Contents
Chapter 1—Introduction 1
Part 1‑1—Preliminary 1
Division 1—Preliminary 1
1‑1......................... Short title............................................................................ 1
1‑5......................... Commencement.................................................................. 1
1‑10....................... Act binds Crown................................................................ 2
1‑15....................... Geographical application of Act.......................................... 2
1‑20....................... Act applies regardless of residence, place of formation etc. 2
1‑25....................... Objects of this Act.............................................................. 2
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....................... Transfer of registration, deregistration and unclaimed property 7
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............................................................ 8
Chapter 2—Aboriginal and Torres Strait Islander corporations 9
Part 2‑1—Introduction 9
Division 16—Introduction 9
16‑1....................... What this Chapter is about.................................................. 9
16‑5....................... Meaning of Aboriginal and Torres Strait Islander corporation 9
Part 2‑2—Applications for registration of an Aboriginal and Torres Strait Islander corporation 10
Division 21—Application for new registration of an Aboriginal and Torres Strait Islander corporation 10
21‑1....................... Application for registration............................................... 10
21‑5....................... Matters to accompany application..................................... 12
21‑10..................... Registrar may seek further information............................. 12
Division 22—Application to register existing body corporate under Part 2‑3 13
22‑1....................... Application for registration............................................... 13
22‑5....................... Matters to accompany application..................................... 15
22‑10..................... Registrar may seek further information............................. 16
Division 23—Application to register amalgamated corporation under Part 2‑3 17
23‑1....................... Application for registration............................................... 17
23‑5....................... Matters to accompany application..................................... 19
23‑10..................... Registrar may seek further information............................. 20
Part 2‑3—Decisions on applications 21
Division 26—Registrar to decide application 21
26‑1....................... Registrar to decide application.......................................... 21
26‑5....................... Registrar may grant application if application is incomplete etc. 23
26‑10..................... Registrar may grant application if some basic requirements are not met 24
26‑15..................... Registrar not to register trade unions etc........................... 24
Division 29—What are the basic requirements for registration? 25
29‑1....................... Minimum number of members requirement...................... 25
29‑5....................... Indigeneity requirement.................................................... 25
29‑10..................... Age of members requirement............................................ 25
29‑15..................... Pre‑incorporation requirement.......................................... 25
29‑17..................... Pre‑transfer of registration requirement............................ 27
29‑18..................... Creditor notice requirement............................................... 28
29‑19..................... Pre‑amalgamation requirements........................................ 30
29‑20..................... Internal governance rules requirement.............................. 31
29‑25..................... Name requirement............................................................. 32
Division 32—Decisions on applications 33
32‑1....................... Successful applications..................................................... 33
32‑5....................... Unsuccessful applications................................................. 33
Part 2‑4—Registration of an Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation 35
Division 37—Registration of an Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation 35
37‑1....................... Registrar to register Aboriginal and Torres Strait Islander corporation as a small, medium or large corporation.......................................................................................... 35
37‑5....................... Registrar may alter registered size of corporation after registration 36
37‑10..................... Small, medium and large corporations.............................. 37
37‑15..................... When an Aboriginal and Torres Strait Islander corporation controls an entity 38
37‑20..................... Counting employees......................................................... 39
37‑25..................... Accounting standards....................................................... 39
Part 2‑5—Effects of registration 40
Division 42—Effects of registration 40
42‑1....................... Corporation comes into existence on registration.............. 40
42‑3....................... Effect of registration of existing body corporate under Part 2‑3 40
42‑4....................... Effect of registration of amalgamated corporation under Part 2‑3 40
42‑5....................... Corporation’s name.......................................................... 44
42‑10..................... Members, directors, corporation secretary and contact person of corporation 44
42‑15..................... Registered office............................................................... 46
42‑20..................... Document access address................................................. 46
42‑25..................... Corporation may have common seal................................. 46
42‑30..................... Vesting of property in corporation on registration............ 47
42‑35..................... Body corporate registered as Aboriginal and Torres Strait Islander corporation (liability of members on winding up)...................................................................... 48
42‑40..................... Body corporate registered as Aboriginal and Torres Strait Islander corporation (modification by regulations).......................................................................................... 48
42‑45..................... Registration of amalgamated corporation (liability of members on winding up) 49
42‑50..................... Registration of amalgamated corporation (modification by regulations) 50
Part 2‑6—Arrangements and reconstructions 51
Division 45—Application of Corporations Act arrangements and reconstructions provisions 51
45‑1....................... Applying Corporations Act arrangements and reconstructions provisions to Aboriginal and Torres Strait Islander corporations........................................................ 51
Chapter 3—Basic features of an Aboriginal and Torres Strait Islander corporation 53
Part 3‑1—Introduction 53
Division 52—Introduction 53
52‑1....................... What this Chapter is about................................................ 53
Part 3‑2—Rules dealing with the internal governance of corporations 54
Division 57—Introduction 54
57‑1....................... What this Part is about...................................................... 54
57‑5....................... List of internal governance rules....................................... 55
Division 60—What are the replaceable rules and when do they apply to a corporation? 61
60‑1....................... Replaceable rules.............................................................. 61
60‑5....................... Corporation’s constitution can modify or replace replaceable rules 61
60‑10..................... Effect of constitution and replaceable rules....................... 62
60‑15..................... Failure to comply with replaceable rules........................... 62
60‑20..................... Modification by regulations.............................................. 62
Division 63—What are the internal governance rules of a corporation? 63
63‑1....................... Meaning of internal governance rules............................... 63
Division 66—What are the internal governance rules requirements? 64
66‑1....................... Requirements.................................................................... 64
66‑5....................... Meaning of cover the matters provided for in the replaceable rules 65
Division 69—Constitutions and amendment and replacement of constitutions 67
Subdivision 69‑A—Constitution on registration 67
69‑1....................... Constitution of an Aboriginal and Torres Strait Islander corporation 67
Subdivision 69‑B—Constitutional changes after registration 67
69‑5....................... Overview—ways a constitution may be changed............. 67
69‑10..................... Meaning of constitutional change etc............................... 69
69‑15..................... Extra requirements for constitutional change in constitution 69
69‑20..................... Corporation to lodge copy of constitutional changes........ 69
69‑25..................... Special administrator to lodge copy of constitutional changes 70
69‑30..................... Registrar to determine if constitutional change should be registered 71
69‑35..................... Registrar may change an Aboriginal and Torres Strait Islander corporation’s constitution on own initiative.......................................................................................... 72
69‑40..................... Date of effect of constitutional change.............................. 73
Division 72—Other matters concerning constitutions etc. 74
72‑1....................... Registrar may direct corporation to lodge constitution...... 74
72‑5....................... Corporation must provide governance material to members 74
72‑10..................... Constitution may limit powers.......................................... 75
Part 3‑3—Minimum number of members of Aboriginal and Torres Strait Islander corporations 77
Division 77—Minimum number of members of Aboriginal and Torres Strait Islander corporations 77
77‑1....................... What this Part is about...................................................... 77
77‑5....................... Minimum number of members requirement...................... 77
77‑10..................... Registrar may exempt if appropriate and reasonable to do so.. 78
77‑15..................... Registrar may determine a different number to number requested 79
77‑20..................... Earlier determination taken to be revoked......................... 79
77‑25..................... Notice to be given............................................................. 79
Part 3‑4—Names 80
Division 82—Introduction 80
82‑1....................... What this Part is about...................................................... 80
Division 85—What names may a corporation have? 81
85‑1....................... Corporation’s name requirements..................................... 81
85‑5....................... Available names................................................................ 82
85‑10..................... Acceptable abbreviations.................................................. 83
85‑15..................... Using a name and ICN on documents.............................. 84
85‑20..................... Exception to requirement to have ICN on receipts............ 85
85‑25..................... Regulations may exempt from requirement to set out information on documents 85
Division 88—How is a corporation’s name changed? 86
88‑1....................... Corporation changing its name......................................... 86
88‑5....................... Registrar’s power to direct corporation to change its name 86
88‑10..................... If Aboriginal and Torres Strait Islander corporation becomes a registered native title body corporate 87
88‑15..................... If Aboriginal and Torres Strait Islander corporation ceases to be a registered native title body corporate.......................................................................................... 88
88‑20..................... Registrar must issue new certificate if name changes........ 89
88‑25..................... Effect of name change....................................................... 89
Part 3‑5—Corporation powers and how they are exercised 90
Division 93—Introduction 90
93‑1....................... What this Part is about...................................................... 90
Division 96—What are a corporation’s powers? 91
96‑1....................... Legal capacity and powers................................................ 91
Division 99—How are a corporation’s powers exercised? 92
99‑1....................... Agent exercising a corporation’s power to make contracts etc. 92
99‑5....................... Execution of documents (including deeds) by the corporation itself 92
Part 3‑6—Assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make 94
Division 104—Assumptions people dealing with Aboriginal and Torres Strait Islander corporations are entitled to make 94
104‑1..................... Entitlement to make assumptions...................................... 94
104‑5..................... Assumptions that can be made under section 104‑1......... 95
104‑10................... Information available to the public from Registrar does not constitute constructive notice 97
Part 3‑7—Registered office or document access address 98
Division 109—Introduction 98
109‑1..................... What this Part is about...................................................... 98
Division 112—Registered office 99
112‑1..................... General............................................................................. 99
112‑5..................... Corporation to have registered office................................ 99
112‑10................... Registrar may change address of registered office to a director’s address 100
112‑15................... Corporation’s name must be displayed........................... 101
112‑20................... Address of registered office etc...................................... 102
Division 115—Document access address 103
115‑1..................... Division applies to Aboriginal and Torres Strait Islander corporations registered as small or medium corporations.................................................................... 103
115‑5..................... Corporation to have document access address................ 103
115‑10................... Registrar may change document access address to a director’s address 104
115‑15................... Registrar may direct corporation to change the location of its document access address 105
115‑20................... Address of document access address.............................. 105
Part 3‑8—Service on Aboriginal and Torres Strait Islander corporations 107
Division 120—Service on Aboriginal and Torres Strait Islander corporations 107
120‑1..................... Service on Aboriginal and Torres Strait Islander corporation 107
Chapter 4—Members and observers 109
Part 4‑1—Introduction 109
Division 130—Introduction 109
130‑1..................... What this Chapter is about.............................................. 109
Part 4‑2—Members 110
Division 135—Introduction 110
135‑1..................... What this Part is about.................................................... 110
Division 138—Who is a member of an Aboriginal and Torres Strait Islander corporation? 111
138‑1..................... Meaning of member....................................................... 111
Division 141—Membership of Aboriginal and Torres Strait Islander corporations 112
Subdivision 141‑A—Introduction 112
141‑1..................... Overview........................................................................ 112
Subdivision 141‑B—Ongoing requirements relating to membership that are imposed on an Aboriginal and Torres Strait Islander corporation 112
141‑5..................... Minimum number of members requirement.................... 112
141‑10................... Indigeneity requirement.................................................. 113
141‑15................... Age of members requirement.......................................... 113
Subdivision 141‑C—A person’s eligibility for membership of an Aboriginal and Torres Strait Islander corporation 114
141‑20................... Eligibility for membership.............................................. 114
141‑25................... Corporation may have other eligibility requirements for membership 114
Division 144—How to become a member of an Aboriginal and Torres Strait Islander corporation 115
144‑1..................... How does a person become a member?.......................... 115
144‑5..................... Application to corporation.............................................. 115
144‑10................... Determination of applications for membership............... 115
