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 2-5 Effects of registration

Division 42 Effects of registration

42-1   Corporation comes into existence on registration

                   If an Aboriginal and Torres Strait Islander corporation is registered under Part 2-3 as a result of an application made under section 21-1, the Aboriginal and Torres Strait Islander corporation comes into existence as a body corporate with perpetual succession at the beginning of the day on which it is registered.

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

42-3   Effect of registration of existing body corporate under Part 2-3

                   If a body corporate is registered under Part 2-3 as an Aboriginal and Torres Strait Islander corporation as a result of an application made under section 22-1, registration under Part 2-3 does not:

                     (a)  create a new legal entity; or

                     (b)  affect the body’s existing property, rights or obligations (except as against the members of the body in their capacity as members); or

                     (c)  render defective any legal proceedings by or against the body or its members.

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

42-4   Effect of registration of amalgamated corporation under Part 2-3

             (1)  This section applies if an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation ) is registered under Part 2-3 as a result of an application made under section 23-1 to register the amalgamated corporation to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations ).

             (2)  The amalgamated corporation comes into existence as a body corporate with perpetual succession at the beginning of the day on which it is registered.

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

             (3)  On registration:

                     (a)  the assets of each of the amalgamating corporations cease to be assets of the amalgamating corporation and become assets of the amalgamated corporation without any conveyance, transfer or assignment and the amalgamated corporation becomes the amalgamating corporation’s successor in law in relation to those assets; and

                     (b)  the liabilities of each of the amalgamating corporations cease to be liabilities of the amalgamating corporations and become liabilities of the amalgamated corporation and the amalgamated corporation becomes the amalgamating corporation’s successor in law in relation to those liabilities; and

                     (c)  if any proceedings to which an amalgamating corporation was a party were pending in any court or tribunal immediately before registration—the amalgamated corporation is substituted for the amalgamating corporation as a party to the proceedings; and

                     (d)  any investigation that was commenced before registration in relation to an amalgamating corporation may be continued after registration as if the investigation were an investigation in relation to the amalgamated corporation; and

                     (e)  an act or thing done, or omitted to be done, before registration by or in relation to an amalgamating corporation is taken to have been done, or to have been omitted to be done, by or in relation to the amalgamated corporation; and

                      (f)  a reference in any document to an amalgamating corporation is taken to be a reference to the amalgamated corporation.

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

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

             (4)  Paragraph (3)(e) does not apply to a determination under section 487-1 that an amalgamating corporation is to be under special administration.

             (5)  To avoid doubt, if an asset of an amalgamating corporation was, immediately before registration, subject to a charge of any kind, the asset becomes the asset of the amalgamated corporation under subsection (3) subject to that charge.

             (6)  Subsection (7) applies if:

                     (a)  any land vests in the amalgamated corporation under this section; and

                     (b)  there is lodged with a land registration official a certificate that:

                              (i)  is signed by the Registrar; and

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

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

             (7)  The land registration official may:

                     (a)  register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and

                     (b)  deal with, and give effect to, the certificate.

             (8)  Subsection (9) applies if:

                     (a)  any asset other than land vests in the amalgamated corporation under this section; and

                     (b)  there is lodged with an assets official a certificate that:

                              (i)  is signed by the Registrar; and

                             (ii)  identifies the asset; and

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

             (9)  The assets official may:

                     (a)  deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and

                     (b)  make such entries in the register as are necessary having regard to the effect of this section.

           (10)  No stamp duty or other tax is payable under a law of a State or a Territory in respect of an exempt matter, or anything connected with an exempt matter.

           (11)  The Registrar may certify in writing:

                     (a)  that a specified matter is an exempt matter; or

                     (b)  that a specified thing was connected with a specified exempt matter.

           (12)  In all courts, and for all purposes (other than for the purposes of criminal proceedings), a certificate under subsection (11) is prima facie evidence of the matters stated in the certificate.

           (13)  For the purposes of this section, an exempt matter is:

                     (a)  the vesting of an asset or liability under this section; or

                     (b)  the operation of this section in any other respect.

           (14)  In this section:

asset means:

                     (a)  any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and

                     (b)  any right, power, privilege or immunity, whether actual, contingent or prospective.

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

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

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

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

42-5   Corporation’s name

                   An Aboriginal and Torres Strait Islander corporation’s name on registration is the name specified in the certificate of registration.

42-10   Members, directors, corporation secretary and contact person of corporation

Persons become members on registration

             (1)  A person becomes a member of an Aboriginal and Torres Strait Islander corporation on registration of the corporation if:

                     (a)  the corporation was registered as a result of an application made under section 21-1 and the person is specified in the application with his or her consent as a proposed member of the corporation; or

                     (b)  the corporation was registered as a result of an application made under section 22-1 for registration of a body corporate as an Aboriginal and Torres Strait Islander corporation under Part 2-3 and the person is a member of the body corporate immediately before registration of the corporation; or

                     (c)  the corporation was registered as a result of an application 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 the person is a member of any of the amalgamating corporations immediately before the registration of the amalgamated corporation.

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

Persons become directors etc. on registration

          (1A)  A person becomes a director, corporation secretary or contact person of an Aboriginal and Torres Strait Islander corporation on registration of the corporation if the person is specified in the application under section 21-1, 22-1 or 23-1 with his or her consent as a proposed director, corporation secretary or contact person of the corporation.

