John Cobb (Parkes, National Party, Minister for Community Services) Share this | Hansard source

by leave—I present a supplementary explanatory memorandum and move government amendments (1) to (158) together.

(1)    Clause 1-5, page 2 (line 9), omit “2006”, substitute “2007”.

(2)    Clause 6-55, page 6 (lines 26 to 28), omit the clause, substitute:

6-55 Transfer of registration, deregistration and unclaimed property

Division 22—Application to register existing body corporate under Part 2-3

22-1  Application for registration

Note:   The address of the director, secretary or contact person that must be stated is usually the residential address. However, an alternative address may be stated in certain circumstances (see section 304-15).

Director details

ACN has the same meaning as in the Corporations Act.

ARBN has the same meaning as in the Corporations Act.

                   (i)    the transfer of the body’s incorporation is authorised; and

                  (ii)    the body has complied with the requirements (if any) of that law for the transfer of its incorporation;

Note:   Under the internal governance rules requirement (see section 29-20), a copy of the proposed constitution of a proposed corporation must also be provided to the Registrar before the time the Registrar makes a decision under section 26-1 in respect of the application.

Note:   Section 376-5 requires documents that are not in English to be translated into English.

Note:   The address of the director, secretary or contact person that must be stated is usually the residential address. However, an alternative address may be stated in certain circumstances (see section 304-15).

Director details

23-5  Matters to accompany application

Note:   Under the internal governance rules requirement (see section 29-20), a copy of the proposed constitution of a proposed corporation must also be provided to the Registrar before the time the Registrar makes a decision under section 26-1 in respect of the application.

Note:   Section 376-5 requires documents that are not in English to be translated into English.

               (iva)    if the application is made under section 22-1—the pre-transfer of registration requirement (see section 29-17);

               (ivb)    if the application is made under section 23-1—the creditor notice requirements (see section 29-18) and the pre-amalgamation requirements (see section 29-19);

Special rules for amalgamation application under section 23-1

                   (i)    internal to the operation of any of the amalgamating corporations; or

                  (ii)    between any of the amalgamating corporations and other persons; or

                 (iii)    about whether the amalgamated corporation should replace the amalgamating corporations;

Note:   If the Registrar decides not to grant the application, the amalgamation may be able to be achieved by applying to the Court for orders under Part 5.1 of the Corporations Act (as applied by section 45-1 of this Act).

                   (i)    authorised the applicant to apply for the registration of the body as an Aboriginal and Torres Strait Islander corporation; and

                  (ii)    approved the proposed constitution provided to the Registrar under subsection 29-20(2) as the constitution to be adopted by the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3; and

                 (iii)    if the internal governance rules that would apply to the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3 will include one or more replaceable rules—agreed to those replaceable rules so applying; and

                 (iv)    nominated, as persons who will become directors of the body when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3, the persons specified in the application as persons who will become directors on registration; and

                  (v)    if the application indicates that the body is expected to be a small or medium corporation in respect of its first financial year—nominated, as a person who will become the contact person when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3, the person specified in the application as a person who will become the contact person on registration; and

                 (vi)    if the application indicates that the body is expected to be a large corporation in respect of its first financial year—nominated, as a person who will become the secretary when it becomes registered as an Aboriginal and Torres Strait Islander corporation under Part 2-3, the person specified in the application as a person who will become the secretary on registration; and

                   (i)    a copy of the notice;

                  (ii)    a statement informing substantial creditors of the amalgamating corporations that those creditors may, within the objection period, object under subsection (3) to the grant of the application;

                 (iii)    such other information as is prescribed by the regulations for the purposes of this subparagraph; and

                   (i)    the proposed amalgamation;

                  (ii)    the right that substantial creditors of the corporation have under subsection (3) to object to the grant of the application made under section 23-1; and

Note 1:  For substantial creditor, see paragraph (5)(a).

Note 2:  For objection period, see paragraph (5)(b).

                   (i)    the amalgamating corporation owes a debt, or debts, to the person; and

                  (ii)    the amount of that debt, or the sum of the amounts of those debts, that is unsecured exceeds the amount prescribed by the regulations for the purposes of this subsection; and

Note:   The Aboriginal and Torres Strait Islander corporation remains in existence until it is deregistered (see Chapter 12).

Note:   The amalgamated corporation remains in existence until it is deregistered (see Chapter 12).

Note 1:  The Registrar deregisters the amalgamating corporations under subsection 546-10(3).

