Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I look forward to the government moving such an amendment for the appointment of directors in mainstream Corporations Law, given their concern about those issues.

Question negatived.

I move opposition amendment (2) on sheet 5096:

(2)    Clause 487-10, page 392 (lines 7 to 11), omit paragraphs (1)(a) and (b), substitute:

             (a)    give the corporation notice in writing including the particulars of the grounds that would justify such a determination; and

             (b)    invite the corporation to show cause, within a reasonable period specified in the notice, why the determination should not be made; and

             (c)    consider any representations the corporation makes to the Registrar within that period.

Amendment (2) is intended to require that the registrar provide reasons for a determination to appoint a special administrator. This is an important issue. It is one we are concerned about and is something that I hope the government takes seriously. The bill improves on the Aboriginal Councils and Associations Act by requiring the registrar to give the corporation an opportunity to show cause why the registrar should not appoint a special administrator. Under the old regime it was at the discretion of the registrar to seek the corporation’s opinion, so I accept that that is a beneficial change. However, what is missing is an obligation on the registrar to specify the grounds that would justify such an appointment. It seems to me it is not unreasonable that someone knows why it is you are intervening in their management of a corporation and to justify that intervention.

The requirement to give reasons is common in administrative law to ensure procedural fairness. Outlining the registrar’s concerns would ensure that the corporation has a full opportunity to respond to those concerns. It also provides more transparency and inspires confidence in the process that can often be thwarted by misunderstanding. It is important to ensure that, in moving to the corporate model, as we are today, we do not actually seek to impose on Indigenous corporations requirements that are unreasonable or that are more punitive than we apply more generally, while recognising the differences in the way they operate. It is also important that we make sure that those corporations are treated with the same sort of procedural fairness and opportunity that we would expect for ourselves or for other corporations in the community. The lack of an obligation on the registrar to specify the grounds upon which they are intervening and appointing an administrator is a flaw in the legislation.

As I said, the opportunity to show cause is a good one, because a lot of Indigenous people have been concerned about the current system and the failure of the registrar to actually have to justify that very serious intervention. The requirement to give reasons is, as I say, very common in administrative law. It seems to me to be an issue of basic procedural fairness. I have not heard an argument as to why it should not be applied in this case. It is a very serious step to appoint an administrator—to take the corporation out of the control of the elected directors, out of the control of the people who are providing the services and managing the organisation. I am not saying that it would necessarily be used arbitrarily, but it seems to me it is a basic element of procedural fairness that reasons are provided. So Labor would appreciate support for the amendment to ensure that those reasons are made and specified to the corporation before such an intervention is enacted.