Part 1—Preliminary
1 Name
This instrument is the Corporations (Aboriginal and Torres Strait Islander) Regulations 2017.
3 Authority
This instrument is made under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.
5 Definitions
Note 1: A number of expressions used in this instrument are defined in section 700‑1 of the Act, including the following:
(a) accounting standard;
(b) consolidated entity;
(c) control;
(d) Corporations Act auditor independence provisions.
Note 2: Sections 45‑1, 499‑10, 516‑1, 521‑1, 526‑35, 526‑40, 531‑1 and 536‑1 of the Act apply certain provisions of the Corporations Act and Corporations Regulations to an Aboriginal and Torres Strait Islander corporation.
In this instrument:
Act means the Corporations (Aboriginal and Torres Strait Islander) Act 2006.
Corporations Act means the Corporations Act 2001.
Corporations Regulations means the Corporations Regulations 2001.
director’s declaration about the statements and the notes: see subsection 21(5).
financial statements for the financial year: see subsection 21(2).
funding body means any of the following:
(a) the Commonwealth, a State or a Territory;
(b) a Commonwealth, State or Territory statutory authority;
(c) a body corporate established for a public purpose by a law of the Commonwealth, a State or a Territory;
(d) a body corporate established by the Governor of a State;
(e) a body corporate established by the Administrator of the Northern Territory;
(f) a body corporate established by or under an enactment (within the meaning of the Australian Capital Territory (Self‑Government) Act 1988), or otherwise by the Australian Capital Territory Executive.
notes to the financial statements: see subsection 21(3).
PBC Regulations means the Native Title (Prescribed Bodies Corporate) Regulations 1999.
Part 2—Aboriginal and Torres Strait Islander corporations
6 Registration—Indigeneity requirement
For the purposes of paragraph 29‑5(a) of the Act, the percentage of members is 51%.
Note: Under paragraph 29‑5(a) of the Act, an Aboriginal and Torres Strait Islander corporation that has 5 or more members meets the Indigeneity requirement if the corporation has at least the prescribed percentage of its members who are Aboriginal and Torres Strait Islander persons.
7 Registration—creditor notice requirement
Written objection—information
(1) For the purposes of paragraph 29‑18(3)(a) of the Act, the information that must be contained in a written objection is:
(a) the name of the person (the creditor) claiming to be a substantial creditor of an amalgamating corporation; and
(b) the name of the amalgamating corporation; and
(c) a statement, signed by the creditor, that:
(i) the amalgamating corporation owes a debt, or debts, to the creditor; and
(ii) the amount of that debt, or the sum of the amounts of those debts, that is unsecured exceeds the amount mentioned in subsection (2); and
(iii) the creditor objects to the grant of the application made under section 23‑1 of the Act.
Note: It is an offence to provide a false or misleading statement to the Registrar: see section 561‑1 of the Act.
Substantial creditor—amount of debt
(2) For the purposes of subsection 29‑18(5) of the Act, the amount is $2,000.
Note: Under subparagraph 29‑18(5)(a)(ii) of the Act, a person is a substantial creditor of an amalgamating corporation if the amount of a debt, or the sum of the amounts of debts, that is unsecured exceeds the prescribed amount.
8 Registration as a small, medium or large corporation
(1) For the purposes of paragraphs 37‑10(1)(a) and (b) of the Act, the amount is $100,000.
(2) For the purposes of paragraph 37‑10(1)(c) of the Act, the number of employees is 5.
(3) For the purposes of paragraph 37‑10(3)(a) of the Act, the amount is $5,000,000.
(4) For the purposes of paragraph 37‑10(3)(b) of the Act, the amount is $2,500,000.
(5) For the purposes of paragraph 37‑10(3)(c) of the Act, the number of employees is 25.
9 Counting employees
(1) For the purposes of section 37‑20 of the Act, this section sets out a method for calculating the number of employees of an Aboriginal and Torres Strait Islander corporation.
Note: The number of employees are calculated for the purposes of paragraphs 37‑10(1)(c), (2)(c) and (3)(c) of the Act and paragraph 17(c) of this instrument.
(2) The method is:
(a) count each full‑time employee of the corporation; and
(b) for each part‑time employee of the corporation, work out a fraction that represents the employee’s weekly hours of work divided by the weekly hours of work of a full‑time employee; and
(c) count the fraction for each part‑time employee of the corporation.
10 Modification of Corporations Act arrangements and reconstructions provisions
For the purposes of paragraph 45‑1(2)(b) of the Act, the Corporations Act arrangements and reconstructions provisions are modified by inserting after paragraph 425(5)(b) of the Corporations Act ‘(ba) a special administrator; or’.
