Registrar of Aboriginal and Torres Strait Islander Corporations v Berto [2014] FCA 100 | Case summary

INTRODUCTION 1 The respondent, John Berto was at all relevant times the Chief Executive Officer of two corporations, Thamarrurr Development Corporation Limited (TDC) and Thamarrurr Regional Authority Aboriginal Corporation (TRAAC). TDC and TRAAC were registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). 2 The Registrar of Aboriginal and Torres Strait Islander Corporations (the Registrar) sought declarations and a disqualification order arising from contraventions by Mr Berto of his statutory duties of care and diligence and not to act improperly by using his position by giving an advantage for someone else or by causing detriment to TRAAC, contrary to ss 265-1 and 265-10 of the CATSI Act respectively. The alleged contravening acts were Mr Berto procuring six unauthorised transfers of money from the bank account of TRAAC to TDC. The total value of the amount transferred was nearly $1.7 million. 3 Before the matter was called on for hearing, the parties filed a Statement of Agreed Facts and Admissions. Mr Berto consented to the making of declarations and disqualification order in terms of those set out in the originating application. The parties sought a disqualification order barring Mr Berto from managing an Aboriginal or Torres Strait Islander corporation for a period of two years. 4 Relevantly, s 386-1 of the CATSI Act provides: Meaning of civil penalty provisions and declarations: (1) If a Court is satisfied that a person has contravened one of the following provisions, it must make a declaration of contravention: a. subsections 265-1(1), 265-5(1) and (2), 265-10(1) and (2) and 265-15(1) and (2) (officers' duties): … These provisions are civil penalty provisions. Note: once a declaration has been made, the Registrar can then seek a pecuniary penalty order (section 386-10) or a disqualification order (section 279-15). Declarations to specify certain matters (2) A declaration of contravention must specify the following: a. the Court that made the declaration; b. the civil penalty provision that was contravened; c. the person who contravened the provision; d. the conduct that constituted the contravention; e. the Aboriginal and Torres Strait Island corporation affected by the contravention. 5 Upon the basis of the Agreed Facts and Admissions, I am satisfied that declarations ought to be made that Mr Berto contravened ss 265-1 and 265-10 of the CATSI Act in the terms agreed. 6 Relating to the disqualification order, s 279-15(1) of the CATSI Act provides: (1) On application by the Registrar, the Court may disqualify a person from managing Aboriginal and Torres Strait Islander corporations for period that the Court considers appropriate if: a. a declaration is made under: i. section 386-1 (civil penalty provision) that the person has contravened a civil penalty provision; or ii. section 1317E of the Corporations Act (civil penalty provision) that the person has contravened a corporation/scheme civil penalty provision (within the meaning of that Act); and b. the Court is satisfied that the disqualification is justified. 7 Based on Mr Berto's admissions in the Statement of Agreed Facts and Admissions, I am satisfied that a disqualification order is appropriate. That is clear enough. The remaining issue is the appropriateness of the proposed order. Notwithstanding the parties consensually seeking a disqualification order for a period of two years, I must also be satisfied of the appropriateness of the terms of the disqualification order. 8 Section 275-15(2) of the CATSI Act provides that, in determining the terms of the disqualification order, the Court may have regard to the factors set out in paras (a) and (b) of that subsection as follows: (a) the person's conduct in relation to the management, business or property of any Aboriginal and Torres Strait Islander corporation or Corporations Act corporation; and (b) any other matters that the Court considers appropriate. 9 It is trite that the principles of sentencing which have been developed in the criminal law apply to the exercise of the discretion to impose civil penalties in those areas of the law which are regulated by civil penalty regimes: Jacobson J in Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27 at [124] (Matcham (No 2)) and the authorities cited by Foster J in Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 at [68]; see also Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 38 at [60]-[63]; Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 at [39]. 10 Based on the civil penalty regime under the CATSI Act, I consider that the same approach should be taken when considering the appropriate penalty on directors and officers of Aboriginal and Torres Strait Islander corporations. 11 In Markarian v The Queen (2005) 228 CLR 357, the High Court, in the exercise of the discretion to impose a penalty, said the Court must weigh all the relevant circumstances in determining an appropriate penalty which marks the Court's view of the seriousness of the offence ([27], [31], [66]-[68]). 12 Thus, in determining whether a disqualification order of two years against Mr Berto is appropriate, it is necessary to consider the seriousness of his contraventions with reference to the circumstances of TDC and TRAAC. It is also necessary to take into account the fact that no pecuniary penalties are sought, despite the very significant sums misapplied from TRAAC. The following is based on the Agreed Facts and Admissions.

