Senate

Revised Explanatory Memorandum

(Circulated by authority of the Honourable Mal Brough, MP Minister for Families, Community Services and Indigenous Affairs)

4. Notes on clauses - chapter summaries

Chapter 1 Introduction

1.1. Chapter 1 of the Bill provides for the preliminaries of the proposed Act including the preamble, the objects of the Act and an overview. The objects provide for the Registrar of Aboriginal and Torres Strait Islander Corporations as well as the functions and powers of the Registrar. They clarify that the Bill provides for the incorporation, operation and regulation of bodies registered under the Bill and for duties of officers and their regulation. The Bill's objects also expressly provide for the incorporation of bodies incorporated for the purpose of becoming a registered native title body corporate.

1.2. These objects are designed to recognise that Aboriginal and Torres Strait Islander peoples in some circumstances have special needs for incorporation, assistance, monitoring and regulation which the Corporations Act is unable to adequately meet as it exists primarily to provide uniform incorporation and regulation of trading corporations.

Chapter 2 Aboriginal and Torres Strait Islander corporations

1.3. Chapter 2 of the Bill provides for the registration of Aboriginal and Torres Strait Islander corporations, clarifies what is required to make an application, and provides the legislative basis for the Registrar to decide an application for registration. It also provides the legislative basis for a corporation registered under the Bill to come into existence on registration and clarifies its powers.

1.4. This chapter establishes the requirements for the content of an application for registration as an Aboriginal and Torres Strait Islander corporation, including the registration of an existing body corporate and the registration of an amalgamated corporation. The Bill requires evidence that the corporation is ready to incorporate. This has been done deliberately to encourage registration of corporations that will be sustainable.

1.5. In addition, the Bill provides for differential corporate reporting requirements. This is consistent with recommendations of the review which highlighted the importance of reporting requirements better targeted to the corporation's circumstances, particularly size. The review used the following example: a small, passive land-holding body undertaking little or no activity is unlikely to have the capacity or the need to meet complex reporting requirements; however, a large, well funded corporation should be able to recruit appropriate qualified personnel to enable it to deal with more comprehensive reporting requirements. The Bill provides for corporations to be 'streamed' as small, medium or large. This is similar to provisions in the Corporations Act that allow for small and large proprietary companies to have differential reporting requirements. The specific standards to be set for financial reporting will be determined in regulations to ensure that sufficient flexibility exists for the standards to change over time should this prove necessary, and to maintain alignment with mainstream corporate governance standards.

1.6. Chapter 2 also applies the arrangements and reconstructions provisions of the Corporations Act to Aboriginal and Torres Strait Islander corporations with appropriate substitutions. Aboriginal and Torres Strait Islander corporations will be able to use these provisions to enter into a compromise or arrangement with its creditors or members. They will also be able to use these provisions to bring about a voluntary amalgamation of CATSI corporations.

Chapter 3 Basic features of an Aboriginal and Torres Strait Islander corporation

1.7. This chapter provides for the basic features of a corporation, and clarifies the powers a corporation has. Consistent with the Corporations Act, it provides for a system of replaceable rules and for the matters a corporation is required to cover in its constitution and other documents relevant to internal governance. These documents are critical to the successful operation of corporations as they form the contract between members and directors of the corporation, and provide guidance on how the corporation should operate.

1.8. Requiring corporations to cover or deal with a number of matters in their constitutions and other internal governance documents is deliberate as it compels the corporation to focus on important matters that are often difficult to resolve if there are no clear rules to guide a corporation and its members. In addition, these requirements encourage responsible incorporation practices and provide for the registration of corporations that are likely to succeed and be sustainable.

1.9. This chapter establishes requirements for changing a constitution, and gives the Registrar the power to change a corporation's constitution. This power supports members as it can be used if the corporation acts in a way that is contrary to the interests of the members as a whole or is oppressive to a member or group of members. This power will be used in circumstances when members do not have the capacity to access the statutory members' remedies.

1.10. Consistent with the Corporations Act this chapter states the requirements for corporation names and how a name may be changed. It also establishes the requirement for a corporation to have a registered office or a document access address to ensure that the corporation is accessible to members and third parties, and clarifies how a corporation may be serviced with documents as well as the assumptions third parties are entitled to make when dealing with the corporation.