If no contact person nominated in the application for registration

             (2)  If:

                     (a)  an Aboriginal and Torres Strait Islander corporation is registered as a small or medium corporation; and

                     (b)  the application for registration does not specify a person to be the contact person for the corporation;

the applicant becomes the contact person for the corporation on registration.

If person nominated in application for registration as contact person without the person’s consent

             (3)  If:

                     (a)  a person is specified in an application for registration of an Aboriginal and Torres Strait Islander corporation as the contact person for the corporation; and

                     (b)  the person is specified without his or her consent; and

                     (c)  before registration, the Registrar becomes aware of that fact;

the Registrar may determine, by notice in writing given to the applicant, that the applicant for registration is the contact person for the corporation on registration.

             (4)  A determination under subsection (3) is not a legislative instrument.

42-15   Registered office

                   If an Aboriginal and Torres Strait Islander corporation is registered as a large corporation, the address (if any) specified in the corporation’s application for registration as the proposed registered office becomes the address of the corporation’s registered office on registration.

42-20   Document access address

                   If an Aboriginal and Torres Strait Islander corporation is registered as a small or medium corporation, the address (if any) specified in the corporation’s application for registration as the proposed document access address becomes the corporation’s document access address on registration.

42-25   Corporation may have common seal

             (1)  An Aboriginal and Torres Strait Islander corporation may have a common seal. If an Aboriginal and Torres Strait Islander corporation does have a common seal, the corporation must set out on it the corporation’s name and ICN.

Note 1:       An Aboriginal and Torres Strait Islander corporation may make contracts and execute documents without using a seal (see sections 99-1 and 99-5).

Note 2:       For abbreviations that can be used on a seal, see section 85-10.

             (2)  An Aboriginal and Torres Strait Islander corporation may have a duplicate common seal. The duplicate must be a copy of the common seal with the words “duplicate seal” added.

             (3)  A person commits an offence if:

                     (a)  the person uses, or authorises the use of, a seal; and

                     (b)  the seal purports to be the common seal of an Aboriginal and Torres Strait Islander corporation or a duplicate; and

                     (c)  the seal does not comply with the requirements set out in subsection (1) or (2).

Penalty:  10 penalty units.

             (4)  An offence against paragraph (3)(a) is an offence of strict liability.

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

42-30   Vesting of property in corporation on registration

Application of section

             (1)  This section applies if an application is lodged to register an unincorporated body as an Aboriginal and Torres Strait Islander corporation.

Personal property other than land

             (2)  Upon registration, any personal property held by a person, in trust or otherwise, for or on behalf of the members of the body vests in the corporation. The property vests subject to any trust, covenant, contract or liability affecting the property (other than a trust for the members).

Estate or interest in land

             (3)  If:

                     (a)  a person holds an estate or interest in land, in trust or otherwise, for or on behalf of the members of the body; and

                     (b)  the body is registered;

that person must, upon the registration, take all action required to vest the estate or interest in the corporation. The vesting is subject to any trust (other than a trust for the members), or any covenant, contract or liability affecting the estate or interest.

             (4)  In subsection (2):

personal property does not include property consisting of an estate or interest in land.

42-35   Body corporate registered as Aboriginal and Torres Strait Islander corporation (liability of members on winding up)

             (1)  This section applies if:

                     (a)  a body corporate is registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3 as a result of an application made under section 22-1; and

                     (b)  a person stopped being a member of a body corporate before it was registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3.

             (2)  The person is to be treated as a past member of the Aboriginal and Torres Strait Islander corporation in applying Division 2 of Part 5.6 of the Corporations Act (as applied by section 526-35 of this Act) to a winding up of the Aboriginal and Torres Strait Islander corporation.

             (3)  However, the person’s liability to contribute to the Aboriginal and Torres Strait Islander corporation’s property is further limited by this section to an amount sufficient for the following:

                     (a)  payment of debts and liabilities contracted by the body corporate before the day on which it was registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3;

                     (b)  payment of the costs, charges and expenses of winding up the Aboriginal and Torres Strait Islander corporation, so far as those costs, charges and expenses relate to those debts and liabilities;

                     (c)  the adjustment of the rights between the contributories, so far as the adjustment relates to those debts and liabilities.

42-40   Body corporate registered as Aboriginal and Torres Strait Islander corporation (modification by regulations)

             (1)  The regulations may modify the operation of this Part in relation to an Aboriginal and Torres Strait Islander corporation registered under Part 2-3 as a result of an application made under section 22-1.

             (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.

42-45   Registration of amalgamated corporation (liability of members on winding up)

             (1)  This section applies if:

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

                     (b)  a person stopped being a member of an amalgamating corporation before the registration of the amalgamated corporation.

             (2)  The person is to be treated as a past member of the amalgamated corporation in applying Division 2 of Part 5.6 of the Corporations Act (as applied by section 526-35 of this Act) to a winding up of the amalgamated corporation.

             (3)  However, the person’s liability to contribute to the amalgamated corporation’s property is further limited by this section to an amount sufficient for the following:

                     (a)  payment of debts and liabilities contracted by the amalgamating corporation before the registration of the amalgamated corporation;

                     (b)  payment of the costs, charges and expenses of winding up the amalgamated corporation, so far as those costs, charges and expenses relate to those debts and liabilities;

                     (c)  the adjustment of the rights between the contributories, so far as the adjustment relates to those debts and liabilities.

42-50   Registration of amalgamated corporation (modification by regulations)

             (1)  The regulations may modify the operation of this Part in relation to an Aboriginal and Torres Strait Islander corporation registered under Part 2-3 as a result of an application made under section 23-1.

             (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.