144‑15................... Fees for membership and being an observer................... 117
Division 147—Obligations of members 118
147‑1..................... Obligation to contribute on winding up.......................... 118
147‑5..................... Corporation may impose other member obligations........ 118
147‑10................... Liability of corporation members.................................... 118
Division 150—How does a person cease to be a member of an Aboriginal and Torres Strait Islander corporation? 119
Subdivision 150‑A—General 119
150‑1..................... Cessation of membership................................................ 119
Subdivision 150‑B—Resignation of membership 119
150‑10................... Resignation..................................................................... 119
Subdivision 150‑C—Cancellation of membership 120
150‑15................... General........................................................................... 120
150‑20................... Member of corporation that is not a registered native title body corporate not eligible for membership etc. (replaceable rule—see section 60‑1)............................... 122
150‑22................... Member of registered native title body corporate not eligible for membership etc. 123
150‑25................... Member not contactable.................................................. 125
150‑30................... Member is not an Aboriginal and Torres Strait Islander person 126
150‑35................... Member misbehaves....................................................... 127
Division 153—Can there be different classes of members? 129
153‑1..................... Different classes of members.......................................... 129
Part 4‑3—Observers 130
Division 158—Observers 130
158‑1..................... What this Part is about.................................................... 130
158‑5..................... Observers....................................................................... 130
Part 4‑4—Protection of members’ interests 132
Division 163—Rights and remedies to protect interests of members 132
163‑1..................... Rights and remedies........................................................ 132
Division 166—Oppressive conduct of affairs 133
166‑1..................... Grounds for Court order................................................. 133
166‑5..................... Orders the Court can make............................................. 133
166‑10................... Who can apply for an order?........................................... 135
166‑15................... Requirement for person to lodge order........................... 135
Division 169—When may a person bring or intervene in proceedings on behalf of an Aboriginal and Torres Strait Islander corporation? 136
169‑1..................... Bringing, or intervening in, proceedings on behalf of a corporation 136
169‑5..................... Applying for and granting leave..................................... 137
169‑10................... Substitution of another person for the person granted leave 139
169‑15................... Effect of ratification by members.................................... 139
169‑20................... Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave 140
169‑25................... General powers of the Court........................................... 140
169‑30................... Power of the Court to make costs orders........................ 141
Division 172—What protections apply to variations or cancellations of class rights? 143
172‑1..................... Varying and cancelling class rights................................. 143
172‑5..................... Certain actions taken to vary rights etc............................ 144
172‑10................... Variation, cancellation or modification without unanimous support of class 144
172‑15................... Variation, cancellation or modification with unanimous support of class 145
Division 175—When may a member inspect a corporation’s books? 146
175‑1..................... Order for inspection of books of corporation................. 146
175‑5..................... Ancillary orders.............................................................. 147
175‑10................... Disclosure of information acquired in inspection............ 147
175‑15................... Corporation or directors may allow member to inspect books (replaceable rule—see section 60‑1) 148
Part 4‑5—Registers of members and former members 149
Division 180—Registers of members and former members 149
180‑1..................... Aboriginal and Torres Strait Islander corporations to maintain register of members 149
180‑5..................... Information on the register of members.......................... 149
180‑10................... Aboriginal and Torres Strait Islander corporations to maintain register of former members 150
180‑15................... Information on the register of former members.............. 150
180‑20................... Location and inspection of registers................................ 151
180‑22................... Register of members and register of former members may be maintained in one document 151
180‑25................... Right to inspect and get copies........................................ 151
180‑30................... Aboriginal and Torres Strait Islander corporation to make register of members available at AGM 152
180‑35................... Aboriginal and Torres Strait Islander corporation to give Registrar copy of register of members or register of former members.............................................................. 153
180‑40................... Correction of register of members or register of former members 153
180‑45................... Evidentiary value of registers.......................................... 154
Division 183—Use of information on the register of members or register of former members 155
183‑1..................... Use of information on register of members or register of former members 155
Part 4‑6—Exemption from operation of certain provisions of this Chapter 157
Division 187—Exemption from operation of certain provisions of this Chapter 157
187‑1..................... What this Part is about.................................................... 157
187‑5..................... Exemption from certain provisions of this Chapter......... 157
187‑10................... Registrar may make determination even if application is incomplete 158
187‑15................... Registrar’s power to make determinations...................... 158
187‑20................... Criteria for determinations.............................................. 160
Chapter 5—Meetings 161
Part 5‑1—Introduction 161
Division 193—Introduction 161
193‑1..................... What this Chapter is about.............................................. 161
Part 5‑2—General meetings 162
Division 198—Introduction 162
198‑1..................... What this Part is about.................................................... 162
Division 201—What are the rules concerning general meetings? 163
Subdivision 201‑A—Who may call general meetings? 163
201‑1..................... Director may call meetings (replaceable rule—see section 60‑1) 163
201‑5..................... Request by members for directors to call general meetings 163
201‑10................... When must directors comply with members’ request?.... 164
201‑15................... When must a requested meeting be held?........................ 165
Subdivision 201‑B—How to call general meetings 165
201‑20................... Amount of notice of general meetings............................ 165
201‑25................... Notice of general meeting to members, officers and observers 166
201‑30................... Auditor entitled to notice and other communications...... 168
201‑35................... Contents of notice of general meeting............................. 168
Subdivision 201‑C—Members’ rights to put resolutions etc. to general meeting 169
201‑40................... Members’ resolutions..................................................... 169
201‑45................... Notice of members’ resolutions...................................... 170
201‑50................... Members’ statements to be distributed............................ 170
Subdivision 201‑D—Holding general meetings 172
201‑55................... Purpose........................................................................... 172
201‑60................... Time and place for general meeting................................. 172
201‑65................... Technology..................................................................... 172
201‑70................... Quorum.......................................................................... 172
201‑75................... Chairing general meeting (replaceable rule—see section 60‑1) 173
201‑80................... Auditor’s right to be heard at general meetings............... 174
201‑85................... Adjourned meetings........................................................ 175
Subdivision 201‑E—Proxies 175
201‑90................... Who may appoint a proxy (replaceable rule—see section 60‑1) 175
201‑95................... Rights of proxies............................................................ 176
201‑100................. Appointing a proxy......................................................... 177
201‑105................. Proxy documents............................................................ 178
201‑110................. Body corporate representative......................................... 179
Subdivision 201‑F—Voting at general meetings 180
201‑115................. How many votes a member has (replaceable rule—see section 60‑1) 180
201‑120................. Objections to right to vote (replaceable rule—see section 60‑1) 180
201‑125................. How voting is carried out (replaceable rule—see section 60‑1) 180
201‑130................. Matters on which a poll may be demanded..................... 181
201‑135................. When a poll is effectively demanded............................... 181
201‑140................. When and how polls must be taken (replaceable rule—see section 60‑1) 182
Subdivision 201‑G—First general meeting and annual general meetings 182
201‑145................. Corporation must hold first general meeting within 3 months of registration 182
201‑150................. Corporation must hold AGM......................................... 182
201‑155................. Extension of time for holding AGM............................... 183
201‑160................. Business of AGM.......................................................... 183
201‑165................. Questions and comments by members on corporation management at AGM 184
201‑170................. Questions by members of auditors at AGM................... 184
Division 204—Resolutions without a general meeting 185
204‑1..................... Circulating resolutions.................................................... 185
204‑5..................... Resolutions of 1 member corporations........................... 186
Part 5‑3—Directors’ meetings 187
Division 209—Introduction 187
209‑1..................... What this Part is about.................................................... 187
Division 212—What are the rules concerning directors’ meetings? 188
212‑1..................... Constitution to provide for meetings............................... 188
212‑5..................... Calling directors’ meetings (replaceable rule—see section 60‑1) 188
212‑10................... Use of technology........................................................... 188
212‑15................... Chairing directors’ meetings (replaceable rule—see section 60‑1) 188
212‑20................... Quorum at directors’ meetings........................................ 189
212‑25................... Passing of directors’ resolutions (replaceable rule—see section 60‑1) 189
Division 215—Resolutions and declarations without meetings 190
215‑1..................... Circulating resolutions of corporation with more than 1 director (replaceable rule—see section 60‑1) 190
215‑5..................... Resolutions and declarations of 1 director corporation... 190
Part 5‑4—Minutes of meetings 192
Division 220—Minutes of meetings 192
220‑1..................... What this Part is about.................................................... 192
220‑5..................... Minutes........................................................................... 192
220‑10................... Members’ access to minutes........................................... 194
Part 5‑5—Exemption from operation of this Chapter 197
Division 225—Exemption from operation of this Chapter 197
225‑1..................... What this Part is about.................................................... 197
225‑5..................... Exemption from the provisions of this Chapter.............. 197
225‑10................... Registrar may make determination even if application is incomplete 198
225‑15................... Registrar’s power to make determinations...................... 198
225‑20................... Criteria for determinations.............................................. 199
Chapter 6—Officers 201
Part 6‑1—Introduction 201
Division 235—Introduction 201
235‑1..................... What this Chapter is about.............................................. 201
Part 6‑2—Appointment, remuneration and cessation of appointment of directors 202
Division 240—Introduction 202
240‑1..................... What this Part is about.................................................... 202
Division 243—Number of directors 203
243‑1..................... Minimum number of directors........................................ 203
243‑5..................... Maximum number of directors....................................... 203
Division 246—Appointment of directors 204
246‑1..................... Eligibility for appointment as a director.......................... 204
246‑5..................... Majority of director requirements................................... 204
246‑10................... Consent to act as director................................................ 205
246‑15................... Corporation may appoint a director (replaceable rule—see section 60‑1) 205
246‑20................... Directors may appoint other directors to make up a quorum (replaceable rule—see section 60‑1) 205
246‑25................... Term of appointment....................................................... 206
246‑30................... Alternate directors (replaceable rule—see section 60‑1). 207
246‑35................... Effectiveness of acts by directors.................................... 207
Division 249—Resignation, retirement or removal of directors 209
249‑1..................... How does a person cease to be a director?...................... 209
249‑5..................... Director may resign........................................................ 209
249‑10................... Removal by members..................................................... 210
249‑15................... Removal by other directors............................................. 211
Division 252—Remuneration of directors 214
252‑1..................... Remuneration.................................................................. 214
252‑5..................... Members may obtain information about directors’ remuneration 214
Part 6‑3—Appointment of secretaries and contact persons 217
Division 257—Appointment of secretaries and contact persons 217
257‑1..................... What this Part is about.................................................... 217
257‑5..................... Requirement to have a secretary or contact person.......... 217
257‑10................... Who may be a secretary or contact person...................... 218
257‑15................... Consent to act as secretary or contact person.................. 218
257‑20................... How a secretary or contact person is appointed.............. 219
257‑25................... Director to be contact person in certain circumstances.... 219
257‑30................... Contact person must pass on communications received.. 219
257‑35................... Secretary must pass on communications received........... 220
257‑40................... Effectiveness of acts by secretaries................................. 220
257‑45................... Terms and conditions of office for secretaries (replaceable rule—see section 60‑1) 221
257‑50................... Terms and conditions of contact person’s appointment (replaceable rule—see section 60‑1) 221
Part 6‑4—Duties and powers of directors and other officers and employees 222
Division 262—Introduction 222
262‑1..................... What this Part is about.................................................... 222
Division 265—General duties 223
265‑1..................... Care and diligence—civil obligation only....................... 223
265‑5..................... Good faith—civil obligations.......................................... 224
265‑10................... Use of position—civil obligations.................................. 225
265‑15................... Use of information—civil obligations............................. 225
265‑20................... Acts done to comply with Native Title legislation obligations 226
