or that might otherwise be imposed on the person, because of the contravention.

             (3)  In determining under subsection (2) whether a person ought fairly to be excused for a contravention of section 588G of the Corporations Act (as applied by section 531‑1 of this Act), the matters to which regard is to be had include, but are not limited to:

                     (a)  any action the person took with a view to:

                              (i)  appointing an administrator of the Aboriginal and Torres Strait Islander corporation; or

                             (ii)  having a special administrator for the Aboriginal and Torres Strait Islander corporation appointed; and

                     (b)  when that action was taken; and

                     (c)  the results of that action.

             (4)  If a person thinks that proceedings to which this section applies will or may be begun against them, they may apply to the Court for relief.

             (5)  On an application under subsection (4), the Court may grant relief under subsection (2) as if the proceedings had been begun in the Court.

             (6)  For the purposes of subsection (2) as applying for the purposes of a case tried by a judge with a jury:

                     (a)  a reference in that subsection to the court is a reference to the judge; and

                     (b)  the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge thinks appropriate.

             (7)  Nothing in this section limits, or is limited by, section 576‑1.

 

Chapter 9—Lodgments and registers

Part 9‑1—Introduction

Division 396—Introduction

396‑1  What this Chapter is about

 

Part 9‑2—Lodgments with the Registrar

Division 401—Introduction

401‑1  What this Part is about

 

Division 404—What is the form in which documents may be lodged?

404‑1  Forms for documents to be lodged with the Registrar

Documents in approved form

             (1)  A document that this Act requires to be lodged with the Registrar in the approved form must:

                     (a)  be in the approved form; and

                     (b)  include the information, statements, explanations or other matters required by the form; and

                     (c)  be accompanied by any other material required by the form.

Meaning of document that has been lodged

             (2)  A reference in this Act to a document that has been lodged (being a document to which subsection (1) applies), includes a reference to any other material lodged with the document as required by the relevant approved form.

404‑5  Signing documents lodged with the Registrar

             (1)  A document lodged with the Registrar in writing by, or on behalf of, a body must be signed by a director or secretary of the body.

             (2)  An individual who lodges a document with the Registrar in writing must sign it.

             (3)  The person’s name must be printed next to the signature.

404‑10  Documents lodged with the Registrar electronically

This section sets out the only circumstances in which a document may be lodged electronically

             (1)  This section sets out the only circumstances in which a document may be lodged electronically with the Registrar.

If there is an agreement

             (2)  A document may be lodged with the Registrar electronically if the Registrar and the person seeking to lodge it (either on his or her own behalf or as agent) have agreed, in writing, that it may be lodged electronically.

Document of a kind approved for electronic lodgment

             (3)  A document may also be lodged with the Registrar electronically if the Registrar has approved, in writing, the electronic lodgment of documents of that kind.

Document of a kind by particular class of Aboriginal and Torres Strait Islander corporation

             (4)  A document may also be lodged with the Registrar electronically if:

                     (a)  the Registrar has approved, in writing, the electronic lodgment of documents of that kind by, or in respect of, a particular class of Aboriginal and Torres Strait Islander corporation; and

                     (b)  the document is lodged by or in respect of an Aboriginal and Torres Strait Islander corporation in that class.

             (5)  The document is taken to be lodged with the Registrar if it is lodged in accordance with the agreement or approval (including any requirements of the agreement or approval as to authentication).

404‑15  Relodging of lost registered documents

             (1)  If:

                     (a)  a document forming part of the constitution of an Aboriginal and Torres Strait Islander corporation; or

                     (b)  any other document relating to an Aboriginal and Torres Strait Islander corporation;

has, since being lodged, been lost or destroyed, a person may apply to the Registrar for leave to lodge a copy of the document as originally lodged.

             (2)  The Registrar may direct that notice of the application be given to such persons and in such manner as the Registrar thinks fit.

             (3)  A direction under subsection (2) is not a legislative instrument.

             (4)  If the Registrar is satisfied:

                     (a)  that a document (the original) that was lodged has been lost or destroyed; and

                     (b)  of the date of the lodging of the original; and

                     (c)  that a copy of the original produced to the Registrar is a correct copy;

the Registrar may:

                     (d)  certify on the copy that he or she is so satisfied; and

                     (e)  grant leave for the copy to be lodged in the manner required by law in respect of the original.

             (5)  Subsection (4) operates whether or not an application has been made under subsection (1).

             (6)  Upon the lodgment, the copy has, and is taken to have had from the date specified in the certificate as the date of the lodging of the original, the same force and effect for all purposes as the original.

             (7)  A decision of the AAT varying or setting aside a decision of the Registrar to certify and grant leave under subsection (4) may be lodged with the Registrar and is to be registered by the Registrar. However, no payments, contracts, dealings, acts or things made, had or done in good faith before the registration of the AAT’s decision, and upon the faith of and in reliance upon the certificate, are to be invalidated or affected by the AAT’s decision.

             (8)  A certification under subsection (4) is not a legislative instrument.

