Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CORPORATIONS (ABORIGINAL AND TORRES STRAIT ISLANDER)
AMENDMENT BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Indigenous Australians,
the Honourable Ken Wyatt AM MP)
TABLE OF CONTENTS
CORPORATIONS (ABORIGINAL AND TORRES STRAIT ISLANDER) AMENDMENT
BILL 2021 .................................................................................................................................. 1
PURPOSE AND OBJECTIVES ............................................................................................ 1
GENERAL OUTLINE........................................................................................................... 1
BACKGROUND ................................................................................................................... 3
FINANCIAL IMPACT STATEMENT ................................................................................. 3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS....................................... 3
NOTES ON CLAUSES ............................................................................................................. 4
Schedule 1--Amendments......................................................................................................... 5
Part 1--Review of operation of the Act ................................................................................ 5
Part 2--Powers and functions of Registrar ............................................................................ 6
Part 3--Membership applications, member contact details and electronic communication
.............................................................................................................................................. 15
Part 4--Subsidiaries and joint ventures ............................................................................... 28
Part 5--Classification of Corporations ................................................................................ 31
Part 6--Meetings and reports .............................................................................................. 33
Part 7--Constitutions ........................................................................................................... 41
Part 8--Officers of corporations .......................................................................................... 43
Part 9--Related party transactions....................................................................................... 48
Part 10--Power to exempt corporation from employee-director requirement .................... 50
Part 11--Independent directors ........................................................................................... 51
Part 12--Modernising publication requirements ................................................................. 53
Part 13--Storage of information .......................................................................................... 59
Part 14--Improving consistency with Corporations Act ..................................................... 60
Part 15--Finalising processes .............................................................................................. 63
Part 16--Dealing with unclaimed property ......................................................................... 64
Part 17--External administration and deregistration ........................................................... 66
Part 18--Minor technical amendments ............................................................................... 71
Part 19--Review of financial reports .................................................................................. 73
Part 20--Native Title Register............................................................................................. 79
STATEMENT OF COMPATIBILTIY WITH HUMAN RIGHTS..................................... 80
LIST OF ABBREVIATIONS
In this explanatory memorandum:
Act or the CATSI Act means the Corporations (Aboriginal and Torres Strait
Islander) Act 2006;
Acts Interpretation Act means the Acts Interpretation Act 1901;
ACNC Act means the Australian Charities and Not-for-profits Commission Act 2012;
AGM means annual general meeting;
ASIC means the Australian Securities and Investments Commission;
ASIC Act means the Australian Securities and Investments Commission Act 2001;
CATSI corporation means a corporation registered under the Act;
CEO means Chief Executive Officer;
CFO means Chief Financial Officer;
Corporations Act means the Corporations Act 2001;
Gazette means the Commonwealth of Australia Gazette;
Guide to Framing Commonwealth Offences means A Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers published
on the Attorney-General's Department website at www.ag.gov.au;
Native Title Act means the Native Title Act 1993;
ORIC means the Office of the Registrar of Aboriginal and Torres Strait Islander
Corporations;
PGPA Act means the Public Governance, Performance and Accountability Act 2013;
RNTBC or registered native title body corporate has the same meaning as in the
Native Title Act;
Registrar means the Registrar of Aboriginal and Torres Strait Islander Corporations;
and
Regulations or CATSI Regulations means the Corporations (Aboriginal and Torres
Strait Islander) Regulations 2017.
CORPORATIONS (ABORIGINAL AND TORRES STRAIT ISLANDER)
AMENDMENT BILL 2021
PURPOSE AND OBJECTIVES
1. The purpose of the Corporations (Aboriginal and Torres Strait Islander) Amendment
Bill 2021 is to meet the needs and expectations of Aboriginal and Torres Strait Islander
people, support the realisation of economic and community development opportunities,
and provide a tailored and effective regulatory framework for Aboriginal and Torres Strait
Islander corporations formed under the Corporations (Aboriginal and Torres Strait
Islander) Act 2006.
2. The Bill implements, either in whole or in part, a large majority of the recommendations
made by the Final Report of the CATSI Act Review released by the Australian
Government in February 2021. The CATSI Act Review builds on earlier reviews of the
Act conducted in 2016 by KPMG Australia and in 2017 by DLA Piper Australia.
3. The objectives of the Bill are to:
a. reduce the administrative burden on CATSI corporations by making it easier to
satisfy reporting and meeting obligations;
b. provide greater flexibility for CATSI corporations to enable the realisation of
economic and community development priorities;
c. ensure governance requirements are fit-for-purpose by expanding the capacity of
CATSI corporations to determine their own operational rules;
d. increase transparency of CATSI corporation operations through improved reporting
for members, common law holders and other stakeholders;
e. enhance support for CATSI corporations that are experiencing difficulties to enable
these entities return to health and, ultimately, the control of their members;
f. streamline the process of winding up defunct CATSI corporations;
g. enhance the efficacy of operations by increasing access by CATSI corporations to
modern technology, including for managing their membership bases; and
h. provide the Registrar with expanded powers to enable a graduated, proportionate
response to non-compliance.
GENERAL OUTLINE
4. The Bill amends the CATSI Act in order to:
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a. require a review of the legislation every 7 years (Part 1);
b. broaden the Registrar's investigation and compliance powers, including by
empowering the Registrar to accept enforceable undertakings (Part 2);
c. introduce provisions to make it easier for CATSI corporations to manage their
membership bases and provide members with greater privacy of their personal
information (Part 3);
d. allow greater flexibility in the design of corporate structures for CATSI corporations
(Part 4);
e. streamline the size classification criteria for CATSI corporations (Part 5);
f. amend meeting and reporting requirements to take account of unexpected
circumstances and provide greater flexibility to corporations, as well as increase
transparency to members through access to reports (Part 6);
g. provide for constitutions for CATSI corporations that are fit-for-purpose (Part 7);
h. increase the transparency of senior management arrangements, including by reporting
senior management remuneration to members and to the Registrar (Part 8);
i. simplify related party transactions to remove red tape (Part 9);
j. simplify directors' requirements, including making it easier for CATSI corporations
to appoint independent directors (Parts 10 and 11);
k. enable the Registrar to use a wider range of platforms to publish notices (Part 12);
l. update the requirements in relation to storing information (Part 13);
m. align the Act with relevant sections of the Corporations Act, including to expand
whistleblower provisions (Part 14);
n. provide certainty to corporations following an examination or compliance notice
(Part 15);
o. provide for a special account to hold unclaimed funds from deregistered corporations
to be used for the protection of Indigenous assets vested in the Registrar (Part 16);
p. improve special administration and deregistration processes, including streamlining
processes where the majority of directors of a corporation have requested the
appointment of a special administrator (Part 17); and
q. implement minor technical amendments, including simplifying the process in the
Native Title Act when a registered native title body corporate changes its name and
allowing medium corporations to have their financial statements reviewed rather than
audited (Parts 18, 19 and 20).
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BACKGROUND
5. CATSI corporations play a crucial role in delivering services and supporting economic
development in Indigenous communities, particularly in remote Australia.
6. The CATSI Act commenced on 1 July 2007 to provide Aboriginal and Torres Strait
Islander corporations with a specialist regulatory framework and thereby making it easier
for Aboriginal and Torres Strait Islander persons to form and manage corporations.
The Act mirrors many requirements of the Corporations Act, but provides the flexibility
and support needed to meet the unique cultural contexts of Aboriginal and Torres Strait
Islander people.
7. After 13 years of operation, the Australian Government completed a comprehensive
review of the CATSI Act that considered, among other things, whether there was an
ongoing need for the CATSI Act as a special measure under the Racial Discrimination
Act 1975. The review found the special incorporation needs of Aboriginal and Torres
Strait Islander people, as identified in the 2002 review of the Aboriginal Councils and
Associations Act 1975, continue to exist in some form. The review further noted the
CATSI Act is vital to self-determination but, in its current form, is not fully meeting the
needs and expectations of Aboriginal and Torres Strait Islander people.
8. As a package, the proposed amendments to the Act will reduce the regulatory burden on
CATSI corporations, especially smaller corporations. There will be both costs and savings
to CATSI corporations as a result of the proposed legislative changes, although it is
expected that the savings will offset any costs by a large margin. Previous experience
indicates that smaller CATSI corporations registered under the Act will seek support from
ORIC to help with developing new rule books and therefore incur minimal costs.
FINANCIAL IMPACT STATEMENT
9. This Bill has no financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
10. This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
11. The Statement of Compatibility with Human Rights is provided at the end of this
Explanatory Memorandum.
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NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 provides for the Act to be cited as the Corporations (Aboriginal and Torres
Strait Islander) Amendment Act 2021.
Clause 2 - Commencement
2. Clause 2 provides for the whole of the Act to commence on the first 1 January or the
first 1 July to occur after the Act receives the Royal Assent.
Clause 3 - Schedules
3. Clause 3 provides that each Act specified in a Schedule to the Act is amended or
repealed as set out in that Schedule, and any other item in a Schedule to the Act has
effect according to its terms.
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Schedule 1--Amendments
Part 1--Review of operation of the Act
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 1 of the Bill introduces a statutory requirement for the CATSI Act to be reviewed
every 7 years. As a special measure under the Racial Discrimination Act 1975, the Act
should be periodically reviewed to determine whether it has achieved its objects. When a
special measures is found to have achieved its objects, it should be discontinued. This
measure will ensure that the legislation is regularly reviewed with respect to its ongoing
need and scope to improve the regulatory environment.
Item 1 - Section 599-1
4. This item adds the new review provisions introduced in this Part to the simplified outline
in section 599-1, which describes the contents of the Part.
Item 2 - Part 15-8
5. Item 2 inserts a new Division 643 into the CATSI Act, introducing a requirement that the
Act be periodically reviewed. This will allow the Parliament to determine whether the Act
has achieved its objects as a special measure.
6. Where a review under Division 643 finds that there is a continued need for the
CATSI Act as a special measure, it may also identify that the Act requires amendment to
improve the legislative framework to better meets the needs and expectations of
Aboriginal and Torres Strait Islander people. If, on the other hand, a review finds that the
CATSI Act has exhausted its objects as a special measure, the Parliament may turn its
mind to the future needs of CATSI corporations, for example, in a more mainstream
environment.
7. Proposed section 643-1 sets out the review requirements. Subsection 643-1(1) provides
that the Minister must cause a review to be undertaken of the operation of the Act as soon
as possible after the seventh anniversary of the commencement of the new section, and on
each successive seventh anniversary after that date. This will ensure that there is no
slippage in the schedule for periodic review of the CATSI Act.
8. New subsection 643-1(2) provides that the review must consider the effectiveness of the
Act as a special measure for the advancement and protection of Aboriginal peoples and
Torres Strait Islanders. This is consistent with the objectives of paragraph 4 of Article 1 of
the International Convention on the Elimination of All Forms of Racial Discrimination
(1965) and the intended operation of the Racial Discrimination Act 1975.
9. New subsection 643-1(3) provides that the reviewer(s) must give the Minister a written
report of their review within 18 months after the relevant anniversary date, while new
subsection 643-1(4) provides that the Minister must have the report tabled in both Houses
of Parliament within 25 sitting days of the relevant house after completion of the report.
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Part 2--Powers and functions of Registrar
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 2 of the Bill provides the Registrar with a suite of regulatory powers that are similar to
those given to ASIC.
This Part enables the Registrar to accept enforceable undertakings and issue infringement
notices in connection with contravention of the CATSI Act. Part 2 also expands the
Registrar's powers to require the production of books, and broadens the threshold for
exercising the Registrar's investigative powers generally.
Item 3 - Section 439-1
10. This item adds the Registrar's new power to accept an enforceable undertaking introduced
in this Part to the simplified outline in section 439-1, which describes the contents of the
Part.
Item 4 - Section 439-25
11. Item 4 adds proposed section 439-25, which empowers the Registrar to accept enforceable
undertakings and thereby increases the range of mid-tier regulatory tools available to the
Registrar to ensure compliance with the law. New section 439-25 is based on section
93AA of the ASIC Act, which gives similar powers to ASIC. This will allow the Registrar
greater flexibility ensuring that regulatory tools are proportionate to address minor non-
compliance.
12. Proposed subsection 439-25(1) provides that the Registrar may accept a written
undertaking from a person about any matter that relates to the powers or functions of the
Registrar under the Act. Under this subsection, the Registrar could accept enforceable
undertakings where there has been repeated non-compliance with the Act and the terms of
the undertaking would be directed at the type of non-compliance involved. For example,
if a CATSI corporation has not held general meetings when requested to do so by the
prescribed number of members, despite being required to do so under the Act, the
Registrar might consider accepting an enforceable undertaking whereby the corporation
might undertake to hold a general meeting within a specified period, or have directors
undergo governance training. In certain circumstances, an undertaking might be given that
involves public acknowledgement of the non-compliance such as publishing an apology
or providing compensation for those members who were inconvenienced or
disadvantaged.
13. Proposed subsection 439-25(2) allows for the person who has given the undertaking to
withdraw or vary the terms of that undertaking at any time, so long as the Registrar
consents. This highlights the voluntary nature of the undertaking and ensures that no
person who has given an undertaking is bound by terms that they do not agree to.
14. Proposed subsection 439-25(3) empowers the Registrar to apply to the Court if they
consider that the person who has given the undertaking has breached any of its terms.
This provides the Registrar with a reasonable and necessary power to take court action if
they consider such action is required in the circumstances to enforce the terms of the
undertaking. This power provides the Registrar with an effective and more cost-efficient
alternative to having to initiate criminal or civil action against a person for breaches of the
Act. The power may be utilised by the Registrar for lower-level matters for which
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criminal or civil prosecution may be a disproportionate response in terms of cost and
regulatory overstep.
15. Proposed subsection 439-25(4) provides that the Court may make any or all of the
following orders in response to an application by the Registrar under subsection 439-
25(3):
directing the person to comply with the term of the undertaking that has been
breached;
directing the person to pay the Commonwealth an amount that is reasonably
attributable to the breach, up to the amount of any financial benefit that the person
has gained by committing the breach;
directing the person to compensate any other person who has suffered loss or
damage as a result of the breach; or
any other order that the Court considers appropriate.
16. New section 439-25 allows the Registrar to work together with non-compliant
corporations to reach workable solutions and avoid continued breaches of the Act.
Item 5 - Subsection 453-1(1)(f)
17. This item makes a consequential amendment by adding paragraph 453-1(1)(f) to the end
of subsection 453-1(1), which is inserted by item 4. The new paragraph will ensure that an
authorised officer who examines the books of a CATSI corporation or a related body
corporate can, in a report to the Registrar, draw attention to suspected breaches of the
terms of an enforceable undertaking given under new section 439-25 in addition to
matters currently listed in paragraphs 453-1(1)(a) to (e).
Item 6 - Sections 453-2, 453-3 and 453-4
18. This item inserts proposed sections 453-2, 453-3 and 453-4.
19. New section 453-2 replaces the Registrar's existing power to require the production of
books with broader powers similar to ASIC's powers under section 30 of the ASIC Act.
20. Subsection 453-2(1) authorises the Registrar to issue a notice to a CATSI corporation or a
person acting in certain capacities to produce specified books relating to the affairs of a
CATSI corporation. Subsection 453-2(2) allows the Registrar to issue notices to produce
specified books relating to the affairs of a CATSI corporation, a related body corporate or
a connected entity. Both subsections impose corresponding duties to comply with the
Registrar's notice. New subsection 453-2(3) specifies the requirements for notices to
produce. Notices must be in writing and must specify the person to whom books are to be
produced (who must be the Registrar or a specified authorised officer) as well as the time
and place for production of the books as is reasonable in all the circumstances.
21. Subsection 453-2(4) is based on paragraph 87(b) of the ASIC Act and will allow the
Registrar to require the production of books immediately where this is reasonable in all
the circumstances. This change enables the Registrar to act expeditiously, for example,
where the Registrar has a reasonable basis to be concerned about the possible destruction,
concealment or falsification of books.
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22. Subsections 453-2(5) and (6), respectively, create an offence and a 'reasonable excuse'
defence, similar to subsections 63(1) and (5) of the ASIC Act. A person will commit an
offence under subsection 453-2(5) if the Registrar gives the person a notice under
subsection 453-2(1) and the person does an act or omits to do an act with the result that
the notice is not complied with. Unlike the existing strict liability offence in subsection
453-5(5), the new offence will require proof of the fault elements. This involves a higher
level of criminal responsibility and warrants the increased penalty of 100 penalty units or
imprisonment for 2 years, or both, compared to the existing penalty of 30 penalty units or
imprisonment for 6 months, or both. These penalties are consistent with those set out in
section 63(1) of the ASIC Act.
23. Subsection 453-3(1) is based on section 38 of the ASIC Act. The new provision
complements proposed section 453-2 by empowering the Registrar, in circumstances
where books are not produced in accordance with proposed section 453-2, to require a
person to state where the corporation's books may be found, or who last had possession or
control of the books and where that person may be found. The subsection imposes a legal
duty to comply with the requirement.
24. Subsections 453-3(2) and (3) create a new offence and a 'reasonable excuse' defence
based on subsections 63(1), (5) and (7) of the ASIC Act. A person will commit an offence
if they are given a notice under subsection 453-3(1) and the person does an act or omits to
do an act with the result that a requirement is not complied with. The proposed offence
provision in subsection 453-3(2) requires proof of the fault elements. The penalty for
committing the offence is 100 penalty units or 2 years imprisonment or both, which is
consistent with that in proposed subsection 453-2(5) as well as for the equivalent offence
in the ASIC Act.
25. Subsection 453-4(1) is based on section 39 of the ASIC Act. It complements proposed
sections 453-2 and 453-3 by empowering the Registrar to require a person to identify
property of a corporation, and to explain how the corporation has kept account of that
property. Subsection 453-4(1) creates a legal duty to comply with the requirement.
26. Proposed subsections 453-4(2) and (3) create a new offence and a 'reasonable excuse'
defence with respect to a failure to comply with subsection 453(1). These subsections are
based on subsections 63(1), (5) and (8) of the ASIC Act. A person will commit an offence
under subsection 453-4(2) if the Registrar has given the person a notice under subsection
453-4(1) and the person does an act or omits to do an act with the result that a
requirement in the notice is not complied with. The offence requires proof of the fault
elements. The penalty for committing the offence is 100 penalty units or 2 years
imprisonment or both, which is consistent with that in proposed subsections 453-2(5) and
453-3(2) as well as for the equivalent offence in the ASIC Act.
27. The 'reasonable excuse' defences in proposed subsection 453-2(6), 453-3(3) and 453-4(3)
are justified because the legal burden of proving all elements of the offence, including
fault elements, is on the prosecution. In these circumstances, whether the defendant has
performed the acts in paragraphs 453-4(3)(a) and (b) to the extent the person is capable of
doing so, or what might constitute a reasonable excuse, are facts that are uniquely within
the knowledge of the defendant. Further, the prosecution bears the legal burden of
disproving the defence of reasonable excuse in accordance with subsection 13.3(3) of the
8
Criminal Code if the defendant successfully discharges the evidential burden. This is
consistent with the principles in the Guide to Framing Commonwealth Offences.
Item 7 - Section 453-5 (heading)
28. This item makes a consequential amendment to the heading of section 453-5 reflecting the
relocation of the Registrar's power to require the production of books to new
section 453-2 and the retention of the Registrar's powers in section 453-5 to issue a notice
to give information or answer questions.
Item 8 - Subsection 453-5(1)
29. This item aligns the exercise of the Registrar's powers to require the production of books
under subsection 453-5(1) with ASIC's powers under equivalent section 19 of the ASIC
Act. The current threshold for the Registrar to exercise powers under subsection 453-5(1)
is that the Registrar 'on reasonable grounds, believes'. This will be broadened to 'on
reasonable grounds, suspects or believes' to allow the Registrar to issue notices to
relevant persons where the Registrar holds a suspicion, on reasonable grounds, that the
person has knowledge of the CATSI corporation's examinable affairs.
Items 9, 10 and 11 - Paragraph 453-5(1)(b), subsection 453-5(2) and
subparagraph 453-5(2)(c)(i)
30. These items make consequential amendments to section 453-5 reflecting the amendments
made under proposed section 453-2 in relation to the Registrar's power to require the
production of books.
Item 12 - Subsection 453-5(3)
31. This item repeals existing subsection 453-5(3), which sets a 14-day timeframe for
responding to a notice to provide information, produce documents or appear to answer
questions, and replaces it with new subsections 453-5(3) and (3A). Proposed
subsection 453-5(3) will require the time specified in the notice to provide information or
appear to answer questions be reasonable in all the circumstances, while proposed
subsection 453-5(3A) provides that a notice may specify that information is to be
provided immediately if that is reasonable in all the circumstances. The new requirements
are consistent with new subsection 453-2(4) in relation to the production of books.
Items 13 and 14 - Paragraphs 456-1(1)(a) and 456-5(1)(a), and paragraph 461-10(1)(a)
32. Items 13 and 14 make consequential amendments to paragraphs 456-1(1)(a), 456-5(1)(a)
and subsection 461-10(1) to state that the Registrar's power to require the production of
books arises under new section 453-2 rather than current section 453-5.
Items 15 to 21 - Paragraphs 456-10(1)(b), subsections 456-10(2) to (6), subsection
456-10(7), paragraph 456-10(7)(a), subsections 456-10(8), (9) and (10)
33. Items 15 to 21 change the language of section 456-10 to accommodate situations where
books are produced to the Registrar rather than to an authorised officer.
34. Proposed subsection 456-10(9) expands the power of the Registrar or an authorised
officer to request an explanation from any officer of a CATSI corporation regarding the
compilation of its books or a matter to which the books relate. Under existing subsection
9
456-10(9), an authorised officer can only request such an explanation from someone who
produced the books or was involved in the compilation of the books.
