Part IV—Incorporated Aboriginal associations
43 Application for incorporation
(1) The committee of an Aboriginal association may apply to the Registrar, in writing signed by each member of the committee, for the incorporation of the association under this Act.
(2) An application under subsection (1) shall state:
(a) the proposed name of the Association when incorporated, which shall include the words “Aboriginal Corporation” or the words “Torres Strait Islanders Corporation”;
(b) the objects of the association;
(c) whether the members of the association are to be liable to contribute towards the payment of the debts and liabilities of the association and, if so, the extent of that liability;
(d) the place or places where the activities of the association are, or are to be, carried on; and
(e) the names and addresses of the persons who constitute the committee of the association;
and shall be accompanied by a statement of the Rules by which, in the event of the incorporation of the association, its affairs are to be regulated.
(3) Subject to this Act and the regulations, the Rules referred to in subsection (2) shall make provision for and in relation to:
(a) the qualifications of members of the association;
(b) the creation of the executive offices of the association and the procedure for filling those offices;
(c) the procedure for the settling of disputes between the association and its members;
(d) the constitution of the Governing Committee of the association and the powers of that Committee;
(e) the procedure for the conduct of meetings of the Governing Committee of the association;
(ea) the matters for which the Rules are to provide under section 58A in relation to meetings of the association;
(f) the manner in which the funds of the association are to be managed;
(g) the method of altering the rules of the association, whether by making new rules or by varying or rescinding rules in force; and
(h) the method of altering the objects of the association;
and may make provision, not contrary to law, for and in relation to any other matter.
(4) The Rules of an association with respect to any matter may be based on Aboriginal custom.
44 Rights of members to share in pecuniary profits etc.
Where an Aboriginal Association is to be carried on wholly or partly for the purpose of securing pecuniary profit to its members, the rules referred to in subsection 43(2) shall make provision with respect to the rights of persons who are members from time to time to share in the pecuniary profits of the association and the rights of persons who are members at the time of a winding‑up of the association to share in the distribution of any surplus assets resulting from the winding‑up, and those rules may make provision for conferring rights on or in respect of a person upon his ceasing to be a member by resignation or death.
45 Registrar may issue certificate of incorporation
(1) Subject to this section, the Registrar, upon receipt of an application under section 43 for the incorporation under this Act of an Aboriginal association shall:
(a) if he is satisfied that it is proper for him so to do, issue to the association a certificate of incorporation; or
(b) if he is not satisfied, refuse to issue a certificate of incorporation and inform the association, in writing, of his refusal and of the reasons for his refusal.
(2) Except as otherwise directed by the Minister, the Registrar shall refuse to issue a certificate of incorporation under this Act to an Aboriginal association if the proposed name of the association is an unauthorized name.
(3) The Registrar must refuse to issue a certificate of incorporation to an Aboriginal association if satisfied that the Rules:
(a) are unreasonable or inequitable; or
(b) do not make sufficient provision (as required by section 58B) to give the members effective control over the running of the association.
(3A) The Registrar must refuse to issue a certificate of incorporation to an Aboriginal association unless satisfied that:
(a) if the association is formed wholly for business purposes—upon incorporation, it will have at least 5 members; or
(b) if it is formed principally for the purpose of owning land or holding a leasehold interest in land—upon incorporation, it will have at least 5 members; or
(c) in any other case—upon incorporation, it will have at least 25 members.
(4) Where the Registrar refuses to issue a certificate of incorporation to an Aboriginal association, he shall:
(a) notify the association, in writing, of his refusal;
(b) set out in the notification the reason for his refusal; and
(c) invite the committee of the association to make such changes in the application for incorporation or in the Rules accompanying the application for incorporation as will remove the grounds for refusal of the application and advise the Registrar, within the time specified in the notification, of any changes so made or, if the changes are not made, of reasons for the changes not being made.
(5) Where the Registrar is notified, in accordance with subsection (4), of changes made in an application for incorporation or in the Rules accompanying an application for incorporation or of reasons for such changes not being made, he shall reconsider the application under subsection (1).