Note: For the definition of Corporations Act arrangements and reconstructions provisions, see subsection 45‑1(4) of the Act.
Part 3—Basic features of Aboriginal and Torres Strait Islander corporations
11 Available names
(1) For the purposes of paragraphs 85‑5(1)(a) and (b) of the Act, the rules for ascertaining whether a name is identical to another name are the rules set out in clause 1 of Schedule 1.
(2) For the purposes of paragraphs 85‑5(1)(c) and (2)(b) of the Act, a name is unacceptable for registration if it is unacceptable under the rules set out in clause 2 of Schedule 1.
12 Consent required to use certain unacceptable names
For the purposes of subsection 85‑5(4) of the Act, an unacceptable name specified in column 1 of an item of the following table is available for an Aboriginal and Torres Strait Islander corporation if the Minister specified in column 2 of the item has consented, in writing, to the corporation using or assuming the name.
<table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><thead><tr><td colspan="3" style="border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Consent required for use of certain unacceptable names</span></p></td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Item</span></p></td><td style="width:20.94%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 1</span></p></td><td style="width:70.48%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p></td></tr></thead><tbody><tr><td style="width:8.58%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:20.94%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Anzac</span></p></td><td style="width:70.48%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Minister administering the </span><span style="font-style:italic">Protection of Word “Anzac” Act 1920</span></p></td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:20.94%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Geneva Cross</span></p></td><td style="width:70.48%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Minister administering the </span><span style="font-style:italic">Defence Force Discipline Act 1982</span></p></td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>3</span></p></td><td style="width:20.94%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Red Crescent</span></p></td><td style="width:70.48%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Minister administering the </span><span style="font-style:italic">Defence Force Discipline Act 1982</span></p></td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>4</span></p></td><td style="width:20.94%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Red Cross</span></p></td><td style="width:70.48%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Minister administering the </span><span style="font-style:italic">Defence Force Discipline Act 1982</span></p></td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>5</span></p></td><td style="width:20.94%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Red Lion and Sun</span></p></td><td style="width:70.48%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Minister administering the </span><span style="font-style:italic">Defence Force Discipline Act 1982</span></p></td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>6</span></p></td><td style="width:20.94%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>United Nations</span></p></td><td style="width:70.48%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Minister administering the </span><span style="font-style:italic">Charter of the United Nations Act 1945</span></p></td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>7</span></p></td><td style="width:20.94%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>University</span></p></td><td style="width:70.48%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Minister administering the </span><span style="font-style:italic">Higher Education Funding Act 1988</span></p></td></tr></tbody></table>
Part 4—Meetings
13 Rules concerning general meetings
For the purposes of paragraphs 201‑5(5)(b), 201‑40(5)(b) and 201‑50(9)(b) of the Act, the prescribed number of members is:
(a) for an Aboriginal and Torres Strait Islander corporation with between 2 and 10 members—1; and
(b) for an Aboriginal and Torres Strait Islander corporation with between 11 and 29 members—3.
14 Exercise of proxies at general meetings
For the purposes of subsection 201‑95(4) of the Act, the prescribed number of members is 3.
15 Members’ access to minutes of meetings
For the purposes of subsection 220‑10(6) of the Act, the prescribed amount for copies of minutes, or an extract of the minutes, is $1 per page.
Part 5—Officers
16 Members may obtain information about directors’ remuneration
For the purposes of paragraph 252‑5(8)(b) of the Act, the prescribed number of members is:
(a) for an Aboriginal and Torres Strait Islander corporation with between 2 and 10 members—1; and
(b) for an Aboriginal and Torres Strait Islander corporation with between 11 and 29 members—3.
Part 6—Record keeping and reporting
Division 1—General reports
17 Contents of general reports
For the purposes of paragraph 330‑5(1)(b) of the Act, the following information is required to be contained in a general report prepared by an Aboriginal and Torres Strait Islander corporation in respect of a financial year:
(a) the consolidated gross operating income of the corporation, and the entities it controls (if any), for the financial year;
(b) the value of the consolidated gross assets of the corporation, and the entities it controls (if any), at the end of the financial year;
(c) the number of employees of the corporation at the end of the financial year, calculated using the method set out in subsection 9(2) (about counting employees);
(d) if the corporation has an ABN—the ABN of the corporation;
(e) whether the corporation is a deductible gift recipient under Division 30 of the Income Tax Assessment Act 1997;
(f) for each director of the corporation—whether the director is also an employee of the corporation on 30 June of the financial year;
(g) for each secretary of the corporation—whether the secretary is also an employee of the corporation on 30 June of the financial year;
(h) if the corporation is registered as a small or medium corporation—whether each contact person of the corporation referred to in paragraph 330‑5(1)(a)(iv) of the Act is also an employee of the corporation on 30 June of the financial year.