265‑25................... Good faith, use of position and use of information—criminal offences 226
265‑30................... Interaction of sections 265‑1 to 265‑25 with other laws etc. 228
265‑35................... Directors of wholly‑owned subsidiaries......................... 228
265‑40................... Responsibility of secretaries for certain contraventions.. 229
265‑45................... Meaning of reasonable reliance on information or advice provided by others 229
265‑50................... Responsibility for actions of delegate............................. 230
Division 268—Duties in relation to disclosure of, and voting on matters involving, material personal interests 232
268‑1..................... Material personal interest—director’s duty to disclose... 232
268‑5..................... Interest as common law holder of native title.................. 234
268‑10................... Director may give other directors standing notice about an interest 235
268‑15................... Interaction of sections 268‑1 and 268‑10 with other laws etc. 236
268‑20................... Restrictions on voting..................................................... 237
268‑25................... Registrar’s power to make declarations and class orders 238
Division 271—Duty to discharge certain trust liabilities 240
271‑1..................... Directors liable for debts and other obligations incurred by corporation as trustee 240
Division 274—Powers of directors 241
274‑1..................... Powers of directors (replaceable rule—see section 60‑1) 241
274‑5..................... Negotiable instruments (replaceable rule—see section 60‑1) 241
274‑10................... Delegation....................................................................... 241
274‑15................... Right of access to corporation books.............................. 242
Part 6‑5—Disqualification from managing corporations 244
Division 279—Disqualification from managing corporations 244
279‑1..................... Disqualified person not to manage corporations............. 244
279‑5..................... Automatic disqualification.............................................. 245
279‑10................... Extension of period of automatic disqualification........... 247
279‑15................... Court power of disqualification—contravention of civil penalty provision 247
279‑20................... Court power of disqualification—insolvency and non‑payment of debts 248
279‑25................... Court power of disqualification—repeated contraventions of Act 250
279‑30................... Registrar’s power of disqualification.............................. 251
279‑35................... Court power to grant leave.............................................. 253
Part 6‑6—Member approval needed for related party benefit 254
Division 284—Need for member approval 254
284‑1..................... Need for member approval for financial benefit.............. 254
284‑5..................... Consequences of breach................................................. 254
284‑10................... Exemptions..................................................................... 255
Division 287—Exceptions to the requirement for member approval 256
287‑1..................... Remuneration and reimbursement for officer or employee 256
287‑5..................... Benefit to or by closely‑held subsidiary.......................... 258
287‑10................... Benefits to members that do not discriminate unfairly.... 258
287‑12................... Benefits given to comply with Native Title legislation obligations 258
287‑15................... Court order..................................................................... 259
Division 290—Procedure for obtaining member approval 260
290‑1..................... Resolution may specify matters by class or kind............ 260
290‑5..................... Corporation must lodge material that will be put to members with the Registrar 260
290‑10................... Requirements for explanatory statement to members...... 261
290‑15................... Registrar may comment on proposed resolution............. 262
290‑20................... Requirements for notice of meeting................................ 262
290‑25................... Other material put to members........................................ 263
290‑30................... Proposed resolution cannot be varied............................. 264
290‑35................... Voting by or on behalf of related party interested in proposed resolution 264
290‑40................... Voting on the resolution................................................. 265
290‑45................... Notice of resolution to be lodged.................................... 266
290‑50................... Declaration by court of substantial compliance............... 267
Division 293—Related parties and financial benefits 268
293‑1..................... Related parties................................................................. 268
293‑5..................... Giving a financial benefit................................................ 269
Division 296—Interaction with other rules 271
296‑1..................... General duties still apply................................................. 271
Part 6‑7—Public information about directors, secretaries and contact persons 272
Division 301—Introduction 272
301‑1..................... What this Part is about.................................................... 272
Division 304—Information to be provided 273
304‑1..................... Director, alternate director, secretary or contact person may notify the Registrar of resignation or retirement........................................................................................ 273
304‑5..................... Notice of name and address of directors and secretaries to the Registrar 273
304‑10................... Director, alternate director, secretary and contact person must give information to corporation 275
304‑15................... Address for officers........................................................ 276
Division 307—Registrar may ask for information 278
307‑1..................... Registrar’s power to ask for information about person’s position as director, secretary or contact person........................................................................................ 278
Part 6‑7A—Director identification numbers 279
308‑1..................... What this Part is about.................................................... 279
308‑5..................... Giving and cancelling director identification numbers.... 279
308‑10................... Applying for a director identification number................. 280
308‑15................... Eligible officers............................................................... 281
308‑20................... Requirement to have a director identification number..... 281
308‑25................... Requirement to apply for a director identification number 282
308‑30................... Commonwealth Registrar may extend application periods 283
308‑35................... Infringement notices....................................................... 284
308‑40................... Applying for additional director identification numbers.. 284
308‑45................... Misrepresenting director identification numbers............. 285
Part 6‑8—Exemption from operation of certain provisions of this Chapter 286
310‑1..................... What this Part is about.................................................... 286
310‑5..................... Exemption from certain provisions of this Chapter......... 286
310‑10................... Registrar may make determination even if application is incomplete 287
310‑15................... Registrar’s power to make determinations...................... 287
310‑20................... Criteria for determinations.............................................. 288
Chapter 7—Record keeping, reporting requirements and books 290
Part 7‑1—Introduction 290
Division 317—Introduction 290
317‑1..................... What this Chapter is about.............................................. 290
Part 7‑2—Record keeping requirements 291
Division 322—Record keeping requirements 291
322‑1..................... What this Part is about.................................................... 291
322‑5..................... Obligation to keep copy of constitution and records about officers, contact person, etc. 292
322‑10................... Obligation to keep financial records................................ 292
322‑15................... Physical format............................................................... 293
322‑20................... Place where records are kept........................................... 293
322‑25................... Director access................................................................ 294
Part 7‑3—Reporting requirements 295
Division 327—Overview of reporting obligations 295
327‑1..................... Reports that an Aboriginal and Torres Strait Islander corporation must prepare and lodge 295
Division 330—General report for each financial year 296
330‑1..................... Aboriginal and Torres Strait Islander corporation must prepare a general report each financial year 296
330‑5..................... Contents of general report............................................... 296
330‑10................... General report to be lodged with Registrar..................... 297
Division 333—Financial and other reports required by the regulations 298
333‑1..................... What this Division is about............................................. 298
333‑5..................... Regulations may require financial reports, directors’ reports and other reports to be prepared 298
333‑10................... Contents of reports......................................................... 300
333‑15................... Other requirements in relation to report.......................... 301
333‑20................... Aboriginal and Torres Strait Islander corporation to obtain audit report if audit required 302
Division 336—Registrar may increase reporting requirements 303
336‑1..................... Registrar may require additional report, or otherwise increase reporting requirements, for particular corporation...................................................................... 303
336‑5..................... Registrar may require additional reports, or otherwise increase reporting requirements, for class of corporation........................................................................................ 305
Division 339—Audit of financial reports 308
Subdivision 339‑A—Introduction 308
339‑1..................... What this Division is about............................................. 308
339‑5..................... Application of Division.................................................. 308
339‑10................... When financial report required to comply with accounting standards 309
339‑15................... When audit required to be conducted in accordance with auditing standards 309
339‑20................... Lead and review auditors................................................ 309
339‑25................... Professional members of the audit team.......................... 310
Subdivision 339‑B—Conduct of the audit 310
339‑30................... Auditor to form opinion.................................................. 310
339‑35................... Auditor obligations in relation to auditing standards....... 311
339‑40................... Auditor’s report.............................................................. 311
339‑45................... Other requirements in relation to auditor’s report........... 313
339‑50................... Auditor’s independence declaration................................ 313
339‑55................... Audit working papers to be retained for 7 years............. 315
Subdivision 339‑C—Qualification, experience and registration 318
339‑60................... Qualification and experience: individual auditor............. 318
339‑65................... Qualification and experience: audit firm.......................... 319
339‑70................... Registration requirements for appointment of company as auditor 321
Subdivision 339‑D—Auditor independence 323
339‑75................... Independence of auditors: application of Corporations Act auditor independence provisions 323
339‑80................... Independence of auditors: alternative independence requirements 324
Subdivision 339‑E—Auditor’s powers and duties 325
339‑85................... Auditor’s power to obtain information........................... 325
339‑90................... Reporting to the Registrar............................................... 325
339‑95................... Assisting auditor............................................................. 328
Subdivision 339‑F—Appointment and removal of auditors 329
339‑100................. Appointment and removal of auditors............................. 329
Division 342—Financial reporting to members 330
342‑1..................... What this Division is about............................................. 330
342‑5..................... Annual financial reporting to members........................... 330
342‑10................... Deadline for giving member copy of report.................... 332
Division 345—Consolidated financial report 333
345‑1..................... Directors and officers of controlled entity to give information 333
345‑5..................... Auditor’s power to obtain information from controlled entity 333
345‑10................... Controlled entity to assist auditor.................................... 333
345‑15................... Application of sections 345‑1 to 345‑10 to entity that has ceased to be controlled 334
Division 348—Lodging reports 335
348‑1..................... Lodging annual reports with the Registrar...................... 335
348‑5..................... Relodgment if report amended after lodgment................ 335
Part 7‑4—Registrar may exempt from record keeping and reporting requirements 337
Division 353—Registrar may exempt from record keeping and reporting requirements 337
353‑1..................... What this Part is about.................................................... 337
353‑3..................... Exemption from the provisions of this Chapter.............. 337
353‑5..................... Registrar may make determination even if application is incomplete 338
353‑10................... Registrar’s power to make determinations...................... 338
Part 7‑5—Criteria for determining level of reporting requirements 340
Division 358—Criteria for determining level of reporting requirements 340
358‑1..................... What this Part is about.................................................... 340
358‑5..................... Criteria for determinations about level of reporting requirements 340
358‑10................... Reporting obligations...................................................... 342
Part 7‑6—Sanctions for contraventions of record keeping and reporting requirements 343
Division 363—Sanctions for contraventions of record keeping and reporting requirements 343
363‑1..................... Sanctions........................................................................ 343
Part 7‑7—Modifications of record keeping and reporting requirements by regulations 344
Division 368—Modifications of record keeping and reporting requirements by regulations 344
368‑1..................... Modification by regulations............................................ 344
Part 7‑8—Books 345
Division 373—Introduction 345
373‑1..................... What this Part is about.................................................... 345
Division 376—When and where may books be inspected? 346
376‑1..................... Inspection of books........................................................ 346
376‑5..................... Translations of instruments and books........................... 347
376‑10................... Court may compel compliance........................................ 348
376‑15................... Admissibility of books in evidence................................. 348
376‑20................... Form of books................................................................ 349
376‑25................... Protection of books......................................................... 349
376‑30................... Evidentiary value............................................................ 350
376‑35................... Falsification of books..................................................... 350
Chapter 8—Civil consequences of contravening civil penalty provisions 352
Division 386—Civil consequences of contravening civil penalty provisions 352
386‑1..................... Declarations of contravention......................................... 352
386‑5..................... Declaration of contravention is conclusive evidence....... 353
386‑10................... Pecuniary penalty orders................................................. 353
386‑15................... Compensation orders—civil penalty provisions............. 354
386‑20................... Who may apply for a declaration or order....................... 354
386‑25................... Time limit for application for a declaration or order........ 355
