EXPLANATORY STATEMENT
Amendment of Regulations under the Aboriginal Councils and Associations Act 1976
Statutory Rules 1982 No. 146
Issued by Authority of the Minister for Aboriginal Affairs
The new Regulations:
(1) prescribe the form of the notice of a special resolution by an Incorporated Aboriginal Association for its voluntary winding up, and
(2) provide for the application of the relevant provisions of the Companies Act 1981 to the de-registration or dissolution of defunct Incorporated Aboriginal Associations.
In respect of (1) Section 64 of the Act provides that an Incorporated Aboriginal Association may be wound up voluntarily if the Association so resolves by special resolution. It is required to notify the Registrar of Aboriginal Corporations of this resolution in a prescribed form. No form is presently prescribed.
In respect of (2) there is no provision in the current Regulations for the removal from the Register of Incorporated Aboriginal Associations of an Association that has ceased to carry on its activities and has ceased to operate. Experience has shown that it is not possible for an Association in such circumstances to pass a special resolution for voluntary winding up because the members have lost interest in the affairs of the Association and most of them cannot be located. The new Regulations give the Registrar of Aboriginal Corporations power to strike such Associations off the Register after he has satisfied himself that it is
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not possible for the Association to voluntarily wind itself up, and to determine consequential matters, such as the disposal of any outstanding assets of the Association.
Overview
The Aboriginal Councils and Associations Act 1976, enacted by the Australian Parliament, was introduced to address the need for regulation and oversight of Aboriginal councils and associations. This legislation provides a framework for the establishment and management of these entities, ensuring they operate within a legal and administrative structure. The accompanying statutory rules from 1982, specifically Statutory Rules 1982 No. 146, further refine the application of the Act by detailing the procedures and requirements for the voluntary winding up of Incorporated Aboriginal Associations and the de-registration of defunct associations. These regulations were issued under the authority of the Minister for Aboriginal Affairs, aiming to enhance the effectiveness and clarity of the administrative processes outlined in the Act. The policy objective behind these regulations is to ensure that associations which are no longer operational can be appropriately de-registered and that the winding up of associations that have resolved to voluntarily dissolve is conducted in an orderly and prescribed manner.
Scope and Application
The amendment to the Regulations under the Aboriginal Councils and Associations Act 1976 pertains to the procedures for the voluntary winding up and the de-registration of defunct Incorporated Aboriginal Associations. These Regulations apply to Incorporated Aboriginal Associations, which are entities established under the Act. They are designed to ensure that these associations are properly dissolved and removed from the Register of Incorporated Aboriginal Associations when they are no longer active. The regulations are issued under the authority of the Minister for Aboriginal Affairs and are applicable nationally, reflecting the Commonwealth's role in regulating these associations. The Act applies to all Incorporated Aboriginal Associations throughout Australia, ensuring a uniform approach to their dissolution and de-registration. The new Regulations provide a prescribed form for the notice of a special resolution by an Association for its voluntary winding up, a requirement currently not covered by existing provisions. Furthermore, they extend the application of the relevant provisions of the Companies Act 1981 to handle the de-registration or dissolution of associations that have ceased operations and cannot voluntarily wind up due to factors such as members losing interest and being unlocatable.
Key Provisions
The new Regulations amend the existing framework under the Aboriginal Councils and Associations Act 1976, introducing significant changes to the procedures for the winding up and de-registration of Incorporated Aboriginal Associations. Firstly, Section 64 of the Act, as amended, now requires an Incorporated Aboriginal Association to notify the Registrar of Aboriginal Corporations in a prescribed form if it wishes to be wound up voluntarily. This requirement is intended to ensure that the process is formal and transparent (Section 1(1)). Previously, there was no prescribed form for such a notice, which could lead to ambiguity or non-compliance with the statutory requirements.
The obligations placed on the parties by these Regulations are clear and specific. Incorporated Aboriginal Associations must now adhere to the prescribed form for notifying the Registrar of their intention to wind up voluntarily. This ensures that all necessary information is provided in a consistent manner, facilitating the Registrar’s review and processing of the application (Section 1(1)). Additionally, the Registrar of Aboriginal Corporations is given explicit powers to de-register defunct Associations that are unable to voluntarily wind up due to circumstances such as members losing interest or being unlocatable. This provision addresses a practical issue where inactive Associations remain on the Register despite no longer operating (Section 1(2)).
Failure to comply with these Regulations can result in various consequences. While the explanatory statement does not specify particular offences or penalties, it is reasonable to infer that non-compliance with the prescribed form for notifying the Registrar could lead to administrative penalties or other sanctions as outlined in the broader administrative framework of the Aboriginal Councils and Associations Act 1976. Furthermore, the Registrar’s power to de-register defunct Associations suggests that any failure to facilitate the winding up process as required could result in further administrative or legal repercussions for the Association and its members.