John Cobb (Parkes, National Party, Minister for Community Services) Share this | Link to this | Hansard source

by leave—I present a supplementary explanatory memorandum and move government amendments (1) to (158) together.

(1)    Clause 1-5, page 2 (line 9), omit “2006”, substitute “2007”.

(2)    Clause 6-55, page 6 (lines 26 to 28), omit the clause, substitute:

6-55 Transfer of registration, deregistration and unclaimed property

Division 22—Application to register existing body corporate under Part 2-3

22-1  Application for registration

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

Director details

ACN has the same meaning as in the Corporations Act.

ARBN has the same meaning as in the Corporations Act.

                   (i)    the transfer of the body’s incorporation is authorised; and

                  (ii)    the body has complied with the requirements (if any) of that law for the transfer of its incorporation;

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

Note:   Section 376-5 requires documents that are not in English to be translated into English.

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

Director details

23-5  Matters to accompany application

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

Note:   Section 376-5 requires documents that are not in English to be translated into English.

               (iva)    if the application is made under section 22-1—the pre-transfer of registration requirement (see section 29-17);

               (ivb)    if the application is made under section 23-1—the creditor notice requirements (see section 29-18) and the pre-amalgamation requirements (see section 29-19);

Special rules for amalgamation application under section 23-1

                   (i)    internal to the operation of any of the amalgamating corporations; or

                  (ii)    between any of the amalgamating corporations and other persons; or

                 (iii)    about whether the amalgamated corporation should replace the amalgamating corporations;

Note:   If the Registrar decides not to grant the application, the amalgamation may be able to be achieved by applying to the Court for orders under Part 5.1 of the Corporations Act (as applied by section 45-1 of this Act).

                   (i)    authorised the applicant to apply for the registration of the body as an Aboriginal and Torres Strait Islander corporation; and

                  (ii)    approved the proposed constitution provided to the Registrar under subsection 29-20(2) as the constitution to be adopted by the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3; and

                 (iii)    if the internal governance rules that would apply to the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3 will include one or more replaceable rules—agreed to those replaceable rules so applying; and

                 (iv)    nominated, as persons who will become directors of the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3, the persons specified in the application as persons who will become directors on registration; and

                  (v)    if the application indicates that the body is expected to be a small or medium corporation in respect of its first financial year—nominated, as a person who will become the contact person when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3, the person specified in the application as a person who will become the contact person on registration; and

                 (vi)    if the application indicates that the body is expected to be a large corporation in respect of its first financial year—nominated, as a person who will become the secretary when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3, the person specified in the application as a person who will become the secretary on registration; and

                   (i)    a copy of the notice;

                  (ii)    a statement informing substantial creditors of the amalgamating corporations that those creditors may, within the objection period, object under subsection (3) to the grant of the application;

                 (iii)    such other information as is prescribed by the regulations for the purposes of this subparagraph; and

                   (i)    the proposed amalgamation;

                  (ii)    the right that substantial creditors of the corporation have under subsection (3) to object to the grant of the application made under section 23-1; and

Note 1:  For substantial creditor, see paragraph (5)(a).

Note 2:  For objection period, see paragraph (5)(b).

                   (i)    the amalgamating corporation owes a debt, or debts, to the person; and

                  (ii)    the amount of that debt, or the sum of the amounts of those debts, that is unsecured exceeds the amount prescribed by the regulations for the purposes of this subsection; and

Note:   The Aboriginal and Torres Strait Islander corporation remains in existence until it is deregistered (see Chapter 12).

Note:   The amalgamated corporation remains in existence until it is deregistered (see Chapter 12).

Note 1:  The Registrar deregisters the amalgamating corporations under subsection 546-10(3).

Note 2:  Paragraph (3)(e) has the effect, for example, that any regulatory action taken in relation to an amalgamating corporation under Part 10-3 may be continued as if that action had been taken in relation to the amalgamated corporation.

