Aboriginal Councils and Associations

Amendment Act 1992

No. 189 of 1992

An Act to amend the Aboriginal Councils and Associations Act 1976

[Assented to 18 December 1992]

The Parliament of Australia enacts:

Short title etc.

1.(1) This Act may be cited as the Aboriginal Councils and Associations Amendment Act 1992.

(2) In this Act, “Principal Act” means the Aboriginal Councils and Associations Act 19761.

Commencement

2.(1) Apart from section 13, this Act commences on the day on which it receives the Royal Assent.

(2) Subject to subsection (3), section 13 commences on a day to be fixed by Proclamation.

(3) If section 13 does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

Functions and powers of Registrar

3. Section 5 of the Principal Act is amended by omitting from paragraph (1)(c) “Aboriginal corporation” and substituting “Aboriginal Council”.

Delegation by Registrar

4. Section 9 of the Principal Act is amended by omitting from subsection (1) “Deputy Registrar” and substituting “person”.

Accounts, records and financial statements

5. Section 38 of the Principal Act is amended by omitting subsections (2), (3) and (4) and substituting the following subsections:

“(2) The Council must, as soon as practicable after each 30 June, cause to be prepared a report (‘Council’s Report’) consisting of:

(a) a statement, in a form approved by the Registrar, whether the Council has complied with the obligations imposed by this Act, the regulations and the Rules of the Council during the financial year ending on that date; and

(b) a balance sheet setting out the assets and liabilities of the Council as at that 30 June; and

(c) an income and expenditure statement giving a true and fair view of the income and expenditure of the Council for the financial year ending on that 30 June; and

(d) a copy of the latest list given to the Registrar under subsection 58(3) or (4).

“(3) As soon as practicable after the report has been prepared, the Council must cause a person authorised by the Registrar for the purposes of this section:

(a) to examine:

(i) whether the Council has complied with the obligations imposed by this Act, the regulations and the Rules of the Council; and

(ii) whether the balance sheet and income and expenditure statement are based on proper accounts and records and are in agreement with those accounts and records; and

(b) to give the Council a report (‘examiner’s report’) of the results of that examination, drawing attention to any irregularity that it has disclosed.

“(4) The Council must file with the Registrar a copy of the Council’s report and the examiner’s report as soon as practicable after receiving the latter and in any case not later than 31 December after the end of the relevant financial year.

“(5) The Council must:

(a) if so required by the Registrar, make the accounts and records of the Council available for inspection by the Registrar at a reasonable time; and

(b) make a copy of the Council’s report and the examiner’s report available for inspection at all reasonable times by adult Aboriginals in the area concerned.

“(6) If the Council is established at any time in April, May or June in a financial year:

(a) this section applies as if the reference in subsection (2) to 30 June were a reference to the 30 June ending the next financial year; and

(b) the period from the date of establishment to that 30 June is to be treated as a financial year.

“(7) If the Council fails, without reasonable excuse, to comply with a provision of this section, each councillor is guilty of an offence punishable, on conviction, by a fine not exceeding $200.

“(8) In a prosecution of a person for an offence against subsection (7) arising out of a contravention of a provision of this section, it is a defence if the person proves that he or she:

(a) did not aid, abet, counsel or procure the contravention; and

(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention.”.

6. Section 39 of the Principal Act is repealed and the following section is substituted:

Examination of documents

“39.(1) The Registrar may, at any time, cause a person authorised by the Registrar for the purposes of this section to examine the documents of an Aboriginal Council and to report to the Registrar on the results of that examination, drawing attention to any irregularity in the operations or financial affairs of the Council disclosed by that examination.

“(2) The authorised person is entitled at all reasonable times to full and free access to the documents of the Council.

“(3) The authorised person may make copies, or take extracts from, any such documents.

“(4) The authorised person may require any person to answer such questions, and produce such documents in the possession of the person, or to which the person has access, as the authorised person considers necessary for the purposes of this section.

“(5) A person who, without reasonable excuse, fails to comply with a requirement under subsection (4) is guilty of an offence punishable, upon conviction, by a fine not exceeding $200.

