DIMIA Annual Report 2004-05
Attachment 13-The Corporations (Aboriginal and Torres Strait Islander) Bill 2005
Following a review of the Aboriginal Councils and Associations Act 1976 (the ACA Act) in 2002, the Corporations (Aboriginal and Torres Strait Islander) Bill 2005 was introduced into the Australian Parliament on 23 June 2005.
| The review | |
|---|---|
| February 2001: | the Registrar commissioned a review of the ACA Act, led by law firm Corrs Chambers Westgarth. The review team included specialists Senatore Brennan Rashid, Professor Mick Dodson, Dr Christos Mantziaris and Anthropos Consulting. |
| December 2002: | final report of the review presented. |
| Consultations | |
| April-May 2001/March-June 2002: | two rounds of consultations and 2 workshops in Alice Springs. |
| Questionnaires: | sent to all associations incorporated under the ACA Act and to 345 Indigenous organisations incorporated under other Commonwealth, state and territory legislation. |
| Advertisements: | placed in Indigenous publications, including the Koori Mail, National Indigenous Times, Yamatji News and the Torres Strait News, calling for submissions and comments. run on the National Indigenous Radio Service (NIRS) network during March and April 2002. NIRS can broadcast to over 120 Indigenous radio stations Australia-wide, including the BRACS network in remote areas. |
| ORAC website: | included details of the review and copies of the consultation papers and the questionnaires for Indigenous corporations. |
| Information sheets: | on the review and a copy of a summary consultation paper distributed to all participants at the Indigenous Governance Conference held by Reconciliation Australia in April 2002. |
| Consultation papers: | sent to key stakeholders, seeking submissions. |
| Separate briefings: | provided to members of six ATSIC Regional Councils and the ATSIC Board. Board members were updated on the progress of the review and were given advance copies of the consultation papers. |
Key features
Human rights
- The Bill is intended to benefit Indigenous people and will be a 'special measure' consistent with the Racial Discrimination Act 1975 (RD Act).
- Registering under the RD Act is largely optional. The exception is most native title corporations which are already required to register under the ACA Act, and they will transition in to the new Act along with other existing corporations.
- The Bill provides new and unique opportunities to align corporate design to culture-there is international and local evidence that maximising cultural match builds more successful Indigenous corporations.
- The Registrar can take action on behalf of members and respond preventatively, providing a safety net for essential remote funds, assets and services.
Support
- The Registrar can protect members' rights if they are unable to or lack the capacity to take action themselves.
- The Registrar can assist with dispute prevention and provide education and advice.
Cultural alignment
- Indigenous people can design corporate structures and rules which best suit their specific needs, whether by reference to cultural practices or otherwise.
- The Bill ensures that proper compliance with the Native Title Act 1993 does not contravene requirements of the Bill.
- The Bill removes excessive red tape by streaming corporations into small, medium and large for reporting purposes. Generally, reporting will decrease for small and medium corporations and increase for large corporations.
Accountability
- Consultations with communities revealed strong support for more rigorous accountability of managers, directors and CEOs. The Bill responds to this call in a number of ways outlined below.
- The Bill closes the regulatory gap that existed between the ACA Act and the Corporations Act 2001. For example, under the ACA Act it was unclear whether the affairs of related bodies, such as trusts, could be examined. The Bill makes it clear that, like ASIC, the Registrar can examine the affairs of persons or bodies connected with Aboriginal and Torres Strait Islander corporations.
- The Bill allows for individuals to be automatically disqualified from managing Aboriginal and Torres Strait Islander corporations if they are disqualified from managing corporations under the Corporations Act 2001.
- The Bill applies directors' duties to senior management, and ensures appropriate duties apply to both directors and senior management. This is aligned with the Corporations Act 2001.
- Funding bodies and creditors can take a more proactive role in protecting their interests. This is implemented in the Bill by aligning with the external administration provisions of the Corporations Act 2001 and through a number of transparency measures such as allowing observers and enabling consolidated reporting for groups of corporations.
- The Register of Aboriginal and Torres Strait Islander Corporations will be enhanced in line with other comparable registers underpinning the call for greater transparency and accountability.
Good corporate governance
- Unlike most corporations under mainstream legislation, corporations registered under the ACA Act will be required to have an internal governance framework which will be kept on a register maintained by the Registrar, in the interests of complete transparency in their decision making.
- The framework incorporates mandatory elements (unless exempted by the Registrar), replaceable rules and tailored rules. It will be approved by the Registrar and placed on the public register. An example of a mandatory requirement is that the maximum number of directors is 12, to ensure Boards are made up of manageable numbers in terms of good decision making and costs.