Corporations (Aboriginal and Torres Strait Islander) Act 2006

CHAPTER 11 - EXTERNAL ADMINISTRATION  

PART 11-2 - SPECIAL ADMINISTRATION  

Division 487 - Special administration of Aboriginal and Torres Strait Islander corporation  

SECTION 487-5   GROUNDS FOR SPECIAL ADMINISTRATION  

487-5(1)    

The following are the grounds for determining that an Aboriginal and Torres Strait Islander corporation is to be under special administration:

(a)    the corporation has traded at a loss for at least 6 months during the period of 12 months before the determination is made;

(b)    the corporation or the officers of the corporation have failed to comply with, or to ensure that the corporation complies with, one or more of the following:

(i) a provision of this Act;

(ii) an internal governance rule of the corporation;

(iii) a notice that the Registrar has given the directors under section 439-20 ;

and the corporation has, or the officers have, failed to give the Registrar a satisfactory explanation for the failure;

(c)    the corporation has failed to comply with an obligation under Part 7-3 ;

(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;

(d)    the officers of the corporation have acted in the affairs of the corporation:

(i) in their own interests rather than in the interests of the members of the corporation as a whole; or

(ii) in a way that appears to be unfair or unjust to members of the corporation;

(e)    the affairs of the corporation are being conducted in a way that is:

(i) oppressive; or

(ii) unfairly prejudicial to, or unfairly discriminatory against, a member or members of the corporation; or

(iii) contrary to the interests of the members of the corporation as a whole;

(f)    disputes between:

(i) the corporation ' s members; or

(ii) the corporation ' s members and the corporation ' s officers;

are interfering with the proper conduct of the corporation ' s affairs;

(g)    disputes between the corporation ' s officers are interfering with the proper conduct of the corporation ' s affairs;

(h)    a majority of the corporation ' s directors have requested the Registrar in writing to appoint a special administrator;

(i)    at least the required number of members under subsection (4) request the Registrar, in writing, to appoint a special administrator;

(j)    the appointment of the special administrator is otherwise required:

(i) in the interests of the members of the corporation; or

(ii) in the interest of the corporation ' s creditors; or

(iii) in the public interest.

A paragraph in this subsection does not limit any of the other paragraphs in this subsection.

487-5(2)    
Paragraph (1)(d) or (e) does not apply to an officer of an Aboriginal and Torres Strait Islander corporation that is a registered native title body corporate merely because of doing (or refraining from doing) a particular act if the officer does (or refrains from doing) the act:

(a)    in good faith; and

(b)    with the belief that doing (or refraining from doing) the act is necessary to ensure that the corporation complies with a Native Title legislation obligation.

487-5(3)    
Separate copies of a document setting out a request under paragraph (1)(i) may be used for signing by members if the wording of the request is identical in each copy.

487-5(4)    
The required number of members for an Aboriginal and Torres Strait Islander corporation is the greater of:

(a)    5 members of the corporation; or

(b)    10 % of the members of the corporation.

487-5(5)    
The regulations may prescribe a different number of members for the purposes of applying paragraph (4)(a) to:

(a)    a particular Aboriginal and Torres Strait Islander corporation; or

(b)    a particular class of Aboriginal and Torres Strait Islander corporation.

(6)    
The regulations may prescribe a different percentage for the purposes of applying paragraph (4)(b) to:

(a)    a particular Aboriginal and Torres Strait Islander corporation; or

(b)    a particular class of Aboriginal and Torres Strait Islander corporation.