Announcement

This week ORIC participated in the AIATSIS Summit 2024 in Naarm (Melbourne).

The AIATSIS Summit is a forum for Aboriginal and Torres Strait Islander Elders, leaders and youth along with native title stakeholders in academics, legal matters, the galleries, libraries, archives and museums sector, and government to come together and collaborate on issues that matter most Aboriginal and Torres Strait Islander people.

The summit also offers opportunities to support and strengthen Aboriginal and Torres Strait Islander cultures, knowledge and governance.

ORIC hosted a stall for attendees to access information and support from us. At the stall we provided a range of fact sheets on governance topics we’re regularly asked about. We also assisted directors to connect with the Australian Business Registry Services to apply for a director ID, access and update corporation records on the Register of Aboriginal and Torres Strait Islander Corporations, check their corporation’s status with annual reporting obligations, and ask questions about designing their governance rules and structures. 

On Thursday we hosted a one-day workshop on Understanding finances for Indigenous corporations. We were pleased to offer this in-person training to people local to the Melbourne region as well as corporation people from across the country who were attending the summit. We’re pleased to share that all reported not only that they increased their confidence in financial terminology, they had fun while doing it. We strive to provide engaging and practical education experiences to build the capability of directors.

Our Registrar, Tricia Stroud, participated in a Native Title Expert Panel facilitated by Chief Justice Mortimer. The panel members were each asked to share their thoughts on key developments, bold ideas or what their role might be in native title 30 years from now.

Below we share the Registrar’s messages from that panel discussion.

ORIC’s vision is for well-governed and self-determining Aboriginal and Torres Strait Islander corporations achieving their economic, social or cultural purposes.

ORIC’s role is as a corporate regulator for registered native title bodies corporate [also known as prescribed bodies corporate or PBCs]. Much of how I hope to see our role as regulator for the sector in years to come is reflected in the principles underlying our current regulatory approach. Our first Regulatory Posture outlines our commitment to risk-based regulation and is underpinned by:

• encouraging and supporting self-regulation and self-remediation
• recognising and respecting corporations as autonomous self-determining entities while holding firm that autonomy and self-determination have obligations – particularly to preserve the legacy of member-controlled corporations born from protests for rights and in the case of PBCs, to protect ancestral rights and interests in perpetuity on behalf of common law holders
• focusing regulatory action on breaches and failings that compromise the integrity of Indigenous member-controlled corporate governance

We believe the 5 key features of self-determining member-controlled PBCs are:

• Rule books are an instrument for cultural governance – they are clear on eligibility and whose mandate guides the corporation, and they appropriately reflect traditional governance and decision-making structures of the common law holders they represent. We respect that the detail of cultural knowledge and practices should not be in the rule book but the structures they inform could be. 
• Members control the corporation – they are informed, engaged, meeting their obligations and exercising their rights. 
• Directors have the mandate, confidence and trust of their members – they are duly elected, fulfilling their duties, and vigilant in their oversight of the corporation’s governance, purpose and financial security.
• Corporations self-govern and self-regulate – able to resolve disputes, complaints, governance flaws and accidental non-compliance with limited regulatory intervention.
• Corporate governance in a PBC is the governance of native title rights and interests – where the CATSI Act rules for internal governance provide a baseline for PBCs to extend or adapt with their cultural governance. The result being internal governance rules that uphold cultural governance and are not perceived as compromising or conflicting with the rules from the CATSI Act. There is  less distinction between members and common law holders or between corporate matters and decisions, and native title matters and decisions.

Our aspirations for PBCs are to be self-determining and for our regulatory activities to support self-regulation. We recognise there is work for ORIC to achieve these things.

We also acknowledge there are matters outside of our control but which would greatly support these features:

• Legislation for Native Title and Aboriginal and Torres Strait Islander corporations that better aligns with principles of self-governance and self-determination
• Native title consent determinations are clear and less ambiguous on how the common law holders are defined and therefore who the PBC is obligated to draws its mandate and obligations from.

7 June 2024

All corporations registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 must lodge reports with the Registrar by 31 December each year unless exempted.

Read about reporting requirements on our website.

The Registrar expects Aboriginal and Torres Strait Islander corporations to meet all their legislative obligations and in 2024 is focused on those that underpin accountability and transparency to members. Annual reporting in a timely manner is a fundamental form of accountability to members, community, and other stakeholders.

Our regulatory approach

The Registrar puts significant effort into providing information and reminders to corporations about their reporting obligations. 

A corporation’s reporting status is always publicly available in its ‘corporation extract’ on the Register of Aboriginal and Torres Strait Islander Corporations. When an annual reporting deadline passes, the Registrar sends corporations warnings and also publishes a consolidated list of corporations with overdue reports which also shows if those corporations are in the process of being deregistered.

Where a corporation continues to ignore their reporting obligations, referral for prosecution is an option.

We prioritise referral of corporations that are large or medium in size as they are most likely to carry greater responsibility and risk in terms of financial or service delivery on behalf of members. 

Although we will also consider referrals of corporations that are small in size where they are in long-standing breach and cannot be deregistered.

Current prosecution activity

We have referred 29 corporations to the Commonwealth Director of Public Prosecutions for failing to lodge their annual reports for one or more of the past 3 years. These are for breaches of sections 330-10 (General report to be lodged with Registrar) and 348-1 (Lodging annual reports with the Registrar).

