Corporations (Aboriginal and Torres Strait Islander) Regulations 2017

All registered ATSI corporations: Size classification affects every ATSI corporation, determining reporting obligations and governance requirements. Any ATSI corporation engaging in transactions, employment, or funding arrangements must understand its size classification.

Officers and directors: Officers must understand their obligations in preparing financial statements, directors' reports, and general reports. Directors must sign the director's declaration for financial reports (regulation 21(5)).

Auditors of large corporations: Large corporations must have financial reports audited (regulation 24) and must comply with the auditor independence requirements in Part 6 Division 3. The appointment, removal, and resignation of auditors are regulated by Part 6 Division 4.

Members seeking access to minutes (regulation 15): The Regulations set the fee for members to access copies of minutes of meetings at $2.50 per page. This is a direct cost to members accessing corporate records.

Special administrators and external administrators: The Regulations (Part 9) modify how Corporations Act provisions about receivers (Schedule 4 clause 2), administrators (clause 3), restructuring (clause 3A), and winding up (clause 4) apply to ATSI corporations, substituting the Registrar for ASIC and making other modifications.

Government agencies receiving protected information (regulation 54): The Regulations prescribe which Commonwealth, State, and Territory agencies may receive protected information from the Registrar. These include Departments responsible for Aboriginal and Torres Strait Islander affairs policies, the Australian Federal Police, State and Territory police forces, and the Director of Public Prosecutions.

Registered native title bodies corporate (RNTBCs): Many RNTBCs are registered ATSI corporations. The 2021 amendment adding regulation 55A gives the Registrar a function of assessing PBC certificates on request, connecting the CATSI Act framework to the Native Title Act regime.

Indigeneity requirement: A corporation with 5 or more members must maintain at least 51% of its members as Aboriginal or Torres Strait Islander persons (regulation 6). Failure to maintain this requirement can affect registration status.

Size re-registration: The size classification of a corporation determines its reporting obligations. Under the CATSI Act (s 37-10), corporations are registered as small, medium, or large. The Regulations prescribe the thresholds for those classifications.

General reports (small and medium corporations): Small and medium corporations must prepare general reports for each financial year. These cover the corporation's activities, outcomes, and financial position in a simplified form.

Financial reports (large corporations): Large corporations must prepare financial statements (including balance sheet, income statement, and cash flow statement), notes to financial statements, a director's declaration, and a directors' report (regulations 20-22). Financial statements must comply with Australian accounting standards (regulation 23). Financial reports must be audited (regulation 24).

Lodging reports with the Registrar (Part 6 Division 5): All corporations must lodge their annual reports with the Registrar within prescribed timeframes. Failure to lodge reports for 2 years is a ground for court-ordered winding up (regulation 52: the prescribed period under s 526-5(k) CATSI Act is 2 years).

Auditor independence: Large corporations must comply with auditor independence obligations in Part 6 Division 3, modelled on the corresponding Corporations Act requirements.

Record-keeping: Corporations must maintain registers (Part 7) as specified in the Regulations. The Register of Aboriginal and Torres Strait Islander Corporations maintained by the Registrar must include the information or documents specified in Schedule 2.

Registrar's enforcement powers (Part 8): The Registrar may call a general meeting of a corporation under s 439-10 of the CATSI Act if a prescribed number of members request it (regulation 46): for corporations with 2-10 members, one member; for corporations with 11-29 members, three members.

Registrar's special administration powers (Part 9): If a corporation meets the grounds for special administration under s 487-5 of the CATSI Act (including the prescribed number of members petitioning), the Registrar may appoint a special administrator. The modifications to Corporations Act provisions in Schedule 4 govern how the administrator operates, with references to ASIC replaced by references to the Registrar.

Grounds for winding up: Regulation 52 prescribes 2 years as the period of failure to lodge reports that can ground a court-ordered winding up under s 526-5(k).

Disclosure of protected information (regulation 54): The Regulations prescribe the agencies to which the Registrar may disclose protected information (information obtained under the CATSI Act), including government departments responsible for Indigenous affairs, law enforcement agencies, and accounting and legal professional bodies.

RNTBC certificate assessment (regulation 55A): From 2021, the Registrar has a function of assessing, on request, whether an RNTBC's certificate for the purposes of regulation 9 of the PBC Regulations complies with that regulation. This assessment does not affect the operation of the certificate under the PBC Regulations.

The Regulations themselves do not create offences. Penalty provisions are in the CATSI Act. The Regulations prescribe thresholds and procedures that affect how the Act's enforcement framework operates.

Failure to lodge reports for 2 years (regulation 52) is a ground for court-ordered winding up under s 526-5(k). Failure to comply with notice and audit requirements under Part 6 can trigger enforcement action under the CATSI Act.