 

Division 407—Registrar’s powers

407‑1  Registrar may refuse to receive or register documents

             (1)  If the Registrar is of the opinion that a document submitted for lodgment:

                     (a)  contains matter contrary to law; or

                     (b)  contains matter that, in a material particular, is false or misleading in the form or context in which it is included; or

                     (c)  because of an omission or misdescription has not been duly completed; or

                     (d)  contravenes this Act; or

                     (e)  contains an error, alteration or erasure;

the Registrar may refuse to receive or register the document and may request:

                      (f)  that the document be appropriately amended or completed and resubmitted; or

                     (g)  that a fresh document be submitted in its place; or

                     (h)  if the document has not been duly completed—that a supplementary document in the approved form be lodged.

             (2)  A request under subsection (1) is not a legislative instrument.

407‑5  Registrar may require additional information

             (1)  The Registrar may require a person who submits a document for lodgment to:

                     (a)  produce to the Registrar such other document; or

                     (b)  give the Registrar such information;

as the Registrar thinks necessary in order to form an opinion whether he or she may refuse to receive or register the submitted document.

             (2)  A person must comply with a requirement under subsection (1).

             (3)  A person commits an offence if the person contravenes subsection (2).

Penalty:  50 penalty units or imprisonment for 12 months, or both.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

407‑10  Registrar may require information from persons on a register

             (1)  If information about a person is included on a register kept by the Registrar, the Registrar may at any time, in writing, require that person to give the Registrar specified information about the person if information of that kind is included on that register in relation to the person.

             (2)  The person must provide the information within such reasonable period, and in such form, as is specified by the Registrar.

             (3)  A person commits an offence if the person contravenes subsection (2).

Penalty:  50 penalty units or imprisonment for 12 months, or both.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

407‑15  Telephone or email notice of certain changes

             (1)  The Registrar may, in his or her discretion, accept telephone or email notice of a change to a detail in relation to an Aboriginal and Torres Strait Islander corporation if:

                     (a)  either:

                              (i)  the change relates to a misspelling or other minor typographical error; or

                             (ii)  the change is to a detail included on a list published by the Registrar on the Internet for the purposes of this section; and

                     (b)  the notice satisfies the authentication requirements published by the Registrar on the Internet for the purposes of this section.

             (2)  If the Registrar accepts telephone or email notice of a change to a detail, any obligation elsewhere in this Act to lodge an approved form in relation to the change is satisfied by the telephone or email notice, as the case may be. However, this does not affect the corporation’s liability for late lodgment fees incurred before the notice is given or that corporation’s continuing offences committed before that time.

             (3)  The requirements referred to in paragraph (1)(b) are not legislative instruments.

407‑20  Registrar may destroy or dispose of lodged documents

             (1)  The Registrar may destroy or dispose of any document relating to an Aboriginal and Torres Strait Islander corporation (other than the constitution or a document affecting the corporation’s constitution) if:

                     (a)  the Registrar is of the opinion that it is no longer necessary or desirable to retain the document; and

                     (b)  the document was lodged more than 15 years before or has been registered for 15 years or longer.

             (2)  The Registrar may also destroy or dispose of a document if:

                     (a)  the Registrar is of the opinion that it is no longer necessary or desirable to retain the document; and

                     (b)  an image of the document has been incorporated with a register kept by the Registrar.

 

Division 410—Courts power if documents not lodged

410‑1  Court may make certain orders

             (1)  If:

                     (a)  an individual fails to comply with a requirement to which subsection (7) applies; and

                     (b)  the individual does not comply within 14 days after the service on the person of a notice requiring the requirement to be done; and

                     (c)  the Registrar applies to a court;

the court may make an order directing the individual to comply with the requirement within the time specified in the order.

             (2)  If:

                     (a)  a body corporate fails to comply with a requirement to which subsection (7) applies; and

                     (b)  the body corporate does not comply within 14 days after the service on the body, or any officer of the body, of a notice requiring the requirement to be done; and

                     (c)  the Registrar or any member or creditor of the body applies to a court;

the court may make an order directing the body, or any officer of the body, to comply with the requirement within the time specified in the order.

             (3)  An order under subsection (1) or (2) may provide that all costs of and incidental to the application are to be borne by the individual or the body or by any officers of the body responsible for the non‑compliance (as the case may be).

             (4)  A person commits an offence if the person contravenes an order made under subsection (1) or (2).

Penalty:  50 penalty units or imprisonment for 12 months, or both.

             (5)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (6)  Nothing in this Part or Part 9‑3 (dealing with registers) prejudices the operation of any law imposing penalties on an individual or a body or its officers in respect of a failure to comply with a relevant requirement.

             (7)  This subsection applies to the following:

                     (a)  a requirement under any provision of this Act or other law that requires the lodging in any manner of any return, account, report or other document with, or the giving of notice to, the Registrar of any matter;

                     (b)  a requirement to comply with any request of the Registrar to amend or complete and resubmit any document or to submit a fresh document.

