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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 under section 21-1, 22-1 or 23-1 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, 22-1 or 23-1 has been lodged for registration of the corporation (but see section 26-5); and

                     (b)  if the application is made under section 21-1—the application is accompanied by the matters set out in section 21-5 (but see section 26-5); and

                    (ba)  if the application is made under section 22-1—the application is accompanied by the matters set out in section 22-5 (but see section 26-5); and

                    (bb)  if the application is made under section 23-1—the application is accompanied by the matters set out in section 23-5 (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)  if the application is made under section 21-1—the pre-incorporation requirement (see section 29-15);

                          (iva)  if the application is made under section 22-1—the pre-transfer of registration requirement (see section 29-17);

                          (ivb)  if the application is made under section 23-1—the creditor notice requirements (see section 29-18) and the pre-amalgamation requirements (see section 29-19);

                             (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.

Special rules for amalgamation application under section 23-1

             (3)  Subsections (4) and (5) apply in deciding whether to grant an application under section 23-1 to register an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation ) to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations ).

             (4)  The Registrar must not grant the application if an objection to the grant of the application has been made under subsection 29-18(3) and the objection has not been withdrawn.

             (5)  In addition to the matters referred to in subsection (2), the Registrar may have regard to the following matters in deciding whether to grant the application:

                     (a)  the size and complexity of the operations of the amalgamating corporations;

                     (b)  whether there are any unresolved disputes:

                              (i)  internal to the operation of any of the amalgamating corporations; or

                             (ii)  between any of the amalgamating corporations and other persons; or

                            (iii)  about whether the amalgamated corporation should replace the amalgamating corporations;

                     (c)  the extent to which the amalgamating corporations, and the officers of the amalgamating corporations, have complied with this Act and the regulations;

                     (d)  the nature of any services provided by the amalgamating corporations and the people to whom those services are provided;

                     (e)  the capacity of the amalgamating corporations, and their officers, to make an application to the Court for orders under Part 5.1 of the Corporations Act (as applied by Division 45 of this Act);

                      (f)  whether it would be desirable for a court to supervise the process of the amalgamated corporation replacing the amalgamating corporations;

                     (g)  whether the amalgamating corporations have different member liability arrangements;

                     (h)  any other matter the Registrar considers relevant.

Note:          If the Registrar decides not to grant the application, the amalgamation may be able to be achieved by applying to the Court for orders under Part 5.1 of the Corporations Act (as applied by section 45-1 of this Act).

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

                   Despite paragraphs 26-1(2)(a), (b), (ba) and (bb), 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, section 22-5 or 23-5 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; or

                     (d)  the pre-transfer of registration requirement; or

                     (e)  the creditor notice requirements; or

                      (f)  the pre-amalgamation requirements.

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 who is an individual 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.

29-17   Pre-transfer of registration requirement

             (1)  A body corporate in relation to which an application is made under section 22-1 meets the pre-transfer of registration requirement if:

                     (a)  the members have by a resolution that has been passed at a meeting by at least 75% of the votes cast by members entitled to vote on the resolution:

                              (i)  authorised the applicant to apply for the registration of the body as an Aboriginal and Torres Strait Islander corporation; and

                             (ii)  approved the proposed constitution provided to the Registrar under subsection 29-20(2) as the constitution to be adopted by the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3; and

                            (iii)  if the internal governance rules that would apply to the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3 will include one or more replaceable rules—agreed to those replaceable rules so applying; and

                            (iv)  nominated, as persons who will become directors of the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3, the persons specified in the application as persons who will become directors on registration; and

                             (v)  if the application indicates that the body is expected to be a small or medium corporation in respect of its first financial year—nominated, as a person who will become the contact person when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3, the person specified in the application as a person who will become the contact person on registration; and

                            (vi)  if the application indicates that the body is expected to be a large corporation in respect of its first financial year—nominated, as a person who will become the secretary when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3, the person specified in the application as a person who will become the secretary on registration; and

                     (b)  the members were given at least 21 days notice of the meeting and the proposed resolution.