Facts and Admissions 13 Wadaye is a remote community of approximately three thousand people. It is located several hundred kilometres south-west of Darwin in the Northern Territory of Australia. 14 TDC is the largest commercial entity in Wadaye. TDC employs over a hundred employees and its business activities include the construction of roads, houses and subdivisions, contract services for various government departments and a number of commercial enterprises, including a service station and accommodation facilities. TDC has twenty members and is governed by twelve directors. All members and directors were nominated by the Aboriginal clans in Wadaye. 15 In June 2012, a major construction project was commenced by TDC in Wadeye. The project was known as the Wadeye (South) Project (the Project) and involved the construction of a housing sub-division in Wadeye. The Project had been proposed by the Northern Territory Government as it required housing for its employees and contractors based at Wadeye. The Northern Territory Government awarded the tender for the Project to TDC in September 2012. The value of the tender was $8 539 654.13. TDC secured a development lease for two years from the traditional owners of Wadeye under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) for the purposes of advancing the Project. 16 The Project was designed to deliver significant benefits to the Wadeye community in the form of jobs for local Aboriginal people and future income for distribution to the community through a TDC operated gift fund. The respondent had oversight of the Project and was one of its major proponents. TDC also received signed commitments to the Project from the Northern Territory Government and the Catholic Education Office. 17 In the period between 1 June 2012 and 31 December 2012, the Project experienced cash flow problems due to the necessity to rework engineering drawings; an unforeseen requirement from the Northern Territory Power and Water Corporation for larger pipes and drains in the sub-division; larger than expected taxation payments; the timing of progress payments to TDC from the Northern Territory Government and the Catholic Education Office; and a requirement to provide an unconditional bank guarantee to the Northern Territorian Department of Construction and Infrastructure to the value of $259,189 as a security deposit for the Project pursuant to the tender awarded to the TDC by the Northern Territory Government. 18 TRAAC is a not-for-profit corporation owned and controlled by Aboriginal people. It was registered as a charity and is classified as a public benevolent institution for the purposes of income tax legislation, making it exempt from income tax. TRAAC is the social, cultural and political representative body for the community at Wadaye. TRAAC has sixty-four members and a board comprising of twenty-two directors, with each director representing one of the twenty-two Aboriginal clan groups in Wadaye. Several years prior to TRAAC obtaining independent funding, it secured the majority of its funding from TDC. In 2012, TRAAC completed a number of small Government funded programs including a Commonwealth Parent & Community Engagement Project. 19 On 21 June 2012, TRAAC signed a deed of agreement with the then Commonwealth Department of Education, Employment and Workplace Relations (DEEWR). The deed of agreement with DEEWR provided for a special purpose grant of $2.12 million to TRAAC over three years to deliver an adult literacy, number and job readiness project in Wadeye. The DEEWR agreement was signed by one of the directors of TRAAC, Mr Tobias Nganbe, with the respondent being the witness to the signature in his position as Chief Executive Officer of TRAAC. On 1 July 2012, the first payment of $1.7 million was deposited into a TRAAC bank account by DEEWR. 20 As at 30 June 2013, TRAAC had $1,955,721 in total assets and $2,231,531 in total liabilities, that is a negative equity position of $275,810. In the 2012/2013 financial year, TRAAC incurred an operating loss of $211,551. For the previous financial year, as at 30 June 2012, TRAAC had $1,886,418 in total assets and $2,231,531 in total liabilities, that is a negative equity position of $345,113. In the 2011/2012 financial year, TRAAC incurred an operating loss of $331,147. As at 30 June 2012, TRAAC only had $8,226 in cash at bank or on hand. Regarding its financial position, the audit report stated: … the Corporation is reliant on continued support from its members and funding from funding bodies to continue as a going concern. As a result of these matters there is a significant uncertainty whether the Corporation will continue as a going concern … 21 The grant from DEEWR formed the substantial portion of TRAAC's assets. 