386‑30................... Civil evidence and procedure rules for declarations of contravention and civil penalty orders 355
386‑35................... Civil proceedings after criminal proceedings.................. 356
386‑40................... Criminal proceedings during civil proceedings............... 356
386‑45................... Criminal proceedings after civil proceedings.................. 356
386‑50................... Evidence given in proceedings for penalty not admissible in criminal proceedings 357
386‑55................... Registrar requiring person to assist................................. 357
386‑60................... Relief from liability for contravention of civil penalty provision 358
Chapter 9—Lodgments and registers 361
Part 9‑1—Introduction 361
Division 396—Introduction 361
396‑1..................... What this Chapter is about.............................................. 361
Part 9‑2—Lodgments with the Registrar 362
Division 401—Introduction 362
401‑1..................... What this Part is about.................................................... 362
Division 404—What is the form in which documents may be lodged? 363
404‑1..................... Forms for documents to be lodged with the Registrar.... 363
404‑5..................... Signing documents lodged with the Registrar................. 363
404‑10................... Documents lodged with the Registrar electronically....... 364
404‑15................... Relodging of lost registered documents.......................... 365
Division 407—Registrar’s powers 367
407‑1..................... Registrar may refuse to receive or register documents.... 367
407‑5..................... Registrar may require additional information.................. 367
407‑10................... Registrar may require information from persons on a register 368
407‑15................... Telephone or email notice of certain changes.................. 368
407‑20................... Registrar may destroy or dispose of lodged documents.. 369
Division 410—Courts power if documents not lodged 370
410‑1..................... Court may make certain orders....................................... 370
Part 9‑3—Registers 372
Division 415—Introduction 372
415‑1..................... What this Part is about.................................................... 372
Division 418—Registers to be kept 373
418‑1..................... Registers......................................................................... 373
418‑5..................... Form of registers............................................................ 373
418‑10................... Register of Aboriginal and Torres Strait Islander Corporations 373
418‑15................... Register of Disqualified Officers.................................... 373
Division 421—What information may a person obtain from the Registrar? 374
421‑1..................... Inspection and production of records.............................. 374
421‑5..................... Requests and certification of copy or extract etc............. 376
Division 424—Validity and use of information etc. obtained from a register 377
424‑1..................... Validity of copy or extract.............................................. 377
424‑5..................... Use in court proceedings etc. of documents issued by Registrar 377
424‑10................... Registrar’s certificate that person was a director etc........ 379
Chapter 10—Regulation and enforcement 380
Part 10‑1—Introduction 380
Division 434—Introduction 380
434‑1..................... What this Chapter is about.............................................. 380
Part 10‑2—Regulation of Aboriginal and Torres Strait Islander corporations 381
Division 439—Regulation of Aboriginal and Torres Strait Islander corporations 381
439‑1..................... What this Part is about.................................................... 381
439‑5..................... Registrar may convene meetings of interested persons... 381
439‑10................... Registrar may call a general meeting (other than an AGM) 382
439‑15................... Registrar may call an AGM............................................ 384
439‑20................... Registrar may require compliance with Act etc............... 385
Part 10‑3—Enforcement 387
Division 444—Introduction 387
444‑1..................... What this Part is about.................................................... 387
Division 447—Authorised officers 388
447‑1..................... Appointment of authorised officers................................ 388
447‑5..................... Identity cards.................................................................. 388
Division 450—Purposes for which powers under this Part may be exercised 389
450‑1..................... Purposes for which power under this Part may be exercised 389
Division 453—Examination of books and persons 390
453‑1..................... Examination of books..................................................... 390
453‑5..................... Production of books or attendance to answer questions. 391
453‑10................... Remuneration of authorised officer................................. 392
Division 456—Warrants for books not produced 394
Subdivision 456‑A—Warrants applied for in person 394
456‑1..................... Application for warrant to seize books not produced...... 394
456‑5..................... Grant of warrant............................................................. 394
456‑10................... Powers where books produced or seized........................ 395
Subdivision 456‑B—Warrants by telephone or other electronic means 398
456‑15................... Applying for warrants by telephone or other electronic means 398
456‑20................... Issuing warrants by telephone etc................................... 398
456‑25................... Unsigned warrants by telephone etc. in court proceedings 399
Subdivision 456‑C—Offences relating to warrants by telephone or other electronic means 400
456‑30................... Offence for stating incorrect names in warrants by telephone etc. 400
456‑35................... Offence for unauthorised form of warrant...................... 400
456‑40................... Offence for execution etc. of unauthorised form of warrant 400
456‑45................... Offence for giving unexecuted form of warrant.............. 401
Subdivision 456‑D—Warrant details to be given to occupier 401
456‑50................... Details of warrant to be given to occupier etc................. 401
Part 10‑4—Offences relating to regulatory and enforcement powers of Registrar 402
Division 461—Offences relating to regulatory and enforcement powers of Registrar 402
461‑1..................... Obstructing Registrar or interfering with meeting called by Registrar etc. 402
461‑5..................... False information............................................................ 403
461‑10................... Concealing books relevant to investigation..................... 403
461‑15................... Self‑incrimination........................................................... 404
Part 10‑5—Protection for whistleblowers 405
Division 466—Which disclosures qualify for protection under this Part? 405
466‑1..................... Disclosures qualifying for protection.............................. 405
Division 469—Effects of disclosure 407
469‑1..................... Disclosure that qualifies for protection not actionable etc. 407
469‑5..................... Victimisation prohibited.................................................. 408
469‑10................... Right to compensation.................................................... 409
Division 472—Confidentiality requirement 410
472‑1..................... Confidentiality requirements for corporations, corporation officers and employees and auditors 410
Chapter 11—External administration 412
Part 11‑1—Introduction 412
Division 482—Introduction 412
482‑1..................... What this Chapter is about.............................................. 412
Part 11‑2—Special administration 414
Division 487—Special administration of Aboriginal and Torres Strait Islander corporation 414
487‑1..................... Registrar may put Aboriginal and Torres Strait Islander corporation under special administration 414
487‑5..................... Grounds for special administration................................. 415
487‑10................... Show cause notice procedure.......................................... 417
487‑15................... Extension of period of special administration................. 418
487‑20................... Registrar may terminate special administration............... 419
487‑25................... References to corporation under special administration.. 419
Division 490—Appointment of special administrator 421
490‑1..................... Registrar may appoint special administrator.................... 421
490‑5..................... Period of appointment..................................................... 421
Division 493—Notice requirements 422
493‑1..................... Notice of special administration determination or appointment of special administrator 422
Division 496—Effect of appointment of special administrator on officers of the corporation 424
496‑1..................... General rule that offices of directors and secretary vacated when special administrator appointed 424
496‑5..................... Registrar may determine that offices not vacated in certain circumstances 424
496‑10................... Powers of officers can only be exercised by, or with the consent of, special administrator 425
496‑15................... Only special administrator can deal with corporation’s property 426
496‑20................... Order for compensation where officer involved in void transaction 428
Division 499—Function, duties and powers of special administrator 430
499‑1..................... Function of special administrator.................................... 430
499‑5..................... Powers of special administrator...................................... 430
499‑10................... Applying Corporations Act provisions to Aboriginal and Torres Strait Islander corporation that is under special administration...................................................... 431
Division 502—Special administrator to report to Registrar 433
502‑1..................... Report to Registrar.......................................................... 433
Division 505—Termination of special administrator’s appointment 434
505‑1..................... Termination of appointment of special administrator...... 434
505‑5..................... Grounds for terminating appointment............................. 435
505‑10................... Registrar to appoint new special administrator in certain circumstances 435
Division 508—Transition to normal control of the corporation’s affairs at end of special administration 436
508‑1..................... Special administrator to ensure that there will be directors when corporation ceases to be under special administration................................................................. 436
508‑5..................... Election of directors to take over affairs of corporation when corporation ceases to be under special administration................................................................. 437
Division 511—Miscellaneous 438
511‑1..................... Remuneration of special administrator............................ 438
Part 11‑3—Receivers, and other controllers, of property of corporations 440
Division 516—Receivers, and other controllers, of property of corporations 440
516‑1..................... Applying Corporations Act receiver provisions to Aboriginal and Torres Strait Islander corporations 440
Part 11‑4—Administration of an Aboriginal and Torres Strait Islander corporation’s affairs with a view to executing a deed of corporation arrangement 442
Division 521—Administration of an Aboriginal and Torres Strait Islander corporation’s affairs with a view to executing a deed of corporation arrangement 442
521‑1..................... Applying Corporations Act administration provisions to Aboriginal and Torres Strait Islander corporations........................................................................................ 442
521‑5..................... Administrator’s capacity to act as trustee........................ 443
521‑10................... Corporations Act administrator cannot be appointed if special administrator appointed 443
521‑15................... Effect of appointment of special administrator on Corporations Act administrator 444
Part 11‑4A—Restructuring of an Aboriginal and Torres Strait Islander corporation 445
Division 522—Restructuring of an Aboriginal and Torres Strait Islander corporation 445
522‑1..................... Applying Corporations Act restructuring provisions to Aboriginal and Torres Strait Islander corporations........................................................................................ 445
522‑2..................... Corporations Act restructuring practitioner cannot be appointed if special administrator appointed 446
522‑3..................... Effect of appointment of special administrator—Aboriginal and Torres Strait Islander corporation under restructuring.................................................................... 446
522‑4..................... Effect of appointment of special administrator—Aboriginal and Torres Strait Islander corporation subject to restructuring plan............................................................ 447
Part 11‑5—Winding up 449
Division 526—Winding up 449
526‑1..................... Court may order winding up........................................... 449
526‑5..................... Grounds for Court ordered winding up.......................... 449
526‑10................... Acts etc. done to comply with Native Title legislation requirement 451
526‑15................... Who may apply to court for winding up order................ 451
526‑20................... Voluntary winding up..................................................... 453
526‑25................... Distribution of surplus assets in winding up by Court... 454
526‑30................... Distribution of surplus assets in voluntary winding up.. 455
526‑35................... Applying Corporations Act winding up provisions to Aboriginal and Torres Strait Islander corporations........................................................................................ 457
526‑40................... Application of Corporations Act pre‑winding up provisions 458
Part 11‑6—Insolvent trading and creditor‑defeating dispositions 460
Division 531—Insolvent trading and creditor‑defeating dispositions 460
531‑1..................... Applying Corporations Act insolvent trading and creditor‑defeating disposition provisions to Aboriginal and Torres Strait Islander corporations.................................. 460
531‑5..................... Sections 588G, 588GAB and 588GAC of Corporations Act prevail over conflicting Native Title legislation obligations...................................................................... 461
Part 11‑7—Employees’ entitlements 462
Division 536—Employees’ entitlements 462
536‑1..................... Applying Corporations Act employees’ entitlements provisions to Aboriginal and Torres Strait Islander corporations.................................................................... 462
Chapter 12—Transfer of registration, deregistration and unclaimed property 464
Part 12‑1—Transfer of registration to another system 464
Division 540—Transfer of registration 464
540‑1..................... Transferring registration................................................. 464
540‑5..................... Applying to transfer registration..................................... 464
540‑10................... Registrar makes transfer of registration declaration........ 465
540‑15................... Registrar to deregister corporation.................................. 465
Part 12‑2—Deregistration 466
Division 546—Deregistration 466
546‑1..................... Deregistration—voluntary.............................................. 466
546‑5..................... Deregistration—Registrar initiated.................................. 467
546‑10................... Deregistration—following amalgamation or winding up 468
546‑15................... Registered native title body corporate............................. 469
546‑20................... Effect of deregistration.................................................... 470
546‑25................... What the Registrar does with the property...................... 471
546‑30................... Registrar’s power to fulfil outstanding obligations of deregistered corporation 472
546‑35................... Claims against insurers of deregistered corporation........ 473
546‑40................... Reinstatement.................................................................. 473
546‑45................... Regulations may modify Division in relation to statutory Indigenous land trusts 474
Part 12‑3—Unclaimed property 476
Division 551—Unclaimed property 476
551‑1..................... Unclaimed property........................................................ 476
551‑5..................... Registrar to deal with unclaimed property....................... 476