 

Part 9‑3—Registers

Division 415—Introduction

415‑1  What this Part is about

 

Division 418—Registers to be kept

418‑1  Registers

                   The Registrar must keep the following registers:

                     (a)  the Register of Aboriginal and Torres Strait Islander Corporations;

                     (b)  the Register of Disqualified Officers;

                     (c)  such other registers as the Registrar considers necessary.

418‑5  Form of registers

                   A register may be kept in such form as the Registrar thinks fit.

418‑10  Register of Aboriginal and Torres Strait Islander Corporations

                   The Register of Aboriginal and Torres Strait Islander Corporations is to include the information or documents specified in the regulations in relation to each Aboriginal and Torres Strait Islander corporation.

418‑15  Register of Disqualified Officers

             (1)  The Register of Disqualified Officers is a register of persons who have been disqualified from managing Aboriginal and Torres Strait Islander corporations under section 279‑15, 279‑20, 279‑25 or 279‑30.

             (2)  The register must contain a copy of:

                     (a)  every notice that was served under section 279‑30; and

                     (b)  every order made by the court under section 279‑15, 279‑20 or 279‑25; and

                     (c)  every order lodged under section 279‑35; and

                     (d)  every permission given under subsection 279‑30(7); and

                     (e)  any other document set out in the regulations.

 

Division 421—What information may a person obtain from the Registrar?

421‑1  Inspection and production of records

             (1)  A person may:

                     (a)  inspect:

                              (i)  any document lodged with the Registrar except an exempt document (see subsection (4)); and

                             (ii)  a notice, order or permission set out in subsection 418‑15(2); or

                     (b)  require a certificate of the registration of an Aboriginal and Torres Strait Islander corporation or any other certificate authorised by this Act to be given by the Registrar; or

                     (c)  require a copy of, or extract from:

                              (i)  any document that the person is entitled to inspect under paragraph (a); or

                             (ii)  any certificate referred to in paragraph (b) to be given, or given and certified, by the Registrar; or

                     (d)  if the Registrar agrees—inspect or search a prescribed register kept by the Registrar for prescribed information.

Registrar not required to use originals

             (2)  If a reproduction or an image of a document or certificate is produced for inspection, a person is not entitled under subsection (1) to require the production of the original of the document or certificate.

             (3)  For the purposes of paragraph (1)(c), the Registrar is not required to take the copy or extract from the original of the lodged document but may take the copy or extract from an image of the original.

Meaning of exempt document

             (4)  In subsection (1):

exempt document means:

                     (a)  a notice lodged under subsection 304‑15(4); or

                     (b)  a report made or lodged under:

                              (i)  section 422 of the Corporations Act (as applied by section 516‑1 of this Act); or

                             (ii)  section 438D of the Corporations Act (as applied by section 521‑1 of this Act); or

                            (iii)  section 533 of the Corporations Act (as applied by section 526‑35 of this Act); or

                     (c)  a report by a special administrator under section 502‑1 into an Aboriginal and Torres Strait Islander corporation, if the corporation has not agreed to allow the inspection of the report; or

                     (d)  a report by an examiner under section 453‑1 into an Aboriginal and Torres Strait Islander corporation, if the corporation has not agreed to allow the inspection of the report; or

                     (e)  a document that has been destroyed or otherwise disposed of; or

                      (f)  any other document specified in the regulations.

421‑5  Requests and certification of copy or extract etc.

             (1)  If:

                     (a)  a person makes, under paragraph 421‑1(1)(c), a requirement that relates to a document or certificate; and

                     (b)  the Registrar keeps, by means of a computer, a record of information set out in the document or certificate; and

                     (c)  in meeting that requirement, the Registrar gives a writing or document that sets out what purports to be the contents of:

                              (i)  the whole of the document or certificate; or

                             (ii)  a part of the document or certificate;

then, for the purposes of paragraph 421‑1(1)(c), the Registrar is taken to have given:

                     (d)  if subparagraph (c)(i) applies—a copy of the document or certificate; or

                     (e)  if subparagraph (c)(ii) applies—an extract from the document or certificate setting out that part of it.

Certification by Registrar

             (2)  If:

                     (a)  the requirement referred to in paragraph (1)(a) includes a requirement that the copy or extract be certified; and

                     (b)  in meeting that requirement, the Registrar gives a writing or document as mentioned in paragraph (1)(c);

then:

                     (c)  the Registrar may certify that the writing or document sets out the contents of the whole or part of the document or certificate, as the case requires; and

                     (d)  the writing or document is, in a proceeding in a court, admissible as prima facie evidence of the information contained in it.

             (3)  A certification under subsection (2) is not a legislative instrument.

 

Division 424—Validity and use of information etc. obtained from a register

424‑1  Validity of copy or extract

                   A copy or an extract derived from a document lodged with the Registrar, and certified by the Registrar, is, in any proceeding, admissible in evidence as of equal validity with the original document.