Item 22 - Subsection 461-10(1)
35. This item makes consequential amendments to subsection 456-10(1) to reflect that the
Registrar's power to require the production of books will be provided under proposed
section 453-2 rather than under section 453-5 where this power is currently situated.
Items 23 and 24 - Section 566-5 and Part 13-3
36. Item 23 repeals section 566-5, which relates to infringement notices, and item 24 replaces
existing section 566-5 with proposed Part 13-3 to create an infringement notice scheme.
37. New Part 13-3 introduces Division 571, which establishes an infringement notice scheme
based on offences to be prescribed in the Corporations (Aboriginal and Torres Strait
Islander) Regulations 2017 (CATSI Regulations). The new provisions will create a more
effective framework than the existing section 566-5 as they give the Registrar powers to
extend the payment period for an infringement notice and enter into an arrangement to
allow a person to pay the amount by instalments.
38. Under existing section 566-5, the Registrar can issue an infringement notice for a
prescribed offence that has allegedly been committed. The replacement sections are based
on similar provisions in the Corporations Act. This creates a more flexible regulatory
environment.
39. New section 571-5, which specifies when an infringement notice may be given, is based
on section 1317DAM of the Corporations Act and is aimed at ensuring that the Registrar
takes timely action to address alleged contraventions of the law.
40. Subsection 571-5(1) allows the Registrar to issue an infringement notice to a person who
the Registrar believes on reasonable grounds has committed an offence prescribed in the
Regulations. The CATSI Regulations will specify the offences in respect of which the
Registrar can issue an infringement notice. Subsection 571-5(2) requires that an
infringement notice be issued within 12 months after the day on which the offence was
alleged to have been committed.
41. Subsection 571-5(3) provides that a single infringement notice must relate to the
commission of a single prescribed offence unless new subsection 571-5(4) applies.
42. Subsection 571-5(4) authorises the Registrar to give a person a single infringement notice
relating to multiple commissions of a single prescribed offence that essentially constitutes
a continuing offence.
43. Paragraphs 571-10(1)(a) to (o) list the information that must be included in an
infringement notice. This information includes, but is not limited to:
a unique (identifying) number;
the day on which the notice is given;
the name of the person to whom the notice is given;
the name and contact details of who gave the notice;
brief details of the alleged offence(s);
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the amount payable in relation to the notice;
a statement that, if the person pays the notice within the notice period they will not
be liable to be prosecuted in a court for the alleged offence (unless the notice is
withdrawn);
a statement that the payment period will be 28 days beginning on the day the
notice is given unless the period is extended, an arrangement is made for
payments by instalment or the notice is withdrawn;
how a notice may be withdrawn and, if withdrawn, the person may be prosecuted
in court for the alleged offence; and
stating that the person may make written representations to the Registrar seeking
withdrawal of the notice.
44. Subsection 571-10(2) indicates that where the notice is given for a single contravention of
an offence, the amount for payment specified in the notice should be the penalty
prescribed for that offence. For multiple contraventions of an offence, the specified
amount should be the single offence amount multiplied by the number of contraventions.
45. Section 571-15 is consistent with section 1317DAQ of the Corporations Act, which
determines the 'payment period'. Subsection 571-15(1) specifies that the default payment
period for infringement notices is 28 days commencing the day after the notice is issued
unless another timeframe applies due to the person applying for an extension, payment by
instalments or withdrawal of the notice. Subsection 571-15(2) provides that where the
Registrar extends the payment period for an infringement notice (under new
section 571-20), the payment period is the period as extended. This is needed to ensure
that other provisions, such as with respect to payment by instalments, operate effectively.
46. Subsection 571-15(3) provides for the effect on the payment period when the Registrar
refuses a request to extend the period under new section 571-20. If the Registrar refuses to
grant the extension, the payment period will end on the later of:
(a) the final day of the original payment period; or
(b) 7 days after the day the:
applicant was given notice of the Registrar's decision to not grant an extension
to the payment period; or
extension was taken to have been refused under subsection 571-20(4).
47. Subsection 571-15(4) states that if the Registrar makes an arrangement for the
infringement notice to be paid in instalments, the final day of the payment period is the
earlier of the last day of the instalment payment period or, if the person failed to pay an
instalment, the last day on which the missed instalment was to be paid.
48. If the Registrar refuses an application to pay an infringement notice in instalments,
subsection 571-15(5) states that the payment period ends on the later of the final day in
the original payment period, or 7 days after the day the:
applicant was given notice of the Registrar's decision not to make the instalment
payment arrangement; or
payment arrangement was taken to have been refused under subsection 571-25(4).
49. The timeframes are the same as those associated with an application to extend the
payment period for an infringement notice.
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50. If the Registrar refuses a request from a person to withdraw an infringement notice,
subsection 571-15(6) indicates the payment period ends on the later of the final day of the
original payment period or 7 days after the day the:
applicant was given notice of the Registrar's decision not to withdraw the notice;
Registrar is taken to have refused to withdraw the notice under subsection
571-30(5).
51. Section 571-20, which is based on 1317DAR of the Corporations Act, sets out the process
for applying for an extension of the payment period for an infringement notice.
52. Subsection 571-20(1) allows a person to seek an extension from the Registrar during the
payment period. Under subsection 571-20(2), the Registrar may, in writing, extend the
payment period either in response to an application made under subsection 571-20(1) or
on the Registrar's own volition. The extension may be granted either before or after the
end of the payment period.
53. Subsection 571-20(3) requires the Registrar to grant, or refuse, an extension of the
payment period and advise the applicant in writing of that decision within 14 days after an
application is made. If the Registrar does not perform these duties, then, under subsection
571-20(4) the application is taken to have been refused on the last day of the 14-day
period. Subsection 571-20(5) authorises the Registrar to extend the payment period under
subsection 571-20(2) on more than one occasion.
54. Section 571-25, which is based on section 1317DAS of the Corporations Act, outlines the
process for applying to pay the amount payable under an infringement notice by
instalments. Subsection 571-25(1) enables a person to apply to the Registrar to pay an
infringement notice in instalments, within 28 days after the infringement notice is given.
55. Under subsection 571-25(2), the Registrar may, in writing, make an instalment
arrangement in response to a request made under subsection 571-25(1) or the Registrar's
own volition--either before or after the end of the payment period.
Subsection 571-25(3) requires the Registrar to grant, or refuse, the instalment
arrangement, and advise the applicant in writing of that decision within 14 days after the
application is made. If the Registrar agrees to an instalment arrangement, they must also
give the applicant notice of the decision specifying the day by which the instalment is to
be paid and the amount of each instalment.
56. If the Registrar does not make a decision regarding an application to pay the amount
payable under an infringement notice in instalments and advise the applicant within
14 days, then subsection 571-25(4) provides that the application is taken to have been
refused on the last day of the 14 day period.
57. Subsection 571-25(5) allows the Registrar to vary an instalment arrangement, including to
change the amount of the instalments or extend the time for payment. If a person does not
pay all of the instalments and is prosecuted for the alleged offence, then under
subsection 571-25(6) the Registrar is required to refund the total value of instalments paid
by the person.
58. Section 571-30, which is based on section 1317DAT of the Corporations Act, establishes
the process for withdrawing an infringement notice. Subsection 571-30(1) provides that a
12
person can request the Registrar withdraw an infringement notice within 28 days after the
infringement notice is given. The Registrar can withdraw an infringement notice in
accordance with such a request, or on his or her own initiative under subsection 571-
30(2), either before or after the end of the payment period.
59. Subsection 571-30(3) imposes a duty on the Registrar to either withdraw or refuse to
withdraw an infringement notice and advise the applicant accordingly within 14 days of a
request. When considering whether to withdraw a notice, subsection 571-30(4) provides
that the Registrar must take into account written representations made by the person
seeking the withdrawal, and may also consider whether a court has previously imposed a
penalty on the person for a breach of the CATSI Act, the circumstances of the alleged
offence, whether the person has previously complied with an infringement notice issued
under the CATSI Act, and any other matters the Registrar considers to be relevant.
60. If the Registrar withdraws a notice, according to subsection 571-30(6) the Registrar must
issue a withdrawal notice to the person that includes their name and address, the day the
infringement notice was given, the infringement notice number, that the infringement
notice is withdrawn and that the person may be prosecuted in a court for the alleged
commission of the offence. If the Registrar withdraws the infringement notice and the
person has paid some or all of the infringement notice amount, then subsection 571-30(7)
requires the Registrar to refund the total amount paid by the person.
61. If the Registrar does not make, and notify the person of, a decision to withdraw the notice
within 14 days of the person seeking to have the notice withdrawn, under subsection 571-
30(5) the application is taken to have been refused on the last day of the 14-day period.
62. Section 571-35 outlines the effect of paying an amount due under an infringement notice.
Subsection 571-35(1) confirms that if a person pays the amount specified in an
infringement notice before the end of the payment period, then:
any liability of the person for the alleged offence is discharged;
the person cannot be prosecuted in court for the alleged offence;
the person has not admitted guilt for the alleged offence; and
the person is not regarded as having been convicted of the alleged offence.
63. Subsection 571-35(2) indicates that the presumptions in 571-35(1) do not apply if the
notice has been withdrawn. This section reflects section 1317DAU of the Corporations
Act.
64. Section 571-40, which is based on section 1317DAV of the Corporations Act, clarifies the
effect of new Division 571. The new section confirms that there is no requirement to issue
an infringement notice to a person for an alleged commission of a prescribed offence. It
also states that the liability of a person for an alleged commission of a prescribed offence
is not affected if:
the person does not comply with an infringement notice given to the person for the
offence;
an infringement notice is not given to the person; or
an infringement notice is given to the person and then withdrawn.
65. This section provides that a person can be given 2 or more infringement notices for an
alleged commission of a prescribed offence, and that a court's discretion to determine the
13
penalty amount for a person who is found to have committed a prescribed offence is not
limited by the division.
Item 25 - Section 700-1
66. This item inserts definitions for 'payment period' and 'prescribed offence' in the
Dictionary at section 700-1 of the Act. The definitions direct the reader to more detailed
definitions specified, respectively, in section 571-15 (when an infringement notice may be
given) and subsection 571-5(1) (payment period).
Item 26 - Application
67. This item provides that the Registrar will only be able to issue an infringement notice for
new offences alleged to have been committed after the commencement of this Part.
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Part 3--Membership applications, member contact details and electronic
communication
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 3 of the Bill allows CATSI corporations to collect additional contact details for
members such as email addresses and other alternative contact details. This will make it
easier for the Registrar and corporations to communicate with members, and will help to
ensure that intended recipients of various communications have access to relevant
information in a timely manner.
Part 3 provides the process for making, receiving and processing membership applications.
The CATSI Act does not presently require that membership applications be considered and
determined within a specific timeframe. This can have financial and other consequences
for new members. Part 3 requires corporations to consider membership applications within
a 6-month timeframe. Recognising that not all corporations will be able to meet this
timeframe, the Registrar is empowered to extend or exempt corporations from this
timeframe for specific applications or for membership applications generally. The
Registrar can also issue a determination regarding an exemption or extension for a class of
corporations. This ensures that prospective members are not disadvantaged if there are
valid reasons they cannot meet the 6-month timeframe.
This Part also allows members and former members to request that their personal details be
redacted from the register of members and or register of former members. This will enable
members of corporations to prevent their personal information from being publicly
available. Corporations will be required to manage such requests, for example, through
requirements to maintain a redacted version of a register. This will enable members of
corporations to prevent their personal information from being publicly available.
Part 3 includes revised membership cancellation provisions which are a replaceable rule
except for registered native title bodies corporate. CATSI corporations can choose to adopt
these provisions which change the number of attempted contacts they are required to make,
the nature of the attempted contact and the timeframe within which the contact needs to be
attempted, before a membership can be cancelled for the reason that the member is not
contactable. Alternatively, CATSI corporations can adopt cancellation provisions that are
specifically tailored to their circumstances.
Part 3 introduces a proper purpose test for people wanting to inspect or receive a copy of a
register of members or register of former members. Current members are exempted from
the proper purpose test. The changes will prevent people from misusing or exploiting the
information held on corporation's' registers of members and former members.
Items 27 to 28 and 34 to 36 - Paragraphs 21-1(1)(a) and (g), 21-1(3)(d) and (f), and
subsection 21-1(3) (note)
68. These items provide that an application for registration can include additional contact
details, such as email addresses and phone numbers of the applicant for registration, and
members, directors, contact persons or secretaries. Existing provisions in the Act provide
for the collection of a person's residential address. The collection of electronic and
alternative contact details will allow corporations and ORIC to communicate with
members using an appropriate and agreed-upon method.
15
Items 29 to 33 - Paragraphs 21-1(1)(h), (i) and (j), and subsections 21-1(1) (note), 21-1(3)
(heading) and 21-1(3)
69. Section 304-5 requires CATSI corporations to lodge notice with the Registrar of the
personal details of a newly appointed director, alternate director, secretary and contact
person within 28 days of their appointment. The personal information required is current
and former given and family names, dates and places of birth, and addresses. This
information is not currently collected for these positions when a CATSI corporation is
registered. The items address an existing inconsistency by requiring the same personal
details for the positions at the time the corporation is registered.
Items 37 and 43 to 45 - Paragraphs 22-1(2)(a), 22-1(4)(c) and (e), and subsection 22-1(4)
(note)
70. These items provide for the collection of other contact details, such as email addresses
and phone numbers, for the applicant, directors, contact persons and secretaries in the
application for registration of an existing body corporate as an Aboriginal and Torres
Strait Islander corporation. Existing provisions in the CATSI Act only require that the
person's address be provided. Collecting electronic contact and alternative contact details
will make it easier to contact people when required. These items will ensure that the
information collected for this type of application is consistent with items 29 to 33 and the
current section 304-5.
Items 38 to 42 - Paragraphs 22-1(2)(k), (l) and (m), and subsections 22-1(2) (note), 22-1(4)
(heading) and 22-1(4)
71. Section 304-5 requires CATSI corporations to provide the personal details of a newly
appointed director, alternate director, secretary or contact person within 28 days of their
appointment. The personal information required in respect of these positions are the
person's current and former given and family names, date and place of birth, and address.
These items address an existing inconsistency by requiring the same personal details for
these positions when an existing body corporate is registered under Part 2-3 of the Act.
Items 46 and 52 to 54 - Paragraphs 23-1(2)(a), (4)(c) and (e) and 26-5(a), and
subsections 23-1(4) (note) and 120-1(1)
72. These items provide for the collection of other contact details, such as email addresses
and phone numbers, for the applicant, directors, contact persons and secretaries in an
application to register an amalgamated corporation. Existing provisions in the Act only
provide for the collection of physical address details for these people. Collecting
electronic and alternative contact details will make it easier to contact these people when
required.
Items 47 to 51 - Paragraphs 23-1(2)(h), (i) and (j), and subsections 23-1(2) (note), 23-1(4)
(heading) and 23-1(4)
73. Section 304-5 of the Act requires CATSI corporations to provide the personal details of a
newly appointed director, alternate director, secretary and contact person within 28 days
of their appointment. The personal information required in respect of these positions are
the person's current and former given and family names, date and place of birth, and
address. This information is not collected for these positions at the registration of an
amalgamated corporation under Part 2-3 of the Act. The items address this inconsistency
16
by requiring the same personal details for these positions when the amalgamated
corporation is registered. The note at the foot of subsection 23-1(2) is repealed as it is no
longer applicable.
Item 55 - Paragraph 26-5(a)
74. Item 55 complements the above amendments, which enable the collection of other contact
details, such as email addresses and phone numbers, from a person applying to register a
corporation as a CATSI corporation. The item amends paragraph 26-5(a) to provide that
the Registrar may grant an application for registration that is incomplete or contains errors
so long as the applicant has provided their name and address in the application.
Item 56 - Section 57-5 (after table item 12A)
75. Item 56 adds table item 12B to the table at section 57-5 that sets out the main provisions
of the Act dealing with the internal governance of CATSI corporations. This item adds the
new membership cancellation provisions for a member of a CATSI corporation that is not
a registered native title body corporate and who is not contactable, and refers to section
150-24, of which subsection 150-24(1) is a replaceable rule.
Item 57 - Section 57-5 (table item 13)
76. Item 57 amends table item 13 to insert the words 'of registered native title body
corporate' after the word 'member'. This item changes the existing internal governance
rule 13 set out in the table of internal governance rules to reflect amendments to section
150-25 to limit the application of the section to an RNTBC noting that new section 150-
24 deals with all other CATSI corporations (see item 56 above).
Item 58 - Paragraph 120-1(1)(c)
77. Item 58 allows a notice, demand, summons, writ or other document or process to be
served on a CATSI corporation by sending these to the contact person using their address
or other contact details, for example, by sending the document to the person's email
address. This expands existing paragraph 120(1)(c) which only allows the documents or
process to be sent to the address of the contact person for a small or medium corporation.
Item 59 - Subsection 120-1(2)
78. Item 59 inserts a note at the end of existing subsection 120-1(2) referencing section 418-
10, which relates to the contents of the Register.
Items 60, 71 and 72 - Subsections 138-1 (note), 180-5(1) and 180-15(1)
79. These items complement the changes allowing corporations to collect other contact details
from members such as email addresses and telephone numbers. The items allow CATSI
corporations to store the alternative contact details on their register of members and
register of former members to reduce the administrative effort associated with
maintaining multiple records. Corporations are not prevented from storing other contact
details for members and former members in separate records if they choose to do so.
Item 61 - Subsection 144-10(1A)
80. This item inserts new subsection 144-10(1A), which imposes a requirement on directors
of a CATSI corporation to make a decision on a membership application within 6 months
beginning on the day the application is made. This will ensure that membership
17
applications are considered in a timely manner and will avoid delaying the initiation of
new members, which could have financial and other consequences for those members.
Item 62 - Subsection 144-10(3)
81. This item repeals and replaces existing subsection 144-10(3) to reflect recent changes
introduced through the Native Title Legislation Amendment Act 2021 which prevent
directors of a registered native title body corporate from refusing a membership
application from an person who is eligible for membership and has applied in the required
manner.
82. Proposed subsection 144-10(3AA) enables CATSI corporations that are not registered
native title bodies corporate to introduce rules in their rule books providing for a process
to consider membership applications. Those rules may limit the discretion of directors to
refuse an application from a person who meets the membership eligibility criteria and has
applied in the required manner. The rules may also provide for review of a decision to
refuse a membership application.
Item 63 - Sections 144-12 and 144-13
83. This item complements item 61, which introduces a requirement for CATSI corporations
to assess a membership application within 6 months beginning on the day the application
is made.
84. Proposed subsection 144-12(1) gives the Registrar a discretion, on receiving an
application or at the Registrar's own initiative, to either:
extend the period within which the directors must decide a membership application
in relation to either a particular membership application or all membership
applications; or
exempt the corporation from the requirement that the corporation's directors must
decide on an application within a period with respect to either a particular
membership application or all membership applications.
85. This new provision recognises that membership applications may be complex and that
corporations may not be able to determine them within the 6-month timeframe. For
example, membership eligibility may be based on family lineage, which can take time to
trace. In these circumstances, the proposed amendments ensure there is no disadvantage
to prospective members whose membership applications are delayed.
86. Proposed subsection 144-12(2) requires that a request to the Registrar seeking an
extension or exemption must: specify the determination being sought; be authorised by a
resolution of the corporation's directors; be in writing and signed by a director; and
be lodged with the Registrar. These requirements will ensure the Registrar is clear on the
nature of the request and confirm that the majority or all of the directors support an
extension or exemption request.
87. Proposed subsection 144-12(3) requires that, when considering an application for an
extension or exemption, the Registrar must have regard to whether the corporation's
process for considering an application is inherently complex or lengthy so as to prevent a
determination from being made within 6 months. Subsection (3) also enables the Registrar
to consider any other factors that the Registrar considers relevant. For example, the
18
Registrar may consider that a corporation's assessment process necessarily includes apical
ancestor tracing which can be lengthy to complete.
88. Proposed subsection 144-12(4) indicates that a determination made by the Registrar in
relation to an exemption or extension may be subject to conditions. It also states an
extension or exemption from the 6-month period for all membership applications made by
the Registrar, may be indefinite or limited to a specified period.
89. Proposed subsections 144-12(5) and (6) enable the Registrar to revoke, vary or suspend a
determination the Registrar has made to extend or exempt a CATSI corporation from the
6-month membership application consideration requirement. The Registrar is required to
provide the corporation with 28 days' notice when doing so.
90. Proposed subsection 144-12(7) clarifies that a determination made by the Registrar or a
subsequent revocation, variation or suspension of such a determination is not a legislative
instrument. This provision is included to assist readers, as the instrument is not a
legislative instrument within the meaning of subsection 8(1) of the Legislation Act.
91. Proposed subsection 144-13(1) enables the Registrar to make a determination extending
or exempting a class of corporations from the 6-month timeframe for considering a
membership application. Subsection 144-13(2) provides that the Registrar, when making
the determination, must consider whether the application processes for this class of
corporations is inherently complex or lengthy so as to prevent a determination from being
made within 6 months. It also enables the Registrar to consider any other factors they
believe are relevant when making a determination.
92. Subsection 144-13(3) provides that a determination made by the Registrar in relation to an
exemption or extension may be subject to conditions or be indefinite or limited to a
specified period. Subsection 144-12(7) states that a determination made by the Registrar
under subsection 144-12(1) is a legislative instrument.
Item 58A - Subsection 150-15(2)
93. This item amends subsection 150-15(2) which identified the relevant sections that deal
with membership cancellation grounds.
94. This item replaces existing subsection 150-15(2) to reflect the insertion of new section
150-24 that is relevant to membership cancellation provisions on the ground that the
member is not contactable for CATSI corporations that are not registered native title
bodies corporate. The new subsection 150-15(2) notes that subsection 150-24(1) is a
replaceable rule.