46 Incorporation of Aboriginal association
(1) Upon the issue to an Aboriginal association of a certificate of incorporation under section 45, the association:
(a) in the case of an unincorporated association—becomes a body corporate with perpetual succession;
(aa) in the case of an association incorporated otherwise than under this Act—continues in existence by force only of this section as a body corporate and has perpetual succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of real and personal property; and
(e) may sue and be sued in its corporate name.
(2) The name of an Incorporated Aboriginal Association is the name set out in its certificate of incorporation.
(3) The common seal of an Incorporated Aboriginal Association is of no effect unless the name of the Association is inscribed on the seal in legible characters.
(4) All courts, judges and persons acting judicially shall take judicial notice of the seal of an Incorporated Aboriginal Association affixed to a document and shall presume that it was duly affixed.
47 Rules of Incorporated Aboriginal Associations
(1) The Rules accompanying the application for the incorporation of an association under this Act or, where those Rules have been altered in accordance with subsection 45(4), those Rules as so altered shall, upon the incorporation of the association under this Act, be the Rules of the Incorporated Aboriginal Association, but may be altered in accordance with the method of alteration laid down in those Rules.
(2) The Rules of an Incorporated Aboriginal Association as in force from time to time have the effect of a contract:
(a) between the Association and each member; and
(b) between the Association and the public officer; and
(c) between the Association and each member of the Governing Committee; and
(d) between each member and each other member.
48 Liability of members of Incorporated Aboriginal Associations
(1) A person who is or has been a member of an Incorporated Aboriginal Association in respect of which the application for incorporation stated that the members of the Association were not to be liable to contribute towards the payment of the debts and liabilities of the Association is not liable so to contribute.
(2) A person who is or has been a member of an Incorporated Aboriginal Association in respect of which the application for incorporation stated that the members of the Association were to be liable, to the extent specified in the application, to contribute towards the payment of the debts and liabilities of the Association is liable so to contribute in respect of debts and liabilities incurred after the incorporation of the Association and before he ceases or ceased to be a member.
49 Eligibility for membership of Incorporated Aboriginal Association
(1) A person who is not an Aboriginal, or the spouse of an Aboriginal, is not entitled to become a member of an Incorporated Aboriginal Association.
(2) A person who, but for subsection (1), would be, or would have been, a member of an Incorporated Aboriginal Association shall, for the purposes of section 48, be treated as being, or as having been, such a member.
49A Provision in rules for conferral of specified rights of membership on persons not entitled to become members
(1) Where more than 75% of the members of an Aboriginal association agree, the Rules referred to in subsection 43(2) may provide for the conferring of specified rights of membership of the association (other than the right to vote at meetings of the association and the right to stand for election to the Governing Committee of the association) on persons not entitled to become members of the association.
(2) Where more than 75% of the members of an Incorporated Aboriginal Association agree, the Rules of the Association may, subject to section 54 and the requirements of the Rules relating to alteration of the Rules, be altered to provide for the conferring of specified rights of membership of the Association (other than the right to vote at meetings of the Association and the right to stand for election to the Governing Committee of the Association) on persons not entitled to become members of the Association.
49B Disqualification from membership of Governing Committee
(1) A person cannot be elected, or hold office, as a member of the Governing Committee of an Incorporated Aboriginal Association if he or she has been convicted of an offence against a Commonwealth, State or Territory law and sentenced:
(a) if the offence involved fraud or misappropriation of funds—to imprisonment for 3 months or longer; or
(b) in any other case—to imprisonment for one year or longer.
(2) The conviction does not prevent the person from standing for election, or being elected, if:
(a) at least 5 years have elapsed since the date of the conviction; and
(b) the person is not serving a term of imprisonment.
(3) The Registrar may declare in writing that subsection (1) does not apply to a particular person in relation to a particular conviction.
