12 Corporations

Governance: Governance as a concept can have many different meanings. This chapter uses the term ‘governance’ to broadly refer to

Indigenous governance/Cultural governance: ‘Indigenous governance’ or ‘cultural governance’ are terms used in this Bench Book to broadly describe governance that is informed and/or influenced by First Nations laws and cultures. Aboriginal and Torres Strait Islander peoples have been practising governance since time began.⁵ There is no one type of Indigenous governance or cultural governance. This is in part due to each Nation having their own distinct laws, values and beliefs that inform how they govern, and in part to the way cultures and laws evolve over time,⁶ and are influenced by changes over time, or through the imposition of external forces (such as laws, policies and practices of dispossession).

The Australian Indigenous Governance Institute observes: ‘Culture lies at the heart of Indigenous governance. It informs a group’s values and ideas about what is the “right way” and “wrong way” of sharing power’.⁷

Broadly, there are some cultural features that may be common across First Nations that can influence an Indigenous organisation’s internal governance. These can include:

This list is not exhaustive or prescriptive, but rather a starting point to recognise that Aboriginal and Torres Strait Islander governance is culturally specific to a Nation, group or community’s understanding of their own laws, cultures and norms.

Corporate governance: The Australian Institute of Governance defines ‘corporate governance’ as ‘the set of rules, relationships, systems, and processes within an organisation by which authority is exercised and controlled’. These rules, relationships and systems are also in and of themselves culturally specific, informed by Western instruments (legislation, regulations, regulatory bodies) that are reflective of Western legal values, cultural norms and accountability standards.⁹

Some common features of corporate governance include:

Intercultural governance: ‘Intercultural governance’ in this chapter refers to the way Indigenous organisations must, in their organisational governance, accommodate both Western legal requirements and Indigenous laws, cultures and social norms, as well as internal and external accountability.¹⁰

Increasingly, Aboriginal and Torres Strait Islander peoples are required by policy or law to register a corporation under the CATSI Act to be eligible to access funding or to seek legal recognition of their rights and interests under other government schemes.¹⁷ Broadly, the circumstances that require registration under the CATSI Act include the following:

The Revised Explanatory Memorandum states that one of the CATSI Act’s purposes is to ‘maintain a special statute of incorporation for Aboriginal and Torres Strait Islander peoples that takes account of the special risks and requirements of the Indigenous corporate sector’.⁵⁴

The CATSI Act does not make any express reference to, or define, the ‘special risks and requirements’. However, the 2002 review of the Aboriginal Councils and Associations Act 1976 (Cth) identified them to broadly include four areas of consideration, noting that these areas of need may be experienced by Indigenous corporations under any general statute of incorporation:⁵⁵

The following case examples demonstrate some of the different ways courts have tried to account for the ‘special risks and requirements’ of the Indigenous corporate sector. They also aim to demonstrate the complex and often conflicting task put before the court in balancing the dual aims of the CATSI Act: its administration as a special measure to account for the needs of Aboriginal and Torres Strait Islander corporations, and its intention to modernise the Indigenous corporate sector by imposing alignment with the Corporations Act.

Examinations are a regulatory power unique to the CATSI Act. The Registrar may send an authorised officer (‘an examiner’) to examine the books and records of an Aboriginal and Torres Strait Islander corporation registered under the Act and report to the Registrar on the results of the examination.⁹⁶

The Registrar has complete, unfettered discretion in exercising examination powers, with no statutory requirement to apply to a court or to satisfy any statutory grounds to commence an examination of a corporation.⁹⁷ The Registrar’s decision to appoint authorised officers and commence an examination of a corporation’s books is also not subject to an internal merits review.⁹⁸ Further, failure to comply with an authorised officer and provide all relevant information and books during an examination attracts serious penalties under the CATSI Act for both corporations and natural persons, including strict liability offences and imprisonment.⁹⁹

The Registrar conducts an ‘annual rolling program of examinations’, with a focus on ‘large, essential or publicly funded corporations’,¹⁰⁰ and has reported that placing a corporation under special administration ‘more frequently arises after an examination of the corporation’s books by the Registrar or an authorised person’.¹⁰¹

Special administration is a form of external administration unique to the CATSI Act. Under the Act, only the Registrar may place an Aboriginal and Torres Strait Islander corporation under special administration.¹⁰²

The Registrar describes special administration as ‘a special measure that address the unique role and circumstances of Aboriginal and Torres Strait Islander corporations’ and is intended to enable the Registrar to ‘provide early proactive regulatory assistance when a corporation experiences financial or governance difficulties’.¹⁰³

In practice, though, special administration can cause major disruption of not only a corporation, but also the community it serves, and can risk undermining the autonomy and legitimacy of Aboriginal and Torres Strait Islander organisations.