95. This item also inserts new subsection 150-15(2AA) to reflect the changes to
section 150-25 to limit the provision to registered native title bodies corporate. Changes
introduced by the Native Title Legislation Amendment Act 2021 restrict an RNTBC to the
cancellation provisions set out in the CATSI Act. Subsection 150-15(2AA) specifies that
if a registered native title body corporate is cancelling a membership on the ground that
the member is not contactable, it must do so in accordance with section 150-25.
96. This item inserts a new subsection 150-15(2AB), which identifies the relevant sections
that deal with the 2 remaining grounds for cancelling memberships.
19
Item 65 - Section 150-24
97. This item inserts new section 150-24, which will allow a CATSI corporation that is not a
registered native title body corporate to cancel the membership of a member who is
uncontactable. The positon for CATSI corporations that are RNTBC is dealt with in
revised section 150-25. This is consistent with the changes to the Native Title Act by the
Native Title Legislative Amendment Act 2021.
98. Proposed subsection 150-24(1) provides that the membership of a CATSI corporation
may be cancelled by special resolution in a general meeting if:
in the 12 months before the meeting, the corporation attempted to contact the
member at least twice using the member's address entered in the membership
register; and, where the member has provided alternative contact details, at least
once using each of those means, or, at least 3 times if there are 3 or more alternative
contact details; and
at least one of the attempts was made in the 3 months before the meeting; and
the corporation has been unable to contact the member in any of the attempts.
99. As an example, a CATSI corporation may have a physical address recorded on the
register of members for a member and also have an email address, a landline telephone
number, a mobile telephone number and an alternative physical address for the member.
The new subsection would require the corporation to attempt to contact the member twice
using the address recorded on the register of members and at least once using 3 of the 4
other contact details. In this example, this would involve a total of 5 attempts being made
to contact the person using 4 different contact methods.
100. Proposed subsection 150-24(2) provides notification requirements for cancelling a
person's membership. Under subsection 150-24(2), if a corporation cancels a
membership, the directors must send a copy of the special resolution to the address last
entered in the register of members for the person, as soon as practicable after the
resolution is passed. The notice is only required to be sent to the address last registered as
a result of the amendment in proposed subsection 150-24(1) which will provide for more
attempts to be made to contact the member prior to the special resolution. Subsection (2)
imposes a penalty of 5 penalty units for a contravention of subsection (2), based on
existing subsection 150-25(3) of the Act with minor differences to clarify the manner and
circumstances in which a person's membership may be cancelled. This is to provide
appropriate notice to former members.
101. Proposed subsection 150-24(3) provides that an offence against subsection (2)--that
is, a failure to send a copy of the special resolution to the cancelled member--is a strict
liability offence. Proposed subsection 150-24(3) is the same as existing
subsection 150-25(4).
102. This proposed provision contrasts with section 150-25 which will specify the position
for corporations that are RNTBC and who are prevented from changing the membership
cancellation rules set out in the Act as a result of changes introduced by the Native Title
Legislative Amendment Act 2021.
20
103. As proposed subsection 150-24(1) is a replaceable rule, a CATSI corporation will be
able to change its constitution to adopt membership cancellation provisions that are
tailored to their circumstances.
Items 66 to 70 - Section 150-25 (heading) and subsections 150-25(1), (2), (3) and (4)
104. Existing section 150-25 is amended to outline cancellation provisions for corporations
that are registered native title bodies corporate, which are prevented from changing the
membership cancellation rules under the Native Title Legislative Amendment Act 2021.
105. Items 66 to 70 amend section 150-25 to tailor membership cancellation provisions to
the specific circumstances and needs of these RNTBC. Unlike proposed subsection 150-
24(1), requirements for the number of attempts, means and timeframes for attempted
contact, prior to cancelling a membership on the ground that the member is not
contactable, are not replaceable rules and cannot be changed.
106. Proposed subsection 150-25(1) provides that the membership of a CATSI corporation
may be cancelled by special resolution in a general meeting if:
in the 12 months before the meeting, the corporation attempted to contact the
member at least twice using the member's address entered in the membership
register; and, where the member has provided alternative contact deals, at least once
using each of those means, or, at least 3 times if there are 3 or more alternative
contact details; and
at least one of the attempts was made in the 3 months before the meeting; and
the corporation has been unable to contact the member in any of the attempts.
107. As an example, a CATSI corporation may have a physical address recorded on the
register of members for a member as well as an email address, a landline telephone
number, a mobile telephone number and an alternative physical address. The new
subsection would require the corporation to attempt to contact the member twice using the
address recorded on the register of members and at least once using 3 of the 4 other
contact details. In this example, the corporation would need to make 5 attempts to contact
the person using 4 different contact methods.
108. Proposed section 150-25(3)(a) amends the existing number of attempted contacts that
CATSI corporations must make with the member and the means by which that contact
must be made before cancelling a membership on the ground that the member is not
contactable.
109. Existing section 150-25(3) requires that a membership be cancelled via special
resolution at a general meeting if the corporation has made 2 or more attempts for a
continuous period of 2 years and has been unable to contact the member during that
timeframe at the address recorded on the register of members.
110. Proposed subsection 150-25(3) provides that a membership of a CATSI corporation
that is a registered native title body corporate may be cancelled on the ground that the
member is not contactable, by special resolution in a general meeting if:
in the 12 months before the meeting, the corporation attempted to contact the
member at least twice using the member's address entered in the membership
register; and, where the member has provided alternative contact deals, at least once
21
using each of those means, or, at least 3 times if there are 3 or more alternative
contact details; and
at least one of the attempts was made in the 3 months before the meeting; and
the corporation has been unable to contact the member in any of the attempts.
111. As an example, a CATSI corporation may have a physical address recorded on the
register of members for a person and also have an email address, a landline telephone
number, a mobile telephone number and an alternative physical address. The new
subsection would require the corporation to attempt to contact the member twice using the
address recorded on the register of members and at least once using 3 of the 4 other
contact details. In this example, this would involve a total of 5 attempts being made to
contact the person using 4 different contact methods.
112. Proposed subsection 150-25(4) imposes a penalty of 5 penalty units for
non-compliance with this subsection. This subsection is similar to the existing subsection
with some minor wording change. It requires the directors of a corporation to send a copy
of the special resolution cancelling a person's membership to their address last entered in
the register of members, as soon as practicable after the resolution has been passed.
Items 71 and 72 - Subsections 180-5(1) and 180-15(1)
113. Items 71 and 72 add the words 'and any other contact details the member has
provided to the corporation' to the end of existing subsections 180-5(1) and 180-15(1).
Under these subsections, current and former members may provide a corporation with
contact details other than a postal address.
Items 73 and 74 - Section 180-20 (heading) and subsection 180-20(2)
114. Items 73 and 74 amend section 180-20 to reflect amendments that allow a member or
former member to request a corporation redact their personal information from the
registers of members or former members, and for any person who is not a member of the
respective corporation and seeks to inspect a corporation's member or former member
registers, to have a proper purpose to do so.
Items 75 to 77 - Subsections 180-25(1), (4) and (5)
115. Items 75 to 77 introduce a 'proper purpose' test to existing section 180-25, which will
be applied to persons who seek to inspect a corporation's register of members or register
of former members. If the purpose or purposes stated in an application are prescribed in
the CATSI Regulations, the corporation will be prohibited from allowing the applicant to
inspect, or providing the applicant with a copy of, either the register of members or
register of former members. This ensures that only people who have a genuine and proper
need to inspect or receive a copy of the register may do so.
116. Item 75 repeals and replaces subsection 180-25(1) to limit the right to inspect the
corporation's register of members and register of former members to members of the
corporation. This ensures existing corporation members have a right to access the
requested information, including for the purposes of corporation business such as
organising a meeting of members.
117. New subsection 180-25(1A) provides that a CATSI corporation must allow a person
other than a member of the corporation to inspect the register of members or the register
22
of former members on application, provided they have a proper purpose and pay the
prescribed fee. To this end, subsection 180-25(1B) provides that an application will be in
the required form if: it is in a form required by the Registrar; it states each purpose for
which the person is inspecting the register; and none of the stated purposes is a purpose
prescribed by the CATSI Regulations.
118. Item 76 repeals existing subsection 180-25(4), which provides for the payment of an
inspection fee, because fees will now be dealt with in proposed paragraph 180-25(5)(b).
119. Item 77 repeals subsection 180-25(5) and substitutes a new provision that confers a
right for a person to obtain copies of the register or a part of the register within the
applicable 7-day period or longer period as allowed by the Registrar, and subject to the
payment of a fee imposed by the corporation, if any (up to the prescribed amount).
120. For members of the corporation, the default response time to provide copies of the
register is within 7 days of the person's request; while for non-members, the default
period is within 7 days of the person making the application in accordance with
subsection 180-25(5A).
121. A corporation will commit an offence if it fails to provide copies of the register or part
of the register in accordance with the subsection. The offence is punishable by a penalty
of 10 penalty units. The default fault elements of the Criminal Code apply to these
offences consistently with paragraph 2.2.4 of the Guide to Framing Commonwealth
Offences.
Items 78 to 79 - Sections 180-26, 180-27 and 180-28, and subsection 180-30(3)
122. These items insert proposed sections 180-26, 180-27 and 180-28 to allow members
and former members to request that their personal information be redacted from a
corporation's register of members or register of former members, and to ensure that if a
member has made a redaction request that only the redacted version of the registers be
made available in any request to access the register. The measures seek to protect an
individual's right to privacy while facilitating reasonable access to information needed to
conduct the corporation's usual business.
123. Proposed section 180-26(1) allows members and former members to request in
writing, that a corporation redact their personal information from a register of members or
register of former members. Subsection 180-26(2) will allow the member or former
member to withdraw their redaction request and have their personal information reinstated
on a register. Subsection 180-26(3) provides that a CATSI corporation must keep a record
of a redaction request made under subsection 180-26(1) and any withdrawal of a redaction
request under subsection 180-26(2), until 7 years after the earlier of the request being
withdrawn or the individual ceasing to be on the register of former members. Proposed
subsection 180-26(4) provides that failure to comply with subsection 180-26(3) is an
offence of strict liability that attracts a penalty of 10 penalty units.
124. Proposed subsection 180-27(1) requires CATSI corporations to maintain a redacted
copy of the register of members and register of former members after it has received a
request from a member or former member, respectively, to redact their personal
information and the request has not been withdrawn. Subsection 180-27(1)(b) specifies
that the right to inspect a register of members or register of former members refers to the
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redacted version of the register. A new note to subsection 180-27(1)(b) advises readers
that a person can request the Registrar issue a direction to a corporation to allow the
applicant access to the unredacted version of the register under proposed section 180-28.
125. Proposed subsection 180-27(2) requires corporations to indicate on redacted copies of
a register of members or register of former members that it is a redacted copy made for
the purposes of section 180-27, and where information has been redacted.
Subsection 180-27(3) states that the CATSI Regulations may prescribe the requirements
that a CATSI corporation, or the directors of a CATSI corporation, must comply with in
respect to redacted copies of the registers.
126. If a redacted copy of the register exists, subsection 180-28(1) provides that a person
may make a request to the Registrar to direct a corporation to allow the person to inspect
or copy an unredacted version of a register of members or register of former members or a
version of the register that includes particular information.
127. Subsection 180-28(2) allows the Registrar to direct a corporation to give a copy to, or
allow a person to inspect an unredacted version of a register or a version of a register
containing particular information. Subsection (2) enables the Registrar to issue such a
direction if a person has made a request in writing consistent with subsection (1) and the
Registrar is satisfied that: the person has a genuine need to inspect the register; and, the
interests of members of the corporation will not be harmed if the person inspects the
unredacted version or information.
128. Subsection 180-28(3) provides that if the Registrar gives a direction under subsection
180-28(2), then section 180-25 applies in relation to the corporation and the person, such
that a reference in section 180-25 to the register is taken to be a reference to the
unredacted version, or a copy that includes the information specified in the direction.
Item 79 - Section 180-30
129. Section 180-30 of the Act requires a CATSI corporation to make its register of
members available at its AGMs. Subsection 180-30(3) is inserted to provide that where a
corporation has a redacted copy of the register of members as required by section 180-27,
the corporation must make the redacted (and not the unredacted) copy of the register
available at the AGM. This is intended to ensure that individuals who have requested
redaction of their personal information under subsection 180-26(1) will not have their
personal information published at an AGM.
Items 80 and 82 and 84 to 86 - Subsections 180-35(1) (note) and 304-15(1), paragraphs
201-25(3)(b) to (d) and 304-5(4)(d), and 322-5(b)(i)
130. These items make minor changes reflecting the collection of other contact details such
as email addresses and telephone numbers. These amendments make it easier for the
Registrar to make contact with members and ensure that the intended recipients of
communications, including statutory notices, receive the information in a timely manner.
Items 81 - Section 180-37
131. Subsection 180-37(1) requires that after the end of each financial year, a corporation
must provide the Registrar with a copy of its redacted and unredacted register of
members. This change reflects the introduction of the new provisions that enable
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members to have their personal information redacted from a register of members and for
corporations to maintain both a redacted and unredacted register of members. Previously
corporations were required to provide a list of the names and addresses of members in
their annual general reports to the Registrar.
132. Subsection 180-37(2) requires a CATSI corporation to provide its register of members
(if required by section 180-27, this must be the redacted copy) within 6 months of the end
of the financial year, or such longer period as prescribed by the CATSI Regulations. This
timeframe aligns with annual reporting to the Registrar to enable the register to be
provided with any other annual reports.
133. Subsection 180-37(3) creates a strict liability penalty of 25 penalty units or
imprisonment for 6 months for failing to lodge the registers with the Registrar as required.
These strict liability penalties align with the penalties for failing to lodge annual reports.
Item 83 - Paragraph 264-40(1)(d)
134. Item 83 adds to the responsibilities of secretaries set out in section 264-40, the new
requirement for corporations to provide copies of their redacted and unredacted registers
of members under new section 180-37.
Item 87 - Subparagraph 330-5(1)(a)(i)
135. Item 87 repeals subparagraph 330-5(1)(a)(i), which required corporations to include
in their annual general reports a list of members and their addresses. This is no longer
necessary as new subsection 180-37(1) requires that after the end of each financial year, a
corporation must provide the Registrar with a copy of its redacted and unredacted register
of members. This change reflects the introduction of the new provisions that enable
members to have their personal information redacted from a register of members and for
corporations to maintain both a redacted and unredacted register of members.
Items 88 and 89 - Section 407-15 (heading), subsections 407-15(1) and (2)
136. Items 88 and 89 amend section 407-15 to broaden the means by which the Registrar
can accept notice of certain changes in relation to a corporation so that the changes may
be notified orally or in writing rather than by 'telephone or email' as currently specified.
This simplifies the process for advising the Registrar about misspellings or other
typographical errors or details on a list published by the Registrar on the internet for the
purposes of section 407-15. Any such notification must satisfy requirements published by
the Registrar on the internet for the purposes of section 407-15.
Item 90 - Section 418-10
137. Item 90 replaces the section 418-10, which states that the Register of Aboriginal and
Torres Strait Islander Corporations will include information and documents about each
corporation as specified in the CATSI Regulations.
138. The revised section 418-10 is inserted that specifies a minimum amount of
information to be included on the Register of Aboriginal and Torres Strait Islander
Corporations about each corporation. Section 418-10 states that the CATSI Regulations
may specify additional information or documents to be held on the Register of Aboriginal
and Torres Strait Islander Corporations.
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Item 91 - Subsection 421-1(4)
139. This item inserts a paragraph into the definition of 'exempt document' to extend the
meaning of the term to include an unredacted register of members or an unredacted
register of former members in cases where the corporation is required by section 180-27
to have a redacted copy of its register of members or register of former members.
Items 92 and 93 - Paragraph 453-5(2)(b) and subsection 546-5(4)
140. Item 92 repeals paragraph 453-5(2)(b) which limits the methods by which the
Registrar may give notice to a person requiring them to provide information, produce
books or appear before the Registrar or another authorised person. Item 93 amends
subsection 546-5(4) relating to notices the Registrar must give when they decide to
deregister a CATSI corporation. The changes are consequential to other amendments
permitting the Registrar to collect other contact details such as email addresses and
telephone numbers.
Item 94 - Section 617-1
141. This item amends section 617-1, which provides a list of reviewable decisions made
by the Registrar under the Act. Specifically, it adds table items 16AA and 16AB to the
table of reviewable decisions. The new table items reflect the insertion of new powers
given to the Registrar under:
subsection 144-12(1)--to refuse to make a determination extending the period to
make a decision, or exempting a CATSI corporation from the period for making a
decision, regarding a membership application; and
subsection 144-12(5)--to revoke, vary or suspend a determination extending the
period to make a decision or exempting a corporation from the 6-month period for
determining a membership application or applications for membership more
generally; and
180-28-to refuse to direct an Aboriginal and Torres Strait Islander corporation to
allow a person to inspect, or give the person a copy of an unredacted register or a
copy of a register that includes particular information.
Item 95 - Section 700-1
142. This item inserts a signpost definition in the Dictionary at section 700-1 for the term
'redacted copy' directing the reader to the substantive definition in section 180-27, which
provides for the creation and maintenance of a redacted copy of the register of members
or former members.
Item 96 - Application
143. This item provides that the new requirement for corporations to assess membership
applications within 6 months will only apply to membership applications that are made
following the commencement for these amendments.
Item 97 - Application
144. This item provides that proposed subsection 144-10(1A), as inserted by item 61,
applies to membership applications made to an Aboriginal and Torres Strait Islander
corporation that have not yet been determined before the commencement of Part 3 as if
the application was made on the day that the part commenced. This will provide
26
corporations with 6 months from the date of commencement to determine applications
which had been received but not yet determined at the time of commencement.
Item 98 - Application
145. This item provides that the existing membership cancellation provisions in place prior
to the commencement of these amendments apply if:
the special resolution to cancel a membership on the ground that the member is not
contactable, is passed at a general meeting held less than 12 months after the
commencement of this Part; and
either: the notice of the general meeting was provided prior to the commencement
of this part; or the notice of the general meeting specifies that the special resolution
is to cancel the membership consistent with the provisions that were in place prior
to the commencement of this Part.
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Part 4--Subsidiaries and joint ventures
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 4 of the Bill will provide greater flexibility in the minimum membership requirements
for CATSI corporations. The minimum number of members will be 5 members unless the
Registrar determines a lesser number of members. The Part will also remove impediments
to body corporates establishing wholly-owned or joint venture subsidiary corporations, and
allow registration of 2 member CATSI corporations when only one member is Indigenous,
provided the Aboriginal or Torres Strait Islander member has a casting vote.
The amendments will give CATSI corporations more flexibility in how they structure their
affairs, and promote the use of CATSI corporations as vehicles for economic and social
development, supported by a suitable regulatory framework. The amendments will also
allow a group of entities to be registered under the one legislative framework, with the
same regulator, which will allow for streamlined compliance and reporting obligations.
Item 99 to 101 - Paragraph 21-1(1)(ca), paragraph 22-1(2)(ga) and Paragraph 23-1(2)(da)
146. Items 99, 100 and 101 add to the information required for an application for
registration of a CATSI corporation by inserting:
new paragraph 21-1(1)(ca) into subsection 22-1(1) with respect to applications for a
new corporation;
new paragraph 22-1(2)(ga) into subsection 22-1(2) with respect to applications to
register an existing body corporate under Part 2-3 of the Act; and
new paragraph 23-1(2)(da) into existing subsection 23-1(1), with respect to
applications to register an amalgamated corporation under Part 2-3 of the CATSI
Act.
147. The items each insert a new requirement into the applicable subsection requiring an
applicant, who intends for new paragraphs 77-5(1)(b) or (c) to apply to the corporation, to
specify whether the corporation is intended to be a wholly-owned subsidiary or a
corporation whose only members are bodies corporate. This amendment allows for
differential treatment of applications based on their corporate membership.
Item 102 - Subsection 77-5(1)
148. This item repeals and replaces subsection 77-5(1) of the Act, which provides for
minimum member requirements. Proposed subsection 77-5(1) clarifies that a corporation
must have at least 5 members unless an exception applies.
149. For corporations with members who are individuals, new subparagraph 77-5(1)(a)(ii)
provides that the Registrar may determine a lesser number of members on request under
subsections 77-1(2), (3) or (4).
150. Paragraphs 77-5(1)(b) and (c) introduce a new provision enabling corporations to only
have members that are bodies corporate, and provide that the minimum number of
members may be less than 5 where:
the corporation is a wholly-owned subsidiary of a body corporate (including
a CATSI corporation)--in which case the minimum number is one member; or
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the corporation's only members are body corporates--in which case the minimum
number is 2 members.
Item 103, 104 and 105 - Paragraphs 77-5(2)(aa), 77-5(3)(ba) and 77-5(4)(ba)
151. Items 103, 104 and 105 amend section 77-5 by inserting new paragraphs in
subsections (2),(3) and (4) so that a person may apply to the Registrar for a determination
that a corporation is exempt from the minimum membership requirements except where
paragraph 77-5(1)(b) or (c) applies to the corporation. The effect of the amendments made
by these items is that where a corporation is a wholly-owned subsidiary or a corporation
whose only members are body corporates, these corporations do not have to seek an
exemption from the minimum membership requirements.
152. This measure allows for differential treatment of applications based on the structure of
the corporation. In particular:
item 103 inserts new paragraph 77-5(2)(aa) which applies the new exception to an
application to register a new company;
item 104 inserts new paragraph 77-5(3)(ba) which applies the new exception to a
request to the Registrar to determine that a registered corporation with fewer than 5
members can have a lesser number of members; and
item 105 inserts new paragraph 77-5(4) which applies the new exception to a
request the Registrar to determine that a currently registered corporation can have
fewer than 5 members.
Item 106 - Section 201-115 (note)
153. This item adds a note at the end of the section 201-115, which deals with the number
of votes a person has at a general meeting and specifies that the chair has a casting vote.