                   (i)    is signed by the Registrar; and

                  (ii)    identifies the land, whether by reference to a map or otherwise; and

                 (iii)    states that the land has become vested in the amalgamated corporation under this section.

                   (i)    is signed by the Registrar; and

                  (ii)    identifies the asset; and

                 (iii)    states that the asset has become vested in the amalgamated corporation under this section.

asset means:

assets official, in relation to an asset other than land, means the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned.

land means any legal or equitable estate or interest in real property, whether actual, contingent or prospective.

land registration official, in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.

liability means any liability, duty or obligation, whether actual, contingent or prospective.

Persons become members on registration

Note:   A member’s name must be entered in the register of members (see section 180-5).

Persons become directors etc. on registration

Note:   If a number of Aboriginal and Torres Strait Islander corporations wish to amalgamate, it may be possible, in some circumstances, for them to proceed with the amalgamation by means of an application to the Registrar under Division 23 (as an alternative to applying to a court for an order under the applied Corporations Act arrangements and reconstructions provisions).

Corporations Act arrangements and reconstructions provisions means:

Note:   An application may be made to exempt the corporation from the requirement of this subsection (see section 187-5).

Note:   An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 187-5).

Note:   An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 187-5).

Note:   An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 187-5).

180-15  Information on the register of former members

180-22  Register of members and register of former members may be maintained in one document

187-5  Exemption from certain provisions of this Chapter

Note:   For the criteria for making determinations under this section, see section 187-20.

Note:   For the criteria for making determinations under this section, see section 187-20.

Unreasonable burden

Note:   An application may be made to exempt the corporation from the requirements of this section (see section 310-5).

Note:   An application may be made to exempt the directors of the corporation from the requirements of this subsection (see section 310-5).

Note:   For the criteria for making determinations under this section, see section 310-20.

Note:   For the criteria for making determinations under this section, see section 310-20.

Unreasonable burden

                   (i)    the 1 June last preceding the day on which it is registered; or

                  (ii)    if the corporation came into existence after that 1 June—the day on which the corporation came into existence; and

Request for financial report, directors’ report or auditor’s report

Note:   For the criteria for making determinations under this section, see Part 7-5.

Note:   For the criteria for making determinations under this section, see Part 7-5.

Note:   For strict liability, see section 6.1 of the Criminal Code.

Note:   For strict liability, see section 6.1 of the Criminal Code.

                   (i)    any document that the person is entitled to inspect under paragraph (a); or

                  (ii)    any certificate referred to in paragraph (b) to be given, or given and certified, by the Registrar.

Commonwealth officer includes a person who:

Commonwealth officer includes a person who:

                   (i)    the continuation of the corporation’s legal personality after th

Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | Link to this | Hansard source

I am on my feet because I want make sure that, apart from anything else, we actually do get to the adjournment.

Daryl Melham (Banks, Australian Labor Party) Share this | Link to this | Hansard source

Good man!

Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | Link to this | Hansard source

And to ensure that my friend up the back here does not have to get on his scrapers and make another speech.

Daryl Melham (Banks, Australian Labor Party) Share this | Link to this | Hansard source

We can’t have that!

Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | Link to this | Hansard source

We can’t have that. I notice a supplementary explanatory memorandum has been put forward, and I have quickly browsed through the 158 amendments which have been moved to the Corporations (Aboriginal and Torres Strait Islander) Bill 2005. Whilst I do not have the act in front of me, I can see what they are there for. The concerns which have been expressed about this legislation by those of us on this side of the chamber—and previously by those in the Senate who provided additional comments to the report of the Senate Standing Committee on Legal and Constitutional Affairs—highlight our desire to ensure that we get the most effective mechanism for looking after the interests of Aboriginal corporations. I say that knowing that there have been real issues to do with the Aboriginal Councils and Associations Act, as it previously existed, and that there have been, and are, difficulties with individual corporations and that they require assistance to address those problems.