             (2)  The document evidencing the agreement under subparagraph (1)(a)(iii) must:

                     (a)  refer by section or subsection number (as appropriate) to the replaceable rules that will apply without modification to the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3; and

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

29-18   Creditor notice requirement

             (1)  If an application is made under section 23-1 to register an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation ) to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations ), the amalgamated corporation meets the creditor notice requirement if:

                     (a)  the applicant has given the Registrar a notice of intention to make the application; and

                     (b)  the applicant has, within 14 days after giving the Registrar the notice, published the following in accordance with subsection (2):

                              (i)  a copy of the notice;

                             (ii)  a statement informing substantial creditors of the amalgamating corporations that those creditors may, within the objection period, object under subsection (3) to the grant of the application;

                            (iii)  such other information as is prescribed by the regulations for the purposes of this subparagraph; and

                     (c)  each of the amalgamating corporations has, during the objection period, taken reasonable steps to bring the following to the attention of persons who are, or who are likely to or who may become, substantial creditors of the corporation:

                              (i)  the proposed amalgamation;

                             (ii)  the right that substantial creditors of the corporation have under subsection (3) to object to the grant of the application made under section 23-1; and

                     (d)  the application under section 23-1 is made within 14 days after the end of the objection period.

Note 1:       For substantial creditor , see paragraph (5)(a).

Note 2:       For objection period , see paragraph (5)(b).

             (2)  The material referred to in paragraph (1)(b) must be published:

                     (a)  in a national newspaper; or

                     (b)  for each State or Territory in which any of the amalgamating corporations has its registered office (if any) or carries on business or other operations—in a daily newspaper that circulates generally in that State or Territory.

If the material is published in a number of newspapers under paragraph (b), all of the publications must occur on the same day.

             (3)  A substantial creditor of any of the amalgamating corporations may object to the grant of the application by:

                     (a)  lodging with the Registrar a written objection that contains the information prescribed by the regulations for the purposes of this paragraph; and

                     (b)  giving the applicant a copy of the objection;

within the objection period.

             (4)  A substantial creditor of an amalgamating corporation who has lodged an objection under subsection (3) may, by written notice to the Registrar, withdraw the objection.

             (5)  For the purposes of this section:

                     (a)  a person is a substantial creditor of an amalgamating corporation if:

                              (i)  the amalgamating corporation owes a debt, or debts, to the person; and

                             (ii)  the amount of that debt, or the sum of the amounts of those debts, that is unsecured exceeds the amount prescribed by the regulations for the purposes of this subsection; and

                     (b)  the objection period is the period of 21 days after the day on which the material referred to in paragraph (1)(b) is published in accordance with subsection (2); and

                     (c)  an amalgamating corporation is taken to owe a debt to a person even if the debt is contingent or prospective.

29-19   Pre-amalgamation requirements

             (1)  If an application is made under section 23-1 to register an Aboriginal and Torres Strait Islander corporation (the amalgamated corporation ) to replace 2 or more existing Aboriginal and Torres Strait Islander corporations (the amalgamating corporations ), the amalgamated corporation meets the pre-amalgamation requirements if the members of each of the amalgamating corporations have passed a special resolution:

                     (a)  authorising the applicant to apply for the registration of the amalgamated corporation to replace the amalgamating corporations; and

                     (b)  approving the proposed constitution provided to the Registrar under subsection 29-20(2) as the constitution to be the amalgamated corporation’s constitution when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3; and

                     (c)  if the internal governance rules that would apply to the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3 will include one or more replaceable rules—agreeing to those replaceable rules so applying; and

                     (d)  nominating, as persons who will become directors of the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3, the persons specified in the application as persons who will become directors on registration; and

                     (e)  if the application indicates that the amalgamated corporation is expected to be a small or medium corporation in respect of its first financial year—nominating, as a person who will become a contact person of the amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3, the person specified in the application as a person who will become the contact person on registration; and

                      (f)  if the application indicates that the amalgamated corporation is expected to be a large corporation in respect of its first financial year—nominating, as a person who will become the amalgamated corporation’s secretary when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3, the person specified in the application as a person who will become the 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 amalgamated corporation when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3; 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 under section 21-1, 22-1 or 23-1 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.