“(6) A person who, in answer to a requirement under subsection (4), makes a statement knowing it to be false or misleading in a material particular is guilty of an offence punishable, upon conviction, by a fine not exceeding $1,500.

“(7) A person is not excused from answering a question or producing a document when required to do so under subsection (4) on the ground that the answer to the question, or the production of the document, might tend to incriminate the person or make the person liable to a penalty, but the answer, the production of the document, or anything obtained as a direct or indirect consequence of the answer or the production, is not admissible in evidence against the person in any proceedings, other than proceedings for an offence against this section.

“(8) Before exercising powers under this section, the authorised person must produce written authority by the Registrar. If he or she fails to do so he or she has no powers under this section.

“(9) In this section:

‘document’ means any document relating directly or indirectly to the operations of the Council, the receipt or payment of money by the Council or the acquisition, receipt, custody or disposal of assets by the Council.”.

7. Section 40 of the Principal Act is repealed and the following section is substituted:

Registrar may require compliance with Act etc.

“40.(1) If the Registrar suspects on reasonable grounds that:

(a) an Aboriginal Council has failed to comply with a provision of this Act, the regulations or the Rules; or

(b) there has been an irregularity in the financial affairs of an Aboriginal Council;

the Registrar may, by notice served on the public officer, require the Council to take the action specified in the notice within the period specified in the notice, for the purpose of complying with the Act, the regulations or the Rules or remedying the irregularity, as the case may be.

“(2) The Registrar is not required to take action under this section before taking any other action under this Act.”.

Application for incorporation

8. Section 43 of the Principal Act is amended by inserting after paragraph (3)(e) the following paragraph:

“(ea) the matters for which the Rules are to provide under section 58A in relation to meetings of the association;”.

Registrar may issue certificate of incorporation

9. Section 45 of the Principal Act is amended by omitting subsection (3) and substituting the following subsections:

“(3) The Registrar must refuse to issue a certificate of incorporation to an Aboriginal association if satisfied that the Rules:

(a) are unreasonable or inequitable; or

(b) do not make sufficient provision (as required by section 58B) to give the members effective control over the running of the association.

“(3A) The Registrar must refuse to issue a certificate of incorporation to an Aboriginal association unless satisfied that:

(a) if the association is formed wholly for business purposes—upon incorporation, it will have at least 5 members; or

(b) if it is formed principally for the purpose of owning land or holding a leasehold interest in land—upon incorporation, it will have at least 5 members; or

Rules of Incorporated Aboriginal Associations

10. Section 47 of the Principal Act is amended by adding at the end the following subsection:

“(2) The Rules of an Incorporated Aboriginal Association as in force from time to time have the effect of a contract:

(a) between the Association and each member; and

(b) between the Association and the public officer; and

(d) between each member and each other member.”.

11. After section 49A of the Principal Act the following sections are inserted:

Disqualification from membership of Governing Committee

“49B.(1) A person cannot be elected, or hold office, as a member of the Governing Committee of an Incorporated Aboriginal Association if he or she has been convicted of an offence against a Commonwealth, State or Territory law and sentenced:

(a) if the offence involved fraud or misappropriation of funds—to imprisonment for 3 months or longer; or

(b) in any other case—to imprisonment for one year or longer.

“(2) The conviction does not prevent the person from standing for election, or being elected, if:

(a) at least 5 years have elapsed since the date of the conviction; and

(b) the person is not serving a term of imprisonment.

“(3) The Registrar may declare in writing that subsection (1) does not apply to a particular person in relation to a particular conviction.

“(4) If:

(a) a person requests the Registrar to make a declaration under subsection (3) in relation to the person in relation to a particular conviction; and

(b) the Registrar refuses to do so;

the person may appeal in writing to the Minister.

“(5) The Minister must consider the appeal and either:

(a) declare in writing that subsection (1) does not apply to the person in relation to the conviction; or

(b) refuse to make the declaration;

and must cause the person to be notified accordingly.

Members to act honestly and diligently

“49C. A member of the Governing Committee of an Incorporated Aboriginal Association must act honestly and diligently in exercising powers and performing functions and duties under this Act, the regulations and the Rules.