18 General reports to be lodged with Registrar
For the purposes of paragraph 330‑10(2)(b) of the Act, the longer period is the period within 6 months after the end of the financial year to which a general report relates.
Division 2—Financial and other reports
Subdivision A—Large corporations and certain small and medium corporations
19 Application of Subdivision
This Subdivision applies to an Aboriginal and Torres Strait Islander corporation for a financial year if, on 30 June of the financial year:
(a) the corporation is registered under the Act as a large corporation; or
(b) both of the following apply:
(i) the corporation is registered under the Act as a small or medium corporation;
(ii) the consolidated gross operating income of the corporation, and the entities it controls (if any), is $5,000,000 or more for the financial year.
20 Requirement to prepare reports
For the purposes of subsection 333‑5(1) of the Act, an Aboriginal and Torres Strait Islander corporation must prepare:
(a) a financial report for a financial year; and
(b) a directors’ report for a financial year.
21 Financial reports
(1) For the purposes of subsection 333‑10(1) of the Act, a financial report for a financial year prepared by an Aboriginal and Torres Strait Islander corporation must contain:
(a) the financial statements for the financial year; and
(b) the notes to the financial statements; and
(c) the directors’ declaration about the statements and the notes.
(2) The financial statements for the financial year are:
(a) the financial statements for the corporation that are required by the accounting standards; or
(b) if compliance with the accounting standards requires the corporation to include other entities in its financial statements—the consolidated financial statements for the consolidated entity.
Note: For accounting standards applicable to an Aboriginal and Torres Strait Islander corporation, see section 23.
(3) The notes to the financial statements are:
(a) the notes to the financial statements required by the accounting standards; and
(b) any other information necessary to give a true and fair view of the financial position and performance of the corporation or the consolidated entity (as the case may be).
(4) The financial statements for the financial year and the notes to the financial statements must give a true and fair view of the financial position and performance of the corporation or the consolidated entity (as the case may be).
(5) The directors’ declaration about the statements and the notes is a declaration by the corporation’s directors:
(a) whether, in the directors’ opinion, there are reasonable grounds to believe that the corporation will be able to pay its debts when they become due and payable; and
(b) whether, in the directors’ opinion, the financial statements for the financial year and the notes to the financial statements are in accordance with this instrument, including:
(i) whether they comply with the accounting standards; and
(ii) whether they provide a true and fair view of the financial position and performance of the corporation or the consolidated entity (as the case may be).
(6) The directors’ declaration about the statement and the notes must:
(a) be made in accordance with a resolution of the directors; and
(b) specify the date when the resolution was made; and
(c) be signed by a director of the corporation.
22 Directors’ reports
(1) For the purposes of subsection 333‑10(1) of the Act, a directors’ report for a financial year prepared by an Aboriginal and Torres Strait Islander corporation must include the following information:
(a) a review of operations of the corporation during the financial year and the results of those operations;
(b) details of any significant changes in the corporation’s state of affairs during the financial year;
(c) a statement of the corporation’s principal activities, and any significant changes in the nature of those activities, during the financial year;
(d) details of any matter or circumstance that has arisen since the end of the financial year that has significantly affected, or may significantly affect:
(i) the corporation’s operations in future financial years; or
(ii) the results of those operations in future financial years; or
(iii) the corporation’s state of affairs in future financial years;
(e) likely developments in the corporation’s operations in future financial years and the expected results of those operations;
(f) if the corporation’s operations are subject to any particular and significant environmental regulation under a Commonwealth, State or Territory law—details of the corporation’s performance in relation to that environmental regulation;
(g) details of distributions paid to members during the financial year;
(h) details of distributions recommended or declared for payment to members, but not paid, during the financial year;
(i) the name of each person who has been a director of the corporation during the financial year and the period of the director’s tenure;
(j) details of each director’s qualifications, experience and special responsibilities in relation to the corporation;
(k) the number of meetings of the board of directors held during the financial year and each director’s attendance record at those meetings;
(l) the number of meetings of each board committee held during the financial year and each director’s attendance record at those meetings;
(m) the name of each person who has been a secretary of the corporation during the financial year;
(n) details of each secretary’s qualifications and experience;
(o) the name of each person who:
(i) was an officer of the corporation at any time during the financial year; and
(ii) was, when an audit firm or audit company that is an auditor of the corporation undertook an audit of the corporation, a partner in the audit firm or a director of the audit company;
(p) a copy of the auditor’s written declaration under subsection 339‑50(2) or (4) of the Act for the audit for the financial year;
(q) for any application for leave made during the year under section 169‑5 of the Act:
(i) the applicant’s name; and
(ii) a statement whether leave was granted;
(r) for any proceedings that, during the year, a person has brought or intervened in for the corporation with leave under section 169‑5 of the Act:
(i) the person’s name; and
(ii) the names of the parties to the proceedings; and
(iii) sufficient information to enable members of the corporation to understand the nature and status of the proceedings (including the cause of action and orders made by the Court).