The note alerts the reader to the fact that different rules apply to a corporation that has
only 2 members, only one of which is an Aboriginal and Torres Strait Islander person.
In such cases, new section 201-117 applies.
Item 107 - Section 201-117
154. This item inserts a new section 201-117 after existing section 201-115 of the Act to
provide that for CATSI corporations with 2 members, only one of whom is an Aboriginal
and Torres Strait Islander person, the Aboriginal and Torres Strait Islander member will
have the casting vote at a general meeting. This maintains the principle of the Indigeneity
requirement in the context of 2-member CATSI corporations, when only one member is
an Aboriginal and Torres Strait Islander person.
Item 108 - Subsection 246-5(1A)
155. This item inserts a new subsection 246-5(1A), which provides that a majority of
directors of a CATSI corporation must be individuals who are Aboriginal or Torres Strait
Islander persons. For 2-member CATSI corporations, this requirement will be satisfied if
at least one of those directors is an Aboriginal or Torres Strait Islander person and has the
casting vote.
Item 109 - Subsection 246-5(3)
156. Reflecting other amendments made by Part 4, item 109 repeals subsection 246-5(3)
and replaces it with a requirement that the majority of the directors of a corporation must
29
be members of the corporation unless the corporation is a wholly-owned subsidiary or has
members that are only bodies corporate.
Item 110 - Application
157. This item states that the new section 201-117 does not apply to 2-member
corporations, where only one member is Indigenous, which existed prior to the
commencement of the Part. Section 201-117 requires that in a 2-member corporation,
where only one member is Indigenous, that person has the casting vote.
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Part 5--Classification of Corporations
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 5 amends the criteria in the Act for determining the size of a CATSI corporation.
CATSI corporations are classified according to their size. This, in turn, determines the
corporation's annual reporting obligations. Currently, a CATSI corporation's size is
determined by a threefold test based on income, assets and number of employees.
The amendments in this Part will provide for corporations to be registered as a small,
medium or large corporation based on a simple consolidated revenue test only. Threshold
consolidated revenue amounts for each sized corporation will be prescribed in the CATSI
Regulations.
The introduction of the new size classification system will align the Act with the criterion
for determining entity size under the ACNC Act. This measure will assist nearly
30 per cent of CATSI corporations who are also registered under the ACNC Act.
Item 111 - Section 37-10
158. This item repeals and replaces current section 37-10 to change the criteria for
classifying a corporations' size from a tripartite income/assets/employees test to a single
criterion based on the corporation's consolidated revenue. CATSI corporations will be
characterised as either a small, medium or large corporation based on consolidated
revenue thresholds prescribed by the CATSI Regulations. Consolidated revenue for a
parent corporation and its subsidiaries will be calculated in accordance with the relevant
accounting standards under section 37-25.
159. This item allows the classification scheme to be responsive to changes in the
economic and regulatory environment. Placing this element in the Regulations allows the
regulatory requirements to remain proportionate and appropriate to different classes of
corporations. The regulatory scheme in the CATSI Act does not operate in isolation from
other regulatory schemes in the corporate sector such as the Corporations Act and ACNC
Act, which both provide for size thresholds to be prescribed in regulations.
Item 112 - Sections 37-20 and 37-25
160. This item repeals section 37-20 of the Act, regarding the counting of employees, as it
is no longer relevant given the amendments made by item 97. The item also replaces
existing section 37-25 with a new provision explaining that the accounting standards in
force at the relevant time should be used to determine a corporation's consolidated
revenue. The term 'accounting standards' is defined in the Dictionary at section 700-1 of
the Act.
Item 113 - Section 700-1
161. This item inserts signpost definitions in the Dictionary at section 700-1 with respect to
the terms 'large corporation', 'medium corporation' and 'small corporation', which
reference the relevant subsections in section 37-10.
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Item 114 - Application
162. This item states if the Registrar grants an application to register a corporation after the
commencement of this Part, and the application was made prior to the commencement of
this Part, the corporation must be registered under section 37-1 as small, medium or large
in accordance with the amended provisions.
163. This item also states if the Registrar decides to alter the registration of a corporation
under section 37-5, the Registrar must have regard as to whether the corporation is small,
medium or large in accordance with the amended provisions.
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Part 6--Meetings and reports
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 6 of the Bill makes several changes to current requirements for meetings and reports.
Some CATSI corporations may face challenges that prevent them from holding their AGM
as planned or within the timeframe prescribed by the CATSI Act. Corporations with
geographically dispersed membership bases can find it expensive to hold an AGM and
difficult to form a quorum when their members are unable to travel. Special rules,
introduced by the Registrar to help CATSI corporations respond to restrictions imposed
due to COVID-19, enabled them to hold meetings and pass resolutions virtually.
Corporations were able to meet more frequently and more people were able to participate
in the meetings. This Part will make these arrangements perpetually available to CATSI
corporations.
Part 6 will enable small corporations, that are not registered entities under the ACNC Act
and had less than $1,000 in consolidated revenue in the previous financial year, to pass a
special resolution to not hold the next one or 2 AGMs. Directors cannot vote on that
resolution unless all members are directors. Once a resolution is passed, the corporation is
obliged to advise the Registrar if there are any material changes in its circumstances.
The Registrar will have the power to direct a corporation to call and hold an AGM if the
Registrar is satisfied there is a need to do so.
Part 6 will also allow CATSI corporations to activate an automatic, one-off extension of 30
days to hold an AGM and lodge their reports. Extensions will be available where there has
been a death in the community, a natural disaster, cultural business or an unavoidable delay
in the audit or review. This extension cannot be used more than 3 years in a row.
Part 6 will allow directors to defer a meeting for up to 30 days after a notice has been
issued. A deferral may include a change to the date, time and/or place of the meeting, and
would be allowable, for example, in the case of death, natural disaster or certain cultural
activities. This will help corporations to accommodate unexpected circumstances that make
it difficult to hold scheduled meetings.
Corporations are unable to cancel meetings once they have been called unless they have a
rule in their rule book allowing this to occur. A new replaceable rule will enable directors
to cancel general meetings unless the corporation changes the rule. The Registrar will also
have express power to cancel general meetings and AGMs called by the Registrar.
Members are able to request copies of reports prepared by corporations to submit to the
Registrar. Part 6 will require corporations to lay before an AGM any reports they are
required to submit to the Registrar. This will provide greater transparency to members in
relation to the operations of their corporations, including with respect to financial reports.
Item 115 - Subsection 37-5(5)
164. This item amends subsection 37-5(5) to require that, if the Registrar gives written
notice to CATSI corporation of an alteration to its registration in terms that the
corporation is no longer a small corporation and this means a special resolution under
section 201-175 to not hold upcoming AGMs ceases to have effect, the Registrar's notice
must indicate the effect of the alteration on the special resolution.
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Items 116 to 119 - Section 57-5
165. These items amend the list of internal governance considerations set out in section 57-
5 to complement amendments made in Part 6, including the introduction of provisions to
enable corporations to change the place, date or time of a meeting after a meeting notice
has been issued, cancelling a meeting. The amendments made by these items are required
for the operation of proposed subsection 201-175 which provides for small corporations
that are not registered with the Australian Charities and Not-for-profits Commission and
had a consolidated revenue of less than $1,000 in the previous financial year, to pass a
special resolution to not hold an AGM for up to 2 years.
Item 120 - Section 198-1
166. This item amends section 57-5 to for the operation of the proposed subsection 201-
175 allowing small corporations that are not registered with the Australian Charities and
Not-for-profits Commission and had a consolidated revenue of less than $1,000 in the
previous financial year to pass a special resolution to not hold an AGM for up to 2 years.
This item amends section 198-1 to provide that CATSI corporations are generally
required to hold an AGM.
Item 121 - Paragraph 201-35(1)(a)
167. This item repeals and replaces paragraph 201-35(1)(a) and replaces it with new
paragraphs (a) and (aa) in order to better facilitate participation in virtual meetings. New
paragraph (a) will require that a notice of a general meeting must set out the place date
and time for the meeting while new paragraph (aa) will require that if a meeting is to be
held in 2 or more places using technology without a physical venue, instructions for
participating in the meeting must be included in the notice. This enables CATSI
corporations to hold general meetings virtually while aiming to improve participation
rates and reduce meeting costs.
Item 122 - Sections 201-37 and 201-38
168. This item adds proposed sections 201-37 and 201-38 to the end of subdivision 201-B
of the Act to provide for the circumstances in which a general meeting can be altered or
cancelled, and to specify requirements for cancelling a general meeting.
169. Proposed section 201-37 allows CATSI corporations to issue an updated notice of a
general meeting if the meeting is affected by a death in the community, a cultural activity
or a natural disaster. The notice may change the date or time of meeting to a later date or
time, but the date of the new meeting must not be later than 30 days after the original
meeting date. The place of the meeting may also be altered, including to allow the
meeting to be held virtually rather than face-to-face.
170. If the meeting place is changed to be held in 2 places (including virtually without a
physical venue), proposed subsection 201-37 will provide that the notice must include
instructions for participating in the meeting. New subsection 201-37(4) will state that the
updated notice of meeting must still meet the requirements of paragraphs 201-35 (1)(b) to
(d), while subsection 201-37(5) provides that sections 201-25 and 201-30 still govern to
whom and how notices must be given, and when a notice is taken to have been given.
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171. New section 201-28, which is proposed as a replaceable rule, will allow the directors
of a corporation to cancel a general meeting by resolution in certain circumstances.
Subsection 201-28(1) sets the basic rule which operates subject to by subsection (2) which
provides that directors do not have the power to cancel a general meeting called by the
Registrar under section 439-10 or 439-15.
172. Proposed subsection 201-28(3) requires that notice of the cancellation of a general
meeting must be given as soon as practicable, and proposed subsection 201-28(4)
provides that existing sections 201-25 and 201-30 of the Act apply in circumstances
where a meeting is cancelled as if a reference to:
a notice of a general meeting were a reference to a notice of the cancellation of a
general meeting;
a member entitled to vote at the general meeting were a reference to a member who
was entitled to vote at the general meeting; and
an observer entitled to attend the general meeting were a reference to an observer
who would have been entitled to attend the general meeting.
Items 123 to 125 - Section 201-65 and subsection 201-125(4)
173. Items 123 to 125 amend existing section 201-65 and subsection 201-125(4) to enable
corporations to hold general meetings virtually, which will reduce the costs associated
with holding meetings and will likely increase attendance by making it easier for persons
to attend via technology. Item 124 will insert subsection 201-65(2) to allow a corporation
to hold a general meeting using any technology that provides members with a reasonable
opportunity to participate. This provision has a twofold purpose; that is, to allow
corporations to meet virtually, and to ensure that the means by which virtual meetings are
held are accessible to members.
174. Proposed subsection 201-125(4) complements the changes that enable corporations to
hold general meetings virtually by allowing the chair to decide how a vote will be held
when a show of hands is not possible. When holding a meeting virtually, corporations
may need to use other types of voting mechanisms such as SMS, voting software, social
media pages or other approaches.
Item 126 - Subsection 201-150(5)
175. This item inserts new subsection 201-150(5) to provide 4 exceptions to the offence of
not holding an AGM within 5 months after the end of the corporation's financial year.
The exceptions are that:
(a) the 5-month period is extended under subsection 201-153(2) or 201-153; or
(b) the corporation has been granted an extension under subsection 201-155(2); or
(c) at the end of the 5-month period, the AGM is covered by a special resolution in
effect under section 201-175; or
(d) the AGM is required to be held within a different period specified in a direction
given by the Registrar under section 201-190.
176. The defendant will bear an evidentiary burden in relation to proving the exceptions in
subsection 201-150(5) under subsection 13.3(3) of the Criminal Code. This evidential
burden is justified on the grounds that the offence is one of strict liability, the burden is
evidential only and does not displace the prosecution's legal burden of proof, and the
35
exceptions in proposed subsection 201-150(5) are matters that will be within the
knowledge of the defendant.
Item 127 - Section 201-153
177. This item inserts new section 201-153. Subsection 201-153(1) will provide that if a
CATSI corporation makes a statement under section 348-10 of the Act that a specified
ground has affected the corporation's ability to hold its AGM, the mandatory 5-month
period for holding the AGM is extended by 30 days. Proposed subsection 201-153(2)
requires the corporation to hold its AGM within the extended period, while proposed
subsection 201-153(3) creates a strict liability offence with a penalty of 10 penalty units
for failing to hold the AGM within that extended period.
178. Proposed subsection 201-153(4) provides that a corporation is only entitled to one
automatic extension of 30 days in any financial year. If a corporation requires an
extension beyond 5 months and 30 days, an application for an exemption will have to be
made in the usual way under section 201-155 of the Act.
Item 128 - Section 201-155
179. This item inserts the words 'on application to the Registrar' into the heading for
section 201-155 to distinguish section 201-155 from the new automatic extension
provisions introduced by proposed section 201-153.
Item 129 - Subsection 201-155(1)
180. This item makes a consequential amendment to subsection 201-155(1) by inserting a
reference to proposed section 201-153, which provides an automatic extension of time for
holding an AGM, when the corporation makes a statement to the Registrar under section
348-10 in relation to its AGM and reports for a financial year.
Item 130 - Subdivision 201-H
181. This item inserts a new subdivision 201-H--including new sections 201-175,
201-180, 201-185 and 201-190--to allow small corporations that are not registered
entities under the ACNC Act and had less than $1,000 in consolidated revenue in the
previous financial year, to pass a special resolution to not hold their next AGM or next
2 AGMs. The special resolution will provide for the appointment of directors who are
members of the corporation to continue until the next AGM is held.
182. Subsection 201-175(2) provides that the special resolution under subsection
201-175(1) cannot be passed by a circulating resolution; that is, without a general
meeting. This is despite subsection 204-1(6) of the Act, which generally permits
circulating resolutions to be passed in satisfaction of any requirement in the Act or the
corporation's constitution.
183. Proposed subsections 201-175(3) and (4) provide that if a corporation has members
who are not directors, the directors must not vote on the special resolution unless the
Registrar exempts them from subsection (3) by written notice given under subsection (4).
184. Proposed subsection 201-175(5) declares that a notice given under
subsection 201-175(4) is not a legislative instrument. This provision is included to assist
36
readers, as the instrument is not a legislative instrument within the meaning of
subsection 8(1) of the Legislation Act 2003
185. Proposed subsection 201-175(6) clarifies that the appointment of directors under the
special resolution takes effect immediately.
186. Under subsection 201-175(7), a special resolution in relation to AGMs, will take
effect when a copy is lodged with the Registrar within the timeframe specified in
proposed section 201-180; that is, 28 days after the special resolution is passed.
187. Subsection 201-175(8) provides that a special resolution in relation to an AGM ceases
to have effect if the Registrar: alters the registered size of the corporation under
section 37-5; directs the corporation to hold an AGM under proposed section 201-190;
or, places the corporation under special administration under section 487-1.
188. Proposed section 201-180 provides that a corporation must lodge documents in
relation to the special resolution passed under section 201-175 with the Registrar within
28 days after the special resolution is passed. Paragraphs 201-180(1)(a) to (d) provide that
documents required to be lodged with the Registrar are:
a copy of the notice of the meeting at which the resolution was passed;
a copy of the special resolution;
a copy of the parts of the minute that relate to the passing of the resolution; and
a director's statement under subsection 69-20(5).
189. Proposed section 201-185 provides that if a material change occurs in relation to the
affairs of a corporation during the term of a special resolution in effect under
section 201-175, the corporation must give the Registrar written notice of the change
within 28 days after the change occurs.
190. Proposed subsection 201-185 creates a strict liability offence for failing to comply
with subsection 201-185(1), which requires a corporation to lodge written notice of a
material change in its affairs if, at that time the change occurs, a special resolution under
section 201-175 means that an AGM is not held when it would otherwise be required.
191. The creation of a strict liability offence for non-compliance with proposed
subsection 201-185(1) is justified on the grounds of the regulatory nature of the offence
and the low maximum penalty of 5 penalty units. This penalty is consistent with other
strict liability offences in the Act relating to the failure to notify the Registrar as well as
principles in the Guide to Framing Commonwealth Offences.
192. Proposed section 201-190 provides that if the Registrar is satisfied that there is a need
for a CATSI corporation to hold an AGM that would otherwise not be held because of a
special resolution under section 201-175, the Registrar can direct the corporation to hold
an AGM. Under proposed subsection 201-190(2), the Registrar must give notice of such a
direction in writing, and must specify the period within which the AGM must be held.
Item 131 - Subsection 204-1(6) (note)
193. This item inserts a note at the end of subsection 204-1(6). The note advises the reader
that new subsection 201-175(2) is an exception to subsection 204-1(6) which will
37
otherwise provide that the passage of a circulating resolution satisfies the requirements of
an Act or the corporation's constitution.
Item 132 - Subsection 246-25(2)
194. This item makes a consequential amendment to subsection 246-25(2) by inserting a
reference to subsection 246-25(2A), which is inserted by item 133 below.
Item 133 - Subsection 246-25(2A)
195. This item inserts subsection 246-25(2A) into existing section 246-25 of the Act,
which deals with the term of appointments of directors. Proposed subsection 246-25(2A)
provides that a director appointed by a special resolution, that is also a decision to not
hold an AGM for up to 2 years under new section 201-175, is appointed until the next
AGM.
Item 134 - Section 327-1
196. This item amends section 327-1 to indicate the CATSI Regulations may prescribe
reports that are to be laid before an AGM.
Items 135 and 136 - Subsections 330-10(1) and 330-10(2)
197. These items amend existing subsections 330-10(1) and (2) of the Act, which provide
that the CATSI Regulations prescribe the contents of general reports. The amendment to
subsection 330-10(1) made by item 135 recognises that the time for a general report may
be extended automatically under proposed section 330-15. Item 136 adds a note to
existing subsection 330-10(2) to clarify that the timeframe for lodging reports may be
extended under section 330-15.
Item 137 - Section 330-15
198. Item 137 inserts proposed section 330-15 at the end of Division 330, which deals with
general reports for each financial year.
199. Proposed subsection 330-15(1) provides an automatic extension of 30 days to lodge a
general report for the financial year where a corporation makes a statement to the
Registrar under section 348-10. Under proposed subsection 330-15(2), the lodgment time
is extended (automatically) only once for a corporation's AGM and reports for a financial
year, regardless of how many statements it makes and how many grounds apply for
making the statements, in relation to the financial year.
200. Proposed section 330-15(1) includes a note which states that the statement under
section 348-10 also extends the time for lodgment of all other reports (see section 348-3)
and the period within which the AGM must be held (see section 201-153).
Item 138 - Subsection 348-1(1)
201. This item amends existing subsection 348-1(1) of the Act to clarify that the strict
liability offence in subsection 348-1(1) relates to a failure to lodge a report under Part 7-3
within the time for lodgment under subsection 348-1(3), including as extended where
applicable.
38
Item 139 - Subsection 348-1(3)(a)
202. Item 139 amends subsection 348-1(3)(a) to specify corporations must lodge any
required reports with the Registrar with 6 months of the end of the financial year.
Item 140 - Subsection 348-1(3) (note)
203. This item inserts a note after existing subsection 348-1(3) to clarify that the time for
lodging an annual report under subsection 348-1(3) is extended by the period of automatic
extension under section 348-3.
Item 141 - Section 348-3
204. This item inserts proposed section 348-3 after existing section 348-1 of the Act to
provide an automatic 30-day extension to the time for lodgment of reports required under
subsection 348-1(3) if a CATSI corporation makes a statement to the Registrar under
section 348-10 in relation to its AGM and reports for a financial year.
205. Under proposed subsection 348-3, the time for lodgment is extended for 30 days only
once in relation to a corporation's AGM and reports for a financial year regardless of how
many statements are made under section 348-10, and how many grounds for making
statements apply, in relation to the financial year. This has the effect that the same
automatic 30-day period applies to extensions under proposed sections 330-15 and 348-3
for a financial year; that is, a corporation is not entitled to additional or cumulative 30-day
extensions under proposed sections 330-15 and 348-3.
Item 142 - Section 348-10
206. This item inserts proposed section 348-10 at the end of Division 348 of the Act, which
deals with the lodgment of reports. The measures introduced by section 348-10
complement proposed sections 201-153, 330-15 and 348-3.
207. Proposed subsection 348-10(1) provides that a corporation may state that one or more
specified grounds in subsection 348-10(2) apply in relation to its AGM and reports for a
financial year. The grounds are a death in the community, a cultural activity, a natural
disaster, and an unavoidable delay in obtaining the audit or review where this is required.
This item also inserts a note at the end of proposed subsection (2) to clarify that the time
for holding the AGM and lodging reports is automatically extended if a statement is made
for the purposes of sections 201-153, 330-15 or 348-3.
208. Proposed subsection 348-10(3) provides the requirements for the statement under
subsection (1). Statements: may be made orally or in writing; must be made to the
Registrar; must specify the corporation and who is making the statement on its behalf;
and, must indicate when the corporation intends to hold its AGM and lodge its reports.
Proposed subsection 348-10(4) provides that where a corporation gives an oral statement
under subsection 348-10(1), the Registrar must give the corporation a written
acknowledgement that the statement was made.
209. Under proposed subsection 348-10(5), if a corporation has made a statement under
section 348-10 for 3 consecutive financial years, a statement made in the fourth
consecutive financial year has no effect. This subsection applies despite sections 201-153,
330-15 and 348-3.
39
Item 143 - Section 349-1
210. This item will insert new Division 349 at the end of Part 7-3 of the Act, which deals
with reporting requirements. The new division will require corporations to lay prescribed
reports in respect of a financial year before their AGM. The amendments will provide
greater transparency to members of corporations' operations and remove the onus on
members having to request access to such reports.
211. Proposed subsection 349-1(1) requires directors to lay certain prescribed reports for a
financial year before the AGM. A maximum penalty of 5 penalty units will apply to
failures to comply with subsection 349-1(1). Proposed subsection 349-1(2) provides that a
contravention is a strict liability offence. The offence is justified having regard to the
nature of the offence, the low maximum penalty and its comparative seriousness, for
example, compared to offences in subsections 206-165(1) and 201-170(1). This is
consistent with the principles in the Guide to Framing Commonwealth Offences.