This risk arises because of the absolute power conferred on a special administrator over a corporation under the CATSI Act, including the powers to:

The grounds for placing a corporation under special administration are broad,¹⁰⁵ and not restricted to insolvency or the inability to pay a debt. There is also a specific ground enabling prescribed bodies corporate to be placed under special administration ‘if there has been a serious failure, or a number of failures, by the corporation to comply with its native title legislation obligations’.¹⁰⁶

Unlike the position under the Corporations Act, where the external administrator is required to be a registered liquidator, there are no prescribed qualifications for the special administrator under the CATSI Act. However, the Registrar maintains a panel of potential appointees with ‘specialised knowledge and experience in corporate governance, business turnaround and communication and working with Indigenous people’.¹⁰⁷

The Registrar’s policy statement posits that special administration is given priority in the CATSI Act over other forms of external administration applied under Corporations Act provisions.¹⁰⁸

In addition to general CATSI Act provisions, there is also a specific ground enabling a PBC to be placed under special administration if ‘there has been a serious failure, or a number of failures, by the corporation to comply with its Native Title legislation obligations’.¹¹⁵

Appointment of an external administrator to a PBC, under the CATSI Act, is for the objects and aims of CATSI Act and is not driven by the interests of the PBC’s creditors (in contrast to external administration under the Corporations Act).¹¹⁶ The court will not appoint a receiver unless there is no other reasonable or satisfactory alternative.¹¹⁷

A court will avoid appointing external administration of the PBC where the problem may be rectified through declarations and injunctions, and the issues in dispute would unlikely be settled by external administration. Alternative remedies to external administration have included declarations of invalidity and injunctions to require certain action or to prohibit certain actions.

In proceedings contesting the administration of a PBC under the CATSI Act, the court is able to structure outcomes around undertakings from the parties even where the court may not have the jurisdiction to make the specific orders sought.¹¹⁸

Section 265-1(2) of the CATSI Act adopts the statutory business judgment rule, which mirrors s 180(2) of the Corporations Act. The rationale for including a statutory business judgment rule is the recognition that directors or officers must make decisions in a ‘business environment in which they are expected to take acceptable risks, make decisions quickly and take advantage of fleeting opportunities’.¹³⁷ It is important to note that this rule is only available for the exercise of business judgment, which is defined in s 265-1(3) to mean any decision relating to ‘the business operations of the corporation’.

The court is yet to consider the application of s 265-1(2) of the CATSI Act in any substantial way. However, a small number of cases have considered the application of the rule in detail under the CATSI Act’s counterpart — s 180(2) of the Corporations Act. Empirical analysis of the courts dealing with s 180(2) suggests that ‘subject to a future appellate court ruling, [the business judgment rule] can be viewed as a safe harbor that operates as a defence even where the defendant’s conduct has been held to be unreasonable’.¹³⁸ However, for Indigenous corporations, it has been observed that ‘there is a poor awareness of this safe harbour by directors … Consequently, building capacity should come hand in hand with the duty of care to enhance the way organisations are operating’.¹³⁹

The CATSI Act recognises that there may be native title obligations outside the CATSI Act, and provides a ‘good faith’ defence to directors endeavouring to meet their NTA obligations. Where a PBC officer is acting in good faith in doing something believed necessary for obligations under native title law, that is a defence to a breach of the CATSI Act.¹⁴⁰

Directors of Indigenous corporations are afforded protection against contraventions through the native title defence.¹⁴¹ This defence is intended to ensure that directors, officers and employees are not put in a position where their duties under the CATSI Act conflict with their duties under native title legislation.

The CATSI Act requires that written notice of a general meeting must be given by the corporation, at least 21 days prior to the meeting, to each of the members entitled to vote at the meeting. The notice must set out the details of the meeting and the general nature of the meeting’s business.¹⁶³ If a special resolution is to be proposed, the notice must set out the intention to propose the special resolution.¹⁶⁴ However, an Aboriginal and Torres Strait Islander corporation’s rule book may specify a longer minimum period of notice.

In addition to any other meetings held by an Aboriginal and Torres Strait Islander corporation during each year, and subject to any extension granted by the Registrar,¹⁶⁵ the corporation must hold an AGM within five months of the end of the financial year.¹⁶⁶

The purpose behind the requirement for notice is to ensure that ‘the members enjoy a full and proper opportunity by notice to consider the business of the meeting before they attend and then vote upon that business’.¹⁶⁷

Further, the basic test that the common law has developed for notices calling meetings in corporation’s cases is suitable and adaptable to meetings such as those called under s 251B of the Native Title Act 1993 (Cth):

The WA Supreme Court held that failure to provide notice of a proposed meeting to a corporation’s members, including where the proposed meeting did not proceed, can still amount to conduct that is in breach of the requirements of the CATSI Act or the corporation’s rule book.¹⁷⁷ Further, Pritchard J stated:

For a detailed discussion of language and comprehension see 3 Language and Communication.