(4) If:
(a) a person requests the Registrar to make a declaration under subsection (3) in relation to the person in relation to a particular conviction; and
(b) the Registrar refuses to do so;
the person may appeal in writing to the Minister.
(5) The Minister must consider the appeal and either:
(a) declare in writing that subsection (1) does not apply to the person in relation to the conviction; or
(b) refuse to make the declaration;
and must cause the person to be notified accordingly.
49C Members to act honestly and diligently
A member of the Governing Committee of an Incorporated Aboriginal Association must act honestly and diligently in exercising powers and performing functions and duties under this Act, the regulations and the Rules.
49D Disclosure of pecuniary interests
(1) A member of the Governing Committee of an Incorporated Aboriginal Association who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Committee must disclose the nature of the interest at a meeting of the Committee as soon as possible after the relevant facts have come to his or her knowledge.
(2) The disclosure must be recorded in the minutes of the meeting of the Committee and the member must not, without the approval of the Committee:
(a) be present during any deliberation of the Committee about that matter; or
(b) take part in any decision of the Committee on that matter.
49E Vacation of office on insolvency etc.
(1) A member of the Governing Committee of an Incorporated Aboriginal Association ceases to hold office if he or she becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors or compounds with his or her creditors.
(2) The Registrar may declare in writing that subsection (1) does not apply to a particular person.
50 Vesting of property in Incorporated Aboriginal Associations
(1) Upon the incorporation of an Aboriginal association under this Act any personal property (other than personal property consisting of an estate or interest in land) held by a person, in trust or otherwise, for or on behalf of the members of the Association vests, subject to any trust, covenant, contract or liability affecting the property (other than a trust for the members) in the Incorporated Aboriginal Association.
(2) Where a person holds an estate or interest in land in trust or otherwise for or on behalf of the members of an Aboriginal association, that person shall, upon the incorporation of the Association under this Act, take all action required to vest, subject to any trust (other than a trust for the members), or any covenant, contract or liability affecting the estate or interest, the estate or interest in the Incorporated Aboriginal Association.
51 Powers to borrow money and give securities
An Incorporated Aboriginal Association may, subject to this Act and to the Rules of the Association:
(a) raise or borrow money upon such terms, and in such manner, as it thinks fit; and
(b) secure the repayment of money so raised or borrowed, or the payment of a debt or liability of the Association, by giving a mortgage, charge or other security upon or over all or any of the property of the Association.
52 Notification of alteration of objects
(1) The public officer of an Incorporated Aboriginal Association shall, within 6 weeks after the making of an alteration of the objects of the Association, file with the Registrar a copy of the alteration.
Penalty: $50.
(2) The Registrar shall consider an alteration filed under subsection (1) and shall:
(a) if he is satisfied that it is proper for him so to do, approve the alteration; or
(b) if he is not so satisfied, refuse to approve the alteration and inform the Association, in writing, of his refusal and of the reasons for his refusal.
(2A) Where the Registrar refuses to approve an alteration filed under subsection (1), the relevant Association may request the Minister to approve the alteration.
(2B) Where the Minister, having regard to the matters specified in paragraphs (2)(a) and (b), is satisfied that the request should be complied with, he shall approve the alteration.
(2C) Where the Minister is not satisfied that the request should be complied with, he shall refuse to approve the alteration and shall notify the Association, in writing accordingly.
(3) An alteration referred to in subsection (1) does not take effect unless and until approved by the Registrar under subsection (2) or by the Minister under subsection (2B).
53 Change of name
(1) Where an Incorporated Aboriginal Association proposes to change its name, the Governing Committee of the Association shall make application, in writing, to the Registrar for his approval of the proposed new name.
(2) The Registrar shall approve a proposed new name submitted to him under subsection (1) if:
(a) the name includes the words “Aboriginal Corporation” or the words “Torres Strait Islanders Corporation”; and
(b) the name is not an unauthorized name.