Chapter 4 Members and observers

1.11. This chapter sets out some rules for membership of an Aboriginal and Torres Strait Islander corporation and some rules about cancelling membership. Aboriginal and Torres Strait Islander corporations have members (as opposed to shareholders) and they may also have persons who observe the operation of the corporation's meetings, called observers.

1.12. This chapter deals with the protection of the rights and interests of members of the corporation. The ACA Act provides very few bases on which members can protect their rights. One provision the ACA Act relies on is the principle of effective control by the members in general meetings. This requires the Registrar to refuse incorporation if satisfied that the constitution is unreasonable or inequitable or does not allow the members effective control in running the association. This provision has been problematic as it is unclear what effective control means and is not an obvious indicator of good governance for Aboriginal and Torres Strait Islander corporations. It also does not provide adequate protection of members' rights in all circumstances. Members' remedies under this Bill are therefore brought into line with the more extensive statutory provisions available under the Corporations Act.

1.13. Membership and the rights and remedies attaching to members are a critical feature of the Indigenous corporate sector as they allow for participation in the corporation's affairs. By bringing the Bill in line with the Corporations Act the rights and responsibilities of members are clarified and eligibility criteria are established. This is designed to increase transparency and minimise disputes which have in the past occurred because of the high degree of uncertainty in some corporations about eligibility for membership.

1.14. This chapter also deals with the register of members and the register of former members that a corporation is required to keep.

Chapter 5 Meetings

1.15. This chapter deals with the kinds of meetings that Aboriginal and Torres Strait Islander corporations may have and sets out requirements for how these meetings are to be conducted. There are two kinds of meetings held by corporations-directors' meetings and general meetings.

1.16. The current section 58B of the ACA Act deals with general and special meetings. The requirement to hold an annual general meeting (AGM) in section 58B is unclear. There is no express requirement for an AGM to be held every year, as it is possible that a corporation's rules might not provide for the holding of AGMs. The Bill clarifies meeting rules, as per the review recommendations, so that it is clear that an AGM must be held every year, with the Registrar able to exempt a corporation from the requirements of the chapter. The Registrar is likely to use this power to exempt small corporations from holding a meeting every year when there is no need or capacity to do so. This brings the Bill into line with the requirements for small proprietary companies under the Corporations Act.

1.17. The review also recommended that there should be an express provision allowing meetings to be held by telephone or videoconference as the ACA Act does not make express provision for this. While there is nothing preventing the use of technology in the holding of a meeting, using communication technologies may be particularly important for Indigenous corporations-especially, but certainly not exclusively, those in remote areas. There are two principal reasons for this. First, membership of Indigenous corporations and their boards of directors may be highly dispersed. The costs of physically bringing members and directors of such corporations together for meetings can be prohibitive-particularly if the corporation has few resources, or if those resources are tied up in grant funds which do not cover the high costs of administration of some Indigenous corporations. This may make it impossible for such corporations to meet quorum for meetings. The second reason is that oral communication is particularly important when the directors of a corporation may not be able to easily read or write English. The reforms address this in proposed section 201-65.

1.18. This chapter also sets out rules governing the use of proxies and how voting is to be conducted during meetings. These provisions largely reflect the Corporations Act provisions.

Chapter 6 Officers

1.19. Chapter 13 of the review considered in detail the application of directors' duties in the context of CATSI corporations. The review noted at paragraph 873 that only the core general law directors' duties have been provided for in the ACA Act. The duties of directors are set out in sections 49C of the ACA Act (members to act honestly and diligently) and 49D of the ACA Act (disclosure of pecuniary interests). The statutory duties in the ACA Act are based on the general law duties but do not replace these duties.

1.20. In summary, the review team concluded that the provisions relating to directors and directors' duties in the ACA Act should be modernised and brought into line with the Corporations Act, with some modification for the circumstances of CATSI corporations. Proposed Chapter 6 of the CATSI Bill implements these review findings.

1.21. The review recommended that the scope of relevant directors' duties under the ACA Act should be extended to include 'officers' as is the case under the Corporations Act (but expressly including the public officer). Proposed Chapter 6 achieves this, but does not extend the obligation to contact persons who have a more limited role than the ACA Act public officer.