424‑5  Use in court proceedings etc. of documents issued by Registrar

             (1)  If:

                     (a)  the Registrar gives a certificate; and

                     (b)  the certificate states that, at a date or during a period specified in the certificate, no Aboriginal and Torres Strait Islander corporation was registered under this Act by a name specified in the certificate;

then, in any proceeding, the certificate is to be received as prima facie evidence that at that date or during that period, as the case may be, no Aboriginal and Torres Strait Islander corporation was registered by that name under this Act.

             (2)  If:

                     (a)  the Registrar gives a certificate; and

                     (b)  the certificate states that a requirement of this Act specified in the certificate:

                              (i)  had or had not been complied with at a date or within a period specified in the certificate; or

                             (ii)  had been complied with at a date specified in the certificate but not before that date;

then in any proceeding, the certificate is to be received as prima facie evidence of matters specified in the certificate.

             (3)  If:

                     (a)  the Registrar gives a certificate; and

                     (b)  the certificate states that, during a period specified in the certificate, a particular Aboriginal and Torres Strait Islander corporation was registered, or taken to be registered, under this Act;

then, in any proceedings, the certificate is to be received as prima facie evidence that, during that period, that corporation was registered under this Act.

Certificates issued are prima facie evidence

             (4)  A certificate given by the Registrar stating that an Aboriginal and Torres Strait Islander corporation has been registered under this Act is prima facie evidence that:

                     (a)  all requirements of this Act for its registration have been complied with; and

                     (b)  the corporation was duly registered as an Aboriginal and Torres Strait Islander corporation under this Act on the date specified in the certificate.

Writing prepared by the Registrar

             (5)  If:

                     (a)  a writing purports to have been prepared by the Registrar; and

                     (b)  the writing sets out information that purports to relate to an Aboriginal and Torres Strait Islander corporation; and

                     (c)  the information relating to the corporation was derived from information obtained by the Registrar in the administration of this Act; and

                     (d)  the information was obtained by the Registrar using a computer;

then the writing is prima facie evidence of the matters stated in the writing. In other words, the writing is proof of such a matter in the absence of evidence to the contrary.

             (6)  The writing referred to in subsection (5) need not bear a certificate or signature in order to be taken to purport to have been prepared by the Registrar.

             (7)  Nothing in this section limits, or is limited by, any other provision of this Part.

424‑10  Registrar’s certificate that person was a director etc.

                   The Registrar may certify that a person was a director, secretary or contact person of an Aboriginal and Torres Strait Islander corporation at a particular time or during a particular period. In the absence of evidence to the contrary, a certificate is proof of the matters stated in it.

 

Chapter 10—Regulation and enforcement

Part 10‑1—Introduction

Division 434—Introduction

434‑1  What this Chapter is about

Note:          Other regulatory powers that the Registrar has include:

(a)           putting an Aboriginal and Torres Strait Islander corporation under special administration (see section 487‑1);

(b)           disqualifying a person from managing an Aboriginal and Torres Strait Islander corporation (see 279‑30);

(c)           changing an Aboriginal and Torres Strait Islander corporation’s constitution (see section 69‑35).

 

Part 10‑2—Regulation of Aboriginal and Torres Strait Islander corporations

Division 439—Regulation of Aboriginal and Torres Strait Islander corporations

439‑1  What this Part is about

439‑5  Registrar may convene meetings of interested persons

             (1)  If the Registrar is of the opinion that there is a matter that affects an Aboriginal and Torres Strait Islander corporation, the Registrar may convene a meeting for the purpose of discussing the matter.

             (2)  The Registrar may inform the Minister of the following matters in respect of the meeting:

                     (a)  the reason for the meeting;

                     (b)  the persons who were given notice of the convening of the meeting;

                     (c)  the names of the notified persons who did not attend the meeting;

                     (d)  any other matter arising from the meeting.

             (3)  The notice of the convening of the meeting is not a legislative instrument.

             (4)  Some or all of the information provided to the Minister under subsection (2) may be included in the Agency’s report on the Agency’s activities during a financial year.

             (5)  In subsection (4):

Agency means the Agency (within the meaning of the Public Service Act 1999) of which the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations is a part.

439‑10  Registrar may call a general meeting (other than an AGM)

             (1)  The Registrar may call and arrange to hold a general meeting (other than an AGM) of an Aboriginal and Torres Strait Islander corporation if:

                     (a)  the corporation has called the meeting for a particular day but it has not been held for 14 days after that day; or

                     (b)  the Registrar has been requested to do so in writing by at least the required number of members of the corporation under subsection (9); or

                     (c)  the corporation has not held a general meeting within 3 months after the corporation is registered; or

                     (d)  the Registrar is satisfied that, in the circumstances of the corporation, there is a need to do so.

Meeting may be held for any purpose

             (2)  The Registrar may call and arrange to hold the meeting for any purpose relevant to the corporation that the Registrar thinks appropriate and, in the case of a meeting called under paragraph (1)(a), the Registrar may include in the notice of the meeting a matter that was not in the original notice of meeting.

             (3)  The notice of the convening of the meeting is not a legislative instrument.

Rules for meeting

             (4)  A meeting called by the Registrar under this section is to be chaired by:

                     (a)  the Registrar; or

                     (b)  another individual authorised by the Registrar.

