Chapter 1 Introduction
Part 1‑1 Preliminary
1.01 Name of
Regulations
These Regulations are the Corporations (Aboriginal and Torres Strait Islander) Regulations 2007.
1.02 Commencement
These Regulations commence on 1 July 2007.
1.03 Definitions
In these Regulations:
Act means the Corporations (Aboriginal and
Torres Strait Islander) Act 2006.
CGA means the consolidated gross assets of a
corporation and any entities it controls.
CGOI means the consolidated gross operating
income of a corporation and any entities it controls.
Note For the definition of control see
sections 689‑25 and 700‑1 of the Act.
Corporations Act means the Corporations
Act 2001.
Corporations Regulations means the Corporations
Regulations 2001.
funding body means any of the following:
(a) the Commonwealth, a State or a Territory;
(b) a Commonwealth, State or Territory statutory
authority;
(c) a body corporate established for a public purpose
by a law of the Commonwealth, a State or a Territory;
(d) a body corporate established by the Governor
of a State;
(e) a body corporate established by the
Administrator of the Northern Territory;
(f) a body corporate established by the Governor‑General
for the Australian Capital Territory.
transitional corporation has the meaning
given by subitem 1 (1) of Schedule 3 to the Corporations
(Aboriginal and Torres Strait Islander) Consequential, Transitional and Other
Measures Act 2006.
Chapter 2 Aboriginal and
Torres Strait Islander corporations
Part 2‑3 Decisions
on applications
Division 29 What are the basic requirements for registration?
29‑5.01 Indigeneity
requirement
For paragraph 29‑5 (a) of the Act, the
percentage is 51%.
Note Under paragraph 29‑5 (a)
of the Act, an Aboriginal and Torres Strait Islander corporation that has 5 or
more members meets the Indigeneity requirement if the corporation
has at least the prescribed percentage of its members who are Aboriginal and
Torres Strait Islander persons.
29‑18.01 Creditor
notice requirement
Written objection — information
(1) For paragraph 29‑18 (3) (a) of the
Act, the information that must be contained in a written objection is:
(a) the name of the person claiming to be a
substantial creditor of an amalgamating corporation; and
(b) the name of the amalgamating corporation; and
(c) a statement, signed by the person claiming
to be a substantial creditor, that:
(i) the amalgamating corporation owes
a debt, or debts, to the creditor and the amount of that debt, or the sum of
those debts, that is unsecured exceeds the amount mentioned in subregulation
(2); and
(ii) the creditor objects to the grant
of the application made under section 23‑1 of the Act.
Note It
is an offence to provide a false or misleading statement to the Registrar: see
section 561‑1 of the Act.
Substantial creditor — amount of debt
(2) For subparagraph 29‑18 (5) (a) (ii)
of the Act, the amount is $2 000.
Note Under subparagraph 29‑18 (5) (a) (ii)
of the Act, a person is a substantial creditor of an amalgamating
corporation if the amount of a debt, or the sum of the amounts of debts, that
is unsecured exceeds the prescribed amount.
Part 2‑4 Registration of an Aboriginal and Torres Strait Islander
corporation as a small, medium or large corporation
Division 37 Registration of an Aboriginal and Torres Strait Islander
corporation as a small, medium or large corporation
37‑10.01 Small,
medium and large corporations
(1) For paragraph 37‑10 (1) (a) of the
Act, the amount is $100 000.
(2) For paragraph 37‑10 (1) (b) of the
Act, the amount is $100 000.
(3) For paragraph 37‑10 (1) (c) of the
Act, the number of employees is 5.
(4) For paragraph 37‑10 (3) (a) of the
Act, the amount is $5 000 000.
(5) For paragraph 37‑10 (3) (b) of the
Act, the amount is $2 500 000.
(6) For paragraph 37‑10 (3) (c) of the
Act, the number of employees is 25.
37‑20.01 Counting
employees
(1) For subsection 37‑20 (1) of the Act, this
regulation sets out a method for calculating the number of employees of an
Aboriginal and Torres Strait Islander corporation for the following provisions
of the Act:
(a) paragraph 37‑10 (1) (c);
(b) paragraph 37‑10 (2) (c);
(c) paragraph 37‑10 (3) (c).
(2) The method is:
(a) count each full‑time employee; and
(b) for each part‑time employee, work out a
fraction that represents the employee’s weekly hours of work divided by the weekly
hours of work of a full‑time employee; and
(c) count the fraction for each part‑time employee.
Note See paragraph 37‑20 (2) (b)
of the Act.
Chapter 3 Basic features of an Aboriginal and Torres Strait Islander
corporation
Part 3‑4 Names
Division 85 What names may a
corporation have?
85‑5.01 Availability
of names
(1) For paragraphs 85‑5 (1) (a)
and (b) of the Act, the rules for ascertaining whether a name is identical to
another name are the rules set out in Part 1 of Schedule 1.
(2) For paragraph 85‑5 (1) (c) of the
Act, a name is unacceptable for registration if it is unacceptable under the
rules set out in Part 2 of Schedule 1.