Item 144 - Subsections 439-10(12) and 439-10(13)
212. This item will insert subsections 439-10(12) and (13) at the end of section 439-10
of the Act, which allows the Registrar to call and hold general meetings (other than an
AGM). Proposed subsection 439-10(12) gives the Registrar power to cancel a general
meeting called by the Registrar under section 439-10.
213. Proposed subsection 439-10(13) declares that notice of the cancellation of the meeting
is not a legislative instrument. This provision is included to assist readers, as the
instrument is not a legislative instrument within the meaning of subsection 8(1) of the
Legislation Act.
Item 145 - Subsection 439-15(1)
214. This item makes a consequential amendment to subsection 439-15(1), which allows
the Registrar to call and hold AGMs, to insert references to proposed sections 201-153
and 201-190. The changes expand the circumstances in which the Registrar can call an
AGM to include circumstances where the corporation:
(a) has not held a meeting despite accessing the proposed automatic time extension
provision in section 201-153; or
(b) has been directed by the Registrar under section 201-190 to hold the meeting.
Item 146 - Subsections 439-15(6) and 439-15(7)
215. This item inserts new subsections 439-15(6) and 439-15(7). Proposed
subsection 439-15(6) empowers the Registrar to cancel an AGM that the Registrar has
called under section 439-15, while subsection 439-15(7) declares that a notice cancelling
the meeting is not a legislative instrument. This provision is included to assist readers, as
the instrument is not a legislative instrument within the meaning of subsection 8(1) of the
Legislation Act.
40
Part 7--Constitutions
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 7 of the Bill changes how replaceable rules operate in relation to constitutions (also
known as rule books). Currently, under the Act, replaceable rules operate by default unless
replaced or modified in a corporation's rule book. This raises the possibility that members
and directors of CATSI corporations may not be aware of relevant internal governance
rules.
Part 7 aims to address this problem by requiring that all relevant replaceable rules be
referred to in the constitution of a corporation, whether or not the rules have been replaced
or modified. CATSI corporations registered prior to the commencement date will have
2 years within which to comply with the new requirements. These amendments will not
change the substantive content of internal governance rules that apply to
CATSI corporations as at the date of commencement of these amendments.
Part 7 of the Bill also provides a process for the Registrar to reject a constitutional change
that is lodged after a special administrator has changed the constitution, unless the
Registrar's opinion is that the proposed change is consistent with the change made by the
special administrator, or the corporation's circumstances have changed such that the
special administrator's change is no longer appropriate.
Item 147 - Subsection 66-1(4A)
216. This item inserts subsection 66-1(4A) into existing section 66-1, which sets out the
internal governance rules requirements for a CATSI corporation. Proposed
subsection 66-1(4) requires that each corporation's constitution must identify the
replaceable rules (if any) in the CATSI Act that apply to them. This change will increase
the awareness of members and directors of replaceable rules in the circumstances where
the rule has not been replaced or modified by the corporation. This item will assist
members and directors in identifying all of the rules which apply to the corporation in the
one location.
Items 148 and 149 - Subsections 69-30(3)(a) and 69-30(3A)
217. Special administrators often make changes to a corporation's constitution with the
purpose of addressing aspects of the corporation's operations that are leading to
governance or financial difficulties. After a special administration has concluded, a
corporation may move to reverse changes made by a special administrator to its
constitution, even though there is a risk that this action may lead to further governance
and financial difficulties for the corporation. Items 148 and 149 are aimed at preventing
CATSI corporations from seeking to reverse changes made by a special administrator
except where the corporation's circumstances have sufficiently changed.
218. Item 149 will insert subsection 69-30(3A) to require the Registrar to refuse to register
a change to a constitution that is inconsistent with a change or changes made by a special
administrator, or where the Registrar is not satisfied that the circumstances of the
corporation have sufficiently changed to the extent that consistency with the special
administrator's changes is no longer needed.
41
219. Item 148 amends paragraph 69-30(3)(a) to remove the word 'and' at the end of
paragraph 69-30(3)(a) and substitute the word 'or'. This amendment will support new
subsection 69-30(3A) to facilitate constitutional changes in circumstances where the
reasons for a changes made by a special administrator have ceased or are sufficiently
altered that they are no longer required.
Item 150 - Application
220. This item states a CATSI corporation that was registered prior to this Part
commencing, has 2 years from the date of commencement to update its constitution to
refer to replaceable rules that have not been modified or replaced in the rule book.
Corporations registered after the date of commencement will need to comply with
subsection 66-1(4A) at the time of their registration application.
42
Part 8--Officers of corporations
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 8 of the Bill introduces 2 separate definitions for the 'chief executive officer function'
and the 'chief financial officer function'. This Part also includes a requirement for
corporations to advise the Registrar if there has been a change in the person performing the
CEO and CFO roles within 28 days of that change. This is similar to the existing
requirement for corporations to advise the Registrar of a change to their secretary within 28
days. This will ensure the Registrar has up-to-date information regarding the key
management personnel of the corporation.
To increase transparency with respect to key management personnel employed by CATSI
corporations, this Part will require remuneration information about key management
personnel to be reported in a remuneration report to the Registrar.
Item 151 - Section 235-1
221. This item replaces the last sentence of the simplified outline in existing section 235-1
to clarify the content of Part 6-7; specifically that it deals with information about officers
and other people connected to a CATSI corporation, which is required to be provided to
the Registrar.
Items 152 and 153 - Subsection 246-5(5) and note
222. Items 152 and 153 amend existing subsection 246-5(5) of the Act, regarding the
majority of director requirements, to insert a reference to 'chief financial officer function'.
The amendments are consequential to changes made by items 189 to 193, which amend
section 694-85 to separate the definitions for 'chief executive officer function' and 'chief
financial officer function' which were previously both covered under the meaning of
'chief executive officer function'.
Item 154 - Paragraph 265-40(1)(e)
223. This item repeals and replaces existing paragraph 265-40(1)(e) to introduce a
requirement for corporations to advise the Registrar of a change to the person who
performs the CEO or CFO roles within 28 days of that change. The corporation's
secretary is responsible for reporting such changes, and may be subject to a civil penalty
if they contravene this requirement.
Item 155 - Part 6-7 (heading)
224. This item replaces the heading of Part 6-7 to more accurately reflect the content of the
section.
Item 156 - Section 301-1
225. This item replaces section 301-1 to clarify the existing content of the Part.
Items 157 to 159 - Section 304-1 (heading) and subsection 304-1(1) and note
226. These items amend section 304-1, regarding notice requirements for the resignation or
retirement of a corporation's director, alternate director, secretary, or contact person. The
items make complementary changes to existing section 304-1 to support the introduction
43
of the requirement for corporations to advise the Registrar when there is a change to the
person performing the CEO and CFO roles.
227. Item 157 amends the heading of section 304-1 to refer to the person performing CEO
function or CFO function. Item 158 amends subsection 304-1(1) to include CEOs and
CFOs, among directors, alternate directors, secretaries and contact persons, as positions
which may provide written notice to the Registrar advising of their retirement or
resignation. Item 159 adds a note at the end of existing subsection 304-1(1) referring the
reader to section 694-85, which will contain definitions for 'chief executive officer
function' and 'chief financial officer function'.
228. Existing subsection 304-1(3) provides that written advice from certain officials
regarding their resignation or retirement does not remove the requirement for the
corporation to notify the Registrar of a change in the position. Consequently, while a CEO
or CFO may advise the Registrar of their retirement or resignation, such a notice will not
remove the corporation's obligation to advise the Registrar under proposed paragraph
264-40(1)(e) of a change to these positions within 28 days.
Items 160 to 165 - Section 304-5 (heading) and subsections 304-5(3A), (4), (5), (6), (8), and
note 2
229. These items amend existing section 304-5 of the Act, which requires CATSI
corporations to notify the Registrar of a new director, secretary or contact person for a
corporation. Together, these items amend section 304-5 to include CEOs and CFOs,
among those persons whose appointment and personal details must be notified to the
Registrar within 28 days after the appointment.
230. Item 160 amends the heading to section 304-5 to add the words 'persons performing
CEO function or CFO function'. Item 135 inserts a new subsection (3A) after existing
subsection 304-5(3), to provide that a CATSI corporation must provide the personal
details of a person who is appointed as a CEO or CFO within 28 days of the person
beginning to perform that function. Proposed subsection 304-5(3A) also imposes a
maximum penalty of 10 penalty units for failure to comply.
231. Item 162 makes a minor technical amendment to insert a subheading 'Personal
details' before existing subsection 304-5(4). Item 163 amends subsections 304-4(4), (5)
and (6) to insert a reference to persons performing CEO or CFO functions. Items 164 and
165 make consequential amendments to subsection 304-5(8) and Note 2 at
subsection 304-5(8), respectively, to insert a reference to new subsection 304-5(3A)
inserted by item 161, above.
Items 166 to 169 - Section 304-10 (heading) and subsections 304-10(1) and (2)
232. These items amend existing section 304-10 of the Act, which provides that a director,
alternate director, secretary or contact person must give the corporation any information
the corporation needs to comply with subsection 304-5(1) or (3).
233. Item 166 amends the heading of section 304-10 to add the words 'person performing
CEO function or CFO function'. Item 167 amends existing subsection 304-10(1) to refer
to person performing a CEO function or CFO function in addition to the other positions
described. Items 168 and 169 make consequential changes to section 304-10.
44
234. The amendments are complementary changes to support the introduction of a
requirement for corporations to advise the Registrar when there is a change to the person
performing the CEO and CFO roles within 28 days of the change. Together, these items
amend section 304-10 to include CEOs and CFOs, among directors, alternate directors,
secretaries and contact persons, as positions in which the people occupying them must
provide the corporation with the information specified in section 304-5.
Item 170 - Subsection 304-15(1)
235. Item 170 makes a consequential change to subsection 304-15(1) to include a reference
to new subsection 304-5(3A), which requires a corporation to lodge personal details about
persons performing a CEO function or CFO function. The amendment requires that the
address for these people must be a residential address unless they are entitled to have a
substituted address under section 304-5(2).
Items 171 to 173 - Section 307-1 (heading), paragraphs 307-1(1)(a) and (b), and
subsection 307-1(1) (note)
236. These items amend section 307-1 to complement the change under new paragraph
265-40(1)(e), which requires corporations to advise the Registrar when there is a change
to the person performing the CEO and CFO roles within 28 days of the change.
237. Item 171 amends the heading to section 307-1 to add the words 'persons performing
CEO function or CFO function'. Item 172 inserts a reference to persons performing CEO
or CFO functions into existing paragraphs 307-1(1)(a) and (b) to expand the Registrar's
existing power to ask for information about a person's position to include these roles.
Item 173 adds a note at the end of subsection 307-1(1) referring the reader to the amended
definitions of 'chief executive officer function' and 'chief financial officer function' in
section 694-85.
Items 174 to 176 - Paragraph 327-1(1)(b), subsection 327-1(4) and section 333-1
238. These items make consequential amendments to sections 327-1 and 333-1, which deal
with annual financial reporting and lodgment of annual reports, to insert references to a
'remuneration report' or a 'remuneration report for a financial year' as applicable. The
items are required for the operation of the new paragraph 333-5(3)(c), which establishes a
remuneration report and provides for the regulations to describe the content of the report
about the remuneration of key management personnel.
Items 177 to 179 - Section 333-5 (heading), subsection 333-5(3) and paragraph 333-5(3)(b)
239. Items 177 to 179 amend section 333-5 of the Act, which provides that the Regulations
may require a corporation to prepare financial reports, directors' reports and other reports.
The amendments provide that the Regulations may also require a corporation or each
member of a class of corporations to prepare remuneration reports. The amendments
include::
a reference to 'remuneration reports' in the heading of section 333-5 (item 177);
amendments subsection 333-5(3) to remove the words 'either or both' and
substitute 'any or all' signifying that some or all reports may be required
(item 178); and
45
adding paragraph 333-5(3)(c) to provide that the Regulations may require a
corporation or each member of a class of corporations to prepare a remuneration
report for a financial year (item 179). This item establishes the remuneration report.
Item 180 - Subsection 333-10(4)
240. This item inserts new subsection 333-10(4), which provides that the Regulations are
to provide for the information required to be included in the remuneration report of key
management personnel for the corporation, a related body corporate, an entity that the
corporation controls, or a trust connected with the corporation.
Items 181 and 182 - Subsection 333-15(3) and note
241. Item 181 amends subsection 333-15(3) to so that the new remuneration reports are
excluded from the reports that the regulations may require a corporation to give a copy of
the report to its members on request, or generally. This is because the report is required to
be provided to members on request under Division 342. Item 182 amends the note to
subsection 333-15(3) to reflect this amendment.
Item 183 - Section 342-1
242. Item 183 adds the new remuneration report introduced in this Part to the simplified
outline in existing section 342-1, which describes the contents of the Part.
Items 184 to 188 - Paragraphs 342-5(1)(b) and 342-5(3A)(b), subsections 342-5(3A)
(heading) and 348-5(1), and subparagraph 348-1(3)(ii)
243. These items make consequential amendments to sections 342-5, 348-1 and 348-5,
which deal with annual financial reporting and lodgment of annual reports, to insert
references to a 'remuneration report' or a 'remuneration report for a financial year', as
applicable. The items are complementary to new paragraph 333-5(3)(c), which authorises
the making of regulations requiring the preparation of such reports.
244. Item 184 inserts new paragraph 342-5(1)(c) to include a new requirement that a
corporation that is required to prepare remuneration report for a financial year must give a
copy of the report to each member who requests it under subsection 342-5(3A) and (3B)
of the Act.
245. Items 185 and 186 amend existing subsection 342-5(3A), which deals with requests
by members for copies of reports, to add a reference to remuneration reports in the
heading of the subsection and in proposed paragraph 342-5(3A)(ba).
246. Item 187 amends existing subsection 348-1(3), which sets out the time for lodging
annual reports, to add new subparagraph 348-1(3)(a)(iia) to provide that the lodgment
time for a remuneration report for a financial year is within 6 months after the end of a
financial year.
247. Item 188 amends existing subsection 348-5(1), which deals with the lodgment of
amended reports, to add a reference to remuneration reports.
46
Items 189 to 193 - Section 694-85 (heading) and subsections 694-85(1) (heading), 694-85(3)
(heading), 694-85(3) and 694-85(4)
248. These items amend section 694-85 to separate the terms 'chief executive officer
function' and 'chief financial officer functions', and to update the definitions of these
terms as a consequence of the amendments made to section 304-5.
249. Item 189 amends paragraph 694-85 to add a reference to the 'chief financial officer
function'. Item 190 to 192 amend existing subsections 694-85(1) and (3), to clarify that
the Act recognises the different functions performed by the CEO and the CFO of a
corporation. Item 193 amends existing subsection 694-85(4) to refer to a CFO function
instead of a CEO function.
Item 194 - Section 700-1
250. This item amends existing section 700-1 of the Act to insert a definition for the
expression 'key management personnel' in the Dictionary. This term will be defined to
have the same meaning as in the 'accounting standards' (which is also defined in the
Dictionary and means a standard in force under section 334 of the Corporations Act or a
provision of such a standard as it so has effect).
Item 195 - Application
251. This item states the new requirement set out in subsection 304-5(3A) for corporations
to advise the Registrar of the personal details of a person performing a CEO function or
CFO function within 28 days of the person assuming the role, only applies to people who
are appointed after the commencement of this Part.
47
Part 9--Related party transactions
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 9 of the Bill modifies the requirements in relation to small corporations dealing with
low-value related party transactions, taking account of the diversity and special
circumstances of classes of CATSI corporations and administrative burden associated with
transactions of this nature. These changes are necessary because the current rules for
related party transactions can make it difficult for corporations to do business, especially in
small communities with extensive kinship ties and limited options for purchasing goods or
services.
This Part also introduces a requirement that the Registrar, when considering making a
determination exempting a CATSI corporation from section 184-1, must not make such a
determination unless the Registrar is satisfied that the giving of the particular financial
benefit will not cause detriment to the CATSI corporation.
Item 196 - Section 287-3
252. This item inserts new section 287-3, which will exempt CATSI corporations from a
requirement to obtain the approval of their members to give a financial benefit to a related
party in a financial year if the total amount of the financial benefit is less than a threshold
amount prescribed in the CATSI Regulations. This section is based on section 213 of the
Corporations Act. Subsection 287-3(2) provides for the working out of the amounts or
values for the purpose of related party transactions exempt from membership approval at
287-3(1).
Item 197 - Sections 290-5 to 290-15
253. This item removes a number of existing obligations on CATSI corporations in relation
to related party transactions. The changes will reduce the administrative burden for
corporations when processing related party transactions. Item 197 repeals section 290-5 of
the Act, which means that CATSI corporations will not be required to lodge with the
Registrar information detailing proposed related party transactions that the corporation
intends to provide to members when seeking their consent to the transactions.
254. Repealing section 290-10 removes the requirement for CATSI corporations to prepare
an explanatory statement that outlines proposed related party transactions. Repealing
section 290-15 removes the power of the Registrar to provide comments to the
corporation in relation to the material it intended to provide to members when seeking
their agreement to related party transactions and which is required to be lodged with the
Registrar under section 290-5.
Item 198 - Subsection 290-20(1)
255. This item repeals and replaces existing subsection 290-20(1), which deals with the
requirements for a notice of meeting. The amendments made by this item support the
simplified process implemented by repealing sections 290-5 to 290-15 for corporations
seeking to progress related party transactions. New subsection 290-20(1) revises the
requirements for a meeting notice where the purpose is to seek member approval
regarding related party transactions. This change is in acknowledgement that corporations
will not be required to submit information to the Registrar or prepare an explanatory
48
statement, and consequently, the Registrar's power to provide comments on that
information is no longer required.
Item 199 - Section 290-25
256. Item 199 repeals section 290-25 (corporation must lodge material that will be put to
members with the Registrar). This will remove red tape associated with resolutions for
member approval of related party transactions.
Item 200 - Section 290-30
257. This item makes a consequential amendment to section 290-30, which is required
following the repeal of section 290-5. The item replaces a reference to a notice lodged
under section 290-5 with the phrase 'notice convening the meeting'.
Item 201 - Subsections 290-35(3) to (6)
258. This item repeals subsection 290-35(3) of the Act, which provides that the CATSI
Regulations may prescribe cases where a related party or its associate is not prevented
from voting on such a resolution under existing subsection 290-35(1).
259. This item repeals subsections 290-35(4), (5) and (6), which empower the Registrar to:
exempt a proposed resolution from the requirement that a related party which would
benefit from a financial benefit, or an associate of such a related party, cannot vote
on a resolution in relation to that benefit; and
allow a related party or associate, to vote on a resolution that involves the related
party receiving a financial benefit.
Item 202 - Section 617-1 (table item 26)
260. This item amends table item 26 in existing section 617-1 to complement the
amendments made by item 201 by repealing, from the table of reviewable decisions, a
declaration made by the Registrar in relation to voting on a proposed resolution by or on
behalf of a related party. As the Registrar's power to make such a declaration is repealed
by item 227, this table item is no longer required.
Item 203 - Application
261. This item states that section 287-3 relates to financial benefits given in a financial
year that ended before the commencement of this Part.
49
Part 10--Power to exempt corporation from employee-director requirement
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 10 empowers the Registrar to exempt corporations from the provision preventing the
majority of directors from working as employees and also enables the Registrar to issue a
determination in relation to the directors of a specific corporation or class of corporations.
Some CATSI corporations are formed to support the members to realise economic and
community development opportunities, such as sell artwork or deliver tourism activities.
This is an important reform because CATSI corporations are formed to support the
members to realise economic and community development opportunities such as sell
artwork, deliver tourism activities, or offer health and municipal services. Members might
also want to act as directors of the corporation and work as employees in these
corporations, for example, as they may want wish to sell their artwork or undertake cultural
heritage work, act as a tour guide, or deliver health services.
Items 204 and 205 - Paragraphs 310-5(2)(a) and 310-15(2)(a)
262. Item 204 amends subsection 310-5(2), which empowers the Registrar to exempt a
corporation from the requirement set out in subsection 246-5(4) that the majority of
directors of a corporation must not be employees of the corporation.
263. Item 205 amends subsection 310-15(2), which empowers the Registrar to make a
determination in relation to a specific corporation or class of corporations, or in relation to
the directors of a specific corporation or class of corporations, that exempts them from
eligible provisions, including subsection 246-5(4) that the majority of directors of a
corporation must not be employees of the corporation.
50
Part 11--Independent directors
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 11 of the Bill will promote the appointment of independent directors who bring
relevant knowledge, skills and experience that can benefit CATSI corporations.
Item 206 - Section 57-5
264. Item 206 adds a new provision enabling the appointment of an independent director
by the directors of a corporation, to the list of internal governance considerations that are
set out in section 57-5.
Item 207 - Section 57-5
265. This item amends table item 74 of section 57-5, that lists internal governance
considerations, to refer to the new subsection 246-25(1A) which limits the term of an
independent director to a period not exceeding 1 year.
Item 208 - Subsection 246-1(3)
266. This item repeals subsection 246-1(3), which prevents the appointment of
independent directors unless the corporation's constitution provides otherwise.
Item 209 - Section 246-15
267. This item amends section 246-15 to clarify that the section applies to the appointment
of directors who are also members of the corporation. This section does not apply to
independent directors, the appointment of whom is addressed in new section 246-17
(inserted by item 210).
Item 210 - Section 246-17
268. This item inserts proposed section 246-17, which provides for the appointment of
independent directors by other directors. Section 246-17 is a replaceable rule that must,
under new subsection 66-1(4A), be identified in a corporation's constitution (rule book).