Note 2:  Paragraph (3)(e) has the effect, for example, that any regulatory action taken in relation to an amalgamating corporation under Part 10-3 may be continued as if that action had been taken in relation to the amalgamated corporation.

                   (i)    is signed by the Registrar; and

                  (ii)    identifies the land, whether by reference to a map or otherwise; and

                 (iii)    states that the land has become vested in the amalgamated corporation under this section.

                   (i)    is signed by the Registrar; and

                  (ii)    identifies the asset; and

                 (iii)    states that the asset has become vested in the amalgamated corporation under this section.

asset means:

assets official, in relation to an asset other than land, means the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned.

land means any legal or equitable estate or interest in real property, whether actual, contingent or prospective.

land registration official, in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.

liability means any liability, duty or obligation, whether actual, contingent or prospective.

Persons become members on registration

Note:   A member’s name must be entered in the register of members (see section 180-5).

Persons become directors etc. on registration

Substitutions to be made
Item	For a reference to ...	substitute a reference to ...
1	a Part 5.1 body	an Aboriginal and Torres Strait Islander corporation
2	a body	an Aboriginal and Torres Strait Islander corporation
3	a company	an Aboriginal and Torres Strait Islander corporation
4	ASIC	the Registrar
5	registered office	registered office or document access address

Note:   If a number of Aboriginal and Torres Strait Islander corporations wish to amalgamate, it may be possible, in some circumstances, for them to proceed with the amalgamation by means of an application to the Registrar under Division 23 (as an alternative to applying to a court for an order under the applied Corporations Act arrangements and reconstructions provisions).

Corporations Act arrangements and reconstructions provisions means:

Item	Subject of provision	Provision
1	Chapter 4—Members and observers How does a person become a member?	section 144-1
2	Application to corporation	section 144-5 subsection (2) is a replaceable rule
3	Determination of applications for membership	section 144-10 subsection (7) is a replaceable rule
4	Fees for membership and being an observer	section 144-15
5	Obligation to contribute on winding up	section 147-1
6	Corporation may impose other membership obligations	section 147-5
7	Liability of corporation members	section 147-10
8	Cessation of membership	section 150-1
9	Resolution of disputes	section 150-5
10	Resignation	section 150-10 subsection (2) is a replaceable rule
11	General	section 150-15
12	Member not eligible for membership etc.	section 150-20 this section is a replaceable rule
13	Member not contactable	section 150-25
14	Member is not an Aboriginal and Torres Strait Islander person	section 150-30
15	Member misbehaves	section 150-35
16	Different classes of members	section 153-1
17	Observers	section 158-5 subsection (2) is a replaceable rule
18	What protections apply to variations or cancellations of class rights?	Division 172
19	Corporation or directors may allow member to inspect books	section 175-15 this section is a replaceable rule
20	Chapter 5—Meetings Director may call meetings	section 201-1 this section is a replaceable rule
21	Request by members for directors to call general meetings	section 201-5
22	When must directors comply with members’ request?	section 201-10
23	When must a requested meeting be held?	section 201-15
24	Amount of notice for general meeting	section 201-20
25	Notice of general meeting to members, officers and observers	section 201-25 subsections (2), (5) and (6) are replaceable rules
26	Auditor entitled to notice and other communications	section 201-30
27	Contents of notice of general meeting	section 201-35
28	Members’ resolutions	section 201-40
29	Notice of members’ resolutions	section 201-45
30	Members’ statements to be distributed	section 201-50
31	Purpose	section 201-55
32	Time and place for general meeting	section 201-60
33	Technology	section 201-65
34	Quorum	section 201-70 subsections (1), (2), (5) and (6) are replaceable rules
35	Chairing general meeting	section 201-75 this section is a replaceable rule
36	Auditor’s right to be heard at general meetings	section 201-80
37	Adjourned meetings	section 201-85 subsection (2) is a replaceable rule
38	Who may appoint a proxy	section 201-90 this section is a replaceable rule
39	Rights of proxies	section 201-95
40	Appointing a proxy	section 201-100
41	Proxy documents	section 201-105
42	Body corporate representative	section 201-110
43	How many votes a member has	section 201-115 this section is a replaceable rule
44	Objections to right to vote	section 201-120 this section is a replaceable rule
45	How voting is carried out	section 201-125 this section is a replaceable rule
46	Matters on which a poll may be demanded	section 201-130
47	When a poll is effectively demanded	section 201-135
48	When and how polls must be taken	section 201-140 this section is a replaceable rule
49	Corporation must hold first general meeting within 3 months of registration	section 201-145
50	Corporation must hold AGM	section 201-150
51	Extension of time for holding AGM	section 201-155
52	Business of AGM	section 201-160
53	Questions and comments by members on corporation management at AGM	section 201-165
54	Questions by members of auditors at AGM	section 201-170
55	Circulating resolutions	section 204-1
56	Resolutions of 1 member corporations	section 204-5
57	Constitution to provide for meetings	section 212-1
58	Calling directors’ meetings	section 212-5 this section is a replaceable rule
59	Use of technology	section 212-10
60	Chairing directors’ meetings	section 212-15 this section is a replaceable rule
61	Quorum at directors’ meetings	section 212-20
62	Passing of directors’ resolutions	section 212-25 this section is a replaceable rule
63	Circulating resolutions of corporation with more than 1 director	section 215-1 this section is a replaceable rule
64	Resolutions and declarations of 1 director corporation	section 215-5
65	Minutes	section 220-5
66	Members’ access to minutes	section 220-10
67	Chapter 6—Officers Minimum number of directors	section 243-1
68	Maximum number of directors	section 243-5
69	Eligibility for appointment as a director	section 246-1
70	Majority of director requirements	section 246-5
71	Consent to act as director	section 246-10
72	Corporation may appoint a director	section 246-15 this section is a replaceable rule
73	Directors may appoint other directors to make up a quorum	section 246-20 this section is a replaceable rule
74	Term of appointment	section 246-25 subsections (1) and (3) are replaceable rules
75	Alternate directors	section 246-30 this section is a replaceable rule
76	How does a person cease to be a director?	section 249-1
77	Director may resign	section 249-5 subsection (2) is a replaceable rule
78	Removal by members	section 249-10
79	Removal by other directors	section 249-15
80	Remuneration	section 252-1
81	How a secretary or contact person is appointed	section 257-20
82	Terms and conditions of office for secretaries	section 257-45 this section is a replaceable rule
83	Terms and conditions of contact person’s appointment	section 257-50 this section is a replaceable rule
84	Duties in relation to disclosure of, and voting on matters involving, material personal interests	Division 268
85	Powers of directors	section 274-1 this section is a replaceable rule
86	Negotiable instruments	section 274-5 this section is a replaceable rule
87	Delegation	section 274-10
88	Right of access to corporation books	section 274-15
89	Member approval needed for related party benefit	Part 6-6

