Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document

 Download WordDownload Word  Download PDFDownload PDF 


Bill home page
Table Of Contents
Previous Fragment    Next Fragment
Corporations (Aboriginal and Torres Strait Islander) Bill 2006

Part 12-2 Deregistration

Division 546 Deregistration

546-1   Deregistration—voluntary

Who may apply for deregistration

             (1)  An application to deregister an Aboriginal and Torres Strait Islander corporation may be lodged with the Registrar by:

                     (a)  the corporation; or

                     (b)  a director or member of the corporation; or

                     (c)  a liquidator of the corporation.

If the corporation lodges the application, it must nominate a person to be given notice of the deregistration.

Circumstances in which application can be made

             (2)  A person may apply only if:

                     (a)  all the members of the corporation agree to the deregistration; and

                     (b)  the corporation is not carrying on business; and

                     (c)  the corporation’s assets are worth less than $1,000; and

                     (d)  the corporation has paid all fees and penalties payable under this Act; and

                     (e)  the corporation has no outstanding liabilities; and

                      (f)  the corporation is not a party to any legal proceedings.

Registrar may ask for information about officers

             (3)  The applicant must give the Registrar any information that the Registrar requests about the current and former officers of the corporation.

Deregistration procedure

             (4)  If the Registrar is not aware of any failure to comply with subsections (1) to (3), the Registrar must give notice of the proposed deregistration in the Gazette .

             (5)  A notice in the Gazette is not a legislative instrument.

             (6)  When 2 months have passed since the Gazette notice, the Registrar may deregister the corporation.

             (7)  The Registrar must give notice of the deregistration to:

                     (a)  the applicant; or

                     (b)  the person nominated in the application to be given the notice.

546-5   Deregistration—Registrar initiated

Circumstances in which the Registrar may deregister

             (1)  The Registrar may decide to deregister an Aboriginal and Torres Strait Islander corporation if:

                     (a)  the corporation has not lodged a general return within 6 months after the day on which the return is required to be lodged; and

                     (b)  the corporation has not lodged any other documents under this Act in the last 18 months; and

                     (c)  the Registrar has no reason to believe that the corporation is carrying on business.

             (2)  The Registrar may also decide to deregister an Aboriginal and Torres Strait Islander corporation if the corporation is being wound up and the Registrar has reason to believe that:

                     (a)  the liquidator is no longer acting; or

                     (b)  the corporation’s affairs have been fully wound up and a return that the liquidator should have lodged is at least 6 months late; or

                     (c)  the corporation’s affairs have been fully wound up under Part 5.4 of the Corporations Act (as applied by section 526-35 of this Act) and the corporation has no property or not enough property to cover the costs of obtaining a Court order for the corporation’s deregistration.

Deregistration procedure

             (3)  If the Registrar decides to deregister an Aboriginal and Torres Strait Islander corporation under this section, the Registrar must give notice of the proposed deregistration:

                     (a)  to the corporation; and

                     (b)  to the corporation’s liquidator (if any); and

                     (c)  to the corporation’s directors; and

                     (d)  in the Gazette .

When 2 months have passed since the Gazette notice, the Registrar may deregister the corporation.

             (4)  The Registrar does not have to give a person notice under subsection (3) if the Registrar does not have the necessary information about the person’s identity or address.

             (5)  The Registrar must give notice of the deregistration to everyone who was notified of the proposed deregistration under paragraph (3)(b) or (c).

546-10   Deregistration—following amalgamation or winding up

             (1)  The Registrar must deregister an Aboriginal and Torres Strait Islander corporation if the Court orders the deregistration of the corporation under:

                     (a)  paragraph 413(1)(d) of the Corporations Act (as applied by section 45-1 of this Act) (reconstruction and amalgamations); or

                     (b)  paragraph 481(5)(b) of the Corporations Act (as applied by section 526-35 of this Act) (release of liquidator); or

                     (c)  subsection 509(6) of the Corporations Act (as applied by section 526-35 of this Act) (liquidator’s return following winding up).

             (2)  The Registrar must deregister an Aboriginal and Torres Strait Islander corporation if:

                     (a)  3 months have passed since the corporation’s liquidator lodged a return under section 509 of the Corporations Act (as applied by section 526-35 of this Act); and

                     (b)  no order under subsection 509(6) of the Corporations Act (as applied by section 526-35 of this Act) has been made during that period.

             (3)  If:

                     (a)  an application is made under section 23-1 to register an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation ) under Part 2-3 to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations ); and

                     (b)  the Registrar registers the amalgamated corporation as a result of the application;

the Registrar must deregister the amalgamating corporations.

             (4)  Subsections 546-20(2) to (7) and sections 546-25 to 546-40 do not apply to the deregistration of an Aboriginal and Torres Strait Islander corporation under subsection (3) of this section.

546-15   Registered native title body corporate

                   The Registrar must not deregister an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate under section 546-1, 546-5 or 546-10.

546-20   Effect of deregistration

Aboriginal and Torres Strait Islander corporation ceases to exist

             (1)  An Aboriginal and Torres Strait Islander corporation ceases to exist on deregistration.

Note:          Despite the deregistration, officers of the corporation may still be liable for things done before the corporation was deregistered.

Corporation’s property vests in Registrar

             (2)  On deregistration, all the corporation’s property vests in the Registrar. If corporation property is vested in a liquidator immediately before deregistration, that property vests in the Registrar. This subsection extends to property situated outside Australia.

             (3)  Under subsection (2), the Registrar takes only the same property rights that the corporation itself held. If the corporation held particular property subject to a security or other interest or claim, the Registrar takes the property subject to that interest or claim.

Note:          See also subsection 546-25(3), which deals with liabilities that a law imposes on the property (particularly liabilities such as rates, taxes and other charges).