Disclosure of pecuniary interests

“49D.(1) A member of the Governing Committee of an Incorporated Aboriginal Association who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Committee must disclose the nature of the interest at a meeting of the Committee as soon as possible after the relevant facts have come to his or her knowledge.

“(2) The disclosure must be recorded in the minutes of the meeting of the Committee and the member must not, without the approval of the Committee:

(a) be present during any deliberation of the Committee about that matter; or

(b) take part in any decision of the Committee on that matter.

Vacation of office on insolvency etc.

“49E.(1) A member of the Governing Committee of an Incorporated Aboriginal Association ceases to hold office if he or she becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors or compounds with his or her creditors.

“(2) The Registrar may declare in writing that subsection (1) does not apply to a particular person.”.

12. Section 58 of the Principal Act is amended:

(a) by omitting “$50” and substituting “$200”;

(b) by adding at the end the following subsections:

“(3) As soon as practicable after each 30 June but not later than the next 31 December, the Governing Committee must give the Registrar a list of the names and addresses of all the persons who are members of the Association as at the date when the list is given to the Registrar.

“(4) The Registrar may at any time request the Governing Committee to give him or her an updated list of the names and addresses of all the persons who are members of the Association, and the Committee must comply with the request within 14 days or such other period as the Registrar specifies.

“(5) If the Governing Committee fails, without reasonable excuse, to comply with subsections (3) and (4), each member of the Committee is guilty of an offence punishable, on conviction, by a fine not exceeding $200.

“(6) In a prosecution of a person for an offence against subsection (5) arising out of a contravention of subsections (3) and (4), it is a defence if the person proves that the person:

(a) did not aid, abet, counsel or procure the contravention; and

(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention.”.

13. After section 58 of the Principal Act the following sections are inserted:

Arbitration by Registrar

“58A.(1) Disputes between members of an Incorporated Aboriginal Association or between such an Association and its members may be settled by arbitration in accordance with this section.

“(2) On application by the parties to a dispute between members of the Association, the Registrar may arbitrate in the dispute.

“(3) Upon application or otherwise, the Registrar may arbitrate in a dispute between the Association and one or more of its members.

“(4) An arbitration may be conducted by the Registrar or by a person appointed by the Registrar for the purpose.

“(5) A person conducting an arbitration is not subject to any action, claim or demand by, or liable to, any person in respect of anything done, or omitted to be done, in good faith in connection with the arbitration.

“(6) An arbitration must be conducted in accordance with the regulations.

“(7) The fact that a dispute is being, or has been, settled by arbitration under this section does not prevent a party to the dispute from bringing an action in a court in connection with the dispute, unless the court orders otherwise.

General and special meetings

“58B.(1) Subject to this section, the Governing Committee of an Incorporated Aboriginal Association is to call and conduct annual general meetings and special general meetings of the Association as provided in the Rules.

“(2) An aggrieved member may at any time request the Committee to call a special general meeting. The Committee must do so unless, on application by the Committee, the Registrar considers the request to be frivolous, unreasonable or contrary to the interests of the members of the Association.

“(3) The Registrar may call a special general meeting if the Committee has advertised it for a particular day but it has not been held for 14 days after that day.

“(4) The Registrar may call a special general meeting at any time if, in the opinion of the Registrar, there is a need to do so.

“(5) The Registrar may call a special general meeting if requested to do so in writing by whichever is the greater of:

(a) 5 or more members of the Association; or

(b) not fewer than 10% of the total number of members of the Association.

The Registrar is to conduct the meeting.

“(6) The Registrar is to determine the periods of notice for meetings called under subsection (4) or (5), having regard to the special needs of the Association.

“(7) Unless the Registrar determines otherwise, a member cannot vote at a meeting called by the Registrar if:

(a) the person became a member after the incorporation of the Association; and

(b) the person’s name does not appear on the latest list supplied to the Registrar under section 58(3) or (4).”.

“(8) In addition to any other matter relating to general meetings, the Rules must make provision for and in relation to:

(a) the intervals between meetings;

(b) quorums;

(d) voting by proxy.

“(9) If the Registrar delegates his or her powers under this section, references to the Registrar are to be read accordingly.”.