Note:   An application may be made to exempt the corporation from the requirement of this subsection (see section 187-5).

Note:   An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 187-5).

Note:   An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 187-5).

Note:   An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 187-5).

180-15  Information on the register of former members

180-22  Register of members and register of former members may be maintained in one document

The Registrar may exempt an Aboriginal and Torres Strait Islander corporation from certain provisions of this Chapter. The Registrar may do so on application or on his or her own volition.

187-5  Exemption from certain provisions of this Chapter

Note:   For the criteria for making determinations under this section, see section 187-20.

Note:   For the criteria for making determinations under this section, see section 187-20.

Unreasonable burden

Note:   An application may be made to exempt the corporation from the requirements of this section (see section 310-5).

Note:   An application may be made to exempt the directors of the corporation from the requirements of this subsection (see section 310-5).

The Registrar may exempt an Aboriginal and Torres Strait Islander corporation from certain provisions of this Chapter. The Registrar may do so on application or on his or her own volition.

Note:   For the criteria for making determinations under this section, see section 310-20.

Note:   For the criteria for making determinations under this section, see section 310-20.

Unreasonable burden

                   (i)    the 1 June last preceding the day on which it is registered; or

                  (ii)    if the corporation came into existence after that 1 June—the day on which the corporation came into existence; and

Request for financial report, directors’ report or auditor’s report

The Registrar may exempt an Aboriginal and Torres Strait Islander corporation from certain provisions of this Chapter and certain regulations. The Registrar may do so on application or on his or her own volition.

Note:   For the criteria for making determinations under this section, see Part 7-5.

Note:   For the criteria for making determinations under this section, see Part 7-5.

Note:   For strict liability, see section 6.1 of the Criminal Code.

Note:   For strict liability, see section 6.1 of the Criminal Code.

                   (i)    any document that the person is entitled to inspect under paragraph (a); or

                  (ii)    any certificate referred to in paragraph (b) to be given, or given and certified, by the Registrar.

Commonwealth officer includes a person who:

Commonwealth officer includes a person who:

                   (i)    the continuation of the corporation’s legal personality after th

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