Corporations (Aboriginal and Torres Strait Islander) Act 2006

CHAPTER 17 - INTERPRETING THIS ACT  

PART 17-1 - MEANING OF SOME IMPORTANT CONCEPTS  

Division 683 - Directors and officers of Aboriginal and Torres Strait Islander corporations  

SECTION 683-1   MEANING OF DIRECTOR AND OFFICER  

683-1(1)    
A person is a director of an Aboriginal and Torres Strait Islander corporation if the person:

(a)    is appointed to the position of a director of the corporation; or

(b)    is appointed to the position of an alternate director of the corporation and is acting in that capacity.

This is so regardless of the name that is given to the person ' s position.

683-1(2)    
A person is also a director of an Aboriginal and Torres Strait Islander corporation if:

(a)    the person is not validly appointed as a director of the corporation; and

(b)    either:

(i) the person acts in the position of a director of the corporation; or

(ii) subject to subsections (4) , (5) and (7) , the directors of the corporation are accustomed to act in accordance with the person ' s instructions or wishes.

This subsection has effect unless the contrary intention appears.

Note:

Contrary intention - Examples of provisions for which a person referred to in paragraph (b) would not be included in the term " director " are:

(a) section 201-1 (power to call meetings of the corporation ' s members); and

(b) subsection 220-5(8) (signing minutes of meetings); and

(c) section 304-5 (notice to Registrar of change of address).

683-1(3)    
A person is an officer of an Aboriginal and Torres Strait Islander corporation if:

(a)    the person is a director or secretary of the corporation; or

(b)    a person:

(i) makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

(ii) has the capacity to affect significantly the corporation ' s financial standing; or

(c)    subject to subsections (4) , (5) and (7) , the directors of the corporation are accustomed to act in accordance with the person ' s instructions or wishes; or

(d)    

the person is:

(i) a special administrator of the corporation; or

(ii) a receiver, or receiver and manager, of the property of the corporation; or

(iii) a person appointed as an administrator of the corporation under Part 5.3A of the Corporations Act (as applied by section 521-1 of this Act ); or

(iiia) a person appointed as a restructuring practitioner for the corporation, or for a restructuring plan made by the corporation, under Part 5.3B of the Corporations Act (as applied by section 522-1 of this Act); or

(iv) a liquidator of the corporation; or

(v) a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

Note:

Section 246-1 contains rules about who can be a director of an Aboriginal and Torres Strait Islander corporation.

683-1(4)    
A person is not a director under subparagraph (2)(b)(ii) , or an officer under paragraph (3)(c) , merely because the directors act on advice given by the person in the proper performance of functions attaching to the person ' s professional capacity, or the person ' s business relationship with the directors or the corporation.

683-1(5)    
A common law holder of native title is not a director of an Aboriginal and Torres Strait Islander corporation under subparagraph (2)(b)(ii) , or an officer of an Aboriginal and Torres Strait Islander corporation under paragraph (3)(c) , merely because the directors of the corporation take action, or refrain from taking action, to ensure that the corporation complies with a Native Title legislation obligation.

683-1(6)    
A person who is a common law holder of native title is not an officer of an Aboriginal and Torres Strait Islander corporation under paragraph (3)(b) , merely because:

(a)    the person, in complying with a Native Title legislation obligation, makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

(b)    the person, as a common law holder of native title, has the capacity to affect significantly the corporation ' s financial standing.

683-1(7)    
The Registrar is not a director , or an officer , of an Aboriginal and Torres Strait Islander corporation merely because of the exercise by the Registrar of powers under this Act.