1.22. The review recommended the statutory directors' duties under the ACA Act should generally be brought into line with the Corporations Act. These duties include the duty of care, the duty of honesty, the duties of disclosure and to avoid conflicts of interest, and a duty not to trade while insolvent. Proposed Chapter 6 achieves this with some modifications relating to the Native Title legislation obligations. The duty not to trade while insolvent is not included in this proposed chapter but is instead incorporated by reference at proposed section 531-1. Consideration was given to including the provisions relating to insolvent trading on the face of the proposed CATSI Bill but the technical complexity of achieving this undermined any advantage in comprehensibility that may have been gained.

1.23. The review also recommended adopting a range of civil and criminal penalties, similar to the approach adopted in the Corporations Act, particularly regarding cases of dishonest or bad faith actions. The review highlighted the need to protect the members of CATSI corporations from the actions of 'rogue' directors or officers. In recognition of the special circumstances of many Indigenous directors, the review suggested that there should be significant judicial discretion in considering and calculating any penalties. The CATSI Bill achieves this range in proposed Chapter 6 in combination with other offences: proposed provision 376-35 dealing with falsification of books; proposed Chapter 8 civil consequences of contravening civil penalty provisions; and proposed Chapter 13 general offences. Proposed section 658-5, aims of the Registrar, supports the flexible application of these provisions.

1.24. The review recommended that provisions prohibiting exemptions, indemnities or insurance for actions of directors done in bad faith should be included based on sections 199A and 199B of the Corporations Act. The CATSI Bill has not specifically implemented this recommendation but has instead adopted an approach creating a default position that remuneration of directors is not allowed unless the corporation's constitution provided otherwise. This allows the Registrar to scrutinise constitutions that permit remuneration, and to examine the capacity to indemnify and insure. Reasonable travel expenses are payable to directors even if the corporation's constitution is silent on remuneration. Members are supported by the adoption of equivalents to sections 202A and 202B of the Corporations Act relating to the obtaining information about the remuneration of directors.

1.25. The review recommended repealing section 49B of the ACA Act to be replaced with provisions equivalent to those contained in Part 2.6D of the Corporations Act. Section 49B of the ACA Act potentially disadvantaged directors of ACA Act corporations. Proposed Chapter 6 implements this recommendation.

1.26. Also, proposed Chapter 6 deals with internal governance aspects of directors, including their appointment, cessation and powers. Some of these internal governance rules are replaceable allowing flexibility in corporate design. Other internal governance rules relating to directors have been made substantive provisions of the CATSI Bill to avoid disputes, for example, the grounds on which directors can be removed by other directors are restricted and are not replaceable. The information about directors which is available to the public is also included here.

Chapter 7 Record keeping, reporting requirements and books

1.27. Chapter 7 aims to provide maximum flexibility for the Registrar to apply reporting requirements which are appropriate to the corporation's circumstances, particularly size. The review (at paragraph 1126) observed that the current one-size-fits-all reporting requirements in the ACA Act do not sit comfortably with the diversity of corporations incorporated under the Act. Under section 59 of the ACA Act, all corporations are required to submit the same information, including:

•

a statement that the governing committee and corporation have complied with Act and rules

•

a balance sheet setting out assets and liabilities

•

an income and expenditure statement

•

an examiner's (i.e. auditor's) report prepared by a company auditor

•

the names and addresses of members.

1.28. The review argued that these reporting requirements were too complex for small corporations and not comprehensive enough for large corporations, particularly those providing essential community services. The review recommended (at paragraphs 1347 to 1365) reducing the reporting requirements for small corporations and increasing them for large corporations. Chapter 7 implements the review recommendations by 'streaming' corporations into small, medium and large and developing size-specific reporting for the different sizes of corporations in the regulations.

1.29. The review noted (at paragraphs 1166 to 1168) that small corporations under the ACA Act are required to meet much heavier reporting requirements than would be the case if they were incorporated as small proprietary companies under the Corporations Act. The review recommended minimal reporting for small corporations. Under Chapter 7 it is planned that small corporations will only have to meet the general reporting requirements which do not include audited financial statements.