551‑10................... Registrar and Commonwealth not liable to pay calls on shares etc. 476
551‑15................... Disposition of money that is unclaimed property etc...... 477
551‑20................... Establishment of the Aboriginal and Torres Strait Islander Corporations Unclaimed Money Account 477
551‑25................... Credits of amounts to Account....................................... 477
551‑30................... Purposes of Account...................................................... 477
551‑35................... Claims of disposition of money to incorrect payee......... 478
551‑40................... Commonwealth or Registrar not liable for loss or damage 479
Chapter 13—Offences 480
Part 13‑1—Offences about false or misleading statements etc. 480
Division 561—Offences about false or misleading statements etc. 480
561‑1..................... False or misleading statements........................................ 480
561‑5..................... False information etc....................................................... 482
Part 13‑2—General matters relating to offences 484
Division 566—General matters relating to offences 484
566‑1..................... Penalties for bodies corporate......................................... 484
566‑5..................... Penalty notices................................................................ 484
566‑10................... Continuing offences........................................................ 487
566‑15................... Time for instituting criminal proceedings........................ 491
566‑20................... Privilege against self‑incrimination not available to bodies corporate in certain proceedings 491
566‑25................... Certain persons to assist in prosecutions........................ 491
Chapter 14—Courts and proceedings 493
Part 14‑1—Powers of courts 493
Division 576—Powers of courts 493
576‑1..................... Power to grant relief....................................................... 493
576‑5..................... Power of Court to give directions with respect to meetings ordered by the Court 494
576‑10................... Appeals from decisions of receivers, liquidators etc....... 494
576‑15................... Irregularities.................................................................... 495
576‑20................... Power of Court to prohibit payment or transfer of money, financial products or other property 498
576‑25................... Injunctions...................................................................... 501
576‑30................... Effect of sections 576‑20 and 576‑25............................. 503
576‑35................... Power of Court to punish for contempt of Court............ 503
Part 14‑2—Proceedings 504
Division 581—Proceedings 504
581‑1..................... The Registrar’s power to intervene in proceedings......... 504
581‑5..................... Civil proceedings not to be stayed.................................. 504
581‑10................... Standard of proof............................................................ 504
581‑15................... Evidence of contravention............................................... 505
581‑20................... Costs............................................................................... 505
581‑25................... Vesting of property......................................................... 506
581‑30................... Civil proceedings in relation to registered native title bodies corporate 507
Part 14‑3—Jurisdiction and procedure of courts 508
Division 586—Civil jurisdiction 508
Subdivision 586‑A—Introduction 508
586‑1..................... Operation of Division..................................................... 508
Subdivision 586‑B—Conferral of jurisdiction 509
586‑5..................... Jurisdiction of Federal Court and State and Territory Supreme Courts 509
586‑10................... Jurisdiction of Federal Circuit and Family Court of Australia (Division 1) and State Family Courts 510
586‑15................... Jurisdiction of courts (decisions to prosecute and related criminal justice process decisions made by Commonwealth officers)................................................ 510
586‑20................... Jurisdiction of lower courts............................................ 512
586‑25................... Appeals........................................................................... 513
586‑30................... Courts to act in aid of each other..................................... 514
Subdivision 586‑C—Transfer of proceedings 514
586‑35................... Transfer of proceedings by the Federal Court and State and Territory Supreme Courts 514
586‑40................... Transfer of proceedings by the Federal Circuit and Family Court of Australia (Division 1) and State Family Courts............................................................................. 516
586‑45................... Transfer of proceedings in lower courts......................... 518
586‑50................... Further matters for a court to consider when deciding whether to transfer a proceeding 519
586‑55................... Transfer may be made at any stage................................. 520
586‑60................... Transfer of documents.................................................... 520
586‑65................... Conduct of proceedings.................................................. 520
586‑70................... Rights of appearance....................................................... 521
586‑75................... Limitation on appeals...................................................... 522
Subdivision 586‑D—Rules of court 522
586‑80................... Rules of the Federal Court.............................................. 522
586‑85................... Rules of the Supreme Court............................................ 523
586‑90................... Rules of the Federal Circuit and Family Court of Australia (Division 1) 523
Division 589—Criminal jurisdiction 525
589‑1..................... Operation of Division..................................................... 525
589‑5..................... Jurisdiction of courts...................................................... 525
589‑10................... Laws to be applied.......................................................... 528
Chapter 15—Administration 529
Part 15‑1—Introduction 529
Division 599—Introduction 529
599‑1..................... What this Chapter is about.............................................. 529
Part 15‑2—Protection of information 530
Division 604—Protection of information 530
604‑1..................... What this Part is about.................................................... 530
604‑5..................... Protected information...................................................... 530
604‑10................... Registrar’s obligations in relation to protected information 531
604‑15................... Special administrator’s obligations in relation to protected information 531
604‑20................... Consultant’s obligations in relation to protected information 532
604‑25................... Authorised use or disclosure.......................................... 532
Part 15‑3—Protection from liability for Registrar, Minister etc. 536
Division 609—Protection from liability for Registrar, Minister etc. 536
609‑1..................... Protection from liability for Minister, Registrar etc......... 536
Part 15‑4—Review of decisions 537
Division 614—Introduction 537
614‑1..................... What this Part is about.................................................... 537
Division 617—Reviewable decisions 538
617‑1..................... Reviewable decisions...................................................... 538
617‑5..................... Deadlines for making reviewable decisions.................... 543
617‑10................... Notice of reviewable decision and review rights............. 543
Division 620—Internal review of reviewable decisions 545
620‑1..................... Registrar may reconsider reviewable decisions on own initiative 545
620‑5..................... Reconsideration of reviewable decisions........................ 545
Division 623—AAT review of reviewable decisions 547
623‑1..................... AAT review of reviewable decisions.............................. 547
Part 15‑5—Fees 548
Division 628—Fees 548
628‑1..................... Fees................................................................................ 548
628‑5..................... Lodgment of document without payment of fee.............. 548
628‑10................... Doing act without payment of fee................................... 548
628‑15................... Effect of sections 628‑5 and 628‑10............................... 549
628‑20................... Debt due to the Commonwealth...................................... 549
628‑25................... Payment of fee does not give right to inspect or search.. 549
Part 15‑6—Regulations 550
Division 633—Regulations 550
633‑1..................... General regulation making power................................... 550
633‑5..................... Regulations concerning registered native title bodies corporate 550
Part 15‑7—Approved forms 553
Division 638—Approved forms 553
638‑1..................... Registrar may approve forms.......................................... 553
Chapter 16—Registrar and Deputy Registrars of Aboriginal and Torres Strait Islander Corporations 555
Part 16‑1—Introduction 555
Division 648—Introduction 555
648‑1..................... What this Chapter is about.............................................. 555
Part 16‑2—Appointment of the Registrar and Deputy Registrars 556
Division 653—Appointment of Registrar and Deputy Registrars 556
653‑1..................... Registrar of Aboriginal and Torres Strait Islander Corporations 556
653‑5..................... Deputy Registrars of Aboriginal and Torres Strait Islander Corporations 556
Part 16‑3—Registrar’s functions and powers 557
Division 658—Registrar’s functions and powers 557
658‑1..................... Functions of the Registrar............................................... 557
658‑5..................... Aims of the Registrar...................................................... 558
658‑10................... Powers of the Registrar.................................................. 559
658‑15................... Registrar to have a seal................................................... 559
658‑20................... Judicial notice of certain matters..................................... 559
Part 16‑4—Matters concerning the Registrar’s and Deputy Registrars’ appointments 560
Division 663—Matters concerning the Registrar’s and Deputy Registrars’ appointments 560
663‑1..................... Registrar’s remuneration................................................. 560
663‑5..................... Resignation..................................................................... 560
663‑10................... Termination of Registrar’s appointment.......................... 560
663‑15................... Termination of Deputy Registrar’s appointment............. 561
663‑20................... Disclosure of interests.................................................... 561
663‑25................... Acting appointments....................................................... 561
663‑30................... Leave of absence............................................................. 562
663‑35................... Outside employment....................................................... 562
Part 16‑5—Delegation 563
Division 668—Delegation 563
668‑1..................... Delegation by Registrar.................................................. 563
668‑5..................... Sub‑delegation by Deputy Registrar............................... 563
Part 16‑6—Staffing 565
Division 673—Staffing 565
673‑1..................... Staff assisting the Registrar and Deputy Registrar.......... 565
673‑5..................... Engagement of consultants etc. by the Registrar............. 565
Chapter 17—Interpreting this Act 566
Part 17‑1—Meaning of some important concepts 566
Division 683—Directors and officers of Aboriginal and Torres Strait Islander corporations 566
683‑1..................... Meaning of director and officer...................................... 566
Division 686—Associates 569
686‑1..................... Effect of Division........................................................... 569
686‑5..................... Associates of bodies corporate....................................... 569
686‑10................... General........................................................................... 569
686‑15................... Exclusions...................................................................... 570
Division 689—Subsidiaries and control 571
689‑1..................... What is a subsidiary........................................................ 571
689‑5..................... Control of a body corporate’s board............................... 571
689‑10................... Matters to be disregarded................................................ 572
689‑15................... References in this Division to a subsidiary..................... 573
689‑20................... Related bodies corporate................................................. 573
689‑25................... Control............................................................................ 573
Part 17‑2—Interpretation of other expressions 575
Division 694—Interpretation of other expressions 575
694‑1..................... Giving information......................................................... 575
694‑5..................... Doing acts....................................................................... 575
694‑10................... Signing........................................................................... 575
694‑15................... Business affairs of a body corporate............................... 575
694‑20................... Business affairs of a natural person................................ 575
694‑25................... Business affairs of a partnership..................................... 576
694‑30................... Business affairs of a trust............................................... 577
694‑35................... Meaning of court and Court............................................ 577
694‑40................... Entities............................................................................ 578
694‑45................... Entities connected with a corporation (including an Aboriginal and Torres Strait Islander corporation) 578
694‑50................... Extension of period for doing an act............................... 580
694‑55................... Involvement in contraventions........................................ 580
694‑60................... Possession...................................................................... 581
694‑65................... Public document of a body corporate.............................. 581
694‑70................... Receivers and managers.................................................. 582
694‑75................... Securities........................................................................ 582
694‑80................... Solvency and insolvency................................................ 583
694‑85................... Meaning of chief executive officer function..................... 583
694‑90................... Applications to be in writing........................................... 584
694‑95................... Effect of certain contraventions of this Act..................... 584
694‑100................. Effect of provisions empowering a person to require or prohibit conduct 585
694‑105................. Calculation of time.......................................................... 585
694‑110................. Performance of functions by Registrar or Deputy Registrar includes reference to delegate etc. 585
694‑115................. Certain family relationships............................................ 586
694‑120................. Commonwealth Registrar............................................... 586
Part 17‑3—Dictionary 588
Division 700—Dictionary 588
700‑1..................... Dictionary....................................................................... 588
Endnotes 613
Endnote 1—About the endnotes 613
Endnote 2—Abbreviation key 615
Endnote 3—Legislation history 616
Endnote 4—Amendment history 620
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 2006.
1‑5 Commencement
This Act commences on 1 July 2007.
1‑10 Act binds Crown
(1) This Act (except Part 5.8 of the Corporations Act as applied by sections 516‑1, 521‑1, 526‑35 and 526‑40) binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(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 Transfer of registration, deregistration and unclaimed property
Chapter 12 deals with:
(a) the transfer of an Aboriginal and Torres Strait Islander corporation’s registration to another Commonwealth, State or Territory system; and
(b) the deregistration of an Aboriginal and Torres Strait Islander corporation; and
(c) unclaimed property of an Aboriginal and Torres Strait Islander corporation that has been deregistered.