             (4)  The Registrar has all the powers of an owner over property vested in the Registrar under subsection (2).

Note:          Section 546-30 confers additional powers on the Registrar to fulfil outstanding obligations of the deregistered corporation.

Corporation’s books to be kept by former directors

             (5)  A person commits an offence if:

                     (a)  an Aboriginal and Torres Strait Islander corporation is deregistered; and

                     (b)  the person is a director of the corporation immediately before deregistration; and

                     (c)  the person does not keep the corporation’s books for 3 years after the deregistration.

Penalty:  5 penalty units.

             (6)  Subsection (5) does not apply to books that a liquidator has to keep under subsection 542(2) of the Corporations Act (as applied by section 526-35 of this Act).

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ).

Strict liability offences

             (7)  An offence based on subsection (5) is an offence of strict liability.

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

546-25   What the Registrar does with the property

             (1)  If property vested in the Registrar under subsection 546-20(2) was held by the corporation on trust, the Registrar may:

                     (a)  continue to act as trustee; or

                     (b)  apply to a court for the appointment of a new trustee.

Note:          Under paragraph (a), the Registrar may be able to transfer the property to a new trustee chosen in accordance with the trust instrument.

             (2)  If the corporation did not hold the property on trust, the Registrar may:

                     (a)  dispose of or deal with the property as he or she sees fit; and

                     (b)  apply any money he or she receives to:

                              (i)  defray expenses incurred by the Registrar in exercising his or her powers in relation to the corporation under this Chapter; and

                             (ii)  make payments authorised by subsection (3).

The Registrar must deal with the rest of the property (if any) under Part 12-3.

Obligations attaching to property

             (3)  The property remains subject to all liabilities imposed on the property under a law and does not have the benefit of any exemption that the property might otherwise have because it is vested in the Registrar. These liabilities include a liability that:

                     (a)  is a charge or claim on the property; and

                     (b)  arises under a law that imposes rates, taxes or other charges.

             (4)  The Registrar’s obligation under subsection (3) is limited to satisfying the liabilities out of the corporation’s property to the extent that the property is properly available to satisfy those liabilities.

Accounts

             (5)  The Registrar must keep:

                     (a)  a record of property that he or she knows is vested in the Registrar under this Part; and

                     (b)  a record of his or her dealings with that property; and

                     (c)  accounts of all money received from those dealings; and

                     (d)  all accounts, vouchers, receipts and papers relating to the property and that money.

546-30   Registrar’s power to fulfil outstanding obligations of deregistered corporation

                   The Registrar may do an act on behalf of the corporation or its liquidator if the Registrar is satisfied that the corporation or liquidator would be bound to do the act if the corporation still existed.

Note:          This power is a general one and is not limited to acts in relation to property vested in the Registrar under subsection 546-20(2). The Registrar has all the powers that automatically flow from the vesting of property in the Registrar under that subsection (see subsection 546-20(4)) and may exercise those powers whether or not the corporation was bound to do so.

546-35   Claims against insurers of deregistered corporation

                   A person may recover from the insurer of an Aboriginal and Torres Strait Islander corporation that is deregistered an amount that was payable to the corporation under the insurance contract if:

                     (a)  the corporation had a liability to the person; and

                     (b)  the insurance contract covered that liability immediately before deregistration.

546-40   Reinstatement

Reinstatement by the Registrar

             (1)  The Registrar may reinstate the registration of an Aboriginal and Torres Strait Islander corporation if the Registrar is satisfied that the corporation should not have been deregistered.

Reinstatement by Court

             (2)  The Court may make an order that the Registrar reinstate the registration of an Aboriginal and Torres Strait Islander corporation if:

                     (a)  an application for reinstatement is made to the Court by:

                              (i)  a person aggrieved by the deregistration; or

                             (ii)  a former liquidator of the corporation; and

                     (b)  the Court is satisfied that it is just that the corporation’s registration be reinstated.

             (3)  If the Court makes an order under subsection (2), it may:

                     (a)  validate anything done between the deregistration of the corporation and its reinstatement; and

                     (b)  make any other order it considers appropriate.

Note:          For example, the Court may direct the Registrar to transfer to another person property vested in the Registrar under subsection 546-20(2).

Registrar to give notice of reinstatement

             (4)  The Registrar must give notice of a reinstatement in the Gazette . If the Registrar exercises his or her power under subsection (1) in response to an application by a person, the Registrar must also give notice of the reinstatement to the applicant.

Effect of reinstatement

             (5)  If an Aboriginal and Torres Strait Islander corporation is reinstated:

                     (a)  the corporation is taken to have continued in existence as if it had not been deregistered; and

                     (b)  a person who was a director of the corporation immediately before deregistration becomes a director again as from the time when the Registrar or the Court reinstates the corporation; and

                     (c)  any property of the corporation that is still vested in the Registrar revests in the corporation; and

                     (d)  if the corporation held particular property subject to a security or other interest or claim—the corporation takes the property subject to that interest or claim.

546-45   Regulations may modify Division in relation to statutory Indigenous land trusts

             (1)  The regulations may modify any of the provisions of this Division (other than section 546-15 and subsection (2) of this section) as they relate to an Aboriginal and Torres Strait Islander corporation that holds land for the benefit of Aboriginal persons or Torres Strait Islanders under:

                     (a)  the Aboriginal Land Act 1991 of Queensland; or

                     (b)  any other law prescribed by the regulations for the purposes of this paragraph.

             (2)  Regulations made for the purposes of subsection (1) must not:

                     (a)  increase, or have the effect of increasing, the maximum penalty for any offence; or

                     (b)  widen, or have the effect of widening, the scope of any offence.

             (3)  This section does not limit section 633-5 (which deals with regulations in relation to registered native title bodies corporate).