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NATIVE TITLE LEGISLATION AMENDMENT ACT 2021 (NO. 6, 2021) - SCHEDULE 8

Registered native title bodies corporate

Part 1 -- Requirements for constitutions

Corporations (Aboriginal and Torres Strait Islander) Act 2006

1  Section 57-5 (table item 1A)

After "Resolution of", insert "internal".

2  Section 57-5 (table item 1)

Repeal the item, substitute:

1B

Resolution of disputes with persons who are or who claim to be common law holders

subsection 66-1(3B)


1C

Chapter 4--Members and observers

Eligibility requirements for membership of registered native title body corporate

 

section 141-25

1

How does a person become a member?

section 144-1

3  Section 57-5 (table item 12, column headed "Subject of provision")

After "Member", insert "of corporation that is not a registered native title body corporate".

4  Section 57-5 (after table item 12)

Insert:

12A

Member of registered native title body corporate not eligible for membership etc.

section 150-22

5  Paragraph 63-1(c)

Repeal the paragraph, substitute:

                     (c)  the rules (if any) in the corporation's constitution providing for the resolution of disputes between the corporation and persons who are or who claim to be common law holders of native title;

                     (d)  the other rules dealing with the internal governance of the corporation that are in the corporation's constitution.

6  After subsection 66-1(3A)

Insert:

          (3B)  If:

                     (a)  the application for registration of the corporation seeks registration for the purpose of becoming a registered native title body corporate; or

                     (b)  the corporation is a registered native title body corporate;

the corporation's constitution must provide for the resolution of disputes between the corporation and a person who is or who claims to be a common law holder of native title (whether or not the person is a member of the corporation) in relation to:

                     (c)  whether or not the person is a common law holder of native title; or

                     (d)  the corporation's performance of its functions under the Native Title legislation.

7  Subparagraph 66-1(5)(d)(i)

Omit "an application for registration of an Aboriginal and Torres Strait Islander corporation seeks registration of the corporation", substitute "the application for registration of the corporation seeks registration".

8  Section 135-1

After "Subdivision 141-C imposes 1 eligibility requirement for membership but a corporation may impose other such requirements.", insert "A registered native title body corporate must include particular eligibility requirements relating to common law holders.".

9  At the end of subsection 141-1(3)

Add "A registered native title body corporate must include particular eligibility requirements relating to common law holders.".

10  Section 141-25

Before "The", insert "(1)".

11  At the end of section 141-25

Add:

             (2)  If the corporation is a registered native title body corporate, the constitution must include eligibility requirements for membership that provide for all the common law holders of native title to be represented, directly or indirectly.

12  Subsection 150-15(1)

After "replaceable rule", insert "for Aboriginal and Torres Strait Islander corporations other than registered native title bodies corporate".

13  After subsection 150-15(1)

Insert:

          (1A)  Section 150-22 provides for cancellation of membership of an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate on the grounds of ineligibility for membership or failure to pay fees. If membership of such a corporation is to be cancelled on either of these grounds, the only way the membership may be cancelled is as provided for in section 150-22.

14  After subsection 150-15(2)

Insert:

Registered native title body corporate constitution may not include other grounds for cancellation

          (2A)  The constitution of an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate must not provide for cancellation of membership on any other ground.

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).

15  Section 150-20 (heading)

After " Member ", insert " of corporation that is not a registered native title body corporate ".

16  Subsection 150-20(1)

After "Aboriginal and Torres Strait Islander corporation", insert "that is not a registered native title body corporate".

17  After section 150-20

Insert:

150-22   Member of registered native title body corporate not eligible for membership etc.

Operation of section

             (1)  This section operates despite any provision of the constitution of an Aboriginal and Torres Strait Islander corporation if the corporation is a registered native title body corporate.

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).

Membership may be cancelled if not eligible etc.

             (2)  If the membership of a member of an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate is to be cancelled on the ground of ineligibility for membership or failure to pay fees, the membership may only be cancelled on that ground if the cancellation is effected in the manner and circumstances set out in subsections (3) to (6).

Manner and circumstances

             (3)  The directors of an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate may, by resolution, cancel the membe r ship of a member of the corporation if:

                     (a)  either:

                              (i)  the member is not eligible for membership; or

                             (ii)  the member has ceased to be eligible for membership of the corporation; or

                     (b)  the member has not paid the member's membership fees (if any).