(2) The directors’ report must be prepared:
(a) if consolidated financial statements are not required—for the corporation; or
(b) if consolidated financial statements are required—for the consolidated entity.
(3) If the financial report for the financial year includes additional information under paragraph 21(3)(b), the directors’ report must also specify:
(a) the directors’ reasons for forming the opinion that the inclusion of the additional information was necessary to give a true and fair view of the financial position and performance of the corporation or the consolidated entity (as the case may be); and
(b) where the additional information can be found in the financial report.
(4) The directors’ report may omit information that would otherwise be included under paragraph (1)(e) if the inclusion of the information would be likely to result in unreasonable prejudice to the corporation or the consolidated entity.
(5) The directors’ report may omit information that is included in the corporation’s financial report for the financial year.
(6) If information mentioned in subsections (4) or (5) is not included in the directors’ report, the directors’ report:
(a) must contain a statement that the information is not included; and
(b) if the information omitted is included in the corporation’s financial report for the financial year—must state where the information may be found in the financial report.
(7) The directors’ report must:
(a) be prepared in accordance with a resolution of the directors; and
(b) specify the date when the report is made; and
(c) be signed by a director.
23 Requirement for financial reports to be prepared in compliance with accounting standards
For the purposes of subsection 333‑15(1) and paragraph 333‑15(2)(e) of the Act, a financial report of an Aboriginal and Torres Strait Islander corporation must be prepared in compliance with the accounting standards:
(a) to the extent that the accounting standards are capable of applying to an Aboriginal and Torres Strait Islander corporation; and
(b) whether or not the corporation is, or would be, regarded as a reporting entity within the meaning of that term in the accounting standards.
Note: For the definition of accounting standard, see section 700‑1 of the Act.
24 Requirement for financial reports to be audited
(1) This section is made for the purposes of subsection 333‑15(1) and paragraphs 333‑15(2)(a), (b) and (d) of the Act.
(2) An Aboriginal and Torres Strait Islander corporation must have a financial report for a financial year audited and must obtain an auditor’s report.
(3) The auditor of the financial report must be:
(a) an individual auditor who is a registered company auditor; or
(b) an audit firm that has at least one member who is a registered company auditor who is ordinarily resident in Australia; or
(c) an authorised audit company.
(4) The audit of the financial report must be conducted in accordance with the auditing standards.
Note: For the definition of auditing standard, see section 700‑1 of the Act.
Subdivision B—Certain small and medium corporations
25 Application of Subdivision
This Subdivision applies to an Aboriginal and Torres Strait Islander corporation for a financial year if, on 30 June of the financial year:
(a) both of the following apply:
(i) the corporation is registered under the Act as a small corporation;
(ii) the consolidated gross operating income of the corporation and the entities it controls (if any) is more than $100,000 but less than $5,000,000 for the financial year; or
(b) both of the following apply:
(i) the corporation is registered under the Act as a medium corporation;
(ii) the consolidated gross operating income of the corporation and the entities it controls (if any) is less than $5,000,000 for the financial year.
26 Requirement to prepare reports
For the purposes of subsection 333‑5(1) of the Act, an Aboriginal and Torres Strait Islander corporation must prepare a financial report for a financial year.
27 Financial reports
Reporting requirements
(1) For the purposes of subsections 333‑10(1) and 333‑15(1) and paragraph 333‑15(2)(e) of the Act, a financial report for a financial year:
(a) must contain the information required by section 21 of this instrument; and
(b) must be prepared in accordance with the requirements of section 23 of this instrument.
Alternative reporting requirements
(2) However, a financial report for a financial year prepared by an Aboriginal and Torres Strait Islander corporation may instead contain the information mentioned in subsection (3) if:
(a) the corporation would not be required by the accounting standards to prepare consolidated financial statements for the financial year; and
(b) at least 90% of the gross operating income of the corporation in the financial year consists of funding provided by one or more funding bodies; and
(c) as a condition of the provision of funding, the corporation is required (by legislation or otherwise) to prepare and submit to the funding body or bodies, one or more annual reports accounting for the expenditure of the funding by the corporation over the full financial year.