1.30. The review proposed that large corporations meet the standards of general purpose financial reports required of reporting entities under the Corporations Act, including full compliance with all Corporations Act accounting standards, and full disclosure by directors. The review recommended that large corporation reports would be audited by a registered company auditor. Under Chapter 7 it is planned that large corporations will have to at least meet the reporting requirements recommended by the review. Chapter 7 also has the flexibility to require standards of reporting in line with public companies. Large corporations often have complex corporate structures with groups of CATSI corporations and Corporations Act corporations. An important point of modernising the reporting requirements in line with accounting standards and the approach taken in the Corporations Act is the capacity to require consolidated financial reports.

1.31. The review proposed three categories of corporation for reporting purposes, exempt, small and large. Chapter 7 relies on slightly different categories being small, medium and large. Section 59A of the ACA Act allows the Registrar to provide individual exemptions from the reporting requirements. The review (at paragraph 1178) recommended extending this exemption power so that the Registrar will also be able to exempt classes of corporations from the reporting requirements. Chapter 7 implements this recommendation and will rely on class exemptions to implement where appropriate the review's proposal for a category of exempt corporations. The medium category is introduced to provide an intermediary step between the large and small reporting requirements, for example medium corporations could be required to lodge financial statements but may be able to have these audited by their accountant rather than a registered company auditor.

1.32. Chapter 7 enables flexible and responsive administrative practices. Reporting requirements can be adjusted for individual corporations or classes of corporations. The specific content of the reports and related obligations will largely be prescribed in regulations allowing for the reporting requirements to be modified and updated quickly as the circumstances of corporations change over time. Exemptions from the operation of the chapter can be given for specific corporations or classes of corporations. This flexibility may assist with making reporting requirements more consistent with the reporting requirements of funding bodies and reducing duplication.

1.33. The review also recommended shifting the focus from external to internal accountability. In practice most CATSI corporations (small and medium) will have reduced reporting requirements compared with the current ACA Act requirements. This reduces the emphasis on external accountability. Chapter 7 also provides for increased internal accountability though the introduction of reporting to members, upon request, for corporations that are required to prepare financial or directors' reports.

1.34. Chapter 7 also deals with the general requirement to keep proper financial records and includes general provisions relating to books kept by a corporation.

Chapter 8 Civil consequences of contravening civil penalty provisions

1.35. This chapter creates a civil penalty scheme based on Part 9.4B of the Corporations Act. As in the Corporations Act, the proposed civil penalty regime will provide appropriate sanctions for serious contraventions of the Act, including breaches of directors' duties. Including a civil penalty scheme in the Bill is appropriate considering that civil penalties have traditionally been directed against corporate wrongdoing if imprisonment is either not available or is inappropriate. The civil penalty scheme will also provide a strong financial disincentive against corporate wrongdoing and is an appropriate non-criminal alternative in the context of regulating Indigenous corporations.

1.36. Like other such schemes, the proposed civil penalties will be enforced by civil proceedings that are subject to the procedures and rules of evidence in civil cases. Proof will be on the balance of probabilities. Similar to the Corporations Act, the civil penalty provisions apply to contraventions of certain specified sections (such as the duty on directors to prevent insolvent trading). If a person has contravened these provisions, the Court can make the following orders:

•

a declaration that the person has contravened the provision (declaration of contravention)

•

an order disqualifying the person from being a director or officer of a company for such period as it thinks fit (proposed section 279-15)

•

if the contravention is serious, a pecuniary penalty payable to the Commonwealth of an amount up to $200 000.

1.37. The Court will also be able to order a person to compensate a CATSI corporation for damage suffered by the corporation if the person has contravened a civil penalty provision in relation to the corporation and the damage resulted from the contravention.

1.38. Only the Registrar will have standing to apply for a civil penalty, although an affected CATSI corporation will also be able to apply for a compensation order and may intervene in civil penalty proceedings in certain circumstances. For example, a CATSI corporation will be able to seek compensation from a director who has breached his directors' duties, including any profits the director may have made from the contravention.

Chapter 9 Lodgments and registers

1.39. This chapter sets out provisions relating to lodgment of information by Aboriginal and Torres Strait Islander corporations and registers of information maintained by the Registrar. The lodgment and retention of information on publicly searchable registers aims to provide transparency in the affairs of Aboriginal and Torres Strait Islander corporations. The chapter clarifies the information that will be on the publicly searchable registers. Readily available information about corporations is a critical tool in promoting good corporate governance.