             (4)  Before cancelling the membership, the directors must give the member notice in writing:

                     (a)  stating that the directors intend to cancel the membership for the reasons specified in the notice; and

                     (b)  stating that the member has 14 days to object to the cancellation of the membership; and

                     (c)  stating that the objection must be:

                              (i)  in writing; and

                             (ii)  given to the corporation within the period of 14 days from the day the notice is given.

             (5)  If the member does not object as provided for in paragraph (4)(c), the directors must cancel the membership.

             (6)  If the member does object as provided for in paragraph (4)(c):

                     (a)  the directors must not cancel the membership; and

                     (b)  only the corporation by resolution in general meeting may cancel the membership.

Notice

             (7)  If the membership is cancelled, the directors must give the member a copy of the resolution (being either the resolution of the directors or the resolution of the general meeting) as soon as practicable after the resolution has been passed.

Penalty:  5 penalty units.

             (8)  An offence against subsection (7) is an offence of strict liability.

18  After paragraphs 187-5(2)(a) and 187-15(2)(a)

Insert:

                    (aa)  subsection 150-15(2A); and

                   (ab)  section 150-22; and

19  Application and transitional

(1)       If, immediately before the commencement of this item, a corporation was a registered Aboriginal and Torres Strait Islander corporation, the amendments of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (the CATSI Act ) made by this Part do not apply in relation to the corporation until the second anniversary of the day this item commences.

(2)       Until that anniversary, a corporation that was, immediately before the commencement of this item, a registered Aboriginal and Torres Strait Islander corporation does not fail to comply with the requirement in paragraph 66-1(5)(d) of the CATSI Act merely because its constitution is not consistent with the Native Title Act 1993 as amended by Schedule 4 (allowing a registered native title body corporate to bring a compensation application).

Part 2 -- Refusal of membership

Corporations (Aboriginal and Torres Strait Islander) Act 2006

20  Subsection 144-10(3) (heading)

Repeal the heading, substitute:

When membership application may be refused

21  Subsection 144-10(3)

Omit "The", substitute "Unless the corporation is a registered native title body corporate, the".

22  After subsection 144-10(3)

Insert:

          (3A)  The directors must accept the membership application if:

                     (a)  the corporation is a registered native title body corporate; and

                     (b)  paragraphs (2)(a) and (b) are complied with.

23  Subsection 144-10(4)

Omit "However", substitute "Despite subsections (3) and (3A)".

24  Application

The amendments of section 144-10 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 made by this Part apply in relation to any application for membership of an Aboriginal and Torres Strait Islander corporation made after the commencement of this item.

Part 3 -- Registrar oversight

Corporations (Aboriginal and Torres Strait Islander) Act 2006

25  After paragraph 487-5(1)(c)

Insert:

                    (ca)  if the corporation is a registered native title body corporate--there has been a serious failure, or a number of failures, by the corporation to comply with its Native Title legislation obligations;

26  Subsection 487-5(1)

Omit "Paragraph (j)", substitute "A paragraph in this subsection".

Part 4 -- Courts

Corporations (Aboriginal and Torres Strait Islander) Act 2006

27  At the end of Division 581

Add:

581-30   Civil proceedings in relation to registered native title bodies corporate

                   Proceedings in respect of a civil matter arising under this Act that relate to a registered native title body corporate (other than subsection 586-5(3) proceedings) may not be instituted in a court other than the Federal Court.

Note 1:       The Federal Court may transfer proceedings to another court: see Subdivision 586-C.

Note 2:       Subsection 586-5(3) proceedings relate to matters arising under the Administrative Decisions (Judicial Review) Act 1977. A Supreme Court may be required to transfer those proceedings to the Federal Court: see section 586-35.

28  Subsection 694-35(2)

After "subject to", insert "section 581-30 and".

29  Subsection 694-35(2) (note)

Repeal the note, substitute:

Note 1:       Section 581-30 requires certain proceedings relating to registered native title bodies corporate to be instituted in the Federal Court.

Note 2:       The matters dealt with in Part 14-3 include the applicability of limits on the jurisdictional competence of courts.

30  Application

Section 581-30 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 , as inserted by this Part, applies in relation to proceedings instituted after the commencement of this item.



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