Accounts, records and financial statements

14. Section 59 of the Principal Act is amended by omitting subsections (2), (3) and (4) and substituting the following subsections:

“(2) The Governing Committee must, as soon as practicable after each 30 June, cause to be prepared a report (‘Committee’s Report’) consisting of:

(a) a statement, in a form approved by the Registrar, whether the Governing Committee and the Association have complied with the obligations imposed by this Act, the regulations and the Rules of the Association during the financial year ending on that date; and

(b) a balance sheet setting out the assets and liabilities of the Association as at that 30 June; and

(c) an income and expenditure statement giving a true and fair view of the income and expenditure of the Association for the financial year ending on that 30 June; and

(d) a copy of the latest list given to the Registrar under subsection 58(3) or (4).

“(3) As soon as practicable after the report has been prepared, the Governing Committee must cause a person authorised by the Registrar for the purposes of this section:

(a) to examine:

(i) whether the Governing Committee and the Association have complied with the obligations imposed by this Act, the regulations and the Rules of the Association; and

(ii) whether the balance sheet and income and expenditure statement are based on proper accounts and records and are in agreement with those accounts and records; and

(b) to give the Governing Committee a report (‘examiner’s report’) of the results of that examination, drawing attention to any irregularity that it has disclosed.

“(4) The Governing Committee must file with the Registrar a copy of the Committee’s report and the examiner’s report as soon as practicable after receiving the latter and in any case not later than 31 December after the end of the relevant financial year.

“(5) The Governing Committee must:

(a) make a copy of the Committee’s report and the examiner’s report available at the next annual general meeting after they have been prepared; and

(b) make a copy of the Committee’s report and the examiner’s report available for inspection at all reasonable times by members of the Association.

“(6) If the Association is incorporated at any time in April, May or June in a financial year:

(a) this section applies as if the reference in subsection (2) to 30 June were a reference to the 30 June ending the next financial year; and

(b) the period from the date of incorporation to that 30 June is to be treated as a financial year.

“(7) If the Governing Committee fails, without reasonable excuse, to comply with a provision of this section, each member of the Committee is guilty of an offence punishable, on conviction, by a fine not exceeding $200.

“(8) In a prosecution of a person for an offence against subsection (7) arising out of a contravention of a provision of this section, it is a defence if the person proves that the person:

(a) did not aid, abet, counsel or procure the contravention; and

(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention.”.

Exemption from section 59 in certain circumstances

15. Section 59A of the Principal Act is amended by omitting “Penalty: $50” and substituting “Penalty: $200”.

16. Section 60 of the Principal Act is repealed and the following sections are substituted:

Examination of documents

“60.(1) The Registrar may, at any time, cause a person authorised by the Registrar for the purposes of this section to examine the documents of an Incorporated Aboriginal Association and to report to the Registrar on the results of that examination, drawing attention to any irregularity in the operations or financial affairs of the Association disclosed by that examination.

“(2) The authorised person is entitled at all reasonable times to full and free access to the documents of the Association.

“(3) The authorised person may make copies, or take extracts from, any such documents.

“(5) A person who, without reasonable excuse, fails to comply with a requirement under subsection (4) is guilty of an offence punishable, upon conviction, by a fine not exceeding $200.

“(8) Before exercising powers under this section, the authorised person must produce written authority by the Registrar. If he or she fails to do so he or she has no powers under this section.

“(9) In this section:

‘document’ means any document relating directly or indirectly to the operations of the Association, the receipt or payment of money by the

Association or the acquisition, receipt, custody or disposal of assets by the Association.

Registrar may require compliance with Act, etc.

“60A.(1) If the Registrar suspects on reasonable grounds that:

(a) an Incorporated Aboriginal Association has failed to comply with a provision of this Act, the regulations or the Rules; or

(b) there has been an irregularity in the financial affairs of an Incorporated Aboriginal Association;

the Registrar may, by notice served on the public officer, require the Governing Committee to take the action specified in the notice within the period specified in the notice, for the purpose of complying with the Act, the regulations or the Rules or remedying the irregularity, as the case may be.

“(2) The Registrar is not required to take action under this section before taking any other action under this Act.”.