(3) For the purposes of subsection 333‑10(1) of the Act, the information is the following:
(a) a copy of each annual report mentioned in paragraph (2)(c);
(b) a copy of any auditor’s reports relating to those annual reports;
(c) an income and expenditure statement for any income and expenditure of the corporation in the financial year which has not already been included in any of the annual reports;
(d) a balance sheet disclosing any assets and liabilities of the corporation as at 30 June of the financial year which have not already been included in any of those annual reports;
(e) a declaration by the corporation’s directors that:
(i) is made in accordance with a resolution of the directors; and
(ii) states whether in the directors’ opinion there are reasonable grounds to believe that the corporation will be able to pay its debts when they become due and payable; and
(iii) specifies the date when the resolution was made; and
(iv) is signed by a director of the corporation.
28 Requirement for certain financial reports to be audited
(1) This section applies to an Aboriginal and Torres Strait Islander corporation that has prepared a financial report for a financial year in accordance with subsection 27(1).
(2) This section is made for the purposes of subsection 333‑15(1) and paragraphs 333‑15(2)(a), (b) and (d) of the Act.
(3) The corporation must have the financial report audited and must obtain an auditor’s report.
(4) The auditor of the financial report must be:
(a) a person or entity mentioned in subsection 24(3); or
(b) a chartered accountant or an affiliate of Chartered Accountants Australia and New Zealand; or
(c) a certified practising accountant or a fellow of CPA Australia; or
(d) a member or fellow of the Institute of Public Accountants.
(5) The audit of the financial report must be conducted in accordance with the auditing standards.
Note: For the definition of auditing standard, see section 700‑1 of the Act.
Division 3—Auditor independence
29 Modification of Corporations Act auditor independence provisions
For the purposes of subsection 339‑75(2) of the Act, the Corporations Act auditor independence provisions apply to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation as if:
(a) references in those provisions to ASIC were references to the Registrar; and
(b) references in those provisions to a small proprietary company were references to an Aboriginal and Torres Strait Islander corporation registered as a small or medium corporation.
30 Alternative independence requirements
For the purposes of subsection 339‑80(2) of the Act, the auditor independence requirements to be met in relation to the audit of a financial report prepared under subsection 27(1) are the Corporations Act auditor independence provisions:
(a) as modified by subsection 339‑75(2) of the Act and section 29 of this instrument; and
(b) disregarding the imprisonment terms in the penalties referred to in items dealing with subsection 324CA(1) to section 324CK in Schedule 3 to the Corporations Act.
Division 4—Appointment and removal of auditors
31 Purpose of this Division
This Division is made for the purposes of section 339‑100 of the Act.
32 Nomination
(1) A director or member of an Aboriginal and Torres Strait Islander corporation may nominate, in writing, an individual, firm or company for appointment as auditor of the corporation.
(2) The corporation must send a copy of the nomination to:
(a) each nominated individual, firm or company; and
(b) each person entitled to receive notice of general meetings of the corporation.
(3) The copy of the nomination must be sent at least 7 days before the day of the general meeting at which the nomination is to be considered.
33 Appointment of auditor
(1) An auditor may be appointed by an Aboriginal and Torres Strait Islander corporation in a general meeting (whether or not a requirement of section 32 has been complied with).
(2) If an auditor has not been appointed by an Aboriginal and Torres Strait Islander corporation in a general meeting, the directors of the corporation may appoint an auditor for the corporation.
34 Consent of auditor required
(1) An Aboriginal and Torres Strait Islander corporation, or the directors of the corporation, must not appoint an individual, firm or company as auditor of the corporation unless the individual, firm or company:
(a) has consented, before the appointment, to act as auditor; and
(b) has not withdrawn the consent before the appointment is made.
(2) The consent, or a withdrawal of the consent, must be given by written notice to the corporation.
(3) A notice under subsection (2) given by a firm must be signed by a member of the firm:
(a) in the firm’s name; and
(b) in the member’s name.
(4) For the purposes of subsection (3), if an Aboriginal and Torres Strait Islander corporation must use a registered company auditor, the member of the firm who signs the notice of consent must be a registered company auditor.
(5) A notice under subsection (2) given by a company must be signed by a director or senior manager of the company:
(a) in the company’s name; and
(b) in the director or senior manager’s name.
(6) An appointment that does not comply with this section has no effect.
35 Notice of appointment of auditor
(1) An Aboriginal and Torres Strait Islander corporation must lodge with the Registrar a notice, in the approved form, of the appointment of an auditor.
(2) The notice must be lodged within 14 days after the day on which the appointment is made.
36 Resignation
(1) An auditor of an Aboriginal and Torres Strait Islander corporation may resign by giving notice in writing to the corporation.