The Buurabalayji case [2020] FCA 572 illustrates how special administration under the CATSI Act interacts with civil proceedings. When a special administrator is appointed under s 487-1 of the CATSI Act, the Corporations Act administration stay provisions (s 440D) apply via s 499-10. Regulation 49 modifies those provisions so that the Registrar (not ASIC) is the relevant regulator.

Annual reporting cycle:

• Corporations must prepare and lodge annual reports (general reports for small/medium, financial reports for large) with the Registrar.
• Large corporations must have financial reports audited before lodging.
• Reports are due within prescribed periods after the end of the financial year.

Winding up for failure to lodge: After 2 years of failure to lodge required reports, the Registrar or a member may apply to a court for winding up under s 526-5(k) of the CATSI Act.

Special administration: The Registrar may appoint a special administrator if the grounds in s 487-5 are met. The prescribed number of members who may petition for special administration under s 487-5(5)(b) is: one member (for corporations with 2-10 members); three members (for corporations with 11-29 members) (regulation 48).

Member access to minutes (regulation 15): When a member requests copies of minutes, the corporation must provide them at a cost of $2.50 per page.

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth): The parent Act. The Regulations give effect to the Act by prescribing the matters that the Act empowers the Governor-General to specify, including the Indigeneity threshold, size classification thresholds, reporting requirements, external administration modifications, and information disclosure authorisations.

Corporations Act 2001 (Cth): Many Corporations Act provisions are applied (with modifications) to ATSI corporations via the CATSI Act. Schedule 4 of the Regulations specifies those modifications. The role of ASIC is generally replaced by the Registrar. Regulation 49 modifies the special administration provisions; regulations 50-53 modify receiver, administrator, restructuring, and winding up provisions.

Native Title (Prescribed Bodies Corporate) Regulations 1999: Regulation 55A connects the CATSI Act regime to the native title PBC regulatory framework by giving the Registrar an assessment function in relation to PBC certificates.

Privacy Act 1988 (Cth): Regulation 55(3) notes that the Registrar's public information functions (under regulation 55) may extend to documents containing personal information within the meaning of the Privacy Act.

Accounting standards: Large corporation financial reports must comply with Australian accounting standards to the extent those standards are capable of applying (regulation 23).

Size classification changes affect reporting obligations: If a corporation grows from small to medium, or from medium to large, its reporting obligations change significantly. Large corporations must obtain full audited financial statements; small corporations need only prepare general reports. Practitioners advising ATSI corporations on growth transactions should flag the size threshold implications.

Registrar substituted for ASIC in external administration: When an ATSI corporation goes into external administration, it is the Registrar, not ASIC, who has oversight. This is a significant difference from ordinary company administration. The modifications in Schedule 4 to the Regulations specify the exact substitutions.

51% Indigeneity requirement is ongoing: The Indigeneity requirement is a continuing obligation, not just at registration. If an ATSI corporation's membership falls below 51% Aboriginal and Torres Strait Islander persons, it may no longer meet the registration requirements.

2-year report lodgment failure triggers winding up ground: Unlike the general Corporations Act where persistent failure to lodge may be an ASIC matter, under the CATSI Act a failure to lodge annual reports for 2 years (prescribed by regulation 52) is a ground for court-ordered winding up. This is a hard statutory trigger.

PBC certificate assessments are advisory only: Regulation 55A(b) and the note below it make clear that the Registrar's opinion about whether an RNTBC's certificate complies with regulation 9 of the PBC Regulations does not affect the operation of that certificate under the PBC Regulations. The assessment is informational, not determinative.

Example 1: Reporting obligations for a growing organisation An ATSI corporation that was previously classified as a medium corporation (annual revenue of $1.8 million and 10 employees) grows its revenue to $5.5 million after securing a new government services contract. Under regulation 8(3), it is now a large corporation. From the next financial year, it must prepare full financial statements and a directors' report, have the financial statements audited, and lodge them with the Registrar. The change requires engaging an auditor.

Example 2: Special administration and civil litigation An ATSI corporation is placed under special administration by the Registrar under s 487-1 of the CATSI Act. The corporation is simultaneously a party to significant commercial litigation (as in the Buurabalayji case). Via regulation 49 and s 499-10 of the CATSI Act, the Corporations Act administration stay provisions (s 440D) apply, meaning proceedings against the corporation cannot be commenced or continued without either the special administrator's consent or court leave. The Registrar's role mirrors ASIC's role under the Corporations Act but is exercised by ORIC.

Example 3: Member access to minutes A member of an ATSI corporation requests copies of 10 pages of minutes from recent Board and general meetings. Under regulation 15, the corporation may charge the member $25 (10 pages at $2.50 per page).

Example 4: Winding up for failure to lodge An ATSI corporation has not lodged any annual reports for 3 years. Under regulation 52, the prescribed period of failure to lodge is 2 years. The failure to lodge for 2 years is now a ground for winding up under s 526-5(k) of the CATSI Act. The Registrar or a member may apply to a court for winding up.