22 Mr Berto is an Aboriginal person who is highly respected in Wadeye, and the wider Northern Territory community, originally through his work with the Northern Land Council and since 2007 as the Chief Executive Officer of TDC as well as the Chief Executive Officer of TRAAC. Mr Berto resigned as Chief Executive Officer of TDC in September 2013, but has continued in an acting capacity after resigning from that role. He has resigned from the boards of both TDC and TRAAC. Mr Berto as noted was the Chief Executive Officer of TRAAC during 2012 and also assumed the role of General Manager of TRAAC for a period in November 2012. He had a significant role in TRAAC's management since its registration, in particular its financial standing. Further, at all relevant times, Mr Berto made, or participated in making, decisions that affected the whole, or a substantial part, of the business of TRAAC as one of its directors. 23 Mr Berto served on the boards of both TDC and TRAAC. This was not uncommon. There were several other directors that served on both the boards of TDC and TRAAC. The two entities regularly conducted board meetings consecutively on the same day and at the same venue. TDC also managed the financial accounts of TRAAC until April 2013. 24 The conduct subjected to these proceedings consists of six instances where Mr Berto transferred funds from TRAAC's bank account to TDC without the authority of TRAAC. The six transfers occurred between 2 August 2012 to 21 November 2012, ranging from $178,145.35 to $340,000. Overall, he transferred a total of $1,624,916.35 from TRAAC to TDC without authorisation. He was using TRAAC's funds to meet TDC's ongoing liabilities, largely arising in relation to the Project in the face of the difficulties TDC was experiencing. 25 On 22 March 2013, a delegate of the Registrar authorised the examination of TRAAC pursuant to s 453-1 of the CATSI Act. Once Mr Berto received notice of the examination, he notified TRAAC's legal advisers of the six unauthorised transfers. 26 Mr Berto knew that TRAAC was largely dependent on the DEEWR grant. A person in his position as a director and Chief Executive Officer of a company in a parlous financial state such as TRAAC would not have procured transfers of money amounting to nearly the entirety of the grant from the DEWWR without adequate consideration. Even if TDC had the capacity to repay the money, which it has done, he procured six significant monetary transfers without notifying and seeking authorisation from the board of directors when there were opportunities to do so. There is nothing to suggest he disclosed the fact of those payments to any of the board members of TRAAC at the time they were made. 27 It is noteworthy that the total amount transferred represented almost the entirety of the $1.7 million provided to TRAAC by DEEWR. Effectively, TRAAC was deprived of the use of the amount of the unauthorised transfers from the date of the transfer until they were repaid. Thus, the DEEWR grant could not be used to pursue TRAAC's general charitable purposes of benefiting the Aboriginal people of Wadeye, or to really deliver the program for which the Deed of Agreement with DEEWR provided, at least for a significant period of time. 28 Mr Berto was well aware of TRAAC's financial position and that it was entirely reliant on DEEWR's funding to deliver the DEEWR funding program. The unauthorised transfers placed TRAAC in breach of the terms of the Deed of Agreement with DEEWR. If DEEWR elected to terminate that arrangement, TRAAC would have had insufficient funds to pay any liability to DEEWR. 29 The provisions relating to imposing disqualification orders in the CATSI Act largely mirror the disqualification provisions as set out in s 206C of the Corporations Act 2001 (Cth).In accordance with the submissions, I accept that authorities relevant to that provision can assist in identifying the relevant principles applicable here. The same approach was taken by Jacobson J in Matcham (No 2) at [26]-[27]. 30 Justice Santow concisely summarised the relevant principles in Re HIH Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80 at 97-99: (citations omitted) (i) Disqualification orders are designed to protect the public from the harmful use of the corporate structure or from use that is contrary to proper commercial standards; (ii) The banning order is designed to protect the public by seeking to safeguard the public interest in the transparency and accountability of companies and in the suitability of directors to hold office; (iii) Protection of the public also envisages protection of individuals that deal with companies, including consumers, creditors, shareholders and investors; (iv) The banning order is protective against present and future misuse of the corporate structure; (v) The order has a motive of personal deterrence, though it is not punitive; (vi) The objects of general deterrence are also sought to be achieved; (vii) In assessing the fitness of an individual to manage a company, it is necessary that they have an understanding of the proper role of the company director and the duty