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
This Chapter provides for Aboriginal and Torres Strait Islander corporations and their registration.
In particular, it deals with:
• what an Aboriginal and Torres Strait Islander corporation is (see section 16‑5); and
• the application for registration (see Part 2‑2); and
• decisions on applications (see Part 2‑3); and
• registration of small, medium and large corporations (see Part 2‑4); and
• the effects of registration (see Part 2‑5).
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—Application for new 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;
(d) the person’s address;
(e) the person’s date and place of birth (if known);
(ea) the person’s director identification number, or the fact that the person does not have a director identification number;
(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).
Division 22—Application to register existing body corporate under Part 2‑3
22‑1 Application for registration
(1) A person (the applicant) may apply to the Registrar for registration of an existing body corporate as an Aboriginal and Torres Strait Islander corporation under Part 2‑3.
(2) The application must contain the following information:
(a) the applicant’s name and address;
(b) the body’s current name;
(c) the body’s ACN (if any);
(d) if the body is a registered body (within the meaning of the Corporations Act)—its ARBN;
(e) the law under which the body is currently incorporated;
(f) the name proposed to be adopted by the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3;
(g) 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;
(h) an indication of whether, for its first financial year, the body is expected to be a small, medium or large corporation;
(i) if the body is expected to be a large corporation for its first financial year—the address of the proposed registered office;
(j) if the body is expected to be a small or medium corporation for its first financial year—the address of the proposed document access address;
(k) the director details of each person who consents in writing to become a director of the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3;
(l) if the body is expected to be a small or medium corporation for its first financial year—the name and address of the person who consents in writing to be the contact person;
(m) if the body is expected to be a large corporation for its first financial year—the name and address of the person who consents in writing to be the secretary when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3;
(n) whether, once the body becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3, the people who are, or have been, its members are to be liable to contribute towards the payment of its debts and liabilities and, if so, the extent of their liabilities;
(o) such other information that the Registrar specifies in writing in respect of the registration of the body as an Aboriginal and Torres Strait Islander corporation under Part 2‑3;
(p) 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).
(3) 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 the body as an Aboriginal and Torres Strait Islander corporation for the purpose of becoming a registered native title body corporate—indicate that purpose.
Director details
(4) 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) the person’s address;
(d) the person’s date and place of birth (if known);
(da) the person’s director identification number, or the fact that the person does not have a director identification number;
(e) 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.
(5) A specification by the Registrar under paragraph (2)(o) is not a legislative instrument.
(6) In this section:
ACN has the same meaning as in the Corporations Act.
ARBN has the same meaning as in the Corporations Act.
22‑5 Matters to accompany application
(1) The following must accompany an application under section 22‑1:
(a) evidence of the resolution referred to in section 29‑17;
(b) copies of the consents referred to in subsection 22‑1(2);
(c) a certified copy of a current certificate of the body’s incorporation in its place of origin, or of a document that has a similar effect;
(d) a certified printed copy of the body’s constitution (if any);
(e) evidence that the body is not a Chapter 5 body corporate;
(f) evidence that no application to wind up the body has been made to a court (in Australia or elsewhere) that has not been dealt with;
(g) evidence that no application to approve a compromise or arrangement between the body and another person has been made to a court (in Australia or elsewhere) that has not been dealt with;
(h) evidence that under the law of the body’s place of origin:
(i) the transfer of the body’s incorporation is authorised; and
(ii) the body has complied with the requirements (if any) of that law for the transfer of its incorporation;
(i) any other documents that are prescribed.
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.
(2) The evidence lodged in accordance with subsections (1) must be satisfactory proof to the Registrar of the matters referred to in that subsection.
Note: Section 376‑5 requires documents that are not in English to be translated into English.
22‑10 Registrar may seek further information
(1) For the purposes of determining an application made under section 22‑1, 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).
Division 23—Application to register amalgamated corporation under Part 2‑3
23‑1 Application for registration
(1) A person (the applicant) may apply to the Registrar for registration of an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) under Part 2‑3 to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations).
(2) The application must contain the following information:
(a) the applicant’s name and address;
(b) the names, and ICNs, of the amalgamating corporations;
(c) the name proposed to be adopted by the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3;
(d) if the applicant is requesting an exemption for the amalgamated corporation from having to have at least 5 members—a request for the exemption specifying the proposed minimum number of members;
(e) an indication of whether, for its first financial year, the amalgamated corporation is expected to be a small, medium or large corporation;
(f) if the amalgamated corporation is expected to be a large corporation for its first financial year—the address of the proposed registered office;
(g) if the amalgamated corporation is expected to be a small or medium corporation for its first financial year—the address of the proposed document access address;
(h) the director details of each person who consents in writing to become a director of the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3;
(i) if the amalgamated corporation is expected to be a small or medium corporation for its first financial year—the name and address of the person who consents in writing to be the contact person;
(j) if the amalgamated corporation is expected to be a large corporation for its first financial year—the name and address of the person who consents in writing to be the secretary when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3;
(k) whether, once the amalgamated corporation becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3, the people who are, or have been, its members are to be liable to contribute towards the payment of its debts and liabilities and, if so, the extent of their liabilities;
(l) such other information that the Registrar specifies in writing in respect of the registration of the amalgamated corporation as an Aboriginal and Torres Strait Islander corporation under Part 2‑3;
(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).
(3) The application must also:
(a) identify the directors of the amalgamated corporation who are to hold office for only one year; and
(b) if the application seeks registration of the amalgamated corporation for the purpose of becoming a registered native title body corporate—indicate that purpose.
Director details
(4) 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) the person’s address;
(d) the person’s date and place of birth (if known);
(da) the person’s director identification number, or the fact that the person does not have a director identification number;
(e) 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.
(5) A specification by the Registrar under paragraph (1)(l) is not a legislative instrument.
23‑5 Matters to accompany application
(1) The following must accompany an application under section 23‑1:
(a) evidence that, on registration, the amalgamated corporation will meet the creditor notice requirements referred to in section 29‑18;
(b) evidence of the resolutions referred to in section 29‑19;
(c) copies of the consents referred to in subsection 23‑1(2);
(d) evidence that none of the amalgamating corporations is a Chapter 5 body corporate;
(e) evidence that no application to wind up an amalgamating corporation has been made to a court (in Australia or elsewhere) that has not been dealt with;
(f) evidence that no application to approve a compromise or arrangement between an amalgamating corporation and another person has been made to a court (in Australia or elsewhere) that has not been dealt with;
(g) any other documents that are prescribed.
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.
(2) The evidence lodged in accordance with subsections (1) must be satisfactory proof to the Registrar of the matters referred to in that subsection.
Note: Section 376‑5 requires documents that are not in English to be translated into English.
23‑10 Registrar may seek further information
(1) For the purposes of determining an application under section 23‑1, 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 under section 21‑1, 22‑1 or 23‑1 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, 22‑1 or 23‑1 has been lodged for registration of the corporation (but see section 26‑5); and
(b) if the application is made under section 21‑1—the application is accompanied by the matters set out in section 21‑5 (but see section 26‑5); and
(ba) if the application is made under section 22‑1—the application is accompanied by the matters set out in section 22‑5 (but see section 26‑5); and
(bb) if the application is made under section 23‑1—the application is accompanied by the matters set out in section 23‑5 (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) if the application is made under section 21‑1—the pre‑incorporation requirement (see section 29‑15);
(iva) if the application is made under section 22‑1—the pre‑transfer of registration requirement (see section 29‑17);
(ivb) if the application is made under section 23‑1—the creditor notice requirements (see section 29‑18) and the pre‑amalgamation requirements (see section 29‑19);
(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.
Special rules for amalgamation application under section 23‑1
(3) Subsections (4) and (5) apply in deciding whether to grant an application under section 23‑1 to register an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations).
(4) The Registrar must not grant the application if an objection to the grant of the application has been made under subsection 29‑18(3) and the objection has not been withdrawn.
(5) In addition to the matters referred to in subsection (2), the Registrar may have regard to the following matters in deciding whether to grant the application:
(a) the size and complexity of the operations of the amalgamating corporations;
(b) whether there are any unresolved disputes:
(i) internal to the operation of any of the amalgamating corporations; or
(ii) between any of the amalgamating corporations and other persons; or
(iii) about whether the amalgamated corporation should replace the amalgamating corporations;
(c) the extent to which the amalgamating corporations, and the officers of the amalgamating corporations, have complied with this Act and the regulations;
(d) the nature of any services provided by the amalgamating corporations and the people to whom those services are provided;
(e) the capacity of the amalgamating corporations, and their officers, to make an application to the Court for orders under Part 5.1 of the Corporations Act (as applied by Division 45 of this Act);
(f) whether it would be desirable for a court to supervise the process of the amalgamated corporation replacing the amalgamating corporations;
(g) whether the amalgamating corporations have different member liability arrangements;
(h) any other matter the Registrar considers relevant.
Note: If the Registrar decides not to grant the application, the amalgamation may be able to be achieved by applying to the Court for orders under Part 5.1 of the Corporations Act (as applied by section 45‑1 of this Act).
26‑5 Registrar may grant application if application is incomplete etc.
Despite paragraphs 26‑1(2)(a), (b), (ba) and (bb), 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, section 22‑5 or 23‑5 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; or
(d) the pre‑transfer of registration requirement; or
(e) the creditor notice requirements; or
(f) the pre‑amalgamation requirements.
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 who is an individual 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.
29‑17 Pre‑transfer of registration requirement
(1) A body corporate in relation to which an application is made under section 22‑1 meets the pre‑transfer of registration requirement if:
(a) the members have by a resolution that has been passed at a meeting by at least 75% of the votes cast by members entitled to vote on the resolution:
(i) authorised the applicant to apply for the registration of the body as an Aboriginal and Torres Strait Islander corporation; and
(ii) approved the proposed constitution provided to the Registrar under subsection 29‑20(2) as the constitution to be adopted by the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3; and
(iii) if the internal governance rules that would apply to the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3 will include one or more replaceable rules—agreed to those replaceable rules so applying; and
(iv) nominated, as persons who will become directors of the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3, the persons specified in the application as persons who will become directors on registration; and
(v) if the application indicates that the body is expected to be a small or medium corporation in respect of its first financial year—nominated, as a person who will become the contact person when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3, the person specified in the application as a person who will become the contact person on registration; and
(vi) if the application indicates that the body is expected to be a large corporation in respect of its first financial year—nominated, as a person who will become the secretary when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3, the person specified in the application as a person who will become the secretary on registration; and
(b) the members were given at least 21 days notice of the meeting and the proposed resolution.
(2) The document evidencing the agreement under subparagraph (1)(a)(iii) must:
(a) refer by section or subsection number (as appropriate) to the replaceable rules that will apply without modification to the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3; and
(b) set out the terms of the replaceable rules (if any) that are being modified or replaced by the proposed constitution.
29‑18 Creditor notice requirement
(1) If an application is made under section 23‑1 to register an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations), the amalgamated corporation meets the creditor notice requirement if:
(a) the applicant has given the Registrar a notice of intention to make the application; and
(b) the applicant has, within 14 days after giving the Registrar the notice, published the following in accordance with subsection (2):
(i) a copy of the notice;
(ii) a statement informing substantial creditors of the amalgamating corporations that those creditors may, within the objection period, object under subsection (3) to the grant of the application;
(iii) such other information as is prescribed by the regulations for the purposes of this subparagraph; and
(c) each of the amalgamating corporations has, during the objection period, taken reasonable steps to bring the following to the attention of persons who are, or who are likely to or who may become, substantial creditors of the corporation:
(i) the proposed amalgamation;
(ii) the right that substantial creditors of the corporation have under subsection (3) to object to the grant of the application made under section 23‑1; and
(d) the application under section 23‑1 is made within 14 days after the end of the objection period.