             (5)  The rules in Chapter 5 (meetings) (except section 201‑75) apply to a meeting called under this section unless the Registrar determines in writing that some or all of those rules do not apply. The determination must:

                     (a)  specify the rules that do not apply; and

                     (b)  specify such other rules (if any) as the Registrar thinks appropriate to apply to the meeting.

             (6)  A determination under subsection (5) is not a legislative instrument.

Meeting may be called even if no resolutions to be put to it

             (7)  The Registrar may call and hold a meeting under this section even if the notice of meeting indicates that no resolutions are to be put at the meeting.

Observers

             (8)  The Registrar may authorise a person to attend a meeting called under this section as an observer. A person so authorised is entitled to attend the meeting.

             (9)  The required number of members for an Aboriginal and Torres Strait Islander corporation is the greater of:

                     (a)  5 members of the corporation; or

                     (b)  10% of the members of the corporation.

           (10)  The regulations may prescribe a different number of members for the purposes of applying paragraph (9)(a) to:

                     (a)  a particular Aboriginal and Torres Strait Islander corporation; or

                     (b)  a particular class of Aboriginal and Torres Strait Islander corporation.

Without limiting this, the regulations may specify the number as a percentage of the number of members of the corporation.

           (11)  The regulations may prescribe a different percentage for the purposes of applying paragraph (9)(b) to:

                     (a)  a particular Aboriginal and Torres Strait Islander corporation; or

                     (b)  a particular class of Aboriginal and Torres Strait Islander corporation.

439‑15  Registrar may call an AGM

Registrar may call an AGM

             (1)  The Registrar may call and arrange to hold an AGM of an Aboriginal and Torres Strait Islander corporation if the corporation has not held the meeting as required by section 201‑150 or 201‑155.

Rules for meeting

             (2)  A meeting called by the Registrar under this section is to be chaired by:

                     (a)  the Registrar; or

                     (b)  another individual authorised by the Registrar.

             (3)  The rules in Chapter 5 (meetings) (except section 201‑75) apply to an AGM called under this section unless the Registrar determines in writing that some or all of those rules do not apply. The determination must:

                     (a)  specify the rules that do not apply; and

                     (b)  specify such other rules (if any) as the Registrar thinks appropriate to apply to the meeting.

             (4)  A determination under subsection (3) is not a legislative instrument.

Observers

             (5)  The Registrar may authorise a person to attend a meeting called under this section as an observer. A person so authorised is entitled to attend the meeting.

439‑20  Registrar may require compliance with Act etc.

Suspicion of non‑compliance with the Act or financial irregularity

             (1)  If the Registrar suspects on reasonable grounds that:

                     (a)  an Aboriginal and Torres Strait Islander corporation has failed to comply with a provision of this Act or the corporation’s constitution; or

                     (b)  there has been an irregularity in the affairs of an Aboriginal and Torres Strait Islander corporation;

the Registrar may, by notice in writing to the corporation or to each director, require the directors to take the action specified in the notice, within the period specified in the notice, for the purpose of complying with the Act or the constitution or remedying the irregularity, as the case may be.

             (2)  A notice under subsection (1) is not a legislative instrument.

Suspicion that there may be grounds to appoint a special administrator

             (3)  If the Registrar suspects on reasonable grounds that:

                     (a)  circumstances exist in relation to an Aboriginal and Torres Strait Islander corporation; and

                     (b)  those circumstances constitute, or may constitute, grounds for determining that an Aboriginal and Torres Strait Islander corporation is to be under special administration;

the Registrar may, by notice in writing, require the directors of the corporation to take the action specified in the notice, within the period specified in the notice, for the purpose of causing those circumstances to cease to exist.

             (4)  A notice under subsection (3) is not a legislative instrument.

Suspicion that circumstances may occur or develop that would constitute grounds to appoint a special administrator

             (5)  If the Registrar suspects on reasonable grounds that:

                     (a)  circumstances are likely to occur or develop in relation to an Aboriginal and Torres Strait Islander corporation; and

                     (b)  if those circumstances were to occur or develop, they would constitute, or may constitute, grounds for determining that an Aboriginal and Torres Strait Islander corporation is to be under special administration;

the Registrar may, by notice in writing, require the directors of the corporation to take the action specified in the notice, within the period specified in the notice, for the purpose of preventing those circumstances from occurring or developing.

             (6)  A notice under subsection (5) is not a legislative instrument.

Issue of notice does not preclude Registrar taking other action under this Act

             (7)  If a notice has been issued by the Registrar under this section then, regardless of whether the period specified in the notice has expired or not, the Registrar may take any other action under this Act in relation to the corporation that the Registrar thinks appropriate.

 

Part 10‑3—Enforcement

Division 444—Introduction

444‑1  What this Part is about

 

Division 447—Authorised officers

447‑1  Appointment of authorised officers

             (1)  The Registrar may, in writing, appoint:

                     (a)  an officer or employee of the Department; or

                     (b)  any other suitably qualified person;

to be an authorised officer for the purposes of this Part.