As a replaceable rule, it will be open to corporations to modify new section 246-17 should
they wish to do so.
Item 211 - Subsection 246-25(1A)
269. This item inserts new subsection 246-25(1A) which creates a replaceable rule limiting
the term of the appointment of an independent director to a period of no more than
one year. This will ensure that directors who are members of the corporation are able to
review the contribution of independent directors and the needs of the corporation at
appropriate intervals. A note to the reader provides that a rule in a corporation's
constitution that modifies or replaces this replaceable rule cannot provide for a term of
appointment that is inconsistent with the Act.
270. Subject to a corporation's constitution, independent directors may be reappointed for
the consecutive terms.
51
Item 212 - Application
271. This item states the amendments relating to the appointment of independent directors
only apply after the commencement of this Part.
52
Part 12--Modernising publication requirements
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 12 of the Bill proposes amendments to enable the Registrar to publish notices on
platforms that are more accessible and to modernise the Registrar's power to exempt
corporations and their directors from exemptible provisions in the Act.
Items 213 to 220 - Subsections 187-5(1), (3) and (6) and section 187-15
272. Items 213 to 220 amend sections 187-5 and 187-15 to allow the Registrar to exempt
CATSI corporations and their directors from exemptible provisions in Chapter 4 of the
Act for specific entities, by written instrument or, as a class, by legislative instrument.
273. Item 213 amends subsection 187-5(1) so that the Registrar may exempt a specified
corporation, or the directors of a specified corporation, from specified exemptible
provisions on application or on the Registrar's own initiative. The change will allow the
Registrar to act promptly in individual matters without having to make a legislative
instrument. This power will assist where the corporation or its directors are unwilling or
unable make an application, for example, in the event of natural disaster.
274. Item 214 makes a minor technical amendment to subsection 187-5(3) to replace the
term 'the application' with 'an application' for consistency with subsection 187-5(1). Item
215 makes a consequential amendment to subsection 187-5(6) by replacing the word
'applicant' with 'corporation'. This amendment recognises that there will be no applicant
when the Registrar acts on their own initiative.
275. Items 216 to 220 amend section 187-15 to allow the Registrar to exempt, by
legislative instrument, classes of CATSI corporations and classes of directors of CATSI
corporations from the exemptible provisions in Chapter 4.
276. Section 187-15 now refers only to a class of corporations or directors of a class of
corporations, as the power to issue determinations in relation to a specified CATSI
corporation or the directors of a specified CATSI corporation is now dealt with by
section 187-5.
277. Item 220 repeals a number of subsections of section 187-15. Subsection 187-15(4) is
repealed because it is unnecessary to empower the Registrar to revoke, suspend or vary a
determination (or a legislative instrument) due to the operation of subsection 33(3) of the
Acts Interpretation Act.
278. Subsection 187-15(5) is repealed as legislative instruments must be published on the
Federal Register of Legislation.
279. Subsection 187-15(6) is repealed as the reference that certain determinations are
legislative instruments, has been moved to subsection (1) through item 216.
280. Subsection 187-15(7) has been repealed as it is no longer necessary due to items 213
and 216.
53
Items 221 to 228 - Subsections 225-5(1), (2) and (5) and Section 225-15
281. These items amend sections 225-5 and 225-15 to allow the Registrar to exempt
CATSI corporations from exemptible provisions in Chapter 5 of the Act for specific
entities by written instrument or, as a class, by legislative instrument.
282. Item 221 amends subsection 225-5(1) so that the Registrar may, upon application or
on the Registrar's own initiative, exempt a specified corporation, or the directors of a
specified corporation, from exemptible provisions specified in the determination. This
will allow the Registrar to act promptly in individual matters without having to make a
legislative instrument. This power will assist where the corporation or its directors are
unwilling or unable make an application, for example, in the event of natural disaster.
283. Item 223 makes a consequential amendment to subsection 225-5(5) by replacing the
word 'applicant' with 'corporation'. This amendment recognises that there will be no
applicant when the Registrar acts on their own initiative.
284. Items 224 to 228 amend section 225-15 to allow the Registrar to exempt, by
legislative instrument, classes of CATSI corporations and classes of directors of
CATSI corporations from the exemptible provisions in Chapter 5.
285. Section 225-15 now refers only to a class of corporations or directors of a class of
corporations, as the power to issue determinations in relation to a specified CATSI
corporation or the directors of a specified CATSI corporation is now dealt with by
section 225-5.
286. Subsection 225-15(3) is repealed because it is unnecessary to empower the Registrar
to revoke, suspend or vary a determination (or a legislative instrument) due to the
operation of subsection 33(3) of the Acts Interpretation Act.
287. Subsection 225-15(4) is repealed as legislative instruments must be published on the
Federal Register of Legislation.
288. Subsection 225-15(5) is repealed as the reference that certain determinations are
legislative instruments has been moved to subsection (1) through item 224.
289. Subsection 225-15(6) has been repealed as it is no longer necessary due to items
221 and 224.
Item 229 - Subsection 268-25(8)
290. This item replaces the existing subsection 268-25(8) which requires the Registrar to
publish the making, revocation or suspension of an order that allows directors who have a
material personal interest in a matter to be present while the matter is being considered at
a director's meeting, vote on that matter, or both be present and vote. The existing
requirement is that the Registrar publish notice of the order in the Gazette.
291. New subsection 268-25(8) will authorise the Registrar to publish the notice in one or
more of the following ways: on the Registrar's website; in the Gazette (for orders that are
not legislative instruments); in national newspaper; or in a daily newspaper that circulates
54
in each state or territory. This arrangement is more flexible and will enable the Registrar
to publish the notice in a way that is most likely to reach the intended audience.
Items 230 to 237 - Subsections 310-5(1), (3) and (6) and section 310-15
292. These items amend sections 310-5 and 310-15 to allow the Registrar to exempt
CATSI corporations from exemptible provisions in Chapter 6 of the Act for specific
entities, by written instrument or, as a class, by legislative instrument.
293. Item 230 amends subsection 310-5(1) so that the Registrar may, upon application or
on the Registrar's own initiative, exempt a specified corporation, or the directors of a
specified corporation, from exemptible provisions specified in the determination. This
will allow the Registrar to act promptly in individual matters without having to make a
legislative instrument. This power will assist where the corporation or its directors are
unwilling or unable make an application, for example, in the event of natural disaster.
294. Item 232 makes a consequential amendment to subsection 310-5(5) by replacing the
word 'applicant' with 'corporation'. This amendment recognises that there will be no
applicant when the Registrar acts on their own initiative.
295. Items 233 to 237 amend section 310-15 to allow the Registrar to exempt, by
legislative instrument, classes of CATSI corporations and classes of directors of
CATSI corporations from the exemptible provisions in Chapter 6.
296. Section 310-15 will now refer only to a class of corporations or directors of a class of
corporations as the power to issue determinations in relation to a specified
CATSI corporation or directors of a specified CATSI are now dealt with by section 310-5.
297. Subsection 310-15(4) is repealed because it is unnecessary to empower the Registrar
to revoke, suspend or vary a determination (or a legislative instrument) due to the
operation of subsection 33(3) of the Acts Interpretation Act.
298. Subsection 310-15(5) is repealed as legislative instruments must be published on the
Federal Register of Legislation.
299. Subsection 310-15(6) is repealed as the reference that certain determinations are
legislative instruments has been moved to subsection (1) through item 233.
300. Subsection 310-15(7) has been repealed as it is no longer necessary due to items
230 and 233.
Item 238 - Subsections 336-5(9) and (10)
301. Subsection 336-5(9) is repealed because it is unnecessary to empower the Registrar to
revoke, suspend or vary a determination (or a legislative instrument) due to the operation
of subsection 33(3) of the Acts Interpretation Act.
302. Subsection 336-5(10) has been repealed as legislative instruments must be published
on the Federal Register of Legislation.
55
Items 239 to 241 - Subsections 353-3(1), (2) and (5)
303. These items amend sections 353-3 and 353-10 to allow the Registrar to exempt
CATSI corporations from provisions in Part 7-2 or Part 7-3 of the Act or regulations made
for the purposes of those Parts, for specific entities by written instrument or, as a class, by
legislative instrument. These provisions deal with record keeping and reporting
requirements.
304. Item 239 amends subsection 353-3(1) so that the Registrar may, upon application or
on the Registrar's own initiative, exempt a corporation or its directors or auditor from the
provisions specified in the determination. This will allow the Registrar to act promptly in
individual matters without having to make a legislative instrument. This power will assist
where the corporation, its directors or its auditor, are unwilling or unable make an
application, for example, in the event of natural disaster.
305. Item 240 makes a consequential amendment to subsection 353-3(2) by replacing the
word 'applicant' with 'corporation'. This amendment recognises that there will be no
applicant when the Registrar acts on their own initiative.
306. Item 241 makes a consequential amendment to subsection 353-3(5) by replacing the
word 'applicant' with 'corporation'. This amendment recognises that there will be no
applicant when the Registrar acts on their own initiative.
Items 242 to 246 - Subsections 353-10(1), (3) to (6) and paragraphs 353-10(1)(a)
and 353-10(1)(b)
307. Items 242 to 246 amend section 353-10 to allow the Registrar to exempt, by
legislative instrument, classes of CATSI corporations and classes of directors of CATSI
corporations from the provisions in Part 7-2 (record-keeping requirements) or Part 7-3
(reporting requirements) of the Act or regulations made for the purposes of those
provisions.
308. Section 353-10 will now refer only to a class of corporations or directors of a class of
corporations as the power to issue determinations in relation to a specified CATSI
corporation or a director or auditor of a specified CATSI corporation are now dealt with
by section 353-3.
309. Subsection 353-10(3) is repealed because it is unnecessary to empower the Registrar
to revoke, suspend or vary a determination (or a legislative instrument) due to the
operation of subsection 33(3) of the Acts Interpretation Act.
310. Subsection 353-10(4) is repealed as legislative instruments must be published on the
Federal Register of Legislation.
311. Subsection 353-10(5) is repealed as the reference that certain determinations are
legislative instruments has been moved to subsection (1) through item 239.
312. Subsection 310-10(6) has been repealed as it is no longer necessary due to items 239
and 242.
56
Item 247 - Subsection 493-1(4)
313. This item replaces existing subsection 493-1(4) which requires the Registrar to
publish notices in relation to a determination, appointment and extension of special
administration for a CATSI corporation. The existing requirement is that the Registrar
publish notice in the Gazette.
314. New subsection 493-1(4) will authorise the Registrar to publish notice in one or more
of the following ways: on the Registrar's website; in the Gazette; in a national newspaper;
or in a daily newspaper that circulates in each state or territory in which the corporation
has its registered office (if any) or carries on business or other operations. This change
provides greater flexibility to the Registrar to publish the notice in a way that is most
likely to reach the intended audience.
Item 248 - Subsection 526-20(8)
315. This item replaces the existing subsection 526-20(8) which requires the Registrar to
publish a notice within 21 days after he or she receives advice from a corporation that it
has passed a resolution to voluntarily wind-up. The existing requirement is that the
Registrar must publish a notice in the Gazette. The proposed subsection enables the
Registrar to publish the notice in one or more of the following ways: on the Registrar's
website; in the Gazette; in a national newspaper; or in a daily newspaper that circulates in
each state or territory in which the corporation has its registered office (if any) or carries
on business or other operations. This change provides greater flexibility to the Registrar to
publish the notice in a way that is most likely to reach the intended audience.
Items 249 and 250 - Subsection 546-5(3) and paragraph 546-5(3)(d)
316. Item 249 replaces the existing paragraph 526-5(3)(d) which requires the Registrar to
publish a notice in the Gazette if they decide to deregister a CATSI corporation.
The existing requirement is that the Registrar publish a notice in the Gazette, in addition
to giving notice to the corporation, corporation's liquidator and corporation's directors.
The proposed paragraph enables the Registrar to publish the notice in one or more of the
following ways: on the Registrar's website; in the Gazette; in a national newspaper; or in
a daily newspaper that circulates in each state or territory in which the corporation has its
registered office (if any) or carries on business or other operations. This change provides
greater flexibility to the Registrar to publish the notice in a way that is most likely to
reach the intended audience.
317. Item 250 is a consequential change that replaces a reference to the Gazette with a
reference to paragraph 564-5(3)(d). This change does not alter the Registrar's discretion
to deregister a corporation after 2 months have passed since the Registrar gave the
requisite notice of their intention.
Item 251 - Subsection 546-40(4)
318. Item 251 replaces subsection 546-40(4) which requires the Registrar to publish a
notice in the Gazette if the Registrar decides to reinstate the registration of a deregistered
CATSI corporation. The existing requirement is that the Registrar publish notice in the
Gazette, in addition to giving notice to applicant who requested the reinstatement if
relevant. The proposed paragraph enables the Registrar to publish the notice in one or
more of the following ways: on the Registrar's website; in the Gazette; in a national
57
newspaper; or in a daily newspaper that circulates in each state or territory in which the
corporation had its registered office (if any) before deregistration or carried on business or
other operations. This change provides greater flexibility to the Registrar to publish the
notice in a way that is most likely to reach the intended audience.
Item 252 - Section 658-15
319. This item substitutes the current requirement that the Minister determine the form of a
seal of the Registrar's office by notice in the Gazette, with a requirement that the Minister
determine the seal by notifiable instrument.
Item 253 - Paragraph 694-95(2)(b)
320. This item is a consequential amendment which includes a failure to comply with a
requirement to publish on a website within the scope of paragraph 694-95(2)(b). The
effect of this amendment is to provide that an act, transaction, agreement, instrument,
matter or thing is not invalid merely because of the failure to comply with an applicable
publication requirement, which now extends to publication on a website.
Item 254 - Application
321. This item states the amendments relating to publishing notices made in this Part only
apply to notices published after Part 12 has commenced.
322. This item also states that determinations made prior to the commencement of this Part
in accordance with sections 187-15, 225-15, 310-15 and 353-10 will be taken to continue
after the commencement of this Part in accordance with corresponding sections 187-5,
225-5, 310-5 and 353-3.
323. This item further states a determination of the Minister under section 658-15 that was
in effect prior to the commencement of this Part will continue despite the replacement of
that section in this Part, and may be revoked or varied after the commencement of this
Part as if the determination were a notifiable instrument made under that section as
substituted by this Part.
58
Part 13--Storage of information
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 13 of the Bill allows corporations to store information on platforms such as cloud
servers and requires corporations to provide a means by which the stored information is
accessible at its place of inspection.
Item 255 - Section 376-22
324. This item inserts new section 376-22 into the Act to allow CATSI corporations to
store information on storage platforms such as servers located at a place other than the
place of inspection.
325. New section 376-22(1) applies where: the corporation records matters that are
required by the Act to be contained in a book; those records are kept at a place (the place
of storage) which is other than the place of inspection; and means are provided at the
place of inspection by which the stored matters can be made available in written form.
326. Subsection 376-22(2) deems a corporation in this position to have complied with the
requirements of the Act with respect to the location of the book insofar as the book must
contain the stored matters. Subsection 376-22(3) deems the book to be taken to be kept at
the place of inspection even though the record is stored elsewhere.
327. This new provision will ensure that CATSI corporations are not constrained by
artificial requirements with respect to storing records that are required to be kept and
made available for inspection in accordance with the Act. This amendment will help
modernise the CATSI Act and enable CATSI corporations to access different technology
to assist in record-keeping and compliance.
59
Part 14--Improving consistency with Corporations Act
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 14 of the Bill strengthens the Act by:
inserting a new definition of the term 'dishonest' to align with the Corporations
Act;
applying and modifying whistleblower provisions in Part 9.4AAA of the
Corporations Act in a manner that reflects the operating context for CATSI
corporations;
aligning penalties in the Act for making or authorising the making of statements
that are materially false or misleading with the Corporations Act; and
providing an explanation of what comprises 'reasonable steps' in the context of
offences for providing false or misleading information.
Part 14 also introduces qualified privilege for auditors of CATSI corporations.
Item 256 - Paragraph 265-25(1)(b)
328. This item removes the word 'intentionally' from existing paragraph 265-25(1)(b),
which provides that it is an offence if a director or another officer of an Aboriginal or
Torres Strait Islander corporation is dishonest (and fails to exercise their powers in good
faith and for a proper purpose). This item aligns the definition of the term 'dishonest' in
the Act with the definition of that term in the Corporations Act.
Item 257 - Subsection 265-25(3A)
329. This item inserts proposed subsection 265-25(3A) after existing subsection 265-25(3),
which sets out that it is an offence for a director, other officer or employee of an
Aboriginal or Torres Strait Islander corporation to use their position dishonestly.
Proposed subsection 265-25(3A) clarifies, for the avoidance of doubt, what it means for a
director, officer or employee of an Aboriginal or Torres Strait Islander corporation to use
their position dishonestly. This subsection provides that it is not a defence that the person
has acted in one of the following ways: with the intention of directly or indirectly gaining
an advantage for the corporation; or, resulting in the corporation directly or indirectly
gaining an advantage. This item aligns the Act with section 184 of the Corporations Act.
Item 258 - Section 265-25(5)
330. This item inserts proposed subsection 265-25(5) at the end of existing section 265-25.
New subsection 265-25(5) clarifies, for the avoidance of doubt, circumstances that cannot
be used as a defence in a proceeding involving an alleged offence under subsection
265-25(4), which sets out that it is an offence for a director, other officer or employee of
an Aboriginal or Torres Strait Islander corporation to use information dishonestly. This
subsection provides that it is not a defence that the person has acted in one of the
following ways: with the intention of directly or indirectly gaining an advantage for the
corporation; or, their behaviour has resulted in the corporation directly or indirectly
gaining an advantage. This item aligns the Act with section 184 of the Corporations Act.
Item 259 - Part 10-5
331. This item repeals existing Part 10-5 of the Act (which contains provisions for the
protection of whistleblowers) and applies Part 9.4AAA from the Corporations Act to
60
CATSI corporations with appropriate substitutions and modifications to reflect the
context of CATSI corporations.
332. Proposed subsection 466-1(1) applies the Corporations Act to CATSI corporations
with substituted references. Specifically, references to:
(a) 'APRA' are substituted with references to ORIC;
(b) 'ASIC' are substituted with references to 'the Registrar';
(c) 'associate' are substituted for 'associate (within the meaning of the Act)'; and
(d) 'regulated entity' are substituted for 'regulated entity (within the meaning given by
subsection (4))'.
333. Proposed subsection 466-1(2) indicates the provisions in the Corporations Act apply
only to the extent capable and with any modifications that are specified in the
CATSI Regulations.
334. Proposed subsection 466-1(3) states that modifications specified in the regulations
must not increase any penalties and or widen the scope of any offence as provided by the
Corporations Act.
335. New subsection 466-1(4) contains definitions of 'Corporations Act whistleblower
protection provisions' and 'regulated entity' to assist the reader. The term 'Corporations
Act whistleblower protection provisions' specifies the applied provisions in the
Corporations Act. The term 'regulated entity' is defined to mean a CATSI corporation, a
connected entity of a CATSI corporation or an entity prescribed by the Regulations for
the purposes of substitution with the Corporation Act references.
Item 260 - Subsection 561-1(4)
336. This item reduces the maximum penalty that may be applied to a person who, with
respect to a document required under the CATSI Act or lodged with the Registrar, makes
or authorises the making of a statement that is false or misleading in a material way, or
omits or authorises the omission of something without which the document is materially
false or misleading.
337. Item 260 reduces the maximum penalty of 200 penalty units or imprisonment for
5 years, or both, to 100 penalty units or imprisonment for 2 years, or both. This aligns the
penalty with that of a similar offence under section 561-5(2) dealing with materially false
or misleading information given, authorised or made available by an officer or employee.
Item 261 - Subsection 561-5(5) to (8)
338. This item adds new subsections 561-5(5) to (8) with respect to offences committed by
an officer or employee of a CATSI corporation by giving, or making available, false
information to a director, auditor or member of the corporation or the auditor of a
controlling corporation. The 4 subsections each insert a deeming rule for the purpose of
establishing when a person has taken reasonable steps to ensure that information they
have given or made available, or omitted to give or make available is not, does not render
other information given, materially false or misleading. Under the new provisions a
defendant will need to prove that they have taken such reasonable steps. This is necessary
because the required facts will be peculiarly within the defendant's knowledge.
61
339. The addition of these subsections will assist officers and employees of CATSI
corporations to better understand their responsibilities and the steps that are expected
from them, to ensure that information provided is accurate.
Item 262 - Part 15-3 (heading)
340. This item removes the words 'for Registrar, Minister etc.' from the heading of Part
15-3 to reflect the broader scope of Part 15-3, which now provides qualified privilege of
auditors proposed in the following items.
Item 263 - Division 610
341. This item inserts Division 610 dealing with qualified privilege for auditors of a
CATSI corporation, persons who represent an auditor at an AGM of a CATSI corporation
or who publish documents containing statements made by an auditor or a person
representing an auditor at an AGM.
342. Proposed section 610-1 provides for auditors (or persons representing auditors or
publishing auditor's documents or statements) to enjoy qualified privilege in certain
circumstances. This provision brings the CATSI Act into alignment with the Corporations
Act. The Bill expressly sets out the privilege, in a similar way to the Corporations Act, in
order to assist users who are not familiar with the law of defamation as well as to ensure
that courts apply a consistent approach to the privilege thereby avoiding jurisdictional
differences.
Item 264 - Section 694-67
343. This item adds proposed section 694-67, which sets out the meaning of qualified
privilege for the purposes of the Act. It is based on section 89 of the Corporations Act.
Item 265 - Section 700-1
344. This item inserts in the Dictionary signpost definitions for the following terms
introduced by Part 14 of the Bill: 'Corporations Act whistleblower protection provisions',
'dishonest', 'qualified privilege' and 'regulated entity'. The definitions will refer the
reader, respectively, to sections 466-1 and 694-67 where the substantive definitions have
been placed to improve readability.