Thirteen referrals have been filed in court and dates set for hearings.

So far in 2024, 3 prosecutions against corporations have been finalised. The prosecutions were conducted by the Commonwealth Director of Public Prosecutions.

All corporations who have been prosecuted are listed in our prosecution outcomes. 

How to prevent enforcement action

To avoid being deregistered or referred for prosecution, corporations should lodge overdue report(s) now or if the corporation is no longer operating, contact ORIC for support to close your corporation.
 

Tricia Stroud 
Registrar of Aboriginal and Torres Strait Islander Corporations 
5 June 2024

All directors of Aboriginal and Torres Strait Islander corporations are required to hold a unique director identification number (‘director ID’) administered by Australian Business Registry Services (ABRS.)

Read about the director ID requirement on our website.

Where the sector is at

Congratulations to the 786 corporations where all directors have a director identification. 

Another 805 corporations are almost there with a number of their directors having obtained and provided their director identification.

ORIC continues to support the director ID program through the provision of information and facilitating application processes at our events.

Potential enforcement

The Registrar is responsible for enforcing offences under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) for director ID and notifications of director details. 

A person can be appointed as a director, participate in directors' meetings, and perform their duties and functions without a director ID. But not applying for a director ID on time is an offence under the CATSI Act which may attract a penalty. 

For director ID, it is an offence to: 

• not have a director ID if you're a person required to have one 
• not apply for a director ID after you have been lawfully directed to 
• apply for a director ID when you know you already have one 
• give a corporation a director ID that isn't yours. 

It is also an offence: 

• if a director or alternate director doesn’t give their corporation their personal details within 14 days of their appointment or within 14 days of a change to their personal details. 
• if a corporation doesn’t notify the Registrar within 28 days of an appointment of a director or a change to the personal details of a director or alternate director. 

The community can expect the Registrar will take a reasonable and proportionate approach to enforcing these offences.

While the priority remains on supporting people to apply and to update corporation records, the Registrar will take enforcement action at any time.

In line with the Registrar’s regulatory posture, a risk-based approach will be taken with regard to enforcement action which prioritises non-compliance that presents risks to the corporation’s governance and the membership as a whole; and where non-compliance is intentional or deliberate.

Enforcement action will be considered where:

• a director fails to apply for a director ID after being lawfully directed to do so
• a director intentionally applies for a director ID when they knowingly already have one
• a director provides a false director ID
• there is evidence of a risk to the corporation’s governance stability, director duties or compliance
• it is relevant to other regulatory action being taken.

How to prevent enforcement action

Directors can avoid enforcement action by applying for director ID and providing it to their corporation/s within 14 days.

Corporations can avoid enforcement action by notifying the Registrar of changes to director details within 28 days of the change.

Tricia Stroud,
Registrar of Aboriginal and Torres Strait Islander Corporations

30 May 2024

The Native Title Act 1993 and Corporations (Aboriginal and Torres Strait Islander) Act 2006 require every corporation that is a registered native title body corporate (RNTBC) to have particular rules about membership and for resolving disputes. 

Read about the required rule book changes on our website.

Where the sector is at

• Congratulations to the 211 RNTBCs (78%*) that have a rule book that meets all the requirements! 
• Another 9 RNTBCs are almost there! We are currently reviewing their revised rule books and hope to register these very soon.
• We’re also pleased with the 14 RNTBCs that have let us know their plan to update their rule book. However, these corporations are on notice that their revised rule book must be lodged with us by the date they told us it would be. While we continue to support corporations that keep working with us, we will consider taking action against corporations that do not meet the date agreed to. 
• Unfortunately, there are 38 RNTBCs that have not shown any progress with updating their rule book nor made any contact with us to discuss their plan.

What happens now

If you do not hear from us, you do not need to do anything further.

However, for the 38 RNTBCs who are not yet fully compliant with the rule book requirements, nor demonstrating a pathway to compliance, formal action has commenced. You will receive a letter from us shortly setting this out. Our view is that we have afforded you reasonable opportunity to achieve compliance through supported processes. 

• You’ve had more than 3 years – the amendment law provided all RNTBCs 2 years to update their rule books, and it’s now more than a year since the deadline of 25 March 2023 passed. 
• We’ve sent you resources, offered assistance and sent multiple reminders. 

Your rule book will be assessed in its entirety for compliance with all aspects of the Native Title Act and the CATSI Act. When we’ve assessed your rule book we will use our powers under the CATSI Act to issue you a notice to address all matters of non-compliance. Failure to comply with the notice may lead to further regulatory action.

We will soon send each non-compliant RNTBC a letter informing you of our action.

How to stop this action

Contact us now to tell us your plan to update your rule book.

Call 1800 622 431 or email info@oric.gov.au

Tricia Stroud,
Registrar of Aboriginal and Torres Strait Islander Corporations

14 May 2024

*At the time of this message there are 272 RNTBCs.

We recently asked all corporations to help us plan our 2024–25 schedule for corporate governance training workshops. Our survey asking corporations their training needs and interests closed on Sunday, 26 May. We'd like to thank everyone who responded to the survey.

We're now analysing the survey responses, previous training registration and participation data, and requests for training received over the past year. 

We'll publish a 2024–25 schedule for corporate governance training workshops ahead of the new financial year.