             (2)  In exercising powers or performing functions as an authorised officer, an authorised officer must comply with any directions of the Registrar.

447‑5  Identity cards

             (1)  The Registrar must issue an identity card to an authorised officer in the form prescribed by the regulations. The identity card must contain a recent photograph of the authorised officer.

             (2)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person ceases to be an authorised officer; and

                     (c)  the person does not, within 7 days after so ceasing, return the identity card to the Registrar.

Penalty:  1 penalty unit.

             (3)  However, the person does not commit the offence if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

             (4)  An authorised officer must carry the identity card at all times when exercising powers or performing functions as an authorised officer.

             (5)  An identity card is not a legislative instrument.

 

Division 450—Purposes for which powers under this Part may be exercised

450‑1  Purposes for which power under this Part may be exercised

                   A power conferred by this Part may only be exercised:

                     (a)  for the purposes of the performance or exercise of any of the Registrar’s functions and powers under this Act; or

                     (b)  for the purpose of ensuring compliance with this Act; or

                     (c)  in relation to:

                              (i)  an alleged or suspected contravention of this Act; or

                             (ii)  an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory, being a contravention that concerns the management or examinable affairs of an Aboriginal and Torres Strait Islander corporation or a related body corporate; or

                            (iii)  an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory, being a contravention that involves fraud or dishonesty and relates to an Aboriginal and Torres Strait Islander corporation or a related body corporate.

 

Division 453—Examination of books and persons

453‑1  Examination of books

             (1)  The Registrar may, at any time, cause an authorised officer to examine the books of an Aboriginal and Torres Strait Islander corporation and to report to the Registrar on the results of that examination, drawing attention to any or all of the following matters:

                     (a)  if the corporation has failed to comply with a provision of this Act or the corporation’s constitution;

                     (b)  an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory, being a contravention that concerns the management or affairs of an Aboriginal and Torres Strait Islander corporation or a related body corporate, or involves fraud or dishonesty and relates to an Aboriginal and Torres Strait Islander corporation or a related body corporate;

                     (c)  if there has been an irregularity in the operations or affairs of the corporation;

                     (d)  if circumstances exist that constitute, or may constitute, grounds for appointing a special administrator for the corporation;

                     (e)  if circumstances are likely to occur or develop and that, if they were to occur or develop, may constitute grounds for appointing a special administrator for the corporation.

             (2)  The authorised officer is entitled, at all reasonable times, to full and free access to the books of the corporation.

             (3)  The authorised officer may make copies, or take extracts from, any such books.

             (4)  The authorised officer may require any person to produce such books of the corporation in the possession of the person, or to which the person has access, as the authorised officer considers necessary for the purposes of this section.

             (5)  A person who fails to comply with a requirement under subsection (4) commits an offence.

Penalty:  10 penalty units.

             (6)  An offence against subsection (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (7)  A report under subsection (1) is not a legislative instrument.

453‑5  Production of books or attendance to answer questions

             (1)  The Registrar may, by notice given to a person whom the Registrar, on reasonable grounds, believes to have some knowledge of the examinable affairs of an Aboriginal and Torres Strait Islander corporation, require the person:

                     (a)  to provide the Registrar or an authorised officer with information concerning the corporation or its examinable affairs; or

                     (b)  to produce to the Registrar or an authorised officer books of the corporation in the custody or under the control of the person; or

                     (c)  to appear before the Registrar or an authorised officer to answer questions about the corporation or its examinable affairs.

             (2)  Subject to subsection (3), the notice:

                     (a)  must be in writing; and

                     (b)  may be given personally or by post; and

                     (c)  must specify:

                              (i)  when and how the person is to provide the information or produce the documents; or

                             (ii)  when and where the person is to appear before the Registrar or an authorised officer.

             (3)  The person must not be required to provide the information, produce the documents or appear to answer questions within a period of less than 14 days after the notice is given.

             (4)  The Registrar may require the person to give or verify the information or answers:

                     (a)  on oath or affirmation; and

                     (b)  either orally or in writing.

The Registrar, or an authorised officer to whom the information or answers are given, may administer such an oath or affirmation to the person.

             (5)  A person must not fail to comply with a notice under subsection (1).

Penalty:  30 penalty units or imprisonment for 6 months, or both.

             (6)  An offence against subsection (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (7)  A person does not commit an offence against subsection (5) to the extent to which the person is not capable of complying with the notice.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 

Division 456—Warrants for books not produced

Subdivision 456‑A—Warrants applied for in person

456‑1  Application for warrant to seize books not produced

             (1)  If the Registrar or an authorised officer has reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises in Australia, books:

                     (a)  whose production has been required under section 453‑1 or 453‑5; and

                     (b)  that have not been produced in compliance with that requirement;

the Registrar or authorised officer may:

                     (c)  lay before a magistrate an information on oath or affirmation setting out those grounds; and

                     (d)  apply for the issue of a warrant to search the premises for those books.

             (2)  On an application under this section, the magistrate may require further information to be given, either orally or by affidavit, in connection with the application.