of due diligence that is owed to the company; (viii) Longer periods of disqualification are reserved for cases where contraventions have been of a serious nature such as those involving dishonesty; (ix) In assessing an appropriate length of prohibition, consideration has been given to the degree of seriousness of the contraventions, the propensity that the defendant may engage in similar conduct in the future and the likely harm that may be caused to the public; (x) It is necessary to balance the personal hardship to the defendant against the public interest and the need for protection of the public from any repeat of the conduct; (xi) A mitigating factor in considering a period of disqualification is the likelihood of the defendant reforming; (xii) The eight criteria to govern the exercise of the court's powers of disqualification set out in Commissioner for Corporate Affairs (WA) v Ekamper have been influential. It was held that in making such an order it is necessary to assess: • character of the offenders; • nature of the breaches; • structure of the companies and the nature of their business; • interests of shareholders, creditors and employees; • risks to others from the continuation of offenders as company directors; • honesty and competence of offenders; • hardship to offenders and their personal and commercial interests; and • offenders' appreciation that future breaches could result in future proceedings. (xiii) Factors which lead to the imposition of the longest periods of disqualification (that is disqualifications of 25 years or more) were: • large financial losses; • high propensity that defendants may engage in similar activities or conduct; • activities undertaken in fields in which there was potential to do great financial damage such as in management and financial consultancy; • lack of contrition or remorse; • disregard for law and compliance with corporate regulations; • dishonesty and intent to defraud; • previous convictions and contraventions for similar activities. (xiv) In cases in which the period of disqualification ranged from 7-12 years, the factors evident and which lead to the conclusion that these cases were serious though not "worst cases", included: (a) serious incompetence and irresponsibility; (b) substantial loss; (c) defendants had engaged in deliberate courses of conduct to enrich themselves at others' expense, but with lesser degrees of dishonesty; (d) continued, knowing and wilful contraventions of the law and disregard for legal obligations; (e) lack of contrition or acceptance of responsibility, but as against that, the prospect that the individual may reform; The difficulty with Roussi's case is that disqualification for 10 years was ordered, as this was the period of disqualification that the ASC had sought. Had a longer period been applied for, Einfeld J may have considered giving a longer period. (xv) The factors leading to the shortest disqualifications, that is disqualifications for up to 3 years were: (f) although the defendants had personally gained from the conduct, they had endeavoured to repay or partially repay the amounts misappropriated; (g) the defendants had no immediate or discernible future intention to hold a position as manager of a company; (h) in Donovan's case, the respondent had expressed remorse and contrition, acted on advice of professionals and had not contested the proceedings; 31 As Chief Executive Officer of TDC, the respondent occupied a position of leadership in a remote Aboriginal community with a troubled history. The role involved the oversight of many projects, as well as dealing with Northern Territory and Commonwealth politicians, government departments, the media, staff, suppliers and a host of other stakeholders. The role was one of constant demands and the respondent did not have the assistance of sophisticated support staff to provide guidance. 32 As noted by Santow J in Adler at [56] and by Reeves J in Registrar of Aboriginal and Torres Strait Islander Corporations v Ponto (2012) 208 FCR 346 (Ponto) at [112] and Jacobson J in Matcham (No 2) at [165], because of the trust and confidence that is very often placed in the directors of such important Aboriginal corporations, general deterrence is a central factor in the assessment of an appropriate period of disqualification in this matter. 33 Directors of similar Aboriginal corporations throughout Australia and particularly in remote communities must understand that they carry heavy responsibilities to their local communities when they are discharging their duties as directors to provide essential community services. 