(3) Where an Incorporated Aboriginal Association has changed its name to a new name that has been approved by the Registrar under subsection (2), the public officer of the Association shall serve on the Registrar a notice in writing of the change.
Penalty: $50.
(4) Where the Registrar receives a notice under subsection (3), he shall issue to the Incorporated Aboriginal Association a certificate of incorporation in the new name of the Association and that certificate of incorporation has effect, from the date of issue, as the certificate of incorporation of the Association.
(5) A change of name by an Incorporated Aboriginal Association does not take effect until the issue to the Association under subsection (4) of a certificate of incorporation in the new name.
54 Filing and approval of alterations of Rules
(1) Where an Incorporated Aboriginal Association alters its Rules, the public officer of the Association shall, within 6 weeks after the making of the alteration, file with the Registrar a notification of the alteration.
Penalty: $50.
(2) The Registrar shall consider an alteration filed under subsection (1) and shall:
(a) if he is satisfied that the Rules of the Incorporated Aboriginal Association as proposed to be altered are not inconsistent with this Act—approve the alteration; or
(b) if he is not so satisfied—refuse to approve the alteration.
(3) The Registrar shall notify the public officer of the Incorporated Aboriginal Association, in writing, of his approval, or his refusal of approval, of an alteration filed by the public officer under subsection (1).
(4) An alteration referred to in subsection (1) does not take effect unless and until approved by the Registrar under subsection (2).
55 Alteration of objects etc. does not affect existing rights and obligations
An alteration of the objects of an Incorporated Aboriginal Association or the issue of a certificate of incorporation to an Association in a new name, does not affect any right, liability or obligation of the Association or of any person, or any legal proceedings, existing or pending immediately before the alteration took effect or the certificate was issued, as the case may be.
56 Appointment of public officer etc.
(1) The Governing Committee of an Incorporated Aboriginal Association shall, within 3 weeks after its incorporation under this Act, appoint a person to be the public officer of the Association and determine an official address for the person from time to time holding the office and, if that office at any time becomes vacant, shall, within 3 weeks after it becomes vacant, appoint a person to fill that vacancy.
(2) The public officer of an Incorporated Aboriginal Association holds office during the pleasure of the Governing Committee of the Association.
(3) The public officer of an Incorporated Aboriginal Association may resign his office by writing signed by him delivered to the Chair of the Governing Committee of the Association but the resignation does not have effect until it is accepted by the Chair.
(4) The Governing Committee of an Incorporated Aboriginal Association shall terminate the appointment of the public officer of the Association if he becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors or compounds with his creditors.
(5) Where the Registrar considers that the place of the official address of the public officer of an Incorporated Aboriginal Association is not an appropriate place for the performance of the duties of the public officer under this Act, the Registrar may serve on the public officer a notice directing the Governing Committee of the Association to determine another official address and to notify him of the address so determined, and the Governing Committee shall obey that direction.
57 Notice of appointment and change of public officers
(1) The Governing Committee of an Incorporated Aboriginal Association shall, within 3 weeks after the appointment of a public officer, serve on the Registrar a notice in writing setting out the full name and official address of the public officer.
(2) Where the Governing Committee of an Incorporated Aboriginal Association changes the official address of its public officer, it shall, within 3 weeks after the change, serve on the Registrar a notice in writing of the change.
58 Register of members
(1) The public officer of an Incorporated Aboriginal Association shall keep, at his official address, a register, in a form satisfactory to the Registrar, showing:
(a) the name and address of every member of the Association;
(b) the date upon which each member joined the Association; and
(c) where a member of the Association ceased to be such a member—the date upon which he so ceased.
(2) The public officer of an Incorporated Aboriginal Association shall take such action as is required to ensure that a register kept by him under subsection (1) is open for inspection, at all reasonable times, by members of the public.
Penalty: $200.
(3) As soon as practicable after each 30 June but not later than the next 31 December, the Governing Committee must give the Registrar a list of the names and addresses of all the persons who are members of the Association as at the date when the list is given to the Registrar.