(2) The resignation takes effect on:
(a) the day specified in the notice of resignation; or
(b) if no day is specified—the day the notice is received by the corporation.
(3) Within 14 days after receiving a notice of resignation from an auditor, the corporation must lodge the notice with the Registrar.
37 Removal of auditor by resolution at general meeting
(1) An auditor of an Aboriginal and Torres Strait Islander corporation may be removed from office only by resolution of the corporation at a general meeting of which notice under subsection (2) has been given.
(2) Notice of an intention to move the resolution must be given to the corporation at least 2 months before the meeting is to be held.
(3) If the corporation calls a meeting after the notice of intention is given under subsection (2), the meeting may pass the resolution even though the meeting is held less than 2 months after the notice of intention is given.
Note: For the notice period for a general meeting to remove an auditor, see subsection 201‑20(4) of the Act.
(4) If notice under subsection (2) has been received by a corporation it must, as soon as possible, send a copy of the notice to the auditor and lodge a copy of the notice with the Registrar.
(5) Within 7 days after receiving a copy of the notice, the auditor may make representations to the corporation.
(6) The representations must:
(a) be in writing; and
(b) not exceed a reasonable length; and
(c) request that, before the meeting at which the resolution is to be considered, a copy of the representations be sent by the corporation at its expense to every member of the corporation to whom notice of the meeting is sent.
(7) Unless the Registrar on application from the corporation determines otherwise, the corporation must send a copy of the representations in accordance with the auditor’s request.
(8) The auditor may require that the representations be read out at the meeting, without prejudice to the auditor’s right to be heard orally.
Note: For an auditor’s entitlement to be heard at the meeting, see section 201‑80 of the Act.
38 Auditor ceasing to hold office by reason of unresolved conflict of interest
(1) Subsections (2) and (3) apply to an auditor of an Aboriginal and Torres Strait Islander corporation undertaking an audit of a financial report prepared under Division 2 of this Part.
(2) Subsections 327B(2A) to (2D) of the Corporations Act apply to the auditor as if:
(a) references in those provisions to the company were references to the corporation; and
(b) references in those provisions to ASIC were references to the Registrar.
(3) If an audit firm ceases to be an auditor of an Aboriginal and Torres Strait Islander corporation at a particular time because of the applied provisions in subsection (2), each member of the audit firm ceases to be an auditor of the corporation at that time.
39 Control by another corporation
An auditor of an Aboriginal and Torres Strait Islander corporation that begins to be controlled by another corporation:
(a) must retire at the next AGM of the corporation; and
(b) is, subject to this instrument, eligible for reappointment.
40 Effect of winding up
An auditor of an Aboriginal and Torres Strait Islander corporation ceases to hold office if:
(a) a special resolution is passed for the voluntary winding up of the corporation; or
(b) an order is made by the Court for the winding up of the corporation.
41 Surviving or continuing auditor
While a vacancy in the office of auditor of an Aboriginal and Torres Strait Islander corporation continues, any surviving or continuing auditor may act as auditor of the corporation.
Division 5—Lodging reports
42 Modification—time for lodgement of annual reports with Registrar
For the purposes of section 368‑1 of the Act, the operation of Part 7‑3 of the Act is modified for all Aboriginal and Torres Strait Islander corporations by omitting from paragraph 348‑1(3)(a) of the Act ‘3 months’ and substituting ‘6 months’.
Part 7—Registers
43 Information or documents to be included in Register of Aboriginal and Torres Strait Islander Corporations
For the purposes of section 418‑10 of the Act, the information or documents to be included in the Register are the information or documents mentioned in Schedule 2.
44 Inspection and production of records
(1) For the purposes of paragraph 421‑1(1)(b) of the Act:
(a) the Register of Aboriginal and Torres Strait Islander Corporations is prescribed; and
(b) all information in that register, including all information in documents in that register, is prescribed.
(2) For the purposes of paragraph 421‑1(1)(b) of the Act:
(a) the Register of Disqualified Officers is prescribed; and
(b) all information in that register, including all information in documents in that register, is prescribed.
45 Exempt documents
For the purposes of paragraph (f) of the definition of exempt document in subsection 421‑1(4) of the Act, the documents mentioned in Schedule 3 are specified.
Part 8—Regulation and enforcement
46 Registrar may call a general meeting (other than an AGM)
For the purposes of paragraph 439‑10(10)(b) of the Act, the prescribed number of members is:
(a) for an Aboriginal and Torres Strait Islander corporation with between 2 and 10 members—1; and
(b) for an Aboriginal and Torres Strait Islander corporation with between 11 and 29 members—3.