34 Specific deterrence is also an important factor with Mr Berto. As Santow J said in Adler (at 97-99), the primary purpose of a disqualification of this type is to protect the public from a repetition of similar behaviour by directors and officers of corporations. The personal deterrence factor is not intended to be punitive. Mr Berto was held in high regard in the remote Wadeye region as he served as Chief Executive Officer of TDC as well as TRAAC. Mr Berto had also begun to undertake studies in management. The declarations of contravention and the disqualification for a not insignificant period no doubt will make it challenging for him to obtain and undertake managerial work in the future as he has done in his past working life. In my view, the objective of specific deterrence is satisfied by the orders proposed, and to be made. 35 In relation to general deterrence, there are several mitigating factors to take in account. Mr Berto did not seek to, and did not, personally receive any financial benefit from the transfers. They took place in the particular circumstances referred to above. The Registrar accepts, and I find, that he genuinely believed that the funds would be repaid to TRAAC. Although it is not obvious from what Mr Berto knew at the time that his belief was likely to be fulfilled, his expectation is coming to fruition. In April 2013, TDC commenced repaying the monies provided to it. On 13 September 2013, it formally acknowledged it had to repay $1,624,916. The Agreed Statement of Facts and Issues confirms that by September 2013, repayment of $1,209,360 had been made, and the full payment was anticipated by 31 December 2013. Counsel did not suggest that expectation had not been fulfilled, so I assume full repayment has occurred. 36 Those factors, together with Mr Berto's voluntary disclosure of his conduct, his reputation and his service to his community (as shown by the strong references provided), and his co-operation with the Registrar, as well as his remorse for his conduct, convinces me that the Registrar's decision to seek a relatively brief but not insignificant period of suspension and no pecuniary penalty, is a reasonably available option. 37 As noted, on 12 April 2013, Mr Berto made full disclosure to the directors of TRAAC that he had authorised the transfers without their approval or authority. After the transfers were identified, Mr Berto had been fully co-operative with the Registrar. He also consented to orders sought by the Registrar. He has not made any excuses for his conduct and he has expressed his remorse and sincere regret to directors of TRAAC. As a consequence of his conduct, he resigned his position as Chief Executive Officer of TRAAC in March 2013, and offered his resignation as Chief Executive Officer of TDC. He is currently remaining in that position until a replacement is retained. 38 Two relevant cases are helpful in ascertaining where on the spectrum the seriousness of the contravening conduct falls in this case. 39 In Matcham (No 2), the respondent was also the Chief Executive Officer of an Aboriginal corporation that provided services to the community. He abused his position by obtaining payments over $700,000 for his own personal use. This left the company in a parlous financial position. In that case, Jacobson J ordered that the respondent compensate the company the full amount (at [162]-[163]), and disqualified him from managing an Aboriginal or Torres Strait Islander corporation for 15 years (at [185]), and ordered $500,000 in pecuniary penalties (at [301]). It is significant in that case that the respondent's lack of remorse, lack of co-operation with the authorities and importantly that he acted for his own benefit, contributed to the severity of the orders imposed. 40 In the lower end of the spectrum the decision in Ponto involved the Chairman of an Aboriginal corporation who misused his position by appointing a Chief Executive Officer who was sympathetic to his goal to obtain control of the corporation ([76]-[77]). The Court found that the contravening conduct was not for personal gain, and accepted the wrongdoer thought he acted in the best interests of the corporation ([116]). He was disqualified for a period of three years ([117]). 41 Having regard to the relevant factors, in all the circumstances of this case, I am satisfied that Mr Berto's conduct falls within that category of cases where a period of disqualification without additional pecuniary penalty is appropriate. There are some similarities with the contravening conduct of the first respondent in Ponto. Given the clear remorse demonstrated by the respondent in this instance as well as the early admission, and the response of the directors of TRAAC, I am satisfied that the proposed period of disqualification of two years is within the range of an appropriate period. It is not necessarily the precise period of disqualification I would have imposed but, consistent with the authorities, I will accept what has been agreed. 42 There will therefore be an order of disqualification in the terms proposed by the parties. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Registrar of Aboriginal and Torres Strait Islander Corporations v Berto

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