456‑5  Grant of warrant

             (1)  This section applies if, on an application under section 456‑1, the magistrate is satisfied that there are reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises, particular books:

                     (a)  whose production has been required under section 453‑1 or 453‑5; and

                     (b)  that have not been produced in compliance with that requirement.

             (2)  The magistrate may issue a warrant authorising an authorised officer, whether or not named in the warrant, together with any person named in the warrant, with such assistance, and by such force, as is necessary and reasonable:

                     (a)  to enter on or into the premises; and

                     (b)  to search the premises; and

                     (c)  to break open and search anything, whether a fixture or not, in or on the premises; and

                     (d)  to take possession of, or secure against interference, books that appear to be any or all of those books.

             (3)  If the magistrate issues such a warrant, he or she must set out on the information laid before him or her under subsection 456‑1(1) for the purposes of the application:

                     (a)  which of the grounds set out in the information; and

                     (b)  particulars of any other grounds;

he or she has relied on to justify the issue of the warrant.

             (4)  A warrant under this section must:

                     (a)  specify the premises and books referred to in subsection (1); and

                     (b)  state whether entry is authorised to be made at any time of the day or night or only during specified hours; and

                     (c)  state that the warrant ceases to have effect on a specified day that is not more than 7 days after the day of issue of the warrant.

             (5)  The function of issuing a warrant is conferred on the magistrate in a personal capacity and not as a court or a member of a court. The magistrate need not accept the function conferred.

456‑10  Powers where books produced or seized

             (1)  This section applies if:

                     (a)  books of an Aboriginal and Torres Strait Islander corporation are produced to an authorised officer under section 453‑1 or section or 453‑5; or

                     (b)  under a warrant issued under this Division, an authorised officer:

                              (i)  takes possession of books of an Aboriginal and Torres Strait Islander corporation; or

                             (ii)  secures books of an Aboriginal and Torres Strait Islander corporation against interference; or

                     (c)  by virtue of a previous application of subsection (8) of this section, books are delivered into a person’s possession.

             (2)  If paragraph (1)(a) applies, the authorised officer may take possession of any of the books.

             (3)  The authorised officer may inspect, and may make copies of, or take extracts from, any of the books.

             (4)  The authorised officer may use, or permit the use of, any of the books for the purposes of a proceeding (including a proceeding under a law of the Commonwealth, or of a State or Territory).

             (5)  The authorised officer may retain possession of any of the books for so long as is necessary:

                     (a)  for the purposes of exercising a power conferred by this section (other than this subsection and subsection (7)); or

                     (b)  for any of the purposes referred to in paragraphs 450‑1(a), (b) or (c); or

                     (c)  to determine if there is a matter in relation to the corporation that is specified in subsection 453‑1(1) as a matter that should be drawn attention to; or

                     (d)  for a decision to be made about whether or not a proceeding (including a proceeding under a law of the Commonwealth, or of a State or Territory) to which the books concerned would be relevant should be begun; or

                     (e)  for such a proceeding to be begun and carried on.

             (6)  No‑one is entitled, as against the authorised officer, to claim a lien on any of the books, but such a lien is not otherwise prejudiced.

             (7)  While the books are in the authorised officer’s possession, the officer:

                     (a)  must permit another person to inspect, at all reasonable times, such (if any) of the books as the other person would be entitled to inspect if they were not in the authorised officer’s possession; and

                     (b)  may permit another person to inspect any of the books.

             (8)  Unless subparagraph (1)(b)(ii) applies, the authorised officer may deliver any of the books into the possession of the Registrar or a person approved by the Registrar to receive them.

             (9)  If paragraph (1)(a) or (b) applies, the authorised officer, the Registrar or an approved person into whose possession the authorised officer delivers any of the books under subsection (8), may require:

                     (a)  if paragraph (1)(a) applies—a person who so produced any of the books; or

                     (b)  in any case—a person who was a party to the compilation of any of the books;

to explain any matter about the compilation of any of the books or to which any of the books relate.

           (10)  Subsection (9) does not apply to the extent that the person has explained the matter to the best of his or her knowledge or belief.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).

           (11)  A person must not intentionally or recklessly fail to comply with a requirement under subsection (9).

Penalty:  100 penalty units or imprisonment for 2 years, or both.

           (12)  Subsection (11) does not apply to the extent to which the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (12) (see subsection 13.3(3) of the Criminal Code).

Subdivision 456‑B—Warrants by telephone or other electronic means

456‑15  Applying for warrants by telephone or other electronic means

             (1)  The Registrar or an authorised officer may apply to a magistrate for a warrant by telephone, fax or other electronic means:

                     (a)  in an urgent case; or

                     (b)  if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

             (2)  An application under subsection (1):

                     (a)  must include all information that would be required in an ordinary application for a warrant; and

                     (b)  if necessary, may be made before the information is sworn or affirmed.

             (3)  The magistrate may require:

                     (a)  communication by voice to the extent that it is practicable in the circumstances; and

                     (b)  any further information.