85‑5.02 Consent
required for use of certain letters, words and expressions
(1) This regulation applies to a name if:
(a) the name:
(i) is part of an application for the registration
of a corporation under section 21‑1, 22‑1 or 23‑1 of the Act;
or
(ii) for an
application for a change of name under section 88‑1 of the Act — is
the name to which the previous name is to be changed; and
(b) the name is, uses or includes:
(i) letters,
or a word or expression, specified in column 2 of an item in Part 4 of Schedule
1; or
(ii) other
letters, or another word or expression (whether or not in English), that is of
like import to the letters, word or expression specified in the item.
(2) In paragraph (1) (b), a reference to letters,
a word or an expression being used includes a reference to the letters, word or
expression being used:
(a) as part of another
word or expression; or
(b) in combination with
other words or letters, or other symbols.
(3) If an item in Part 4 of
Schedule 1 applies in relation to the name, the application must be accompanied
by the written consent of the Minister specified in the item.
Chapter 5 Meetings
Part 5‑2 General meetings
Division 201 What are the rules
concerning general meetings?
201‑5.01 Request
by members for directors to call general meetings
For paragraph 201‑5 (5) (b) of the
Act, the prescribed number is:
(a) for an Aboriginal and Torres Strait Islander
corporation with between 2 and 10 members — 1; and
(b) for a corporation with between 11 and 20
members — 3.
201‑40.01 Members’
resolutions
For paragraph 201‑40 (5) (b) of
the Act, the prescribed number is:
(a) for an Aboriginal and Torres Strait Islander
corporation with between 2 and 10 members — 1; and
(b) for a corporation with between 11 and 20
members — 3.
201‑50.01 Members’
statements to be distributed
For paragraph 201‑50 (9) (b) of
the Act, the prescribed number is:
(a) for an Aboriginal and Torres Strait Islander
corporation with between 2 and 10 members — 1; and
(b) for a corporation with between 11 and 20
members — 3.
201‑95.01 Rights
of proxies — exercise of proxies
For paragraph 201‑95 (4) (a) of the
Act, the prescribed number of members is 3.
Note Under subsection 201‑95 (4)
of the Act, a person must not exercise proxies for more than the number of
members prescribed in these Regulations.
Part 5‑4 Minutes of meetings
Division 220 Minutes of meetings
220‑10.01 Members’
access to minutes
For subsection 220‑10 (6) of the Act,
the prescribed amount is $0.50 per page.
Chapter 6 Officers
Part 6‑2 Appointment,
remuneration and cessation of appointment of directors
Division 252 Remuneration of directors
252‑5.01 Members
may obtain information about directors’ remuneration
For paragraph 252‑5 (8) (b) of the
Act, the prescribed number is:
(a) for an Aboriginal and Torres Strait Islander
corporation with between 2 and 10 members — 1; and
(b) for a corporation with between 11 and 20
members — 3.
Chapter 7 Record keeping, reporting requirements and books
Part 7‑3 Reporting requirements
Division 330 General report for each
financial year
330‑5.01 Contents
of general report
For paragraph 330‑5 (1) (b) of the
Act, the following information is prescribed:
(a) the corporation’s total CGOI for the
financial year;
(b) the value of the corporation’s total CGA at
the end of the financial year;
(c) the number of employees of the corporation
at the end of the financial year, calculated in accordance with subregulation
37‑20.01 (2);
(d) if the corporation has an ABN — the ABN
of the corporation;
(e) whether the corporation is a deductible gift
recipient under Division 30 of the Income Tax Assessment Act 1997;
(f) for each director of the corporation — whether
the director is also an employee of the corporation on 30 June of the financial
year being reported on;
(g) for each secretary of the corporation —
whether the secretary is also an employee of the corporation on 30 June of
the financial year being reported on;
(h) for each contact person of the corporation —
whether the contact person is also an employee of the corporation on 30 June
of the financial year being reported on;
(i) if the corporation is a trustee of a trust —
the name of, or other information identifying, the trust;
(j) if the corporation has a subsidiary that is
the trustee of a trust:
(i) the name of the subsidiary; and
(ii) the name of, or other information
identifying, the trust;
(k) if the corporation is a beneficiary of a
trust:
(i) the name of each trustee; and
(ii) the name of, or other information
identifying, the trust;
(l) if the corporation has a subsidiary that
is a beneficiary of a trust:
(i) the name of the subsidiary; and
(ii) the name of each trustee; and
(iii) the name of, or other information
identifying, the trust;
(m) if the corporation
is the proprietor or registered proprietor of Torrens system land:
(i) the
address of the land; and
(ii) the
nature of the estate; and
(iii) the
description of the land including:
(A) the
lot and plan description; and
(B) title
particulars of the land; and
(iv) whether
the land is held by the corporation in its own right or as trustee;
(n) if the
corporation is the legal owner or lessee of a freehold or leasehold estate in
general law land:
(i) the
address of the land; and
(ii) the
nature of the estate; and
(iii) the
description of the land including:
(A) the
lot and plan description; and
(B) title
particulars of the land; and
(iv) whether
the land is held by the corporation in its own right or as trustee.
Note 1 Subregulation 37‑20.01 (2)
is about counting employees.
Note 2 For a transitional
corporation reporting for the 2006‑2007 financial year, see Division 10
of Part 2 of Schedule 3 to the Corporations (Aboriginal and Torres Strait
Islander) Consequential, Transitional and Other Measures Act 2006.
