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Corporations (Aboriginal and Torres Strait Islander) Bill 2006

Part 6-3 Appointment of secretaries and contact persons

Division 257 Appointment of secretaries and contact persons

257-1   What this Part is about

This Part deals with the secretary and contact person of an Aboriginal and Torres Strait Islander corporation.

An Aboriginal and Torres Strait Islander corporation that is registered as a large corporation must have a secretary.

An Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation must have a contact person.

257-5   Requirement to have a secretary or contact person

Secretary

             (1)  An Aboriginal and Torres Strait Islander corporation that is registered as a large corporation must have at least one secretary. At least one of the secretaries must ordinarily reside in Australia.

Contact person

             (2)  An Aboriginal and Torres Strait Islander corporation that is registered as a small or medium corporation must have a contact person. The contact person must ordinarily reside in Australia.

             (3)  An Aboriginal and Torres Strait Islander corporation commits an offence if the corporation does not comply with subsection (1) or (2).

Penalty:  5 penalty units.

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

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

257-10   Who may be a secretary or contact person

             (1)  Only an individual who is at least 18 years of age may be appointed as a secretary or contact person of an Aboriginal and Torres Strait Islander corporation.

             (2)  A person who is disqualified from managing an Aboriginal and Torres Strait Islander corporation under Part 6-5may only be appointed as a secretary or contact person if the appointment is made:

                     (a)  with permission granted by the Registrar under subsection 279-30(7); or

                     (b)  with leave granted by the Court under section 279-35.

257-15   Consent to act as secretary or contact person

Secretary

             (1)  An Aboriginal and Torres Strait Islander corporation contravenes this subsection if a person does not give the corporation a signed consent to act as secretary of the corporation before being appointed.

Penalty:  5 penalty units.

Contact person

             (2)  An Aboriginal and Torres Strait Islander corporation contravenes this subsection if a person does not give the corporation a signed consent to act as contact person of the corporation before being appointed.

Penalty:  5 penalty units.

             (3)  The corporation must keep the consent.

Penalty:  5 penalty units.

             (4)  An offence against subsection (1), (2) or (3) is an offence of strict liability.

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

257-20   How a secretary or contact person is appointed

                   A secretary or contact person is to be appointed by the directors.

Note:          An Aboriginal and Torres Strait Islander corporation must notify the Registrar of the appointment within 28 days (see subsection 304-5(1)).

257-25   Director to be contact person in certain circumstances

             (1)  If the Registrar has not been able to contact the contact person of an Aboriginal and Torres Strait Islander corporation for a period of 28 days or longer, the Registrar may determine, by notice in writing given to the corporation:

                     (a)  that the person who is not contactable ceases to be the contact person from the date specified in the determination; and

                     (b)  that the new contact person of the corporation is the director specified in the determination; and

                     (c)  that the new contact person’s appointment takes effect from the date the person’s name is entered on the Register of Aboriginal and Torres Strait Islander Corporations as contact person of the corporation.

             (2)  A notice under subsection (1) is not a legislative instrument.

257-30   Contact person must pass on communications received

                   A person commits an offence if:

                     (a)  either:

                              (i)  the person has been appointed with his or her consent as contact person of an Aboriginal and Torres Strait Islander corporation; or

                             (ii)  the person was determined to be the contact person of an Aboriginal and Torres Strait Islander corporation under section 257-25; and

                     (b)  while the person is entered on the Register of Aboriginal and Torres Strait Islander Corporations as the contact person of the corporation the person receives a communication for the corporation; and

                     (c)  the person fails to pass the communication on to at least one of directors of the corporation within 14 days after receiving the communication.

Penalty:  10 penalty units.

257-35   Secretary must pass on communications received

                   A person commits an offence if:

                     (a)  the person has been appointed with his or her consent to be the secretary of an Aboriginal and Torres Strait Islander corporation; and

                     (b)  while the person is entered on the Register of Aboriginal and Torres Strait Islander Corporations as the secretary of the corporation the person receives a communication for the corporation; and

                     (c)  the person fails to pass the communication on to at least one of directors of the corporation within 14 days after receiving the communication.

Penalty:  10 penalty units.

257-40   Effectiveness of acts by secretaries

             (1)  An act done by a secretary is effective even if his or her appointment, or the continuance of his or her appointment, is invalid because the Aboriginal and Torres Strait Islander corporation or secretary did not comply with the corporation’s constitution or any provision of this Act.

             (2)  Subsection (1) does not deal with the question whether an effective act by a secretary:

                     (a)  binds the corporation in its dealings with other people; or

                     (b)  makes the corporation liable to another person.

Note:          The kinds of acts that this section validates are those that are only legally effective if the person doing them is a secretary (for example, signing and sending out a notice of a meeting of directors if the corporation’s constitution authorises the secretary to do so or signing a document to be lodged with the Registrar). Division 104 contains rules about the assumptions people are entitled to make when dealing with an Aboriginal and Torres Strait Islander corporation and its officers.

257-45   Terms and conditions of office for secretaries (replaceable rule—see section 60-1)

                   A secretary holds office on the terms and conditions (including as to remuneration) that the directors determine.

257-50   Terms and conditions of contact person’s appointment (replaceable rule—see section 60-1)

                   A contact person’s appointment is subject to the terms and conditions (including as to remuneration) that the directors determine.