1.40. Under this chapter the Registrar is required to keep certain registers, but may also keep others, as considered necessary. The current requirement of section 5(1)(a) of the ACA Act to maintain a public Register of Incorporated Aboriginal Associations leaves the content of the register unclear. The Bill will clarify the content of the public register.

1.41. The principal register will be the Register of Aboriginal and Torres Strait Islander Corporations. Any documents lodged or filed with the Registrar will be public documents but the Registrar will be able to control public access to any personal information contained in these documents.

Chapter 10 Regulation and enforcement

1.42. Chapter 10 of the Bill contains provisions dealing with the regulation of CATSI corporations and enforcement powers. These provisions modernise the regulatory and enforcement schemes currently contained in the ACA Act as well as address existing problems arising from deficiencies in the existing legislative regime.

1.43. Under Part 2 of the Bill the Registrar has a power to call a meeting of interested persons to deal with matters affecting one or more CATSI corporations. This power reflects the fact that many problems relating to the sustainability of Indigenous corporations require a coordinated approach involving numerous government agencies and funding bodies, at both Commonwealth and state levels, as well as other creditors and corporations.

1.44. Furthermore, under Part 2 the Registrar's current power to call special general meetings in circumstances when the corporation cannot or will not call such meetings will be expanded to include AGMs. Significant disputation builds up when there is community and member concern about meetings not being held, so this power will be available to minimise disputes. In addition, the power will be available when corporations are not able to call or run the meeting. The Registrar's power to issue compliance notices will also be retained. Compliance notices have proven to be a useful diagnostic tool under the ACA Act and have often been used to provide directors with information about their obligations and a means to ensure compliance. Compliance notices will also be able to be issued for CATSI corporations which are at risk of being placed under special administration.

1.45. Part 3 retains and modernises the Registrar's existing power to appoint a suitably qualified person to examine a corporation's affairs. Like the existing examination power it does not require grounds, therefore enabling 'healthy organisation checks' as a preventative measure. This power has been retained to allow early intervention and problem solving. The scope of the power will include the examination of issues that are broader than financial management to support dispute resolution and improved effectiveness of corporations. Part 3 also deals with the Registrar's power to examine books and ask people questions in certain circumstances, including the power to seek a warrant from a magistrate when books asked for have not been produced. Warrants may be applied for in person or by telephone or other electronic means. These provisions reflect equivalent provisions in the ASIC Act and other modern regulatory schemes and provide greater procedural safeguards than currently exist under the ACA Act.

1.46. Part 4 contains some offences relating to these regulatory and enforcement powers and deals with the privilege against self-incrimination. These provisions are based on the equivalent provisions in the ASIC Act.

1.47. Part 5 establishes a framework which is designed to encourage employees, officers, contact persons and subcontractors engaged by a CATSI corporation to report suspected breaches of the Act to either the Registrar or internally within the corporation. The provisions will prohibit employers from victimising employees, officers, contact persons or subcontractors when they report a suspected breach in good faith and on reasonable grounds. Further, the provisions provide the relevant employee, officer, contact person or subcontractor with qualified privilege in relation to a protected disclosure of information. These provisions are based on the equivalent whistleblower provisions in the Corporation Act.

Chapter 11 External administration

1.48. Chapter 11 of the Bill provides for CATSI corporations to be placed under 'special administration' and a 'special administrator' appointed. The chapter also applies parts of the Corporations Act that relate to administration and winding up. The chapter makes it clear how the provisions of the Corporations Act and the CATSI Bill interact in relation to administration.

1.49. Sections 62 and 67 of the ACA Act currently apply the provisions of the Corporations Act that relate to compromises and arrangements with creditors, and winding up respectively. Exactly which provisions of the Corporations Act are applied by section 62 and 67 has been somewhat unclear. Chapter 11 removes this uncertainty. This implements the review proposal at paragraph 1300 to make it clear that funding bodies and other creditors can take advantage of the Corporations Act provision relating to appointment of receivers and provisional liquidators.

1.50. One particular area of uncertainty relates to the interaction between an administrator appointed under section 71 of the ACA Act and an administrator appointed under the Corporations Act. This uncertainty has been the subject of litigation in Kazar v Duus (1998) 88 FCR 218 and Re Deeral Aboriginal and Torres Strait Islander Corporation (1996) 70 FCR 229.