Note 1: For substantial creditor, see paragraph (5)(a).
Note 2: For objection period, see paragraph (5)(b).
(2) The material referred to in paragraph (1)(b) must be published:
(a) in a national newspaper; or
(b) for each State or Territory in which any of the amalgamating corporations has its registered office (if any) or carries on business or other operations—in a daily newspaper that circulates generally in that State or Territory.
If the material is published in a number of newspapers under paragraph (b), all of the publications must occur on the same day.
(3) A substantial creditor of any of the amalgamating corporations may object to the grant of the application by:
(a) lodging with the Registrar a written objection that contains the information prescribed by the regulations for the purposes of this paragraph; and
(b) giving the applicant a copy of the objection;
within the objection period.
(4) A substantial creditor of an amalgamating corporation who has lodged an objection under subsection (3) may, by written notice to the Registrar, withdraw the objection.
(5) For the purposes of this section:
(a) a person is a substantial creditor of an amalgamating corporation if:
(i) the amalgamating corporation owes a debt, or debts, to the person; and
(ii) the amount of that debt, or the sum of the amounts of those debts, that is unsecured exceeds the amount prescribed by the regulations for the purposes of this subsection; and
(b) the objection period is the period of 21 days after the day on which the material referred to in paragraph (1)(b) is published in accordance with subsection (2); and
(c) an amalgamating corporation is taken to owe a debt to a person even if the debt is contingent or prospective.
29‑19 Pre‑amalgamation requirements
(1) If an application is made under section 23‑1 to register an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations), the amalgamated corporation meets the pre‑amalgamation requirements if the members of each of the amalgamating corporations have passed a special resolution:
(a) authorising the applicant to apply for the registration of the amalgamated corporation to replace the amalgamating corporations; and
(b) approving the proposed constitution provided to the Registrar under subsection 29‑20(2) as the constitution to be the amalgamated corporation’s constitution when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3; and
(c) if the internal governance rules that would apply to the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3 will include one or more replaceable rules—agreeing to those replaceable rules so applying; and
(d) nominating, as persons who will become directors of the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3, the persons specified in the application as persons who will become directors on registration; and
(e) if the application indicates that the amalgamated corporation is expected to be a small or medium corporation in respect of its first financial year—nominating, as a person who will become a contact person of the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3, the person specified in the application as a person who will become the contact person on registration; and
(f) if the application indicates that the amalgamated corporation is expected to be a large corporation in respect of its first financial year—nominating, as a person who will become the amalgamated corporation’s secretary when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3, the person specified in the application as a person who will become the 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 amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3; 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 under section 21‑1, 22‑1 or 23‑1 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) Subject to subsection (3), 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);
(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);
(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).
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 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 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 of employees prescribed for the purposes of this paragraph.
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
If an Aboriginal and Torres Strait Islander corporation is registered under Part 2‑3 as a result of an application made under section 21‑1, the 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).
42‑3 Effect of registration of existing body corporate under Part 2‑3
If a body corporate is registered under Part 2‑3 as an Aboriginal and Torres Strait Islander corporation as a result of an application made under section 22‑1, registration under Part 2‑3 does not:
(a) create a new legal entity; or
(b) affect the body’s existing property, rights or obligations (except as against the members of the body in their capacity as members); or
(c) render defective any legal proceedings by or against the body or its members.
Note: The Aboriginal and Torres Strait Islander corporation remains in existence until it is deregistered (see Chapter 12).
42‑4 Effect of registration of amalgamated corporation under Part 2‑3
(1) This section applies if an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) is registered under Part 2‑3 as a result of an application made under section 23‑1 to register the amalgamated corporation to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations).
(2) The amalgamated corporation comes into existence as a body corporate with perpetual succession at the beginning of the day on which it is registered.
Note: The amalgamated corporation remains in existence until it is deregistered (see Chapter 12).
(3) On registration:
(a) the assets of each of the amalgamating corporations cease to be assets of the amalgamating corporation and become assets of the amalgamated corporation without any conveyance, transfer or assignment and the amalgamated corporation becomes the amalgamating corporation’s successor in law in relation to those assets; and
(b) the liabilities of each of the amalgamating corporations cease to be liabilities of the amalgamating corporations and become liabilities of the amalgamated corporation and the amalgamated corporation becomes the amalgamating corporation’s successor in law in relation to those liabilities; and
(c) if any proceedings to which an amalgamating corporation was a party were pending in any court or tribunal immediately before registration—the amalgamated corporation is substituted for the amalgamating corporation as a party to the proceedings; and
(d) any investigation that was commenced before registration in relation to an amalgamating corporation may be continued after registration as if the investigation were an investigation in relation to the amalgamated corporation; and
(e) an act or thing done, or omitted to be done, before registration by or in relation to an amalgamating corporation is taken to have been done, or to have been omitted to be done, by or in relation to the amalgamated corporation; and
(f) a reference in any document to an amalgamating corporation is taken to be a reference to the amalgamated corporation.
Note 1: The Registrar deregisters the amalgamating corporations under subsection 546‑10(3).
Note 2: Paragraph (3)(e) has the effect, for example, that any regulatory action taken in relation to an amalgamating corporation under Part 10‑3 may be continued as if that action had been taken in relation to the amalgamated corporation.
(4) Paragraph (3)(e) does not apply to a determination under section 487‑1 that an amalgamating corporation is to be under special administration.
(5) To avoid doubt, if an asset of an amalgamating corporation was, immediately before registration, subject to a charge of any kind, the asset becomes the asset of the amalgamated corporation under subsection (3) subject to that charge.
(6) Subsection (7) applies if:
(a) any land vests in the amalgamated corporation under this section; and
(b) there is lodged with a land registration official a certificate that:
(i) is signed by the Registrar; and
(ii) identifies the land, whether by reference to a map or otherwise; and
(iii) states that the land has become vested in the amalgamated corporation under this section.
(7) The land registration official may:
(a) register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and
(b) deal with, and give effect to, the certificate.
(8) Subsection (9) applies if:
(a) any asset other than land vests in the amalgamated corporation under this section; and
(b) there is lodged with an assets official a certificate that:
(i) is signed by the Registrar; and
(ii) identifies the asset; and
(iii) states that the asset has become vested in the amalgamated corporation under this section.
(9) The assets official may:
(a) deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and
(b) make such entries in the register as are necessary having regard to the effect of this section.
(10) No stamp duty or other tax is payable under a law of a State or a Territory in respect of an exempt matter, or anything connected with an exempt matter.
(11) The Registrar may certify in writing:
(a) that a specified matter is an exempt matter; or
(b) that a specified thing was connected with a specified exempt matter.
(12) In all courts, and for all purposes (other than for the purposes of criminal proceedings), a certificate under subsection (11) is prima facie evidence of the matters stated in the certificate.
(13) For the purposes of this section, an exempt matter is:
(a) the vesting of an asset or liability under this section; or
(b) the operation of this section in any other respect.
(14) In this section:
asset means:
(a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and
(b) any right, power, privilege or immunity, whether actual, contingent or prospective.
assets official, in relation to an asset other than land, means the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned.
land means any legal or equitable estate or interest in real property, whether actual, contingent or prospective.
land registration official, in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.
liability means any liability, duty or obligation, whether actual, contingent or prospective.
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 on registration
(1) A person becomes a member of an Aboriginal and Torres Strait Islander corporation on registration of the corporation if:
(a) the corporation was registered as a result of an application made under section 21‑1 and the person is specified in the application with the person’s consent as a proposed member of the corporation; or
(b) the corporation was registered as a result of an application made under section 22‑1 for registration of a body corporate as an Aboriginal and Torres Strait Islander corporation under Part 2‑3 and the person is a member of the body corporate immediately before registration of the corporation; or
(c) the corporation was registered as a result of an application made under section 23‑1 to register an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) under Part 2‑3 to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations) and the person is a member of any of the amalgamating corporations immediately before the registration of the amalgamated corporation.
Note: A member’s name must be entered in the register of members (see section 180‑5).
Persons become directors etc. on registration
(1A) A person becomes a director, corporation secretary or contact person of an Aboriginal and Torres Strait Islander corporation on registration of the corporation if the person is specified in the application under section 21‑1, 22‑1 or 23‑1 with his or her consent as a proposed director, corporation secretary or contact person of the corporation.
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.
42‑35 Body corporate registered as Aboriginal and Torres Strait Islander corporation (liability of members on winding up)
(1) This section applies if:
(a) a body corporate is registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3 as a result of an application made under section 22‑1; and
(b) a person stopped being a member of a body corporate before it was registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3.
(2) The person is to be treated as a past member of the Aboriginal and Torres Strait Islander corporation in applying Division 2 of Part 5.6 of the Corporations Act (as applied by section 526‑35 of this Act) to a winding up of the Aboriginal and Torres Strait Islander corporation.
(3) However, the person’s liability to contribute to the Aboriginal and Torres Strait Islander corporation’s property is further limited by this section to an amount sufficient for the following:
(a) payment of debts and liabilities contracted by the body corporate before the day on which it was registered as an Aboriginal and Torres Strait Islander corporation under Part 2‑3;
(b) payment of the costs, charges and expenses of winding up the Aboriginal and Torres Strait Islander corporation, so far as those costs, charges and expenses relate to those debts and liabilities;
(c) the adjustment of the rights between the contributories, so far as the adjustment relates to those debts and liabilities.
42‑40 Body corporate registered as Aboriginal and Torres Strait Islander corporation (modification by regulations)
(1) The regulations may modify the operation of this Part in relation to an Aboriginal and Torres Strait Islander corporation registered under Part 2‑3 as a result of an application made under section 22‑1.
(2) Regulations made for the purposes of subsection (1) 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.
42‑45 Registration of amalgamated corporation (liability of members on winding up)
(1) This section applies if:
(a) an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation) is registered under Part 2‑3 as a result of an application made under section 23‑1 to register the amalgamated corporation to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations); and
(b) a person stopped being a member of an amalgamating corporation before the registration of the amalgamated corporation.
(2) The person is to be treated as a past member of the amalgamated corporation in applying Division 2 of Part 5.6 of the Corporations Act (as applied by section 526‑35 of this Act) to a winding up of the amalgamated corporation.
(3) However, the person’s liability to contribute to the amalgamated corporation’s property is further limited by this section to an amount sufficient for the following:
(a) payment of debts and liabilities contracted by the amalgamating corporation before the registration of the amalgamated corporation;
(b) payment of the costs, charges and expenses of winding up the amalgamated corporation, so far as those costs, charges and expenses relate to those debts and liabilities;
(c) the adjustment of the rights between the contributories, so far as the adjustment relates to those debts and liabilities.
42‑50 Registration of amalgamated corporation (modification by regulations)
(1) The regulations may modify the operation of this Part in relation to an Aboriginal and Torres Strait Islander corporation registered under Part 2‑3 as a result of an application made under section 23‑1.
(2) Regulations made for the purposes of subsection (1) 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.
Part 2‑6—Arrangements and reconstructions
Division 45—Application of Corporations Act arrangements and reconstructions provisions
45‑1 Applying Corporations Act arrangements and reconstructions provisions to Aboriginal and Torres Strait Islander corporations
(1) The Corporations Act arrangements and reconstructions provisions apply to an Aboriginal and Torres Strait Islander corporation as if the following substitutions were made:
| Substitutions to be made |
| Item | For a reference to ... | substitute a reference to ... |
| 1 | a Part 5.1 body | an Aboriginal and Torres Strait Islander corporation |
| 2 | a body | an Aboriginal and Torres Strait Islander corporation |
| 3 | a company | an Aboriginal and Torres Strait Islander corporation |
| 4 | ASIC | the Registrar |
| 5 | registered office | registered office or document access address |
Note: If a number of Aboriginal and Torres Strait Islander corporations wish to amalgamate, it may be possible, in some circumstances, for them to proceed with the amalgamation by means of an application to the Registrar under Division 23 (as an alternative to applying to a court for an order under the applied Corporations Act arrangements and reconstructions provisions).