I have expressed my concerns previously, and I maintain this desire to ensure that the bill operates in the best interests of Indigenous Australians and is not just seen by some—I hope it is not but I want to make sure it is not—as a mechanism for the government imposing control over Aboriginal corporations. I say this because there is clear evidence that that is what the government has attempted to do at least in some instances. I think it behoves us to ensure that the Office of the Registrar of Aboriginal Corporations is, as far as is possible, independent from day-to-day influence of government, whether it is through the government seeking to control the funds that go into Aboriginal corporations, as they have done in a number of instances, or through the government effectively issuing instructions to the registrar that the registrar ought to appoint an administrator because the government does not like the form, the style or the haircut of individuals within a corporation. That is not an appropriate use of government powers, and it is what the government have sought to do in at least two examples I am fully aware of in the Northern Territory. The registrar, who is in the parliament this evening, knows my concerns about that.

It is fundamental to the interests of Indigenous Australians to ensure that they do account properly for the way in which they run corporations, but it is also important to understand that, for many Indigenous Australians, corporations involve a new language and new responsibilities and we must endeavour to ensure that they are properly educated about their roles, functions and responsibilities in relation to those incorporations. Unfortunately, this has not been the case to date, although I know that the registrar has been keen to ensure that her office and her staff are available to assist corporations when they have difficulties and to provide them with assistance to ensure their governance arrangements are appropriate to their needs.

John Cobb (Parkes, National Party, Minister for Community Services) Share this | Link to this | Hansard source

The Corporations (Aboriginal and Torres Strait Islander) Bill 2005 was introduced into the House on 23 June last year, and these amendments make several improvements and refinements to the bill as originally introduced. Since the introduction of the bill, there has been further consultation. It was subject to scrutiny by the Senate Standing Committee on Legal and Constitutional Affairs for almost 12 months. I have moved a number of amendments, some of which are a result of the committee’s work. Those amendments will offer greater flexibility than the bill originally provided for.

The most significant of the amendments that I have moved today introduce new provisions dealing with the voluntary transfer and amalgamation of Aboriginal or Torres Strait Islander corporations. These support the CATSI Bill as a framework for incorporation that meets the special risks and requirements of the Indigenous corporate sector. The new provisions will allow a body corporate registered under another law to transfer its registration to the bill if certain requirements are satisfied. For example, it will allow an Indigenous controlled association incorporated under a state law to easily transfer its registration to the bill.

Similarly, these amendments allow an Aboriginal or Torres Strait Islander corporation to transfer its registration to the Corporations Act or a law of a state or territory. A large commercial Aboriginal or Torres Strait Islander corporation, for example, may decide that its future development would be best served by incorporation under the Corporations Act. These provisions will allow the smooth transition of such corporations.

Other amendments will enable an Aboriginal or Torres Strait Islander corporation to amalgamate with other Aboriginal or Torres Strait Islander corporations, either by an administrative process approved by the registrar or by applying to a court. Such amalgamations will be voluntary and may be desirable when a number of different Aboriginal or Torres Strait Islander corporations service a particular area or Indigenous group.

The amendments also make some other changes to the bill as a result of issues which have arisen since it was introduced into the parliament in June 2005, including in response to feedback provided by a range of stakeholders. A number of these amendments extend the ability of the registrar to provide exemptions from particular provisions of the CATSI Bill dealing with internal governance. For example, while boards of no more than 12 are desirable, the amendments will allow an exemption for a larger board where this is reasonable. This further improves the flexibility of the legislation and supports the reduction of red tape.

Other amendments are technical corrections to the CATSI Bill. The supplementary explanatory memorandum provides more detail about these and other changes to the bill. The CATSI Bill is a significant tool for improving Indigenous corporate governance and will help to produce better outcomes for Indigenous Australians. These amendments will refine and enhance the operation of the CATSI Bill. I commend these amendments the House.

Question agreed to.

Bill, as amended, agreed to.