Note 3 For a transitional
corporation reporting for the 2007‑2008 financial year, see Division 11
of Part 2 of Schedule 3 to the Corporations (Aboriginal and Torres Strait
Islander) Consequential, Transitional and Other Measures Act 2006.
330‑10.01 General
report to be lodged with Registrar
For paragraph 330‑10 (2) (b) of the
Act, the period is within 6 months after the end of the financial year.
Division 333 Financial and other reports
Subdivision 333‑A Small and
medium corporations with a CGOI of $5 000 000 or more, and large
corporations
333‑5.01 Financial
reports, directors’ reports and other reports
(1) This Subdivision applies to an Aboriginal and
Torres Strait Islander corporation:
(a) registered under the Act on 30 June of a
financial year as a small or medium corporation, and having a CGOI in the
financial year of $5 000 000 or more; or
(b) registered under the Act on 30 June of a
financial year as a large corporation.
(2) This Subdivision does not apply to:
(a) a transitional corporation reporting for the
2006‑2007 financial year; or
(b) a transitional corporation, reporting for the
2007‑2008 financial year, that has made an election under item 60 of
Schedule 3 to the Corporations (Aboriginal and Torres Strait Islander)
Consequential, Transitional and Other Measures Act 2006.
(3) For subsection 333‑5 (1) of the Act, the corporation
must prepare a financial report and a directors’ report for the financial year.
Note 1 For a transitional
corporation reporting for the 2006‑2007 financial year, see Division
10 of Part 2 of Schedule 3 to the Corporations (Aboriginal and Torres Strait
Islander) Consequential, Transitional and Other Measures Act 2006.
Note 2 For a transitional
corporation reporting for the 2007‑2008 financial year, see Division 11
of Part 2 of Schedule 3 to the Corporations (Aboriginal and Torres Strait
Islander) Consequential, Transitional and Other Measures Act 2006.
333‑10.01 Financial
reports
(1) For subsection 333‑10 (1) of the Act, a
financial report for a financial year is to contain:
(a) the financial statements for the year; and
(b) the notes to the financial statements; and
(c) the directors’ declaration about the
statements and the notes.
(2) The financial statements for the year are:
(a) the financial statements for the Aboriginal
and Torres Strait Islander corporation that are required by the accounting
standards; or
(b) if compliance with the accounting standards
requires the corporation to include other entities in its financial statements —
consolidated financial statements for the corporation and those entities.
Note For accounting standards applicable
to an Aboriginal and Torres Strait Islander corporation, see subregulation 333‑15.01 (4).
(3) The notes to the financial statements are:
(a) the notes required by the accounting
standards; and
(b) any other information necessary to give a
true and fair view of the financial position and performance of the corporation
or consolidated entity.
(4) The directors’ declaration is a declaration by the
directors of the corporation:
(a) whether, in the directors’ opinion, there
are reasonable grounds to believe that the corporation will be able to pay its
debts when they become due and payable; and
(b) whether, in the directors’ opinion, the
financial statements and notes are in accordance with these Regulations,
including:
(i) compliance with the accounting
standards; and
(ii) providing a true and fair view of
the financial position and performance of the corporation or consolidated
entity.
(5) The directors’ declaration must:
(a) be made in accordance with a resolution of
the directors; and
(b) mention the date when the resolution was
made; and
(c) be signed by a director of the corporation.
(6) The financial statements and notes
for a financial year must give a true and fair view of the financial position
and performance of the corporation or consolidated entity.
Note For the
definition of accounting standard, see section 700‑1 of the
Act.
333‑10.02 Directors’ reports
(1) For subsection 333‑10 (1)
of the Act, a directors’ report for the financial year must include the
following information:
(a) a review of operations of the Aboriginal and
Torres Strait Islander corporation during the year and the results of those
operations;
(b) details of any significant changes in the
corporation’s state of affairs during the year;
(c) a statement of the corporation’s principal
activities during the year and any significant changes in the nature of those
activities during the year;
(d) details of any matter or circumstance that
has arisen since the end of the year that has significantly affected, or may
significantly affect:
(i) the corporation’s operations in
future financial years; or
(ii) the results of those operations in
future financial years; or
(iii) the corporation’s state of
affairs in future financial years;
(e) likely developments in the corporation’s
operations in future financial years and the expected results of those
operations;
(f) if the corporation’s operations are subject
to any particular and significant environmental regulation under a
Commonwealth, State or Territory law — details of the corporation’s
performance in relation to environmental regulation;
(g) details of distributions paid to members
during the year;
(h) details of distributions recommended or
declared for payment to members, but not paid, during the year;
(i) the name of each person who has been a director
of the corporation during the year and the period of the director’s tenure;
(j) details of each director’s qualifications,
experience and special responsibilities;
(k) the number of meetings of the board of
directors held during the year and each director’s attendance record at those
meetings;
(l) the
number of meetings of each board committee held during the year and each
director’s attendance record at those meetings;
(m) the name
of each person who has been a secretary of the corporation during the year;
(n) details
of each secretary’s qualifications and experience;
(o) the name of each person who:
(i) was an officer of the corporation
at any time during the year; and
(ii) was, when an audit firm or audit
company that is an auditor of the corporation undertook an audit of the
corporation, a partner in the audit firm or a director of the audit company;
(p) a copy of the auditor’s declaration under
section 339‑50 of the Act for the audit for the financial year;
(q) for any application for leave made
during the year under section 169‑5 of the Act:
(i) the applicant’s name; and
(ii) a statement whether leave was
granted;
(r) for any proceedings that, during the year,
a person has brought or intervened in for the corporation with leave under
section 169‑5 of the Act:
(i) the person’s name; and
(ii) the names of the parties to the
proceedings; and
(iii) sufficient information to enable
members to understand the nature and status of the proceedings (including the
cause of action and orders made by the Court).