(4) The Registrar may at any time request the Governing Committee to give him or her an updated list of the names and addresses of all the persons who are members of the Association, and the Committee must comply with the request within 14 days or such other period as the Registrar specifies.
(5) If the Governing Committee fails, without reasonable excuse, to comply with subsections (3) and (4), each member of the Committee is guilty of an offence punishable, on conviction, by a fine not exceeding $200.
(6) In a prosecution of a person for an offence against subsection (5) arising out of a contravention of subsections (3) and (4), it is a defence if the person proves that the person:
(a) did not aid, abet, counsel or procure the contravention; and
(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention.
58A Arbitration by Registrar
(1) Disputes between members of an Incorporated Aboriginal Association or between such an Association and its members may be settled by arbitration in accordance with this section.
(2) On application by the parties to a dispute between members of the Association, the Registrar may arbitrate in the dispute.
(3) Upon application or otherwise, the Registrar may arbitrate in a dispute between the Association and one or more of its members.
(4) An arbitration may be conducted by the Registrar or by a person appointed by the Registrar for the purpose.
(5) A person conducting an arbitration is not subject to any action, claim or demand by, or liable to, any person in respect of anything done, or omitted to be done, in good faith in connection with the arbitration.
(6) An arbitration must be conducted in accordance with the regulations.
(7) The fact that a dispute is being, or has been, settled by arbitration under this section does not prevent a party to the dispute from bringing an action in a court in connection with the dispute, unless the court orders otherwise.
58B General and special meetings
(1) Subject to this section, the Governing Committee of an Incorporated Aboriginal Association is to call and conduct annual general meetings and special general meetings of the Association as provided in the Rules.
(2) An aggrieved member may at any time request the Committee to call a special general meeting. The Committee must do so unless, on application by the Committee, the Registrar considers the request to be frivolous, unreasonable or contrary to the interests of the members of the Association.
(3) The Registrar may call a special general meeting if the Committee has advertised it for a particular day but it has not been held for 14 days after that day.
(4) The Registrar may call a special general meeting at any time if, in the opinion of the Registrar, there is a need to do so.
(5) The Registrar may call a special general meeting if requested to do so in writing by whichever is the greater of:
(a) 5 or more members of the Association; or
(b) not fewer than 10% of the total number of members of the Association.
The Registrar is to conduct the meeting.
(6) The Registrar is to determine the periods of notice for meetings called under subsection (4) or (5), having regard to the special needs of the Association.
(7) Unless the Registrar determines otherwise, a member cannot vote at a meeting called by the Registrar if:
(a) the person became a member after the incorporation of the Association; and
(b) the person’s name does not appear on the latest list supplied to the Registrar under section 58(3) or (4).
(8) In addition to any other matter relating to general meetings, the Rules must make provision for and in relation to:
(a) the intervals between meetings;
(b) quorums;
(c) procedure;
(d) voting by proxy.
(9) If the Registrar delegates his or her powers under this section, references to the Registrar are to be read accordingly.
59 Accounts, records and financial statements
(1) The Governing Committee of an Incorporated Aboriginal Association shall cause to be kept proper accounts and records of the transactions and affairs of the Association and shall do all things necessary to ensure that all payments out of the moneys of the Association are correctly made and properly authorized and that adequate control is maintained over the assets of, or in the custody of, the Association and over the incurring of liabilities by the Association.
(2) The Governing Committee must, as soon as practicable after each 30 June, cause to be prepared a report (Committee’s Report) consisting of:
(a) a statement, in a form approved by the Registrar, whether the Governing Committee and the Association have complied with the obligations imposed by this Act, the regulations and the Rules of the Association during the financial year ending on that date; and
(b) a balance sheet setting out the assets and liabilities of the Association as at that 30 June; and
(c) an income and expenditure statement giving a true and fair view of the income and expenditure of the Association for the financial year ending on that 30 June; and
(d) a copy of the latest list given to the Registrar under subsection 58(3) or (4).
