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Corporations (Aboriginal and Torres Strait Islander) Bill 2006

Part 2-3 Decisions on applications

Division 26 Registrar to decide application

26-1   Registrar to decide application

Registrar to decide

             (1)  The Registrar must make a decision whether or not to grant an application for registration of an Aboriginal and Torres Strait Islander corporation.

When may Registrar grant application

             (2)  The Registrar may decide to grant the application if:

                     (a)  an application under section 21-1 has been lodged for registration of the corporation (but see section 26-5); and

                     (b)  the application is accompanied by the matters set out in section 21-5 (but see section 26-5); and

                     (c)  the Registrar is satisfied that, on registration, the corporation will meet the following basic requirements set out in Division 29 (but see section 26-10):

                              (i)  the minimum number of members requirement (see section 29-1);

                             (ii)  the Indigeneity requirement (see section 29-5);

                            (iii)  the age of members requirement (see section 29-10);

                            (iv)  the pre-incorporation requirement (see section 29-15);

                             (v)  the internal governance rules requirement (see section 29-20);

                            (vi)  the name requirement (see section 29-25); and

                     (d)  section 26-15 does not preclude the registration; and

                     (e)  the Registrar is satisfied that it is more appropriate that the corporation be registered under this Act than under the Corporations Act or a law of a State or Territory dealing with incorporated bodies; and

                      (f)  the Registrar is satisfied that registering the corporation would not be contrary to the public interest.

26-5   Registrar may grant application if application is incomplete etc.

                   Despite paragraphs 26-1(2)(a) and (b), the Registrar may grant the application even if the application for registration:

                     (a)  is incomplete or contains errors (as long as the applicant has provided his or her name and address in the application); or

                     (b)  some or all of the material required to accompany the application under section 21-5 is not provided, is incomplete or contains errors.

26-10   Registrar may grant application if some basic requirements are not met

Circumstances when Registrar may register corporation

             (1)  Despite paragraph 26-1(2)(c), the Registrar may grant the application even if the Registrar is not satisfied that the corporation, on registration, would meet:

                     (a)  the minimum number of members requirement; or

                     (b)  the age of members requirement; or

                     (c)  the pre-incorporation requirement.

Registrar not to register body in certain circumstances

             (2)  However, the Registrar must not grant the application and register an Aboriginal and Torres Strait Islander corporation if, on registration, the corporation would not meet:

                     (a)  the Indigeneity requirement; or

                     (b)  the internal governance rules requirement; or

                     (c)  the name requirement.

26-15   Registrar not to register trade unions etc.

                   The following cannot be registered under this Act:

                     (a)  a trade union;

                     (b)  a body that is providing financial services (within the meaning of Chapter 7 of the Corporations Act);

                     (c)  a body of a kind prescribed in the regulations as a kind of body that must not be registered.



 

Division 29 What are the basic requirements for registration?

29-1   Minimum number of members requirement

                   An Aboriginal and Torres Strait Islander corporation meets the minimum number of members requirement if the corporation complies with the requirement in subsection 77-5(1).

29-5   Indigeneity requirement

                   An Aboriginal and Torres Strait Islander corporation meets the Indigeneity requirement if the corporation has the following required number or percentage of its members who are Aboriginal and Torres Strait Islander persons:

                     (a)  if the corporation has 5 or more members—at least the percentage of members prescribed in the regulations for the purposes of this section;

                     (b)  if the corporation has fewer than 5 members but more than one member—all of the members, or all but one of the members;

                     (c)  if the corporation has only one member—that member.

Note:          For the meaning of Aboriginal and Torres Strait Islander person , see section 700-1.

29-10   Age of members requirement

                   An Aboriginal and Torres Strait Islander corporation meets the age of members requirement if each member of the corporation is at least 15 years of age.

29-15   Pre-incorporation requirement

             (1)  An Aboriginal and Torres Strait Islander corporation meets the pre-incorporation requirement if 75% of the persons listed in the application for registration as persons who consent to become members of the corporation on registration have:

                     (a)  authorised the applicant to apply for the incorporation of the Aboriginal and Torres Strait Islander corporation; and

                     (b)  approved the proposed constitution provided to the Registrar under subsection 29-20(2) as the constitution of the corporation; and

                     (c)  if the internal governance rules that would apply to the corporation will include one or more replaceable rules—agreed to those replaceable rules so applying; and

                     (d)  nominated, as persons who will become directors of the corporation, the persons specified in the application as persons who will become directors on registration; and

                     (e)  if the application indicates that the corporation is expected to be a small or medium corporation in respect of the corporation’s first financial year—nominated, as a person who will become a contact person of the corporation, the person specified in the application as a person who will become contact person on registration; and

                      (f)  if the application indicates that the corporation is expected to be a large corporation in respect of the corporation’s first financial year—nominated, as a person who will become the corporation’s secretary, the person specified in the application as a person who will become the corporation’s secretary on registration.

             (2)  The document evidencing the agreement under paragraph (1)(c) must:

                     (a)  refer by section or subsection number (as appropriate) to the replaceable rules that will apply without modification to the corporation; and

                     (b)  set out the terms of the replaceable rules (if any) that are being modified or replaced by the proposed constitution.

29-20   Internal governance rules requirement

             (1)  An Aboriginal and Torres Strait Islander corporation meets the internal governance rules requirement if the corporation’s constitution complies with the requirements set out in section 66-1.

             (2)  In addition, a copy of the corporation’s proposed constitution must be lodged before the time the Registrar makes a decision under section 26-1 in respect of the application.

29-25   Name requirement

                   An Aboriginal and Torres Strait Islander corporation meets the name requirement if the corporation complies with the requirements set out in section 85-1.



 

Division 32 Decisions on applications

32-1   Successful applications

             (1)  If the Registrar grants an application for registration of an Aboriginal and Torres Strait Islander corporation, the Registrar must:

                     (a)  register the Aboriginal and Torres Strait Islander corporation; and

                     (b)  register the corporation’s constitution; and

                     (c)  issue a certificate to the applicant that states the following:

                              (i)  the corporation’s name and ICN;

                             (ii)  that the corporation is registered under this Act;

                            (iii)  the date of the registration.

Note:          Section 37-1 requires the Registrar to register the corporation as a small, medium or large corporation.

             (2)  The Registrar must keep a record of the registration and the constitution.

             (3)  A certificate under subsection (1) is not a legislative instrument.

32-5   Unsuccessful applications

             (1)  If:

                     (a)  the Registrar does not grant the application; and

                     (b)  section 26-15 does not preclude the registration;

the Registrar must, in writing:

                     (c)  notify the applicant of the decision within 28 days after the decision; and

                     (d)  invite the applicant to:

                              (i)  make such changes in the application or accompanying material that will remove the grounds for refusal; and

                             (ii)  advise the Registrar, within the time specified in the invitation, of any changes made or, if the changes are not made, of the reasons for the changes not being made.

             (2)  If the Registrar is advised under subparagraph (1)(d)(ii), the Registrar must reconsider the application.