47 Authorised officers—identity cards
For the purposes of subsection 447‑5(1) of the Act, an identity card must contain the following information:
(a) the name of the authorised officer;
(b) the date on which the identity card expires;
(c) a statement that the person to whom the card is issued is an authorised officer for the purposes of the Act.
Part 9—External administration
48 Grounds for special administration
For the purposes of paragraph 487‑5(5)(b) of the Act, the prescribed number of members is:
(a) for an Aboriginal and Torres Strait Islander corporation with between 2 and 10 members—1; and
(b) for an Aboriginal and Torres Strait Islander corporation with between 11 and 29 members—3.
49 Modification of Corporations Act special administration provisions
For the purposes of paragraph 499‑10(3)(b) of the Act, the provisions mentioned in subsection 499‑10(1) of the Act:
(a) apply to an Aboriginal and Torres Strait Islander corporation that is under special administration as if a reference to ASIC were a reference to the Registrar; and
(b) are modified as set out in the table in clause 1 of Schedule 4.
50 Modification of Corporations Act receiver provisions
For the purposes of paragraph 516‑1(2)(b) of the Act, the Corporations Act receiver provisions are modified as set out in the table in clause 2 of Schedule 4.
51 Modification of Corporations Act administration provisions
For the purposes of paragraph 521‑1(2)(b) of the Act, the Corporations Act administration provisions are modified as set out in the table in clause 3 of Schedule 4.
51A Modification of Corporations Act restructuring provisions
For the purposes of paragraph 522‑1(2)(b) of the Act, the Corporations Act restructuring provisions are modified as set out in the table in clause 3A of Schedule 4.
52 Grounds for Court ordered winding up
For the purposes of paragraph 526‑5(k) of the Act, the prescribed period is 2 years.
Note: Under paragraph 526‑5(k) of the Act, one of the grounds on which an Aboriginal and Torres Strait Islander corporation may be wound up is that the corporation has failed, for a prescribed period, to lodge any financial or other reports required to be lodged by Part 7‑3 of the Act.
53 Modification of Corporations Act winding up provisions
For the purposes of paragraph 526‑35(2)(b) of the Act, the Corporations Act winding up provisions are modified as set out in the table in clause 4 of Schedule 4.
Part 10—Administration
54 Authorised use or disclosure of protected information
(1) For the purposes of paragraph 604‑25(4)(f) of the Act, the following Agencies are prescribed:
(a) each Department of State that is responsible for general policy on Aboriginal and Torres Strait Islander affairs;
(b) each Department of State that is responsible for the administration of a program that relates specifically to Aboriginal and Torres Strait Islander persons;
(c) the Office of the Director of Public Prosecutions of the Commonwealth.
(2) For the purposes of paragraph 604‑25(4)(g) of the Act, the Australian Federal Police is prescribed.
(3) For the purposes of paragraph 604‑25(4)(i) of the Act, each Department of State of a State or Territory that is responsible for general policy on Aboriginal and Torres Strait Islander affairs is prescribed.
(4) For the purposes of paragraph 604‑25(4)(i) of the Act, each of the following Departments of State of a State or Territory is prescribed to the extent to which subsection (3) does not apply to the Department:
(a) the Department of State of New South Wales that is responsible for the administration of the Aboriginal Land Rights Act 1983 of that State;
(b) each Department of State of Victoria that is responsible for the administration of any of the following Acts of that State:
(i) the Aboriginal Heritage Act 2006;
(ii) the Aboriginal Land (Northcote Land) Act 1989;
(iii) the Aboriginal Lands (Aborigines’ Advancement League) (Watt Street, Northcote) Act 1982;
(iv) the Aboriginal Lands Act 1970;
(v) the Aboriginal Lands Act 1991;
(vi) the Traditional Owner Settlement Act 2010;
(c) each Department of State of Queensland that is responsible for the administration of either of the following Acts of that State:
(i) the Aboriginal Land Act 1991;
(ii) the Torres Strait Islander Land Act 1991;
(d) the Department of State of Western Australia that is responsible for the administration of the Aboriginal Affairs Planning Authority Act 1972 of that State;
(e) the Department of State of South Australia that is responsible for the administration of the Aboriginal Lands Trust Act 2013 of that State;
(f) the Department of State of Tasmania that is responsible for the administration of the Aboriginal Lands Act 1995 of that State.
(5) For the purposes of paragraph 604‑25(4)(j) of the Act, the following bodies are prescribed:
(a) the police force or service of a State;
(b) the Northern Territory Police Force;
(c) an authority of a State or Territory that has functions and powers similar to those of the Director of Public Prosecutions of the Commonwealth.