(2) The Corporations Act arrangements and reconstructions provisions apply to an Aboriginal and Torres Strait Islander corporation:
(a) only to the extent to which they are capable of applying to an Aboriginal and Torres Strait Islander corporation; and
(b) with the modifications specified in the regulations.
(3) Regulations made for the purposes of paragraph (2)(b) 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 arrangements and reconstructions provisions means:
(a) Part 5.1 of the Corporations Act (other than paragraph 411(17)(a), subsection 412(3) and (5) and section 414); and
(b) section 425, subsections 427(2) and (4), sections 428, 432 and 434 of, and Subdivision B of Division 90 of Schedule 2 to, that Act to the extent to which they are applied by subsection 411(9) of that Act; and
(c) the other provisions of that Act (including Parts 1.2, 5.8, 5.9 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 5.1 of that Act and the provisions referred to in paragraph (b) of this definition; and
(d) the regulations and rules made under that Act for the purposes of Part 5.1 of that Act and the provisions referred to in paragraphs (b) and (c) of this definition.
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
This Chapter deals with the internal governance rules, the minimum number of members requirement, names and the powers of an Aboriginal and Torres Strait Islander corporation. It also deals with other basic matters affecting an Aboriginal and Torres Strait Islander corporation.
Part 3‑2—Rules dealing with the internal governance of corporations
Division 57—Introduction
57‑1 What this Part is about
The rules dealing with the internal governance of an Aboriginal and Torres Strait Islander corporation are of 4 kinds:
(a) common law rules; and
(b) rules in this Act that cannot be replaced by the corporation’s constitution; and
(c) replaceable rules in this Act that may be modified or replaced by the corporation’s constitution; and
(d) rules that are in the corporation’s constitution.
Some of the rules in paragraph (d):
(a) may be required by this Act to be in the constitution; or
(b) may be there to modify or replace a replaceable rule; or
(c) may be there as a special rule applying to that particular corporation.
This Part deals with the rules in paragraphs (c) and (d) and refers to them as internal governance rules of the corporation (see section 63‑1).
The corporation may choose to adopt all or some of the replaceable rules as rules of its internal governance.
The corporation’s internal governance rules must comply with the internal governance rules requirements (see Division 66).
There are a number of ways the corporation’s constitution may be changed. Any changes must comply with the internal governance rules requirements (see Division 69).
Division 72 deals with other matters concerning constitutions.
57‑5 List of internal governance rules
The following table sets out the main provisions of this Act that deal with the internal governance of Aboriginal and Torres Strait Islander corporations. The table indicates those rules that operate as replaceable rules and Division 60 tells you how replaceable rules operate.
| Item | Subject of provision | Provision |
|
1A
| Chapter 3—Basic features of an Aboriginal and Torres Strait Islander corporation
Resolution of internal disputes |
subsection 66‑1(3A)
|
| 1B | Resolution of disputes with persons who are or who claim to be common law holders | subsection 66‑1(3B) |
|
1C
| Chapter 4—Members and observers Eligibility requirements for membership of registered native title body corporate | section 141‑25 |
| 1 | How does a person become a member? | section 144‑1 |
| 2 | Application to corporation | section 144‑5 subsection (2) is a replaceable rule |
| 3 | Determination of applications for membership | section 144‑10 subsection (7) is a replaceable rule |
| 4 | Fees for membership and being an observer | section 144‑15 |
| 5 | Obligation to contribute on winding up | section 147‑1 |
| 6 | Corporation may impose other membership obligations | section 147‑5 |
| 7 | Liability of corporation members | section 147‑10 |
| 8 | Cessation of membership | section 150‑1 |
| 10 | Resignation | section 150‑10 subsection (2) is a replaceable rule |
| 11 | General | section 150‑15 |
| 12 | Member of corporation that is not a registered native title body corporate not eligible for membership etc. | section 150‑20 this section is a replaceable rule |
| 12A | Member of registered native title body corporate not eligible for membership etc. | section 150‑22 |
| 13 | Member not contactable | section 150‑25 |
| 14 | Member is not an Aboriginal and Torres Strait Islander person | section 150‑30 |
| 15 | Member misbehaves | section 150‑35 |
| 16 | Different classes of members | section 153‑1 |
| 17 | Observers | section 158‑5 subsection (2) is a replaceable rule |
| 18 | What protections apply to variations or cancellations of class rights? | Division 172 |
| 19 | Corporation or directors may allow member to inspect books | section 175‑15 this section is a replaceable rule |
|
20
| Chapter 5—Meetings Director may call meetings |
section 201‑1
this section is a replaceable rule |
| 21 | Request by members for directors to call general meetings | section 201‑5 |
| 22 | When must directors comply with members’ request? | section 201‑10 |
| 23 | When must a requested meeting be held? | section 201‑15 |
| 24 | Amount of notice for general meeting | section 201‑20 |
| 25 | Notice of general meeting to members, officers and observers | section 201‑25 subsections (2), (5) and (6) are replaceable rules |
| 26 | Auditor entitled to notice and other communications | section 201‑30 |
| 27 | Contents of notice of general meeting | section 201‑35 |
| 28 | Members’ resolutions | section 201‑40 |
| 29 | Notice of members’ resolutions | section 201‑45 |
| 30 | Members’ statements to be distributed | section 201‑50 |
| 31 | Purpose | section 201‑55 |
| 32 | Time and place for general meeting | section 201‑60 |
| 33 | Technology | section 201‑65 |
| 34 | Quorum | section 201‑70 subsections (1), (2), (5) and (6) are replaceable rules |
| 35 | Chairing general meeting | section 201‑75 this section is a replaceable rule |
| 36 | Auditor’s right to be heard at general meetings | section 201‑80 |
| 37 | Adjourned meetings | section 201‑85 subsection (2) is a replaceable rule |
| 38 | Who may appoint a proxy | section 201‑90 this section is a replaceable rule |
| 39 | Rights of proxies | section 201‑95 |
| 40 | Appointing a proxy | section 201‑100 |
| 41 | Proxy documents | section 201‑105 |
| 42 | Body corporate representative | section 201‑110 |
| 43 | How many votes a member has | section 201‑115 this section is a replaceable rule |
| 44 | Objections to right to vote | section 201‑120 this section is a replaceable rule |
| 45 | How voting is carried out | section 201‑125 this section is a replaceable rule |
| 46 | Matters on which a poll may be demanded | section 201‑130 |
| 47 | When a poll is effectively demanded | section 201‑135 |
| 48 | When and how polls must be taken | section 201‑140 this section is a replaceable rule |
| 49 | Corporation must hold first general meeting within 3 months of registration | section 201‑145 |
| 50 | Corporation must hold AGM | section 201‑150 |
| 51 | Extension of time for holding AGM | section 201‑155 |
| 52 | Business of AGM | section 201‑160 |
| 53 | Questions and comments by members on corporation management at AGM | section 201‑165 |
| 54 | Questions by members of auditors at AGM | section 201‑170 |
| 55 | Circulating resolutions | section 204‑1 |
| 56 | Resolutions of 1 member corporations | section 204‑5 |
| 57 | Constitution to provide for meetings | section 212‑1 |
| 58 | Calling directors’ meetings | section 212‑5 this section is a replaceable rule |
| 59 | Use of technology | section 212‑10 |
| 60 | Chairing directors’ meetings | section 212‑15 this section is a replaceable rule |
| 61 | Quorum at directors’ meetings | section 212‑20 |
| 62 | Passing of directors’ resolutions | section 212‑25 this section is a replaceable rule |
| 63 | Circulating resolutions of corporation with more than 1 director | section 215‑1 this section is a replaceable rule |
| 64 | Resolutions and declarations of 1 director corporation | section 215‑5 |
| 65 | Minutes | section 220‑5 |
| 66 | Members’ access to minutes | section 220‑10 |
|
67
| Chapter 6—Officers Minimum number of directors |
section 243‑1
|
| 68 | Maximum number of directors | section 243‑5 |
| 69 | Eligibility for appointment as a director | section 246‑1 |
| 70 | Majority of director requirements | section 246‑5 |
| 71 | Consent to act as director | section 246‑10 |
| 72 | Corporation may appoint a director | section 246‑15 this section is a replaceable rule |
| 73 | Directors may appoint other directors to make up a quorum | section 246‑20 this section is a replaceable rule |
| 74 | Term of appointment | section 246‑25 subsections (1) and (3) are replaceable rules |
| 75 | Alternate directors | section 246‑30 this section is a replaceable rule |
| 76 | How does a person cease to be a director? | section 249‑1 |
| 77 | Director may resign | section 249‑5 subsection (2) is a replaceable rule |
| 78 | Removal by members | section 249‑10 |
| 79 | Removal by other directors | section 249‑15 |
| 80 | Remuneration | section 252‑1 |
| 81 | How a secretary or contact person is appointed | section 257‑20 |
| 82 | Terms and conditions of office for secretaries | section 257‑45 this section is a replaceable rule |
| 83 | Terms and conditions of contact person’s appointment | section 257‑50 this section is a replaceable rule |
| 84 | Duties in relation to disclosure of, and voting on matters involving, material personal interests | Division 268 |
| 85 | Powers of directors | section 274‑1 this section is a replaceable rule |
| 86 | Negotiable instruments | section 274‑5 this section is a replaceable rule |
| 87 | Delegation | section 274‑10 |
| 88 | Right of access to corporation books | section 274‑15 |
| 89 | Member approval needed for related party benefit | Part 6‑6 |
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.
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 rules (if any) in the corporation’s constitution providing for the resolution of disputes between the corporation and persons who are or who claim to be common law holders of native title;
(d) 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.
(3A) The corporation’s constitution must provide for the resolution of disputes internal to the operation of the corporation.
(3B) If:
(a) the application for registration of the corporation seeks registration for the purpose of becoming a registered native title body corporate; or
(b) the corporation is a registered native title body corporate;
the corporation’s constitution must provide for the resolution of disputes between the corporation and a person who is or who claims to be a common law holder of native title (whether or not the person is a member of the corporation) in relation to:
(c) whether or not the person is a common law holder of native title; or
(d) the corporation’s performance of its functions under the Native Title legislation.
(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) the application for registration of the corporation seeks registration 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 (5)); 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: A secretary of an Aboriginal and Torres Strait Islander corporation may be liable for a civil penalty for a contravention of subsection (1) or (2). See sections 265‑40 and 386‑10.
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
This Part deals with the minimum number of members that an Aboriginal and Torres Strait Islander corporation must have.
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
This Part deals with the names requirement (Division 85) and how a name is changed (Division 88).
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 held or registered on the 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 held or registered on 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: A secretary of an Aboriginal and Torres Strait Islander corporation may be liable for a civil penalty for a contravention of this section. See sections 265‑40 and 386‑10.
(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 Registrar 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
This Part deals with the legal capacity and powers of Aboriginal and Torres Strait Islander corporations.
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
This Part deals with:
(a) the registered office of an Aboriginal and Torres Strait Islander corporation that is registered as a large corporation; and
(b) the document access address of an Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation.
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: A secretary of an Aboriginal and Torres Strait Islander corporation may be liable for a civil penalty for a contravention of subsection (5), (6) or (7). See sections 265‑40 and 386‑10.
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.