17. Section 61 of the Principal Act is repealed and the following section is substituted:

Registrar may apply for injunctions

“61.(1) If the Registrar is of the opinion that the Governing Committee of an Incorporated Aboriginal Association is not complying with a provision of this Act, the regulations or the Rules of the Association, the Registrar may serve on the members of the Committee a notice in writing calling upon the Committee to show cause, within a reasonable period specified in the notice, why the Registrar should not apply to the Court for an injunction.

“(2) After that period, and having considered any representations made by the Committee, the Registrar may apply to the Court for an injunction.

“(3) The Court may grant an injunction requiring a member, or the members, of the Committee not to contravene, or to cease contravening, a provision of this Act, the regulations or the Rules.”.

18. After section 62 of the Principal Act the following section is inserted:

Registrar may petition for winding up

“62A. The Registrar may petition the Court that an Incorporated Aboriginal Association be wound up, if:

(a) an Administrator appointed under section 71 recommends the winding up; or

(b) the Registrar is of the opinion that the winding up would be in

the public interest or in the interests of the members of the Association.”.

Winding up by Court

19. Section 63 of the Principal Act is amended:

(a) by omitting paragraph (2)(f);

(b) by omitting subsection (5).

Heading to Part V

20. The heading to Part V of the Principal Act is amended by omitting “JUDICIAL MANAGEMENT” and substituting “ADMINISTRATION”.

21. Section 68 of the Principal Act is repealed and the following section is substituted:

Investigation by Registrar

“68.(1) The Registrar may investigate the affairs of an Aboriginal corporation if the Registrar suspects on reasonable grounds that:

(a) the corporation has failed to comply with a provision of this Act, the regulations or the Rules of the corporation; or

(b) there has been an irregularity in the corporation’s financial affairs.

“(2) For the purposes of the investigation, the Registrar may, by notice in writing given to a person whom the Registrar believes to have some knowledge of the affairs of the corporation, require that person to attend before the Registrar at a time and place specified in the notice and there to answer such questions, and produce such documents in the possession of the person, or to which the person has access, as the Registrar considers necessary.

“(3) A person is not excused from answering a question or producing a document when required to do so under subsection (2) on the ground that the answer to the question, or the production of the document, might tend to incriminate the person or make the person liable to a penalty, but the answer, the production of the document, or anything obtained as a direct or indirect consequence of the answer or the production, is not admissible in evidence against the person in any proceedings, other than proceedings for an offence against subsection 69(2).”.

Offences

22. Section 69 of the Principal Act is amended:

(a) by inserting after paragraph (1)(b) the following word and paragraph:

“or (c) to produce a document;”;

(b) by omitting from subsection (1) “$50” and substituting “$200”;

23. Sections 71 to 77 of the Principal Act are repealed and the following sections are substituted:

Appointment of Administrator

“71.(1) If the Registrar considers that there may be grounds for appointing an Administrator, the Registrar may serve on the public officer of the corporation a notice in writing calling upon the corporation to show cause, within a reasonable period specified in the notice, why an Administrator should not be appointed.

“(2) After that period, and having considered any representations made by the corporation, the Registrar may appoint an Administrator if satisfied that any of the following grounds have been established:

(a) in the case of an Incorporated Aboriginal Association—the Association has been trading at a loss for at least 6 months during the preceding period of 12 months;

(b) the Council or the Governing Committee, as the case may be, has failed to comply with a provision of this Act, the regulations or the Rules, and has failed to provide a satisfactory explanation;

(c) in the case of an Incorporated Aboriginal Association—the members of the Governing Committee have acted in the affairs of the Association in their own interests rather than in the interests of the members of the Association or otherwise in a way that appears to be unfair or unjust to members of the Association;

(d) in the case of an Incorporated Aboriginal Association—the appointment of an Administrator is required in the interests of members and creditors of the Association;

(e) in the case of an Aboriginal Council—the appointment of an Administrator is required in the interests of adult Aboriginals in the Council area;

(f) the appointment of an Administrator is otherwise required in the public interest.

“(3) The Registrar must not appoint an Administrator without the prior approval of the Minister.

Notice of appointment

“72. As soon as practicable after the appointment of an Administrator, the Registrar must publish notice of the appointment, and the period of the appointment, in the Gazette and in a newspaper (if any) circulating in the area where the official address of the public officer of the corporation is situated.