(2) For subregulation (1), the
directors’ report must be prepared:
(a) if consolidated financial
statements are not required — for the corporation; or
(b) if consolidated financial
statements are required — for the consolidated entity.
(3) If a financial report for a
financial year includes additional information under paragraph 333‑10.01 (3) (b),
the directors’ report must also mention:
(a) the directors’ reasons for forming the
opinion that the inclusion of the additional information was necessary to give
the true and fair view; and
(b) where the additional information can be found
in the financial report.
(4) A directors’ report may omit material that would
otherwise be included under paragraph (1) (e) if it would be likely to
result in unreasonable prejudice to the corporation or consolidated entity.
(5) For subregulation (4), if material is omitted, the
report must say so.
(6) Details do not have to be included in the directors’
report if they are already included in the corporation’s financial report for
the financial year.
(7) If details are not
included in the directors’ report, the report must say so and state where they
may be found in the corporation’s financial report for the year.
(8) A directors’ report must:
(a) be made in
accordance with a resolution of the directors; and
(b) mention the date when the report is made; and
(c) be signed by a director.
333‑15.01 Other requirements in relation to report
(1) For subsection 333‑15 (1) of the Act, an
Aboriginal and Torres Strait Islander corporation must have its financial
report audited and must obtain an auditor’s report.
(2) The auditor of a financial report must be:
(a) an individual auditor who is a registered
company auditor; or
(b) an audit firm that has at least 1 member who
is a registered company auditor who is ordinarily resident in Australia; or
(c) an authorised audit company.
(3) The audit of a financial report must be conducted in
accordance with the auditing standards.
Note For the definition of auditing
standard, see section 700‑1 of the Act.
(4) For paragraph 333‑15 (2) (e) of the
Act , the financial report of an Aboriginal and Torres Strait Islander
corporation must be prepared in accordance with all applicable accounting
standards:
(a) to the extent that the accounting standards are
capable of applying to an Aboriginal and Torres Strait Islander corporation;
and
(b) whether or not the corporation is or would be
regarded as a reporting entity within the meaning of that term in the
accounting standards.
Subdivision 333‑B Small
corporations with CGOI of between $100 000 and $5 000 000, and
medium corporations with CGOI of less than $5 000 000
333‑16.01 Financial
reports, directors’ reports and other reports
(1) This Subdivision applies to an Aboriginal and
Torres Strait Islander corporation:
(a) registered under the Act on 30 June of a
financial year as a small corporation, and having a CGOI in the financial year
of more than $100 000 but less than $5 000 000; or
(b) registered under the Act on 30 June of a
financial year as a medium corporation, and having a CGOI in the financial year
of less than $5 000 000.
(2) This Subdivision does not apply to:
(a) a transitional corporation reporting for the
2006‑2007 financial year; or
(b) a transitional corporation, reporting for the
2007‑2008 financial year, that has made an election under item 60 of
Schedule 3 to the Corporations (Aboriginal and Torres Strait Islander)
Consequential, Transitional and Other Measures Act 2006.
(3) For subsection 333‑5 (1) of the Act, the
corporation must prepare a financial report and a directors’ report for the
financial year.
Note 1 For a transitional
corporation reporting for the 2006‑2007 financial year, see Division
10 of Part 2 of Schedule 3 to the Corporations (Aboriginal and Torres Strait
Islander) Consequential, Transitional and Other Measures Act 2006.
Note 2 For a transitional
corporation reporting for the 2007‑2008 financial year, see Division 11 of
Part 2 of Schedule 3 to the Corporations (Aboriginal and Torres Strait
Islander) Consequential, Transitional and Other Measures Act 2006.
333‑16.02 Financial
reports
(1) An Aboriginal and Torres Strait Islander corporation
reporting under this Subdivision must prepare a financial report under:
(a) subregulation (2); or
(b) subregulations (5) to (7).
(2) A financial report prepared under this subregulation
must comply with regulation 333‑10.01 and subregulation 333‑15.01 (4).
(3) For subsection 333‑15 (1) of the Act, a
corporation that prepares a financial report under subregulation (2) must have
its financial report audited and must obtain an auditor’s report from:
(a) a person or entity mentioned in paragraph
333‑15.01 (2) (a), (b) or (c); or
(b) a Chartered member or an Affiliate of the
Institute of Chartered Accountants in Australia; or
(c) a Certified Practising Accountant or a Fellow
of CPA Australia.
(4) The audit of a financial report in subregulation (3)
must be conducted in accordance with the auditing standards.
(5) A corporation may prepare a
financial report under subregulations (6) and (7) if:
(a) the accounting standards,
if applied to the financial report, would not require the corporation to
provide consolidated financial statements; and
(b) at least 90% of the gross
operating income of the corporation in the financial year being reported on
consists of funding provided by 1 or more funding bodies; and
(c) as a condition of the
provision of funding, the corporation is required (by legislation or otherwise)
to prepare and submit to the funding body or bodies, 1 or more annual reports
accounting for the expenditure of the funding by the corporation over the full
financial year.