1.51. Chapter 11 of the Bill removes this uncertainty by establishing the priority that placing a CATSI corporation under special administration takes over the various forms of administration in the Corporations Act. Broadly, special administration is given priority over voluntary administration and receivership, but a CATSI corporation cannot be placed under special administration once winding up has commenced or a liquidator is appointed. This addresses the uncertainty that was raised in Kazar v Duus where voluntary administration was entered into after notice was given that a section 71 administrator would be appointed. The Court held that the voluntary administration was suspended for the duration of the administrator's appointment by the Registrar. The approach taken in chapter 11 is consistent with the approach of the court in Kazar v Duus. In addition, flexibility is maximised by allowing the Registrar to approve the appointment of a voluntary administrator during special administration.

1.52. The review proposed at paragraph 1317 that section 71 be replaced by an alternative approach in which the Registrar would have the express power to apply to the court to have a receiver appointed under the court's equitable jurisdiction. Chapter 11 retains the capacity for the Registrar to appoint an administrator but addresses a number of the deficiencies identified by the review as well as incorporating some of the advantages it proposed.

Chapter 12 Transfer of registration, deregistration and unclaimed property

1.53. The ACA Act relies on the deregistration process set out in chapter 5A of the Corporations Act. This is achieved by virtue of section 67 of the ACA Act which incorporates relevant provisions of the Corporations Act by reference. For the proposed Act, the Corporations Act provisions continue to operate, however specific reference to deregistration is made, setting out grounds and procedures for voluntary and Registrar-initiated deregistration and for deregistration following transfer to another system, amalgamation or winding up.

1.54. The proposed chapter also sets out circumstances where an Aboriginal and Torres Strait Islander corporation can be re-registered, what happens to property of a deregistered corporation and how the Registrar must deal with unclaimed property.

Chapter 13 Offences

1.55. Chapter 13 is based on similar provisions of the Corporations Act. Part 1 of Chapter 13 contains two general offences dealing with the provision of false or misleading statements and information. Proposed section 561-1 deals with false or misleading statements made about documents required by or for the purposes of this Bill or lodged with or submitted to the Registrar. Proposed section 561-5 deals with false or misleading information given by an officer or employee of a CATSI corporation to directors, auditors and members.

1.56. Part 2 of Chapter 13 contains a number of mainly 'machinery' type provisions dealing with offences and related matters in the Bill. These include provisions dealing with the 'corporate multiplier' for a body corporate convicted of an offence, the operation of continuing offences, a five-year time limit for instituting criminal proceedings, the privilege against self-incrimination for a body corporate in criminal proceedings, and the Registrar's power to seek the assistance of certain person in prosecutions.

1.57. Part 2 also provides for the operation of a penalty notice scheme. Under this scheme, the Registrar will be empowered to give a notice alleging an offence to a suspected offender providing that the suspected offender pays a specified penalty to avoid prosecution. The proposed penalty notice scheme, like other infringement notice schemes, is intended to provide an efficient and cost-effective alternative to pursuing criminal sanctions against a potential defendant. Using infringement notice schemes in appropriate circumstances received support in ALRC Report 95: Principled Regulation. A penalty notice scheme is also an appropriate non-criminal alternative in the context of regulating Indigenous corporations.

1.58. All the proposed sections in Chapter 13 (including the proposed penalty notice section) are based on equivalent provisions in the Corporations Act.

Chapter 14 Courts and proceedings

1.59. Chapter 14 deals with courts and proceedings. The chapter closely mirrors Part 9.5 of the Corporations Act. This Part relies on the definition in section 9 of the Corporations Act of 'Corporations legislation'. This is defined broadly to include the Corporations Act, the ASIC Act and court rules made for provisions of the Corporations Act. Chapter 14 replaces 'Corporations legislation' with 'Aboriginal and Torres Strait Islander Corporations legislation' which is defined including the Bill and court rules made for provisions of the Bill.