Item 266 - Application
345. This item provides that the amendments to section 265-25 made by items 256 to 258
apply in relation to conduct constituting the commission of an offence occurring wholly
after the commencement of Part 13. This means the amendments to the offence provisions
in section 265-25 of the Act are to apply prospectively and will not impact proceedings in
relation to offences that are alleged to have occurred prior to this Part commencing.
Item 267 - Application
346. This item states that the provisions introducing qualified privilege for auditors will
apply to statements, notices and publications after the commencement of the Part.
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Part 15--Finalising processes
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 15 of the Bill introduces 2 new notices that the Registrar can issue to provide certainty
to CATSI corporations. The first is issued by the Registrar when they are satisfied with
action taken in response to a compliance notice. The second is issued by the Registrar
when they are satisfied with the outcome of an examination. In turn, corporations can
present these notices to relevant stakeholders such as members and funding bodies.
Item 268 - Subsection 439-20(6A)
347. This item inserts new subsections 439-20(6A) to compel the Registrar to issue a
notice if the Registrar is satisfied that a corporation or its directors has taken action in
accordance with a notice issued under subsections 439-20(1), (3) or (5). This will provide
some certainty to corporations or directors that the Registrar is satisfied they have
appropriately addressed any concerns raised in a compliance notice. In-turn, a corporation
or its directors can demonstrate to stakeholders, such as members or funding bodies, that
the Registrar's concerns have been adequately addressed.
348. This item also inserts subsection 439-20(6B) to confirm that a notice issued under
subsection 439-20(6A) is not a legislative instrument. This provision is included to assist
readers, as the instrument is not a legislative instrument within the meaning of
subsection 8(1) of the Legislation Act.
Item 269 - Application
349. This item states the requirement for the Registrar to issue a notice stating that they are
satisfied that the action specified in a notice issued under subsections 439-20(1), (3) or (5)
has been addressed, only applies to notices issued according to those subsections after the
commencement of this Part.
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Part 16--Dealing with unclaimed property
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 16 creates a new special account for the purposes of the PGPA Act, to be known as the
Aboriginal and Torres Strait Islander Corporations Assets Protection Account (Assets
Protection Account). This new special account will hold funds transferred from the
Aboriginal and Torres Strait Islander Corporations Unclaimed Money Account
(Unclaimed Money Account) after a period of 6 years and these funds will be used to meet
the costs associated with managing property vested with the Registrar.
Item 270 - Subsection 551-15(2)
350. Item 270 inserts a reference to new section 551-32 into existing subsection 551-15(2).
This complements the amendments made by item 279, which establishes a new special
account to hold funds held in the Unclaimed Money Account for a period of 6 years that
would have otherwise be paid to the Consolidated Revenue Fund formed under section 81
of the Constitution. The new account will be a special account for the purposes of the
PGPA Act.
Items 271 and 272 - Section 551-25
351. Items 271 and 272 amend the heading and contents of existing section 551-25 to
insert the words 'Aboriginal and Torres Strait Islander Corporations Unclaimed Money'.
The changes are needed to reflect the establishment of a new special account established
to hold funds in the Unclaimed Money Account that would have otherwise been paid to
the Consolidated Revenue Fund after a period of 6 years.
Items 273 to 275 - Section 551-30 (heading) and subsections 551-30(1) and 551-30(2) (note)
352. Item 273 to 275 amend the heading and contents of existing section 551-25 to ensure
that it is clear to the reader that it relates to the Unclaimed Money Account established by
that provision (as distinct from the new special account established by section 551-36).
The amendments to section 551-30 clarify that the provision applies to the other
Unclaimed Money Account and its purposes.
353. Item 275 inserts a note advising readers that amounts equal to the amounts debited
under this subsection must be credited to the Aboriginal and Torres Strait Islander
Corporations Asset Protection Account under section 551-37.
Items 276 to 278 - Subsection 551-30(3), section 551-32 and paragraphs 551-35(1)(b) and
(2)(b)
354. Items 276 and 277 repeal subsection 551-30(3) and recreate it as a standalone
provision in new section 551-32. This section provides that the Registrar must pay
unclaimed monies or the proceeds of unclaimed property to a claimant after 6 years have
elapsed since the Registrar first held the unclaimed property, when the Registrar is
satisfied under paragraph 551-15(2)(b) that the person is entitled to the money.
355. Item 278 is a complementary change to update the reference in paragraph 551-
35(1)(b) and (2)(b) to section 551-32, which is the replacement section that deals with
payment of unclaimed funds after 6 years have elapsed.
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Item 279 - Section 551-36, 551-37 and 551-38
356. Item 279 inserts new sections 551-36, 551-37 and 551-38.
357. New subsection 551-36 will establish the 'Aboriginal and Torres Strait Islander
Corporations Assets Protection Account' as a special account for the purposes of the
PGPA Act.
358. Proposed section 551-37 requires that amounts credited to this new special account
must be equal to amounts debited from the existing Unclaimed Money Account.
359. Proposed section 551-38 provides that the purposes of the Assets Protection Account
are to pay costs in relation to unclaimed property that is not money, including the costs
associated with the management, upkeep, maintenance and protection of the property and
ensuring public safety.
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Part 17--External administration and deregistration
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 17 of the Bill applies sections 451E to 451H of the Corporations Act to CATSI
corporations placed under special administration. These changes prevent a contract,
agreement or arrangement from being cancelled when a corporation has been placed under
special administration. This provides some financial certainty to corporations placed under
special administration.
Part 17 also replaces one of the grounds on which a CATSI corporation can be placed
under special administration with a new ground, which is a serious irregularity in the
financial affairs of the corporation. This replaces the ground that the corporation may have
operated at a loss for 6 of the 12 months preceding the appointment of a special
administrator. The requirement for the Registrar to issue a show cause notice has also been
removed when the majority of a CATSI corporation's directors have requested the
appointment of a special administrator. These changes will enable the Registrar to better
identify CATSI corporations requiring assistance and make it easier for the Registrar to
appoint a special administrator to assist a CATSI corporation.
This Part also makes deregistration, which is cheaper and less complex than voluntary
winding up, a more feasible option for CATSI corporations in appropriate cases.
Part 17 introduces rebuttable presumptions under which a court may presume that a CATSI
corporation is insolvent. As the presumptions are rebuttable, a corporation can avoid the
presumption by proving to the court that it is solvent.
Item 280 - Section 166-10 (note)
360. This item inserts a note at the end of section 166-10, alerting the reader that a court
that is dealing with an application for a winding up order, may grant the order under
subsection 526-17 if the court is satisfied that the CATSI corporation is insolvent.
Item 281 - Paragraph 487-5(1)(a)
361. This item replaces the existing ground in paragraph 487-5(1)(a) for placing a
corporation under special administration when the corporation has traded at a loss for at
least 6 months during the 12 months before the Registrar's determination to appoint a
special administrator is made. The proposed replacement ground is that there is a serious
irregularity in the financial affairs of the corporation. This will enable the Registrar to
better identify CATSI corporations requiring assistance and make it easier for the
Registrar to appoint a special administrator to assist a CATSI corporation.
Items 282 and 283 - Subsections 487-10(1) and (1A)
362. Item 283 inserts subsection 487-10(1A) which dispenses with the show cause notice
procedure if a majority of the directors of the corporation have requested in writing that
the Registrar appoint a special administrator. Item 282 makes a consequential change to
reflect this dispensation.
Item 284 - paragraph 499-10(1)(da)
363. This item adds sections 451E to 451H to the list of Corporations Act provisions that
apply to a corporation that is under special administration.
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364. Section 451E prevents a right of a contract, agreement or arrangement from being
enforced against a corporation that has been placed under special administration. For
example, a right to cancel a contract will not be enforceable while the CATSI corporation
is under special administration. The right will not be enforceable from when the
corporation is placed under special administration. The stay of rights can conclude in
several circumstances including: when the special administration concludes; if a court
orders an end date; or when the company's affairs have been wound up.
365. Paragraph 451E(3)(a) enables the court to extend the period a stay of rights is in effect
and to make an interim order under paragraph 451E(3)(b) but without any undertaking as
to damages. Subsection 451E(4) prevents the enforcement of a right against a
corporation--indefinitely after the conclusion of the stay period--in specific
circumstances, including to the extent that the reason for enforcing the right relates to the
financial situation of the corporation before it was placed under special administration.
366. Subsection 451E(5) lists rights that are not subject to the stay of rights, including
rights associated with contracts, agreements or arrangements that were entered into after
the corporation was placed under special administration, or a right associated with a type
of contract, agreement or arrangement prescribed in the CATSI Regulations.
367. Subsection 451E(6) empowers the Minister to declare kinds of rights and kinds of
contracts, agreements or arrangements, that are not subject to a stay of rights through a
legislative instrument. The Minister can also declare rights through a legislative
instrument that are not subject to a stay of rights in specified circumstances.
368. Subsection 451E(7) states the stay of rights does not apply to a right the special
administrator or liquidator has consented can be enforced.
369. Subsection 451E(8) prevents the corporation from accessing a new advance of money
or credit available through a contract, agreement or arrangement which is the subject of a
stay of rights.
370. Section 451F enables a court to order that the provision in 451E preventing a right
from being enforced does not apply if the Court is satisfied that it in the interests of
justice. An application can be made for such an order by the holder of rights
371. Section 451G enables a court to order one or more rights under a contract, agreement
or arrangement, are enforceable against a corporation with the leave of the court and in
accordance with any terms that the court may impose. Only the administrator of the
corporations may apply for such an order, and rights referred to in subsections 451E(5)
and (7) are excluded. The court can grant an interim order when it is considering an
application, but must not require the applicant to give an undertaking as to damages as a
condition of granting an interim order. An order by the court must specify the period of
time for which it applies.
372. Section 451GA specifies that self-executing provisions are subject to sections 451E
and 451G. This means that self-executing provisions cannot start to apply against a
company for certain reasons, and can be the subject of a court order that the provision can
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apply to the company with the leave of the court and in accordance with any conditions
imposed by the court.
373. Section 451H states the Corporations Act prevails, to the extent of any inconsistency,
over the Payment Systems and Netting Act 1998 and the International Interests in Mobile
Equipment (Cape Town Convention) Act 2013.
Item 285 - Paragraph 499-10(1)(e)
374. This item is a complementary change to item 276 recognising the application of
sections 451E to 451H of the Corporations Act.
Item 286 - Subsection 526-1(3)
375. The item amends subsection 526-1(3) to provide that a winding up order under
subsection (1) may be made on an application under section 166-10 of the Act. This
amendment ensures that section 526-1 is consistent with proposed section 526-17.
Item 287 - Section 526-12
376. This item inserts proposed section 526-12. This section creates 2 new presumptions of
insolvency for the purpose of paragraph 526-5(i), which specifies that insolvency is a
ground on which a CATSI corporation may be wound up. The new presumptions are
unique to the CATSI Act.
377. Subsection (1) provides that a CATSI corporation is presumed to be insolvent if an
authorised officer has stated in a written report to the Registrar under subsection 453-1(1)
that, in the officer's opinion, the corporation has failed to keep or retain financial records
as required by section 322-10(1) or to retain financial records for 7 years as required by
subsection 322-10(2), and before the officer made the statement, the corporation had been
given at least 14 days to produce the financial records.
378. Subsection (2) provides that a CATSI corporation is presumed to be insolvent if a
special administrator for the corporation has stated in a written report to the Registrar that
in the special administrator's opinion, the corporation has failed to keep or retain financial
records as required by subsection 322-10(1), or has failed to retain financial records for 7
years as required by subsection 322-10(2).
379. Under subsection (3) the presumptions in subsections (1) and (2) do not apply to a
contravention that is minor or technical. Subsection (4) provides that the presumptions are
rebuttable.
Items 288 and 289 - Paragraphs 526-15(4)(c) and 526-15(4)(d)
380. These items amend subsection 526-15(4), including by repealing
paragraph 526-15(4)(d), with the effect that the Registrar is not required to seek leave of
the Court to apply for an order that a corporation be wound up because it is insolvent.
Item 290 - Section 526-17
381. This item inserts proposed section 526-17. This section provides that where an
application under section 166-10 is made and the Court is satisfied that the corporation is
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insolvent, the Court may order that the corporation be wound up on the ground that it is
insolvent. This section is based on section 459B of the Corporations Act to the extent that
it relates to section 234 of the Corporations Act on which section 166-10 of the CATSI
Act is based.
Items 291 and 292 - Subsection 546-1(2)
382. The purpose of the items is to clarify that all the conditions listed in subsection
546-1(2) must be met before a person can apply to the Registrar to deregister a
CATSI corporation.
Item 293 - Subsection 546-1(2A)
383. This item inserts proposed subsection 546-1(2A). The purpose of this subsection is to
allow an application for deregistration even though not all the conditions in
paragraphs 546-1(2)(a) to (e) of the Act are not met. An application in these
circumstances must specify the conditions that are not met and the reasons for them not
being met. An application for registration must meet the eligibility criteria at paragraph
546-1(2)(f) that the corporation is not a party to any legal proceedings.
Item 294 - Subsections 546-1(4) and (4A)
384. This item repeals and substitutes subsection 546-1(4), as well as inserting subsection
(4A).
385. New subsection 546-1(4), which requires the Registrar to give notice of proposed
deregistration in the Gazette, builds on the current provision by also requiring, as a
precondition to publishing a notice, that the Registrar is not aware of any condition
mentioned in subsection (2) not being met. In addition, new subsection 546-1(4) expands
the methods of publication so that the Registrar's notice must be given in one or more of
the following ways: on the Registrar's website; in the Gazette; in a national newspaper; or
in a daily newspaper that circulates in each state or territory in which the corporation has
its registered office (if any).
386. New subsection 546-1(4A) also allows the Registrar to give notice of a proposed
deregistration of a corporation where the Registrar is not aware of any failure to comply
with subsection 546-1(1) or (3), and is also not aware of the condition mentioned in
paragraph 546-1(2)(f) not being met; and, the Registrar is aware of one or more of the
conditions mentioned in paragraphs 546-1(2)(a) to (e) not being met, and is satisfied that
it is justified to proceed with the deregistration despite this.
Items 295 and 296 - Subsections 546-1(5) and (6)
387. Items 295 and 296 make consequential changes to subsections 546-1(5) and (6)
recognising that the Registrar may publish notices about the proposed deregistration of a
CATSI corporation on platforms other than in the Gazette.
Item 297 - Application
388. Item 297 states the amendments to the show cause procedure set out in
section 487-10 will apply to determinations made by the Registrar that a corporation will
be placed under special administration, after the commencement of this Part.
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389. Item 297 also states the amendments to provisions relating to applications made to the
Court set out in Division 526 will apply after the commencement of this Part.
390. Item 297 further states the amendments to the provisions relating to an application for
deregistration set out in Division 546 will apply after the commencement of this Part.
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Part 18--Minor technical amendments
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 18 makes minor technical amendments to the CATSI Act.
Item 298 - Section 57-5 (heading)
391. This item changes the heading of the simplified outline in existing section 57-5 to
clarify the content of the section.
Item 299 - Subsection 69-20(3) (note)
392. This item repeals the note at the foot of subsection 69-20(3) and substitutes it with the
note that currently appears at the end of section 69-20. Repealing the note relating to
section 6.1 of the Criminal Code reflects current legislative drafting practices but does not
alter the substantive provision in subsection 69-20(3). Moving the existing note from the
end of the section to subsection 69-20(3) improves its utility.
Item 300 - Subsection 69-20(5) (note)
393. This item repeals the note at subsection 69-20(5), which will now appear after
subsection 69-20(3) as a result of the amendment made by item 299.
Item 301 - Subsection 85-15(3)
394. This item replaces the word 'this' in subsection 85(3) with the words 'the requirement
in subsection (2)'. The purpose of this amendment is to clarify the meaning of subsection
85-15(3) by removing a possible ambiguity in the use of the word 'this'.
Item 302 - Subsection 201-15(2)
395. This item replaces the words '21 days' in subsection 201-15(2) with the words
'28 days'. The purpose of this amendment is to promote consistency in the operation of
related provisions in the CATSI Act. Currently, subsection 201-15(2) requires directors to
call a meeting within 21 days of being notified of the Registrar's decision rejecting a
request to not hold the meeting under subsection 201-10(4). The Registrar's decision
under subsection 201-10(4) is reviewable and, under section 620-5, the directors (or other
persons whose interests are affected by the decision) may request the Registrar to
reconsider the decision. The request must be made within 28 days.
396. The current 21-day limit under subsection 201-15(2) does not allow for the 28-day
period to request the Registrar to reconsider the decision under section 620-5. Increasing
the period to 28 days will allow for the 28-day period within which an application can be
made for a review of the Registrar's decision under section 620-5.
Item 303 - Section 246-20 (heading)
397. This item removes the phrase 'to make up a quorum' from the heading of
section 246-20 as the provision extends beyond that application.
Item 304 - Subsection 249-10(2)
398. This item repeals subsection 249-10(2). The purpose of this amendment is to remove
confusion about the minimum possible notice period for member resolutions to remove
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directors. On the face of subsection 249-10(2), the second sentence appears to allow a
notice period of less than 21 days. In fact, a minimum notice period of 21 days is
mandated by subsection 201-20(3) and cannot be further shortened by
subsection 249-10(2).
399. Subsection 249-10(2) is based on subsection 203D(2) of the Corporations Act.
However, the notice period has been shortened from 2 months in the Corporations Act to
21 days in the CATSI Act. Under the Corporations Act, subsection 203D(2) must be read
together with subsection 249H(3) which provides that the relevant notice period must be
at least 21 days.
400. When read together, the effect of these provisions is that the standard notice period
must be at least 2 months unless certain circumstances exist as set out in the second
sentence of subsection 203D(2), in which case there must be at least a 21-day notice
period. By contrast, under the CATSI Act, the effect of subsection 249-10(2), when read
with subsection 201-20(3), is that the standard notice period is the same as the minimum
notice period, being at least 21 days. Accordingly, subsection 249-10(2) serves no
purpose.
Item 305 - Subparagraph 279-25(1)(a)(iii)
401. This item replaces the word 'or' at the end of subparagraph 279-25(1)(a)(iii) with the
word 'and'. The purpose of this amendment is to align section 279-25 with section 206E
of the Corporations Act on which it is based. Accordingly, in order to disqualify a person
under subsection 279-25(1), the Court must be satisfied that the disqualification is
justified under paragraph (b) in addition to finding against the person in relation to one of
the grounds in paragraph (a).
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Part 19--Review of financial reports
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Part 19 introduces reviews of financial reports as an alternative to audits under Chapter 7
of the CATSI Act. Reviews offer a less expensive alternative to an audit, while maintaining
an adequate level of independent assurance of financial information in appropriate cases.
This Part provides for the making of regulations that will allow for the conduct of reviews.
Various provisions relating to the conduct of audits are extended to the conduct of reviews.
In addition, this Part expands the category of practitioners who will be qualified to
undertake reviews, in contrast to the more restricted class of auditors.
Items 306 and 307 - Paragraphs 201-170(1)(a) and (d)
402. These items provide that members may ask questions of the corporation's auditor, or
auditor's representative, at the AGM in relation to the conduct of the audit or review.
These changes complement the new provision inserted by item 313 enabling corporations
to have their financial reports reviewed rather than audited in prescribed circumstances.
Items 308 and 309 - Subsection 327-1(3) and 327-1(3)(a)
403. These items amend section 327-1, which specifies CATSI corporations may be
required to prepare and lodge reports with the Registrar. These changes complement the
new provision inserted by item 313 enabling medium corporations to have their financial
reports reviewed rather than audited.
Item 310 - Subsection 333-15(2) (heading)
404. This item repeals the heading of subsection 333-15(2) and substitutes 'Audit or
review of financial report'. This change complements the new provision inserted by item
313 enabling corporations to have their financial reports reviewed rather than audited in
prescribed circumstances.
Item 311 - Subsection 333-15(2)
405. This item amends subsection 333-15(2) to replace 'regulations made for the purposes
of subsection (1) of this section' with 'the regulations' for drafting efficacy. This change
complements the new provision inserted by item 313 enabling corporations to have their
financial reports reviewed rather than audited in prescribed circumstances.
Item 312 - Paragraph 333-15(2)(a)
406. This item amends paragraph 333-15(2)(a) to provide that the regulations may require
financial reports to be reviewed. This change complements the new provision inserted by
item 313 enabling corporations to have their financial reports reviewed rather than audited
in prescribed circumstances.
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Item 313 - Paragraph 333-15(2)(aa)
407. This item inserts a paragraph stating that the regulations may prescribe circumstances
in which a financial report, or a part of it, may be reviewed instead of audited.
Item 314 - Paragraphs 333-15(2)(c) and (d)
408. This item provides that paragraphs 33-15(2)(c) and (d) extend to reviews as well as
audits.
Item 315 - Subsection 333-15(2) (note)
409. This item amends the note to explain to the reader that for the purposes of
paragraph 333-15(2)(a), Division 339 deals with the audit or review of a financial report.
Item 316 - Section 333-20 (heading)
410. This item inserts 'or review' after 'audit'.
Item 317 - Paragraph 333-20(b)
411. This item creates a duty to have financial reports reviewed if the preconditions in the
section are met.
Item 318 - Paragraph 336-1(7)(a)
412. This is a consequential amendment to provide that, in addition to requirements for
financial reports, the Registrar may determine that a financial report, or a part of it, be
reviewed.
Item 319 - Paragraphs 336-1(7)(c) and (d)
413. This item provides that paragraphs 336-1(7)(c) and (d) extend to reviews as well as
audits.
Item 320 - Paragraph 336-5(7)(a)
414. This item provides that a requirement that a financial report, or a part of it, be audited
extends to a requirement that it be reviewed.
Item 321 - Paragraphs 336-5(7)(c) and (d)
415. This item provides that paragraphs 336-5(7)(c) and (d) extend to reviews as well as
audits.