(6) For subregulation (5), the financial report must include
the following:
(a) a copy of each report mentioned in paragraph
(5) (c);
(b) a copy of any auditor’s report relating to a
report mentioned in paragraph (a);
(c) an income and expenditure statement for any
income and expenditure of the corporation in the financial year being reported
on, which has not already been included in a report mentioned in paragraph (a);
(d) a balance sheet disclosing any assets and
liabilities of the corporation as at 30 June of the financial year being
reported on, which have not already been included in a report mentioned in
paragraph (a);
(e) a directors’ declaration.
(7) For paragraph (6) (e), the declaration must:
(a) be made in accordance with a resolution of
the directors; and
(b) state whether in the directors’ opinion there
are reasonable grounds to believe that the corporation will be able to pay its
debts when they become due and payable; and
(c) mention the date when the resolution was
made; and
(d) be signed by a director of the corporation.
333‑16.03 Directors’ reports
(1) An Aboriginal and Torres Strait
Islander corporation that prepares a financial report under subregulation 333‑16.02 (2)
must, subject to subregulation (2), prepare a directors’ report in accordance
with regulation 333‑10.02.
(2) A directors’ report prepared by a
corporation under subregulation (1) need not comply with paragraphs 333‑10.02 (1) (i)
to (o).
(3) A corporation that prepares a
financial report under subregulations 333‑16.02 (6) and (7) must, subject
to subregulation (4), prepare a directors’ report in accordance with regulation
333‑10.02.
(4) A directors’ report prepared by a
corporation under subregulation (3) need not comply with paragraphs 333‑10.02 (1) (i)
to (o) or subregulation 333‑10.02 (3).
Division 339 Audit of financial reports
Subdivision 339‑D Auditor
independence
339‑75.01 Application
of Corporations Act auditor independence provisions
For subsection 339‑75 (2) of the Act,
the Corporations Act auditor independence provisions apply to the audit as if:
(a) references in those provisions to ASIC were
references to the Registrar; and
(b) references in those provisions to a small
proprietary company were references to an Aboriginal and Torres Strait Islander
corporation registered as a small or medium corporation.
Note For the definition of Corporations
Act auditor independence provisions, see section 700‑1 and
subsection 339‑75 (4) of the Act.
339‑80.01 Alternative
independence requirements
(1) For section 339‑80 of the Act, the
Corporations Act auditor independence provisions apply to the audit of a
financial report prepared under subregulation 333‑16.02 (2).
(2) The modifications made to the Corporations Act
auditor independence provisions by paragraphs 339‑75 (2) (a)
and (b) of the Act and regulation 339‑75.01 apply to the audit of a
financial report under subregulation (1).
(3) For subregulation (1), the Corporations Act auditor
independence provisions are further modified by removing any references to
imprisonment terms in the penalties in items 116CA to 116GC in Schedule 3
to the Corporations Act.
Subdivision 339‑F Appointment
and removal of auditors
339‑100.01 Application
This Subdivision does not apply to a person
examining a transitional corporation’s balance sheet and income and expenditure
statement under Division 10 or 11 of Part 2 of Schedule 3 to the Corporations
(Aboriginal and Torres Strait Islander) Consequential, Transitional and Other
Measures Act 2006.
339‑100.02 Appointment
The directors of an Aboriginal and
Torres Strait Islander corporation may appoint an auditor for the corporation
if an auditor has not been appointed by the corporation at a general meeting.
339‑100.03 Consent
(1) An Aboriginal and Torres Strait
Islander corporation, or the directors of the corporation, must not appoint an
individual, firm or company as auditor of the corporation unless the
individual, firm or company:
(a) has consented, before the
appointment, to act as auditor; and
(b) has not withdrawn the
consent before the appointment is made.
(2) For subregulation (1), consent or
the withdrawal of consent must be given by written notice to the corporation.
(3) A notice under subregulation (2)
given by a firm must be signed by a member of the firm:
(a) in the firm’s name; and
(b) in his or her own name.
(4) For
subregulation (3), if a corporation must use a registered company auditor, the
member of the firm who signs the notice of consent must be a registered company
auditor.
(5) A notice under subregulation (2)
given by a company must be signed by a director or senior manager of the
company:
(a) in the company’s name; and
(b) in his or her own name.
(6) An appointment that does not comply
with subregulations (1), (3), (4) and (5) has no effect.
339‑100.04 Nomination
(1) A director or member of an Aboriginal
and Torres Strait Islander corporation may nominate in writing an individual,
firm or company for appointment as auditor of the corporation.
(2) The corporation must send a copy
of the notice of nomination to each:
(a) individual, firm or company
nominated; and
(b) auditor of the corporation;
and
(c) person entitled to receive
notice of general meetings of the corporation.
(3) The copy of the notice of
nomination must be sent:
(a) at least 7 days before the general
meeting; or
(b) when notice is given of the
meeting at which the nomination is to be considered.
(4) An auditor may be appointed at a
general meeting if subregulations (1) to (3) have not been complied with.
339‑100.05 Resignation
(1) An auditor of an Aboriginal and
Torres Strait Islander corporation may resign by giving notice in writing to
the corporation.