             (4)  The function of issuing a warrant is conferred on the magistrate in a personal capacity and not as a court or a member of a court. The magistrate need not accept the function conferred.

456‑20  Issuing warrants by telephone etc.

             (1)  The magistrate may complete and sign the same form of warrant that would be issued under section 456‑5 if satisfied that:

                     (a)  a warrant in the terms of the application should be issued urgently; or

                     (b)  the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

             (2)  If the magistrate issues the warrant, he or she must inform the applicant, by telephone, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.

             (3)  The applicant must then:

                     (a)  complete a form of warrant in terms substantially corresponding to those given by the magistrate; and

                     (b)  state on the form:

                              (i)  the name of the magistrate; and

                             (ii)  the day on which the warrant was signed; and

                            (iii)  the time at which the warrant was signed.

             (4)  The applicant must give the magistrate:

                     (a)  the form of warrant completed by the applicant; and

                     (b)  if the information was unsworn under paragraph 456‑15(2)(b)—the sworn information;

by the end of the day after whichever first occurs:

                     (c)  the warrant expires; or

                     (d)  the warrant is executed.

             (5)  The magistrate must attach the form of warrant completed by the magistrate to the documents provided under subsection (4).

456‑25  Unsigned warrants by telephone etc. in court proceedings

                   If:

                     (a)  it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this Division was duly authorised; and

                     (b)  the form of warrant signed by the magistrate is not produced in evidence;

the court must assume that the exercise of the power was not duly authorised unless the contrary is proved.

Subdivision 456‑C—Offences relating to warrants by telephone or other electronic means

456‑30  Offence for stating incorrect names in warrants by telephone etc.

                   A person commits an offence if:

                     (a)  the person states a name of a magistrate in a document; and

                     (b)  the document purports to be a form of warrant under section 456‑20; and

                     (c)  the name is not the name of the magistrate who issued the warrant.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

456‑35  Offence for unauthorised form of warrant

                   A person commits an offence if:

                     (a)  the person states a matter in a form of warrant under section 456‑20; and

                     (b)  the matter departs in a material particular from the form authorised by the magistrate.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

456‑40  Offence for execution etc. of unauthorised form of warrant

                   A person commits an offence if:

                     (a)  the person executes a document or presents a document to a person; and

                     (b)  the document purports to be a form of warrant under section 456‑20; and

                     (c)  the document:

                              (i)  has not been approved by a magistrate under that section; or

                             (ii)  departs in a material particular from the terms authorised by the magistrate under that section.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

456‑45  Offence for giving unexecuted form of warrant

                   A person commits an offence if:

                     (a)  the person gives a magistrate a form of warrant under section 456‑20; and

                     (b)  the document is not the form of warrant that the person executed.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

Subdivision 456‑D—Warrant details to be given to occupier

456‑50  Details of warrant to be given to occupier etc.

             (1)  If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the authorised officer executing the warrant must make available to that person a copy of the warrant.

             (2)  If a warrant in relation to a person is being executed, the authorised officer executing the warrant must make available to that person a copy of the warrant.

             (3)  The authorised officer must identify himself or herself to the person at the premises.

             (4)  The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the issuing magistrate or the seal of the relevant court.

 

Part 10‑4—Offences relating to regulatory and enforcement powers of Registrar

Division 461—Offences relating to regulatory and enforcement powers of Registrar

461‑1  Obstructing Registrar or interfering with meeting called by Registrar etc.

             (1)  A person must not:

                     (a)  engage in conduct that results in the obstruction or hindering of an authorised officer in the performance of the officer’s powers under Part 10‑3; or

                     (b)  engage in conduct that results in the obstruction or hindering of a person who is executing a warrant under Division 456.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

             (2)  Subsection (1) does not apply to the extent that the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).

             (3)  The occupier, or person in charge, of premises that a person enters under a warrant issued under Division 456 must not intentionally or recklessly fail to provide to that person all reasonable facilities and assistance for the effective exercise of his or her powers under the warrant.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (4)  A person must not:

                     (a)  engage in conduct that results in the obstruction or hindering of the Registrar or the Registrar’s delegate in the performance or exercise of any of the Registrar’s functions and powers; or

                     (b)  engage in conduct that results in the disruption of a meeting called under section 439‑10 or 439‑15.

Penalty:  50 penalty units or imprisonment for 1 year, or both.

             (5)  An offence constituted by a contravention of subsection (4) is punishable on summary conviction.

461‑5  False information

             (1)  A person must not, in purported compliance with a requirement made under Part 10‑3, give information, or make a statement, that is false or misleading in a material particular.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

             (2)  It is a defence to a prosecution for a contravention of subsection (1) if it is proved that the defendant, when giving the information or evidence or making the statement, believed on reasonable grounds that it was true and not misleading.

Note:          A defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4 of the Criminal Code).

461‑10  Concealing books relevant to investigation

             (1)  If a requirement under section 453‑1 or 453‑5 has been made to produce a book, a person must not:

                     (a)  in any case—engage in conduct that results in the concealment, destruction, mutilation or alteration of the book; or