(3) As soon as practicable after the report has been prepared, the Governing Committee must cause a person authorised by the Registrar for the purposes of this section:
(a) to examine:
(i) whether the Governing Committee and the Association have complied with the obligations imposed by this Act, the regulations and the Rules of the Association; and
(ii) whether the balance sheet and income and expenditure statement are based on proper accounts and records and are in agreement with those accounts and records; and
(b) to give the Governing Committee a report (examiner’s report) of the results of that examination, drawing attention to any irregularity that it has disclosed.
(4) The Governing Committee must file with the Registrar a copy of the Committee’s report and the examiner’s report as soon as practicable after receiving the latter and in any case not later than 31 December after the end of the relevant financial year.
(5) The Governing Committee must:
(a) make a copy of the Committee’s report and the examiner’s report available at the next annual general meeting after they have been prepared; and
(b) make a copy of the Committee’s report and the examiner’s report available for inspection at all reasonable times by members of the Association.
(6) If the Association is incorporated at any time in April, May or June in a financial year:
(a) this section applies as if the reference in subsection (2) to 30 June were a reference to the 30 June ending the next financial year; and
(b) the period from the date of incorporation to that 30 June is to be treated as a financial year.
(7) If the Governing Committee fails, without reasonable excuse, to comply with a provision of this section, each member of the Committee is guilty of an offence punishable, on conviction, by a fine not exceeding $200.
(8) In a prosecution of a person for an offence against subsection (7) arising out of a contravention of a provision of this section, it is a defence if the person proves that the person:
(a) did not aid, abet, counsel or procure the contravention; and
(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention.
59A Exemption from section 59 in certain circumstances
(1) Where the Registrar is satisfied that it would be impracticable for an Incorporated Aboriginal Association to comply with the requirements of section 59, or that the application of those requirements to an Incorporated Aboriginal Association would be unduly onerous, the Registrar may, by writing, exempt the Association, wholly or in part, from those requirements.
(2) Where the Registrar has, in an instrument issued under subsection (1), exempted an Incorporated Aboriginal Association, in whole or in part, from the requirements of section 59, the Registrar may, in the instrument, require that Association to comply with such requirements as to the keeping of accounts and records, and the preparation and filing of reports and statements prepared from those accounts and records, as the Registrar thinks appropriate in view of the exemption that has been granted, and that Association shall comply with the requirement.
Penalty: $200.
60 Examination of documents
(1) The Registrar may, at any time, cause a person authorised by the Registrar for the purposes of this section to examine the documents of an Incorporated Aboriginal Association and to report to the Registrar on the results of that examination, drawing attention to any irregularity in the operations or financial affairs of the Association disclosed by that examination.
(2) The authorised person is entitled at all reasonable times to full and free access to the documents of the Association.
(3) The authorised person may make copies, or take extracts from, any such documents.
(4) The authorised person may require any person to answer such questions, and produce such documents in the possession of the person, or to which the person has access, as the authorised person considers necessary for the purposes of this section.
(5) A person who, without reasonable excuse, fails to comply with a requirement under subsection (4) is guilty of an offence punishable, upon conviction, by a fine not exceeding $200.
(7) A person is not excused from answering a question or producing a document when required to do so under subsection (4) on the ground that the answer to the question, or the production of the document, might tend to incriminate the person or make the person liable to a penalty, but the answer, the production of the document, or anything obtained as a direct or indirect consequence of the answer or the production, is not admissible in evidence against the person in any proceedings, other than proceedings for an offence against this section or an offence against section 137.1 or 137.2 of the Criminal Code that relates to this section.
(8) Before exercising powers under this section, the authorised person must produce written authority by the Registrar. If he or she fails to do so he or she has no powers under this section.
(9) In this section:
document means any document relating directly or indirectly to the operations of the Association, the receipt or payment of money by the Association or the acquisition, receipt, custody or disposal of assets by the Association.
60A Registrar may require compliance with Act etc.