(2) The resignation takes effect on:
(a) the day specified in the
notice of resignation; or
(b) if no day is specified —
on the day the notice is received by the corporation.
(3) Within
14 days after receipt of a notice of resignation from an auditor, the
corporation must lodge the notice of resignation with the Registrar.
339‑100.06 Removal of auditor by resolution at general meeting
(1) An auditor of an Aboriginal and
Torres Strait Islander corporation may be removed from office only by
resolution of the corporation at a general meeting of which notice under subregulation
(2) has been given.
(2) Notice of an intention to move the
resolution must be given to the corporation at least 2 months before the
meeting is to be held.
(3) If the corporation calls a meeting
after the notice of intention is given under subregulation (2), the meeting may
pass the resolution even though the meeting is held less than 2 months after
the notice of intention is given.
Note For the notice period for a general
meeting to remove an auditor, see subsection 201‑20 (4) of the Act.
(4) If notice under subregulation (2) has been received by
a corporation, it must as soon as possible send a copy of the notice to the
auditor and lodge a copy of the notice with the Registrar.
(5) Within 7 days after receiving a copy of the notice,
the auditor may make representations to the corporation.
(6) The representations must:
(a) be in writing; and
(b) not exceed a reasonable length; and
(c) request
that, before the meeting at which the resolution is to be considered, a copy of
the representations be sent by the corporation at its expense to every member
of the corporation to whom notice of the meeting is sent.
(7) Unless the Registrar on application from the
corporation determines otherwise, the corporation must send a copy of the
representations in accordance with the auditor’s request.
(8) The auditor may require that the representations be
read out at the meeting, without prejudice to his or her right to be heard
orally or, if a firm is the auditor, to have a member of the firm heard orally
on its behalf.
Note For an auditor’s entitlement to be
heard at the meeting, see paragraph 201‑80 (3) (b) of the Act.
339‑100.07 Auditor
ceasing to hold office by reason of unresolved conflict of interest
(1) Subregulations (2) and (3) apply to
an auditor undertaking an audit of a financial report, prepared under
subregulation 333‑5.01 (3), of an Aboriginal and Torres Strait
Islander corporation.
(2) Subsections 327B (2A) to (2D)
of the Corporations Act apply to an auditor of the corporation as if:
(a) references in those
provisions to the company were references to the corporation; and
(b) references in those provisions
to ASIC were references to the Registrar.
(3) If an audit firm ceases to be an
auditor of the corporation at a particular time because of the applied
provisions in subregulation (2), each member of the audit firm ceases to be an
auditor of the corporation at that time.
339‑100.08 Control
by another corporation
An auditor of an Aboriginal and
Torres Strait Islander corporation that begins to be controlled by another
corporation:
(a) must retire at the next AGM
of the corporation of which he or she is the auditor; and
(b) is, subject to these Regulations,
eligible for reappointment.
339‑100.09 Effect of winding up
An auditor of an Aboriginal and
Torres Strait Islander corporation ceases to hold office if:
(a) a special resolution is
passed for the voluntary winding up of the corporation; or
(b) an order is made by the
Court for the winding up of the corporation.
339‑100.10 Surviving or continuing auditor
While a vacancy in the office of
auditor of an Aboriginal and Torres Strait Islander corporation continues, any
surviving or continuing auditor may act as auditor of the corporation.
Part 7‑7 Modifications of record keeping and reporting requirements
Division 368 Modifications of record keeping and reporting requirements
368‑1.01 Modification
For section 368‑1 of the Act, the operation
of Part 7‑3 of the Act is modified for all Aboriginal and Torres Strait
Islander corporations by omitting from paragraph 348‑1 (3) (a) of
the Act ‘3 months’ and inserting ‘6 months’.
Chapter 9 Lodgments and registers
Part 9‑3 Registers
Division 418 Registers to be kept
418‑10.01 Information
and documents to be kept on Register of Aboriginal and Torres Strait Islander
Corporations
For section 418‑10 of the Act, the following
information and documents are specified:
(a) information or a document mentioned in a
provision of the Act mentioned in Part 1 of Schedule 2;
(b) information or a document mentioned in a
provision of these Regulations mentioned in Part 2 of Schedule 2;
(c) information or a document mentioned in a
provision of Schedule 3 to the Corporations (Aboriginal and Torres Strait
Islander) Consequential, Transitional and Other Measures Act 2006 mentioned
in Part 3 of Schedule 2;
(d) information or a document mentioned in a
provision of the Corporations Act, as it applies to an Aboriginal and Torres
Strait Islander corporation, mentioned in Part 4 of Schedule 2;
(e) information or a document mentioned in a
provision of the Corporations Regulations, as it applies to an Aboriginal and
Torres Strait Islander corporation, mentioned in Part 5 of Schedule 2.
Note Sections 45‑1, 499‑10,
516‑1, 521‑1, 526‑35, 526‑40, 531‑1 and 536‑1
of the Act apply certain provisions of the Corporations Act and Corporations
Regulations to an Aboriginal and Torres Strait Islander corporation.
Division 421 What information may a
person obtain from the Registrar?
421‑1.01 Inspection
and production of records
(1) For paragraph 421‑1 (1) (b) of the
Act:
(a) the Register of Aboriginal and Torres Strait
Islander Corporations is prescribed as a register; and
(b) all information in that register, including
all information in documents in that register, is prescribed as information.