(6) For the purposes of paragraph 604‑25(4)(k) of the Act, the following professional disciplinary bodies are prescribed:
(a) CPA Australia;
(b) the Chartered Accountants Australia and New Zealand;
(c) the Institute of Public Accountants;
(d) the New South Wales Bar Association;
(e) the Law Society of New South Wales;
(f) the Victorian Bar Inc.;
(g) the Law Institute of Victoria;
(h) the Bar Association of Queensland;
(i) the Queensland Law Society;
(j) the Legal Practice Board of Western Australia;
(k) the Law Society of South Australia;
(l) the Law Society of Tasmania;
(m) the Law Society of the Australian Capital Territory;
(n) the Law Society Northern Territory.
(7) For the purposes of paragraph 604‑25(4)(l) of the Act:
(a) Indigenous Business Australia, established by section 145 of the Aboriginal and Torres Strait Islander Act 2005, is prescribed; and
(b) the purpose of performing the functions of Indigenous Business Australia under that Act is prescribed.
(8) For the purposes of paragraph 604‑25(4)(l) of the Act:
(a) the Indigenous Land Corporation, established by section 191A of the Aboriginal and Torres Strait Islander Act 2005, is prescribed; and
(b) the purpose of performing the functions of the Indigenous Land Corporation under that Act is prescribed.
Part 11—Registrar of Aboriginal and Torres Strait Islander Corporations
55 Public information functions of the Registrar
(1) For the purposes of paragraph 658‑1(1)(k) of the Act, the Registrar has the function of making documents, and information in documents, available to the public that:
(a) are in the possession of the Registrar; and
(b) the Registrar considers appropriate to make available to the public; and
(c) before 1 July 2007, were:
(i) filed or lodged with the ACA Registrar, or served on the ACA Registrar, under the ACA Act; or
(ii) kept by the ACA Registrar under the ACA Act; or
(iii) given to or served on a person by the ACA Registrar under, or for, the ACA Act.
(2) In subsection (1):
ACA Act means the Aboriginal Councils and Associations Act 1976.
ACA Registrar has the meaning given by subitem 1(1) of Schedule 3 to the Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Act 2006.
(3) For the purposes of subsection (1), the documents may include documents containing personal information within the meaning given by subsection 6(1) of the Privacy Act 1988.
55A Registered native title body corporate functions of the Registrar
For the purposes of paragraph 658‑1(1)(k) of the Act, the Registrar has the functions of:
(a) assessing whether or not, in the Registrar’s opinion, a certificate prepared by a registered native title body corporate for the purposes of regulation 9 of the PBC Regulations complies with that regulation, on request by:
(i) a common law holder; or
(ii) a person who has a substantial interest in the decision to which the certificate relates; and
(b) notifying the person who requested the Registrar to make the assessment and the registered native title body corporate of the following:
(i) the date of the certificate;
(ii) the decision to which the certificate relates;
(iii) the Registrar’s opinion as to whether or not the certificate complies with regulation 9 of the PBC Regulations.
Note: The Registrar’s opinion does not affect the operation of subregulations 9(6) and (7) of the PBC Regulations.
Part 12—Application, savings and transitional provisions
Division 1—Corporations (Aboriginal and Torres Strait Islander) Regulations 2017
56 Definitions
In this Division:
commencement day means the day this instrument commences.
old regulations means the Corporations (Aboriginal and Torres Strait Islander) Regulations 2007, as in force immediately before the commencement day.
57 Things done under old regulations
(1) If:
(a) a thing was done for a particular purpose under the old regulations as in force immediately before those regulations were repealed; and
(b) the thing could be done for that purpose under this instrument;
the thing has effect for the purposes of this instrument as if it had been done for that purpose under this instrument.
(2) Without limiting subsection (1), a reference in that subsection to a thing being done includes a reference to a notice, approval or other instrument being given or made.
58 Application—fees for members’ access to minutes
Section 15 applies in relation to any requests for copies of minutes made after this section commences.
59 Application—required number of members for directions and requests
Sections 16, 46 and 48 apply in relation to any direction given, or request made, after this section commences.
60 Savings—information or documents mentioned in the Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Act 2006
Despite the repeal of the old regulations by Schedule 5, the following provisions, as in force immediately before the commencement day, continue to apply as if the repeal had not happened:
(a) paragraph 418‑10.01(c) of the old regulations;
(b) Part 3 of Schedule 2 to the old regulations;
(c) any other provisions of the old regulations necessary for the effective operation of a provision mentioned in paragraph (a) or (b).
Division 2—Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021
61 Application of amendments made by the Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021
Section 55A, as inserted by the Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021, applies in relation to any certificate prepared under regulation 9 of the PBC Regulations after the commencement of Schedule 1 to the Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021.