(1) If the Registrar suspects on reasonable grounds that:
(a) an Incorporated Aboriginal Association has failed to comply with a provision of this Act, the regulations or the Rules; or
(b) there has been an irregularity in the financial affairs of an Incorporated Aboriginal Association;
the Registrar may, by notice served on the public officer, require the Governing Committee to take the action specified in the notice within the period specified in the notice, for the purpose of complying with the Act, the regulations or the Rules or remedying the irregularity, as the case may be.
(2) The Registrar is not required to take action under this section before taking any other action under this Act.
61 Registrar may apply for injunctions
(1) If the Registrar is of the opinion that the Governing Committee of an Incorporated Aboriginal Association is not complying with a provision of this Act, the regulations or the Rules of the Association, the Registrar may serve on the members of the Committee a notice in writing calling upon the Committee to show cause, within a reasonable period specified in the notice, why the Registrar should not apply to the Court for an injunction.
(2) After that period, and having considered any representations made by the Committee, the Registrar may apply to the Court for an injunction.
(3) The Court may grant an injunction requiring a member, or the members, of the Committee not to contravene, or to cease contravening, a provision of this Act, the regulations or the Rules.
62 Application of provisions of Corporations Act relating to compositions with creditors
Subject to this Act, the provisions of the Corporations Act 2001 that relate to compromises or arrangements between companies and their creditors apply, so far as they are capable of application and subject to such modifications, adaptations and exceptions (if any) as are prescribed, to and in relation to Incorporated Aboriginal Associations and, in the application of those provisions:
(a) a reference to a company shall be read as a reference to an Incorporated Aboriginal Association;
(aa) a reference to the Commission shall be read as a reference to the Registrar of Aboriginal Corporations;
(b) a reference to the directors of a company shall be read as a reference to the members of the Governing Committee of an Incorporated Aboriginal Association; and
(c) a reference to the Court shall be read as a reference to the Federal Court of Australia.
62A Registrar may petition for winding up
The Registrar may petition the Court that an Incorporated Aboriginal Association be wound up, if:
(a) an Administrator appointed under section 71 recommends the winding up; or
(b) the Registrar is of the opinion that the winding up would be in the public interest or in the interests of the members of the Association.
63 Winding up by Court
(1) Subject to this section, an Incorporated Aboriginal Association may be wound up under an order of the Court on the petition of:
(a) the Association;
(b) any creditor, including a contingent or prospective creditor, of the Association;
(c) a member of the Association;
(d) the judicial manager of the Association; or
(e) the Registrar;
or of any 2 or more of those parties.
(2) A petition under subsection (1) shall specify one or more of the following grounds:
(a) the Incorporated Aboriginal Association has, in accordance with its rules, resolved that it be wound up by the Court;
(b) the business of the Association was not commenced within 1 year after its incorporation or has been suspended for a continuous period of 1 year;
(c) there are fewer than 5 members of the Association;
(d) the Association is unable to pay its debts;
(e) the members of the Committee of the Association have acted in the affairs of the Association in their own interests rather than in the interests of the members as a whole or in any other manner whatsoever that appears to be unfair or unjust to other members;
(g) by reason of the complexity or magnitude of the activities of the Association, it is inappropriate that it continue to be incorporated under this Act;
(h) it is just and equitable that the Association be wound up.
(3) For the purpose of the consideration by the Court of a petition under subsection (1) on the ground set out in paragraph (2)(d), an Incorporated Aboriginal Association shall be deemed to be unable to pay its debts if:
(a) a creditor, by assignment or otherwise, to whom the Association is indebted in a sum exceeding $500:
(i) has, by service of a demand upon the public officer, required the Association to pay that sum; and
(ii) has, within 3 days of that service, served a copy of that demand upon the Registrar for his information;
and the Association has, for a period of 28 days after the service referred to in subparagraph (i), neglected to pay that sum or to secure or compound for it to the reasonable satisfaction of the creditor;
(b) execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the Association is returned unsatisfied in whole or in part; or
(c) it is proved to the satisfaction of the Court, which shall take into account the contingent and prospective liabilities of the Association, that the Association is unable to pay its debts.