Note Under paragraph 421‑1 (1) (b)
of the Act, a person may inspect or search a prescribed register kept by the
Registrar for prescribed information.
(2) For paragraph 421‑1 (1) (b) of the
Act:
(a) the Register of Disqualified Officers is
prescribed as a register; and
(b) all information in that register, including
all information in documents in that register, is prescribed as information.
Note Under paragraph 421‑1 (1) (b)
of the Act, a person may inspect or search a prescribed register kept by the
Registrar for prescribed information.
421‑1.02 Exempt
documents
For paragraph (f) of the definition of exempt
document in subsection 421‑1 (4) of the Act, the information
and documents mentioned in Schedule 3 are specified.
Chapter 10 Regulation and
enforcement
Part 10‑2 Regulation of Aboriginal and Torres Strait Islander
corporations
Division 439 Regulation of Aboriginal and Torres Strait Islander
corporations
439‑10.01 Registrar
may call a general meeting (other than an AGM)
For paragraph 439‑10 (10) (b) of
the Act, the prescribed number is:
(a) for an Aboriginal and Torres Strait Islander
corporation with between 2 and 10 members — 1; and
(b) for a corporation with between 11 and 20
members — 3.
Part 10‑3 Enforcement
Division 447 Authorised officers
447‑5.01 Identity
cards
For subsection 447‑5 (1) of the Act,
the form of an identity card is any form that:
(a) allows the authorised officer’s name to be
displayed; and
(b) allows a recent photograph of the authorised
officer to be displayed; and
(c) allows the date on which the identity card
expires to be displayed; and
(d) includes a statement that the person is an
authorised officer for the purposes of the Act.
Chapter 11 External administration
Part 11‑2 Special administration
Division 487 Special administration of
Aboriginal and Torres Strait Islander corporation
487‑5.01 Grounds
for special administration
For paragraph 487‑5 (5) (b) of the
Act, the prescribed number is:
(a) for an Aboriginal and Torres Strait Islander
corporation with between 2 and 10 members — 1; and
(b) for a corporation with between 11 and 20
members — 3.
Division 499 Function, duties and powers
of special administrator
499‑10.01 Applying Corporations Act provisions to Aboriginal
and Torres Strait Islander corporations that is under special administration
For paragraph 499‑10 (3) (b)
of the Act, the provisions mentioned in subsection 499‑10 (1) apply
to an Aboriginal and Torres Strait Islander corporation that is under special
administration as if a reference to ASIC were a reference to the Registrar.
Part 11‑5 Winding up
Division 526 Winding up
526‑5.01 Grounds
for Court ordered winding up
For paragraph 526‑5 (k) of the Act, the
prescribed period is 2 years.
Note Under paragraph 526‑5 (k)
of the Act, one of the grounds on which an Aboriginal and Torres Strait
Islander corporation may be wound up is that the corporation has failed, for a
prescribed period, to lodge any financial or other reports required to be
lodged by Part 7‑3 of the Act.
Chapter 15 Administration
Part 15‑2 Protection of
information
Division 604 Protection of information
604‑25.01 Authorised
use or disclosure
(1) For paragraph 604‑25 (4) (f) of the
Act, the following Agencies are prescribed:
(a) each Department of State that is responsible
for general policy on Aboriginal and Torres Strait Islander affairs;
(b) each Department of State that is responsible
for the administration of a program that relates specifically to Aboriginal or
Torres Strait Islander persons;
(c) the Office of the Director of Public
Prosecutions.
Note Under paragraph 604‑25 (4) (f)
of the Act, the disclosure of protected information is taken to be an authorised
disclosure if it is made to an Agency Head of, or an APS employee in, an Agency
(within the meaning of the Public Service Act 1999) that is prescribed
by these Regulations for the purposes of performing the functions, or
exercising the powers, of the Agency.
(2) For paragraph 604‑25 (4) (g) of the
Act, the Australian Federal Police is prescribed.
Note Under paragraph 604‑25 (4) (g)
of the Act, the disclosure of protected information is taken to be an authorised
disclosure if it is made to a Chief Executive, or an officer or employee, of a
prescribed Agency (within the meaning of the Financial Management and
Accountability Act 1997), if the prescribed Agency is also prescribed by
these Regulations for the purposes of performing the functions, or exercising
the powers, conferred on the Agency.
(3) For paragraph 604‑25 (4) (i) of the
Act, each Department of State of a State or Territory that is responsible for
general policy on Aboriginal and Torres Strait Islander affairs is prescribed.
Note Under paragraph 604‑25 (4) (i)
of the Act, the disclosure of protected information is taken to be an authorised
disclosure if it is made to the head (however described), or an officer or
employee, of a Department of State of a State or Territory prescribed by these
Regulations for the purposes of performing functions of the Department.