1.60. The effect of this replication and substitution is to confer jurisdiction on exactly the same courts as are conferred jurisdiction under the Corporations Act. This is important as it avoids jurisdictional uncertainty for groups of corporations that have a mix of Corporations Act corporations and CATSI corporations. This will also reduce difficulties with transferring proceedings between courts as any court that a matter can be transferred to will clearly have jurisdiction to hear the matter. This also ensures that the courts experienced with Corporations Act matters will be able to apply this experience to CATSI corporations and the substantial amounts of the Corporations Act that are incorporated by reference, adopted or modified in the Bill.

1.61. The broad range of courts that jurisdiction is conferred on also promotes access to justice for CATSI corporations, their members and creditors. CATSI corporations and their members in regional and remote areas will benefit from being able to access state courts including the lower courts. Under the ACA Act, the Federal Court had jurisdiction which was comparably inaccessible for many ACA Act associations and members. As in the Corporations Act, the Family Court is also given jurisdiction which, for example, is important for family law property settlements involving corporation-held property.

1.62. Other than jurisdiction, the chapter also deals with the powers of courts, injunctions and procedural matters such as transfer of proceeding and costs. One important procedural matter that is replicated is the power for the Registrar to intervene in proceedings. This is an important way that the Registrar can support the protection of members.

Chapter 15 Administration

1.63. This chapter deals with protected information and its use and disclosure. Provisions dealing with protected information aim to bring the Registrar in line with other regulatory agencies and operate consistently with the Privacy Act 1998. Because of its age, the ACA Act is silent on the protection of information. These provisions in the Bill support the Commonwealth policy on protecting personal information and the privacy of individuals.

1.64. Consistent with the ASIC Act, the chapter also protects from liability the Registrar, Minister and other persons acting with the authority of the Registrar as long as they are acting in good faith. It also provides for administrative review of decisions and brings the Bill in line with the Commonwealth's policy on ensuring appropriate review of administrative decisions.

1.65. This chapter also provides for fees to be paid for services provided for in this Bill, for regulations to be made and for approved forms, specifying how information is to be provided to the Registrar in some circumstances. There is a general power to make regulations, consistent with the Corporations Act, as well as a specified power to make regulations to ensure that the Bill interacts appropriately with the Native Title Act. This regulation-making power provides that regulations that modify the operation of the Bill may not be modified to the extent that they are inconsistent with the native title legislation to support the protection of native title. In addition, specific provision is made for regulations to be made that specify the duties, functions and powers of an administrator, special administrator, receiver or liquidator appointed to an RNTBC.

1.66. This measure is designed to ensure that, should it prove to be operationally necessary, regulations can be made providing guidance to an external administrator appointed to an RNTBC about the statutory functions required of the corporation by the native title legislation. The Registrar will use a range of administrative procedures to ensure that an external administrator appointed to an RNTBC is aware of the special circumstances and statutory duties of RNTBCs, such as appropriate terms of reference and guidelines.

Chapter 16 Registrar and Deputy Registrars of Aboriginal and Torres Strait Islander Corporations

1.67. This chapter provides for the appointment of the Registrar and Deputy Registrars and also for the Registrar's functions and powers. The functions of the Registrar are based on similar functions expressed in the ASIC Act and are designed to support the Registrar's incorporation, monitoring and regulatory functions with a range of capacity building measures which focus on building the capability of corporations. For example, the express function of providing public information about corporations registered under the Bill is designed to increase transparency and support the accessibility of information available to members and other stakeholders.

1.68. Conducting research and public education campaigns about good corporate governance for Aboriginal and Torres Strait Islander corporations is an important tool to support the development of improved corporate governance standards in corporations.

1.69. Assisting with disputes is a very high area of demand for the Registrar. While the Registrar will not have a direct role in conducting mediation or other formal dispute resolution services, the Bill clarifies that the Registrar has a role in relation to providing assistance with the resolution of disputes and complaints.

1.70. This chapter also confirms that the Registrar must aim to administer the Bill in a way that contributes to the effectiveness and efficiency of corporations, and in a way that has regard to the particular traditions and circumstances of Aboriginal and Torres Strait Islander persons. These provisions confirm the operation of the Bill as a special measure.

Chapter 17 Interpreting this Act

1.71. This chapter sets out the meaning of important concepts used in the Bill, specifically directors and officers, associates and subsidiaries and control. The chapter also provides interpretation of other expressions and a dictionary defining words and terms used in the Bill.

1.72. This chapter is designed to give guidance to readers on the operation and intention of provisions of the Bill.