Item 322 - Division 339 (heading)
416. This item inserts 'or review' after 'Audit' in the heading of Division 339.
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Items 323 to 325 - Section 339-1
417. These items add the new provision enabling a medium corporation to have its
financial reports reviewed instead of audited to section 339-1 which describes the
contents of the Part.
Items 326 to 328 - Paragraphs 339-5(1)(a) and 339-5(1)(b) and subsection 339-5(2)
418. These items provide that the Division applies to reviews that are required by the Act.
Items 329 and 330 - Section 339-15
419. These items provide that if a review is required by an applied provision of the
Corporations Act, the Regulations or the Registrar, it must be conducted in accordance
with the auditing standards.
Items 331 to 336 - Subsections 339-20(1) and 339-20(2)
420. These items provide that section 339-20 applies to a review of a financial report as
well as an audit of a financial report.
Items 337 to 340 - Section 339-25, Paragraphs 339-25(a), (b) and (c), and
subparagraph 339-25(b)(iii)
421. These items extend the application of the section to reviews.
Item 341 - Section 339-27
422. This item inserts new section 339-27 which creates an exception from registration
requirements which would have otherwise applied to a CATSI corporation that has a
financial report reviewed in circumstances prescribed for the purposes of
paragraph 33-15(2)(aa) or as required by a determination made by the Registrar under
section 336-1 or 336-5. With respect to these reports, subsection 339-27 will provide that
an individual is taken to be a registered company auditor for the purposes of the review if
the individual is a member of a professional accounting body and has a designation, in
respect of that membership, prescribed by the regulations for the purposes of paragraph
339-27(2)(b).
423. Subsection 339-27(3) provides that the provisions of the Act apply in relation to the
person with the necessary modifications.
Item 342 - Subdivision 339-B of Division 339 (heading)
424. This item inserts 'or review' at the end of the heading to reflect the expanded
coverage of Subdivision 339-B.
Items 343 and 344 - Section 339-30
425. These items make it clear that section 339-30, regarding the conduct of an audit under
Subdivision 339-B, applies only to an audit and not to the review of financial or other
reports.
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Item 345 - Section 339-33
426. This item inserts section 339-33, which specifies what the auditor must form a
conclusion in relation to a review of a financial report. Proposed section 339-33 is based
on section 339-30 of the Act with appropriate modification. Based on similar provisions
in the ACNC Act, a key modification is that the auditor must form an opinion about the
financial report, whereas for a review, the auditor need only reach a conclusion based on
whether anything has come to the auditor's attention to believe that the financial report
does not meet certain requirements.
Item 294 - Section 339-35
427. This item provides that if a review is required to be conducted in accordance with the
auditing standards, the auditor must conduct the review in accordance with those
standards. The term 'auditing standard' is defined in the Dictionary at section 700-1 to
mean: (a) a standard in force under section 336 of the Corporations Act; or (b) a provision
of such a standard as it so has effect.
Item 347 - Section 339-40 (heading)
428. This item reflects that the section does not apply to an auditor's report for a review
prepared under section 339-43.
Item 348 - Subsection 339-40(1A)
429. This item makes it clear that section 339-40 does not apply to an auditor's report in
relation to a financial report prepared under new section 339-43.
Item 349 - Subsection 339-40(1)
430. This item replaces the words 'a financial' with 'the financial' in subsection 339-40(1)
to match the amendment in item 350.
Item 350 - Section 339-43
431. This item inserts new section 339-43, which sets out what the auditor must include in
the auditor's report for a review. Based on similar provisions in the ACNC Act, a key
modification is that the auditor must form an opinion in the case of an audit, but only a
conclusion in the case of a review.
432. Section 339-43 is based on section 339-40 of the Act with appropriate modification.
This includes the creation of strict liability offences in subsections (2), (4), (5) and (7),
which are based on subsections 339-40(1), (3), (4) and (5). These strict liability offence
provisions are consistent with the principles in the Guide to Framing Commonwealth
Offences in that they enhance the effectiveness of the regulatory framework of the Act.
Item 351 - Section 339-45
433. This item provides that an auditor's report prepared under section 339-40 or 339-43
must be prepared in the manner required by the regulations.
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Items 352 to 356 - Paragraphs 339-50(1)(a) and (b) and (6)(a), subparagraphs 339-50(2)(a)(i)
and (ii) and (b)(i) and (ii) and (4)(a)(i) and (ii) and (b)(i) and (ii), and subsection 339-50(4)
434. These items provide for the auditor's independence declaration to apply to reviews.
Items 357 to 359 - Subsection 339-55(1) and subparagraphs 339-55(2)(b)(i) and (4)(b)(i) and
(9)(a)(ii) and (c)(i)
435. These items provide for audit working papers prepared in the conduct of a review to
be retained for 7 years.
Item 360 - Paragraph 339-55(11)
436. This item provides that audit working papers includes, in relation to a review,
working papers for the review.
Item 361 - Paragraphs 339-60(1)(a) and (2)(a) and (b), 339-65(1)(a) and (2)(a) and
339-70(1)(a), (2)(a) and (3)(a)
437. This item extends the operation of sections 339-60, 339-65 and 339-70, which
currently apply to the conduct of an audit, to the conduct of a review.
Item 362 - Subsections 339-75(1) and (2) and 339-80(1), (2) and (3)
438. This item extends the operation of sections 339-75 and 339-80, which currently apply
to the audit of a financial report, to the review of a financial report, conduct of an audit, to
the conduct of a review.
Item 363 - Paragraph 339-85(b)
439. This item provides that an auditor has a right of access to the books of a corporation
and may require an officer to give information for the purpose of a review.
Items 364 to 368 - Subparagraphs 339-90(1)(a)(ii) and (iii), (2)(a)(ii) and (iii) and (3)(b)(ii)
and (iii) and paragraphs 339-90(2)(a) and (3)(a)
440. These items extend existing offence provisions relating to the failure of an auditor to
notify the Registrar of contraventions to the context of an auditor's role in relation to
reviews.
Item 369 - Subsection 339-90(6)
441. This item repeals subsection 339-90(6) and replaces it with a new provision that
extends the definition of persons involved in the conduct of an audit to specified persons
involved in the conduct of an audit or review.
Items 370 and 371 - Subsection 342-5(2) and paragraphs 342-5(3A)(c) and (3C)(b)
442. These items extend existing requirements that CATSI corporations provide audit
reports to members, to a requirement that CATSI corporations provide review reports to
members.
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Items 372 to 374 - Subsections 345-5(1) and 345-5(2), and paragraph 345-5(1)(b)
443. These items ensure that when conducting a review of the financial report, auditors can
obtain information from entities controlled by CATSI corporations that are required to
prepare a consolidated financial report.
Items 375 and 376 - Section 345-15
444. These items provide for the application of sections 345-1, 345-5 and 345-10 to entities
that are no longer controlled by a CATSI corporation with respect to a review of a
financial report of the CATSI corporation.
Item 377 - Section 700-1
445. Item 377 amends paragraph (r) of the definition of 'affairs' in the Dictionary at
section 700-1 of the Act to extend the meaning of the term to matters relating to or arising
out of a review.
Item 378 - Section 700-1
446. Item 378 inserts a definition of 'auditor' to the Dictionary in section 700-1 of the Act.
The definition of 'auditor' is defined to include an auditor that conducts a review of a
report of the corporation.
Item 379 and 380 - Section 700-1
447. Item 379 inserts a new signpost definition of 'involved in the conduct of the audit or
review' in the Dictionary at 700-1 of the Act and refers the reader to
subsection 339-90(6). Item 380 repeals the definition of 'person involved in the conduct
of an audit'.
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Part 20--Native Title Register
Native Title Act 1993
Part 20 amends the Native Title Act to expressly enable the Native Title Registrar to reflect
a change to the name of a prescribed body corporate on the National Native Title Register
when it is revised on the Register of Aboriginal and Torres Strait Islander Corporations.
Item 381 - Paragraphs 193(4)(aa) and (ab)
448. Item 381 amends section 193 of the Native Title Act, which regulates the contents of
the National Native Title Register.
449. Proposed paragraphs 193(4)(aa) and (ab) will enable the Native Title Registrar to
update the National Native Title Register to reflect a change to the name or address of a
prescribed body corporate or an agent prescribed body corporate. Consequently, if a
prescribed body corporate or agent prescribed body corporate changes its name on the
Register of Aboriginal and Torres Strait Islander Corporations, the Native Title Registrar
will be able to include the new name on the National Native Title Register.
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STATEMENT OF COMPATIBILTIY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Corporations (Aboriginal and Torres Strait Islander) Amendment Bill 2021
This Bill is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
1. This Bill will modernise and streamline the Corporations (Aboriginal and Torres Strait
Islander) Act 2006 (the CATSI Act) to ensure that it continues to: meet the needs and
expectations of Aboriginal and Torres Strait Islander peoples; support the realisation of
economic and community development opportunities; and provide an effective
framework for the incorporation, operation and regulation of Aboriginal and Torres
Strait Islander corporations.
Human rights implications
2. This statement of compatibility includes an assessment of whether the Bill is
compatible with human rights. Human rights means the rights and freedoms recognised
or declared by the following international instruments:
i. International Convention on the Elimination of all Forms of Racial
Discrimination done at New York on 21 December 1965 ([1975] ATS 40)
(CERD);
ii. International Covenant on Economic, Social and Cultural Rights done at New
York on 16 December 1966 ([1976] ATS 5) (ICESCR);
iii. International Covenant on Civil and Political Rights done at New York on
16 December 1966 ([1980] ATS 23) (ICCPR);
iv. Convention on the Elimination of All Forms of Discrimination Against Women
done at New York on 18 December 1979 ([1983] ATS 9);
v. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment done at New York on 10 December 1984 ([1989] ATS 21);
vi. Convention on the Rights of the Child done at New York on 20 November 1989
([1991] ATS 4);
vii. Convention on the Rights of Persons with Disabilities done at New York on 13
December 2006 ATS 12).
The Bill has been assessed as engaging with rights and freedoms recognised or declared
in international instruments (i) to (iii) above.
Right to equality and non-discrimination
3. The rights of equality and non-discrimination are contained in Articles 2, 3, 16 and 26
of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD. These rights
recognise that all human beings have the right to be treated equally and to not be
discriminated against. Of particular relevance in the context of the Bill, the CERD
establishes a general prohibition on racial discrimination. The Racial Discrimination
Act 1975 implements this prohibition in Australian domestic law.
4. Subsection 8(1) of the Racial Discrimination Act 1975, in accordance with article 1(4)
of CERD, allows 'special measures' which are designed to ensure advancement of
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certain groups. 'Special measures' are an exception to the general prohibition on racial
discrimination, and are designed to 'secure to disadvantaged groups the full and equal
enjoyment of human rights and fundamental freedoms'. For a measure to be
characterised as a 'special measure' it must:
be for a particular group or individuals;
be taken for the sole purpose of securing the adequate advancement of that
group or those individuals;
be 'necessary'; and
not continue after its objectives have been achieved.
5. The CATSI Act came into effect on 1 July 2007 to make it easier for Aboriginal and
Torres Strait Islander persons to form and manage corporations under a fit-for-purpose
regulatory framework. The CATSI Act mirrors many requirements of the Corporations
Act, while providing the flexibility and support needed to meet the unique cultural
contexts of Aboriginal and Torres Strait Islander peoples. The CATSI Act is a special
measure for the advancement and protection of Aboriginal peoples and Torres Strait
Islanders.
6. The measures in the Bill may be characterised as components of a broader 'special
measure', being the CATSI Act in its entirety. The Bill includes a mechanism for a
review of the CATSI Act every 7 years to ensure that it continues to meet the needs and
expectations of Aboriginal and Torres Strait Islander peoples.
Right to self-determination
7. The right to self-determination is contained in Article 1 of the ICCPR and Article 1 of
the ICESCR. These articles specify that, by virtue of the right to self-determination, all
peoples are free to 'determine their political status and freely pursue their own
economic, social and cultural development'.
8. The right is also contained in Articles 3 and 4 of the UN Declaration on the Rights of
Indigenous Peoples (UNDRIP). Article 4 specifically notes that in exercising the right
to self-determination, Indigenous peoples have 'the right to autonomy ... as well as
ways and means for financing their autonomous functions'. UNDRIP does not create
legally binding obligations, but informs the way governments engage with and protect
the rights of Indigenous peoples. Article 18 provides that 'Indigenous peoples have the
right to participate in decision-making in matters which would affect their rights,
through representatives chosen by themselves in accordance with their own procedures,
as well as to maintain and develop their own indigenous decision-making institutions'.
9. The UN Committee on the Elimination of Racial Discrimination has stated that the
right to self-determination involves 'the rights of all peoples to pursue freely their
economic, social and cultural development without outside interference'. The right is
widely understood to be exercisable in a manner that preserves territorial integrity,
political unity and sovereignty of a country.
10. The measures proposed by the Bill facilitate the economic development of Indigenous
peoples by simplifying the processes involved in running a CATSI corporation (that is,
an Aboriginal and Torres Strait Islander corporation registered under the CATSI Act).
The Bill introduces amendments to provide greater flexibility for corporate structures,
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which will assist Aboriginal and Torres Strait Islander peoples to realise economic and
community development opportunities. The Bill also introduces a number of
replaceable rules that increase the opportunity for Aboriginal and Torres Strait Islander
peoples to set their own internal governance rules, which is a key aspect of self-
governance.
11. The Bill modifies the regulation of related party transactions to take account of the
impact of small communities and kinship and family relationships. This will make it
easier for CATSI corporations to conduct transactions.
12. The Bill also promotes greater transparency about the operation of CATSI corporations
making it easier for members to obtain information about a CATSI corporation and
improving access to information about internal governance matters, for example, to
remuneration reports of key management personnel. The Bill will also require directors
to make decisions on membership applications and cancellations in an appropriate and
timely way, and will mirror rules introduced by the Native Title Legislation Amendment
Act 2021 which prevent directors of a registered native title body corporate from
rejecting membership applications by applicants who meet the membership criteria and
have made a valid membership application.
13. The Bill allows for the appointment of a special administrator where there is a serious
irregularity in the financial affairs of a CATSI corporation. The Bill will also prevent
the directors from reversing changes to the corporation's constitution that are made by a
special administrator, unless there has been a change of circumstances. While these
measures may appear to have a limiting effect, they will assist CATSI corporations
facing financial or governance difficulties to return to corporate health.
14. Generally speaking, the proposed measures will make it easier for CATSI corporations
to function effectively. This will facilitate the ability of Indigenous peoples to realise
their own economic development and to continue to pursue their own financial
autonomy. As such, the Bill indirectly advances the right of Aboriginal and Torres
Strait Islander peoples to self-determination.
Right to enjoy and benefit from culture
15. The right to enjoy and benefit from culture is contained in Article 27 of the ICCPR and
Article 15 of the ICESCR.
16. Article 27 of the ICCPR protects the rights of individuals belonging to ethnic, religious
and linguistic minorities in a country to enjoy their own culture, practice their own
religion and use their own language. The UN Human Rights Committee has stated that
'the enjoyment of those rights may require positive legal measures of protection and
measures to ensure the effective participation of members of minority communities in
decisions which affect them'.
17. The Bill indirectly advances this right by providing CATSI corporations with an
automatic extension of time to hold an AGM or lodge an annual report due to
circumstances such as a death in the community or obligations associated with a
cultural activity. In addition, the Bill includes a measure for the collection of alternative
contact details for officers, contact persons and members of a corporation, making it
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easier for corporations and the Registrar to communicate and for the Registrar and
corporations to keep people informed (for example, people who may otherwise be
difficult to contact because they are participating in cultural activities).
18. The Bill also empowers the Registrar to exempt certain corporations from the
requirement in the CATSI Act that prevents the majority of directors of a corporation
from working as employees of that corporation. This will significantly benefit a number
of corporations that engage in commercial activities involving cultural pursuits such as
art galleries and tourism, thereby promoting the right of Aboriginal and Torres Strait
Islander peoples in CATSI corporations to enjoy and benefit from culture.
Right to privacy
19. The right to privacy is contained in Article 17 of the ICCPR: 'No one shall be subjected
to arbitrary or unlawful interference with his privacy'. This right is not an absolute right
and is subject to permissible limits, for example, where the limitation: is prescribed by
a law; is applied for the purpose of achieving a legitimate objective; and is reasonable,
necessary and proportionate.
20. The Bill contains a range of measures that engage the right to privacy. Some measures
are intended to promote transparency, including with respect to collection, use and
storage of information about key management personnel. Other measures are intended
to prevent disclosures of personal information including where that information might
compromise the safety of an official, member or former member of a corporation or
another person.
21. The Bill makes provision for the regulations to require remuneration information about
key management personnel to be reported in annual reporting to the Registrar and
reported at AGMs. Such reports will increase transparency of the corporation's
operations and the roles and responsibilities that its key management personnel have to
both the corporation and its members.
22. Significantly, for members, the Bill will allow them to request that their personal
information be redacted from a register of members or a register of former members of
a CATSI corporation. A request for access to a register of members or former members
will be taken to be a request to access the redacted register (if one exists). Where a
corporation is required to have a redacted copy of a register, any person making a
request for access to an unredacted copy of that register must satisfy the Registrar that
they have a genuine need. The Bill introduces a proper purpose test for people wanting
to inspect or receive a copy of a register of members or register of former members.
The changes will prevent people from misusing or exploiting the information held on a
corporation's registers of members and former members.
23. The Bill will allow CATSI corporations to store information on storage platforms such
as cloud servers. Such arrangements will be subject to provisions in the Act dealing
with protected information and, if applicable, the Privacy Act 1988 which includes
obligations in relation to the handling of personal information.
24. The limitations imposed by this Bill on the right to privacy are not arbitrary, and are
considered necessary to facilitate the effective administration of the Act whilst
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addressing legitimate policy objectives to: modernise the CATSI framework providing
more options for contact methods; provide for modern storage solutions to be utilised
by corporations; and provide for necessary information to be shared promoting
transparency in the management of CATSI corporations. All of the measures outlined
above are reasonable, necessary and proportionate.
Offence provisions and human rights
25. Article 14(2) of the ICCPR protects the right to be presumed innocent until proven
guilty according to law. An offence provision which requires the defendant to carry an
evidential burden of proof, commonly referred to as a 'reverse burden offence', with
regard to the existence of some fact engages and limits the presumption of innocence.
The reverse burden offences in the Bill, at items 6 (production of books) and 126
(corporation must hold AGM), are considered reasonable, necessary and proportionate.
They are justified having regard to the regulatory nature of the offence provisions, and
because the facts that the defendant must prove will be matters that are peculiarly
within their knowledge.
26. The Bill inserts new strict liability offences which might be considered to engage and
limit the presumption of innocence. These offences are consistent with the CATSI
Act's enforcement regime, which includes other strict liability offences. The strict
liability offences in the Bill are necessary to ensure the integrity of the regulatory
regime established by the Act. Requiring proof of fault for these offences would
significantly limit the utility of these offence provisions. The penalties applying to the
strict liability offences are proportionate in that they generally fall at the lower end of
the range, not exceeding 50 penalty units. The relevant offence provisions at or below
this penalty threshold are in items 65 (cancel membership), 78 (request redaction of
information), 127 (extension of time for holding AGM), 130 (notice of material
changes), 143 (laying reports before AGM) and 350 (auditor's report of the explanatory
memorandum). The offence in item 81 (register of members) has a higher penalty,
maintaining consistency with those applied under sections 330-10 (general reports) and
345-1 (financial reports).
27. Article 14(1) of the ICCPR ensures that everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law. The
right to a fair hearing applies in both criminal and civil proceedings, including
whenever rights and obligations are to be determined. The new infringement notice
regime engages the right to a fair and public hearing. Under the new infringement
notice regime the Registrar will be able to issue an infringement notice where they
believe on reasonable grounds that an offence has been committed. This will give the
person the option of paying a prescribed penalty as an alternative to court proceedings.
Infringement notices are an efficient way of dealing with regulatory breaches, as they
avoid the significant delays and costs associated with court action. Compliance with
infringement notices as an alternative to court action is voluntary.
28. Article 14(3)(g) of the ICCPR guarantees the right not to be compelled to incriminate
oneself. The Bill gives the Registrar broader powers, based on ASIC's powers in
relation to the production of books. In particular, the existing powers relating to the
production of books in section 453-5 will be replaced by new powers in section 453-2,
453-3 and 453-4 which are based on ASIC's powers. Details of the relevant provisions
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are in Item 6 of the explanatory memorandum. The new provisions do not directly
affect the privilege against self-incrimination. However, like the existing power to
require production of books in section 453-5, the new provisions will be subject to the
abrogation of the privilege against self-incrimination in the existing section 461-15.
Justification for section 461-15 is set out in the revised explanatory memorandum for
the Corporations (Aboriginal and Torres Strait Islander) Bill 2006, which stated:
Proposed section 461-15 is based on section 68 of the ASIC Act, which also
restricts the provision of derivative use immunity and provides use immunity
for answers to questions, not for documents produced. The enactment of more
limited immunities for ASIC and APRA followed extensive inquiries and
empirical research into the particular difficulties of corporate regulation. The
circumscribing of immunities was recommended by the Joint Standing
Committee on Companies and Securities (1992) and by the 'Review of the
Derivative Use Immunity Reforms' by John Kluver (1997). It was accepted
that a full 'use' and 'derivative use' immunity would unacceptably fetter
investigation and prosecution of corporate misconduct offences. In light of the
Registrar's similar role as a corporate regulator, a limited immunity is also
justified here.
Conclusion
29. The Bill is compatible with human rights because the measures in the Bill may be
characterised as components of a broader 'special measure', being the CATSI Act in its
entirety. The Bill includes a mechanism for a review of the CATSI Act every 7 years to
ensure the effectiveness of the Act as a special measure for the advancement and
protection of Aboriginal peoples and Torres Strait Islanders.
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