(4) For paragraph 604‑25 (4) (i) of the
Act, each of the following Departments of State of a State or Territory is
prescribed to the extent to which subregulation (3) does not apply to the
Department:
(a) the Department of State of New South Wales
that is responsible for the administration of the Aboriginal Land Rights Act
1983 of that State;
(b) each Department of State of Victoria that is
responsible for the administration of any of the following Acts of that State:
(i) the Aboriginal Land (Manatunga
Land) Act 1992;
(ii) the Aboriginal Land (Northcote
Land) Act 1989;
(iii) the Aboriginal Lands
(Aborigines’ Advancement League) (Watt Street, Northcote) Act 1982;
(iv) the Aboriginal Lands Act 1970;
(v) the Aboriginal Lands Act 1991;
(c) each Department of State of Queensland that
is responsible for the administration of either of the following Acts of that
State:
(i) the Aboriginal Land Act 1991;
(ii) the Torres Strait Islander Land
Act 1991;
(d) the Department of State of Western Australia
that is responsible for the administration of the Aboriginal Affairs
Planning Authority Act 1972 of that State;
(e) the Department of State of South Australia that
is responsible for the administration of the Aboriginal Lands Trust Act 1966
of that State;
(f) the Department of State of Tasmania that is
responsible for the administration of the Aboriginal Lands Act 1995 of
that State.
Note Under paragraph 604‑25 (4) (i)
of the Act, the disclosure of protected information is taken to be an authorised
disclosure if it is made to the head (however described), or an officer or
employee, of a Department of State of a State or Territory prescribed by these
Regulations for the purposes of performing functions of the Department.
(5) For paragraph 604‑25 (4) (j) of the
Act, the following bodies are prescribed:
(a) the police force or service of a State;
(b) the Northern Territory Police Force;
(c) an authority of a State or Territory that
has functions and powers similar to those of the Director of Public
Prosecutions of the Commonwealth.
Note Under paragraph 604‑25 (4) (j)
of the Act, the disclosure of protected information is taken to be an authorised
disclosure if it is made to the head (however described), or an officer or
employee, of a body prescribed by these Regulations and established for a
public purpose by or under a law of a State or Territory (including a local
governing body) for the purposes of performing functions conferred on the body
by a law of the State or Territory.
(6) For paragraph 604‑25 (4) (k) of the
Act, the following professional disciplinary bodies are prescribed:
(a) CPA Australia;
(b) the Institute of Chartered Accountants in
Australia;
(c) the National Institute of Accountants;
(d) the New South Wales Bar Association;
(e) the Law Society of New South Wales;
(f) the Victorian Bar Incorporated;
(g) the Law Institute of Victoria;
(h) the Bar Association of Queensland;
(i) the Queensland Law Society;
(j) the Legal Practice Board of Western
Australia;
(k) the Law Society of South Australia;
(l) the Law Society of Tasmania;
(m) the Law Society of the Australian Capital
Territory;
(n) the Law Society Northern Territory.
Note Under paragraph 604‑25 (4) (k)
of the Act, the disclosure of protected information is taken to be an authorised
disclosure if it is made to a professional disciplinary body prescribed by these
Regulations for the purposes of performing one of its functions or exercising
one of its powers.
(7) For paragraph 604‑25 (4) (l) of the
Act:
(a) Indigenous Business Australia, established
by section 145 of the Aboriginal and Torres Strait Islander Act 2005, is
prescribed; and
(b) the purpose of performing the functions of
Indigenous Business Australia under that Act is prescribed.
Note Under paragraph 604‑25 (4) (l)
of the Act, the disclosure of protected information is taken to be an authorised
disclosure if it is made to a prescribed person or body for the prescribed
purposes of the body or person.
(8) For paragraph 604‑25 (4) (l) of the
Act:
(a) the Indigenous Land Corporation, established
by section 191A of the Aboriginal and Torres Strait Islander Act 2005,
is prescribed; and
(b) the purpose of performing the functions of
the Indigenous Land Corporation under that Act is prescribed.
Note Under paragraph 604‑25 (4) (l)
of the Act, the disclosure of protected information is taken to be an authorised
disclosure if it is made to a prescribed person or body for the prescribed
purposes of the body or person.
Part 15‑6 Regulations
Division 633 Regulations
633‑1.01 General
regulation making power
For a provision of the Act mentioned in an item of
Schedule 4, the Corporations Act is modified as set out in the item.
Chapter 16 Registrar and Deputy Registrars of Aboriginal and Torres
Strait Islander Corporations
Part 16‑3 Registrar’s functions
and powers
Division 658 Registrar’s functions and
powers
658‑1.01 Functions
of the Registrar
(1) For paragraph 658‑1 (1) (k) of the
Act, the Registrar has the function of making documents, and information in
documents, available to the public that:
(a) are in the possession of the Registrar; and
(b) the Registrar considers appropriate to make
available; and
(c) before the commencement of the Act and the Corporations
(Aboriginal and Torres Strait Islander) Consequential, Transitional and Other
Measures Act 2006, were:
(i) filed or lodged with the ACA
Registrar, or served on the ACA Registrar, under the ACA Act; or
(ii) kept by the ACA Registrar under
the ACA Act; or
(iii) given to or served on a person by
the ACA Registrar under, or for, the ACA Act.
(2) In subregulation (1):
ACA Act means the Aboriginal Councils and
Associations Act 1976.
ACA Registrar has
the meaning given to it by subitem 1 (1) of Schedule 3 to the Corporations
(Aboriginal and Torres Strait Islander) Consequential, Transitional and Other
Measures Act 2006.
(3) For subregulation (1), the documents may include
documents containing personal information within the meaning
given by subsection 6 (1) of the Privacy Act 1988.