(4) A member of an Incorporated Aboriginal Association is not entitled to present a petition under subsection (1) on a ground specified in paragraph (2)(a), (b), (d), (g) or (h) unless:
(a) there are fewer than 5 members of the Association; or
(b) the member has been a member of the Association since the date of its incorporation or has been a member for at least 6 months prior to the presentation of the petition.
(6) The Court shall not hear a petition under subsection (1) if it is presented by a contingent or prospective creditor until such security for costs has been given as the Court thinks reasonable and a prima facie case for winding up has been established to the satisfaction of the Court.
64 Voluntary winding up
(1) An Incorporated Aboriginal Association may be wound up voluntarily if the Association so resolves by special resolution.
(2) The public officer of an Incorporated Aboriginal Association shall, within 3 weeks after the passing of a resolution for voluntary winding up, lodge with the Registrar a notice in the prescribed form of the passing of the resolution and a copy of the resolution.
Penalty: $50.
(3) The Registrar shall, within 3 weeks after the lodging of a notice under subsection (2), publish in the Gazette a notice of the passing of the resolution to which the notice relates.
(4) For the purposes of this section, a resolution is a special resolution if it is passed by a majority of not less than three‑fourths of such members as being entitled so to do vote in person, or, where proxies are allowed, by proxy, at a general meeting of which not less than 21 days’ notice specifying the intention to propose the resolution as a special resolution has been duly given.
65 Distribution of surplus assets in winding up
(1) Subject to this section, where, upon the winding up of an Incorporated Aboriginal Association, there remain any surplus assets and:
(a) the rules of the Association make provision for the distribution of the surplus assets of the Association in the event of the Association’s being wound up; or
(b) where there are no such rules—a resolution relating to the distribution of the surplus assets of the Association has been passed by at least two‑thirds of the members of the Association;
the Court or the liquidator shall distribute those assets in accordance with those rules or that resolution, as the case may be.
(2) Where, in a winding up by the Court:
(a) a Judge of the Court considers that a distribution of the surplus assets of the Association in accordance with the rules of the Association or with a resolution under paragraph (1)(b) would not be just; or
(b) no such rules exist and such a resolution has not been passed;
the Judge shall make such orders for the distribution of those assets as, having regard to the objects of the Association, he considers just.
(3) Where, in a voluntary winding up:
(a) the liquidator considers that a distribution of the surplus assets of the Association in accordance with the rules of the Association or with a resolution relating to the distribution of those surplus assets passed by a majority of at least two‑thirds of the members of the Association would not be just; or
(b) no such rules exist and such a resolution has not been passed;
the liquidator shall apply to a Judge of the Court to exercise all or any of the powers that the Judge might exercise under subsection (2) if the Association were being wound up by the Court.
67 Application of provisions of Corporations Act to winding up of Incorporated Aboriginal Associations
Subject to this Act, the provisions of the Corporations Act 2001 that relate to the winding up of companies registered under that Act apply, so far as they are capable of application and subject to such modifications, adaptations and exceptions (if any) as are prescribed, to and in relation to the winding up of Incorporated Aboriginal Associations and, in the application of those provisions:
(a) a reference to a company shall be read as a reference to an Incorporated Aboriginal Association;
(b) a reference to the directors of a company shall be read as a reference to the members of the Governing Committee of an Incorporated Aboriginal Association;
(c) a reference to the secretary of a company shall be read as a reference to the public officer of an Incorporated Aboriginal Association;
(d) a reference to the registered office of a company shall be read as a reference to the official address of the public officer of an Incorporated Aboriginal Association;
(e) a reference to the Court shall be read as a reference to the Federal Court of Australia; and
(f) a reference to the Commission shall be read as a reference to the Registrar of Aboriginal Corporations.