Vacation of offices

“73. On the appointment of the Administrator:

(a) the office of the public officer of the corporation becomes vacant; and

(b) if the corporation is an Aboriginal Council—all offices of the councillors constituting the Council become vacant; and

(c) if the corporation is an Incorporated Aboriginal Association— all offices of the members of the Governing Committee of the Association become vacant.

Remuneration of Administrator

“74.(1) The Administrator is to receive such remuneration (if any) as the Registrar determines.

“(2) The Registrar may direct how and by whom the remuneration, charges and expenses of the Administrator are to be borne and may, if the Registrar thinks fit, charge the remuneration, charges and expenses on the property of the corporation in such order of priority in relation to any existing charges on that property as the Registrar thinks fit.

General powers of Administrator

“75. The Administrator is responsible for the conduct of the affairs of the corporation and in addition has the functions and duties of the public officer.

Administrator may cancel or vary contracts of employment

“76.(1) The Administrator may cancel or vary (either unconditionally or subject to such conditions as the Administrator thinks just) any contract or agreement between the corporation and any other person that relates to employment of any person by the corporation.

“(2) Before cancelling or varying a contract, the Administrator must:

(a) give such persons as the Administrator thinks appropriate (having regard to the principles of natural justice) a reasonable opportunity to make representations to the Administrator either orally or in writing; and

(b) give due regard to any representations so made.

Application for review

“77.(1) A person may apply to the Administrative Appeals Tribunal for review of a decision made by the Administrator under section 76.

“(2) In subsection (1):

‘decision’ has the same meaning as in the Administrative Appeals Tribunal Act 1975.

Statement to accompany notice of decisions under section 76

“77A.(1) If the Administrator makes a decision under section 76 and gives a person whose interests are affected by the decision notice in writing of the decision, the notice must include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision by or on behalf of that person.

“(2) Any failure to comply with subsection (1) does not affect the validity of the decision.

Indemnity

“77B. The Administrator is not subject to any action, claim or demand by, or liable to, any person in respect of anything done, or omitted to be done, in good faith in or in connection with the exercise or performance of powers, functions or duties conferred on the Administrator by this Act.

Report to Registrar

“77C. The Administrator must give the Registrar such information as the Registrar requires from time to time.

Election of councillors etc. before cancellation of appointment of Administrator

“77D. If the Registrar is satisfied that it is no longer necessary for the Administrator to conduct the affairs of the corporation, the Registrar must conduct an election to fill the offices of the councillors or the members of the Governing Committee, as the case may be.

Cancellation of appointment of Administrator

“77E. If the Registrar cancels the appointment of the Administrator, and does not immediately appoint another:

(a) the conduct of the affairs of the corporation vests in the Council or the Governing Committee, as the case requires; and

(b) section 36 or 56, as the case requires, applies as if the office of public officer had become vacant on the cancellation of the appointment of the Administrator.”.

24. After section 79 of the Principal Act the following section is inserted:

Offences not to be daily offences

“79A. Subsection 4K(2) of the Crimes Act 1914, which creates daily or continuing offences, does not apply to an offence against this Act.”.

Transitional

25. Subsection 45(3A) of the Principal Act as amended by this Act does not affect the incorporation of an Aboriginal association that took place before the commencement of this Act.

SCHEDULE

REFERENCES TO THE COMPANIES ACT 1981

The Principal Act is further amended as follows:

Section 3 (definition of “unauthorised name”):

Omit paragraph (b), substitute:

“(b) a name that would not be available to a body corporate under the Corporations Law”.

Section 62:

Omit “Companies Act 1981”, substitute “Corporations Law”.

Section 67:

(a) Omit “Companies Act 1981”, substitute “Corporations Law”.

(b) Omit “incorporated”, substitute “registered”.

NOTE

1. No. 186, 1976, as amended. For previous amendments see No. 56, 1978; Nos. 61, 92, 153 and 176, 1981; No. 80, 1982; Nos. 10 and 165, 1984; No. 193, 1985; No. 99, 1988; and No. 150, 1989.

[Minister’s second reading speech made in—

House of Representatives on 4 November 1992

Senate on 10 November 1992]