The demographic characteristics of Aboriginal and Torres Strait Islander corporations can be incredibly diverse across age, gender, education, occupation, cultural knowledge and ways of doing, among other factors. Corporations can often be comprised of a number of smaller groups (linked by descent, estate, language identification, geographic location or other factors) who would not necessarily come together if not for the purpose or function of the corporation, for example a native title claim. Meetings can therefore require significant time, resources and support to ensure all members are provided a reasonable opportunity to participate.

Language barriers can be further compounded by limited or no understanding of legal English, corporate governance or corporate meeting ‘lingo’. Words that are common in a commercial context are, in many cases, culturally and conceptually foreign to Indigenous corporations. For examples, see the AIGI’s explainer on ‘meeting lingo’.¹⁷⁹

Judicial officers should be alert to members, directors and officers having opportunities to speak in language during meetings and to their capacity to understand English and legal or corporate jargon. Consideration should be given to:

The length and/or timing of a meeting can further exacerbate challenges to meaningful meeting participation for members.

Judicial officers should be mindful of meeting duration and its impact on capacity to participate. For example, consideration may be given to the compounding impact of meeting length with:

In Nona obh of Badu People (Warral and Ului) v Queensland,¹⁸² Mortimer J balanced evidence submitted by five Badu men (whose ages spanned from late forties to mid-seventies) as joinder applicants ‘that the language difficulties were exacerbated by the length of the meeting and what they describe as a rushed end to the meeting’ with evidence provided by a lawyer, Mr Knobel, of reasonable active participation of the joinder applicants.¹⁸³ Evidence of a private meeting in language that counterbalanced the evidence submitted by the joinder applicants was such that her Honour held that there was a sustained and meaningful opportunity to participate. However, this case demonstrates the task before the court to consider the compounding effect of different elements of a meeting on participation.

Mortimer J also highlighted in obiter that, with the value of hindsight, leaving the decision-making to the next morning may have been a better course of action:

Aboriginal and Torres Strait Islander corporations can be complex socio-cultural legal environments. Meetings can involve many parties including a need for, or reliance on, different expert parties in decision-making processes and or in matters before the court (for example, lawyers and/or anthropologists in native title matters).

Where judicial officers are considering evidence from non-Indigenous people on Indigenous decision-making processes, judicial officers should be mindful of the appropriateness of whose evidence takes weight on certain matters.

For example, in Nona obh of Badu People (Warral and Ului) v Queensland,¹⁸⁵ in considering evidence from Badu joinder applicants with evidence adduced by Dr Murphy, an anthropologist who has worked with the Badu claim group on their native title claims since 2000,¹⁸⁶ Mortimer J stated, ‘On balance, I consider the Badulgal themselves are in a better position to inform the Court about the state of knowledge about the meeting on the island, and about why people did not attend’.¹⁸⁷ Her Honour held that the evidence of Dr Murphy ‘was to be considered to have some weight but not be determinative’.¹⁸⁸

When considering the validity of a meeting and/or the passing of a resolution, judicial officers must be mindful of the Eurocentric values that can underpin meeting etiquette and how these ways of communicating or sharing information can show up differently in Aboriginal and Torres Strait Islander corporate or claim group meetings.

Being alert to cultural differences is important to minimise the risk of miscommunication in decision-making forums.

Cultural decision-making protocols may be set out in a corporation’s rule book. Some examples include the following:

These examples are not exhaustive or authoritative. Judicial officers and legal practitioners should take the time to understand how a corporation’s culture(s) can influence meeting participation and decision-making processes.

The corporation must keep a minute book in which it records, among other things, the proceedings and resolutions of all general meetings, and of directors’ meetings.¹⁹³ Two factors are critical to the recording of minutes — namely, that:

If and when a native title application achieves a positive determination, the native title holders must nominate a prescribed body corporate (‘PBC’) to manage or hold the native title rights for the native title group, either as agent or trustee.²⁰⁸

Once a PBC is registered with the National Native Title Tribunal, it is officially termed a registered native title body corporate (‘RNTBC’).²⁰⁹ However, RNTBCs are generally referred to as PBCs, before and after that point, in the Native Title Act and publications, and by parties and courts.

In general terms, the primary role of a PBC is to manage, on behalf of the common law holders (either as agent or trustee), the native title rights and interests following a successful native title determination. This includes negotiating and contracting with third parties.²¹⁰

PBC’s are mandated under pt 2 div 6 of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (‘PBC Regulations’). A PBC is subject to four principal requirements:

The conduct and activities of a PBC are regulated by:

Many of the key functions of a PBC arise only once the PBC is registered on the National Native Title Register (as an RNTBC). Broadly, these functions include:

In addition to the prescribed functions, at any one-time PBCs must also deal with complex interactions with equity, property law, administrative law, planning law, environmental law, resources law, land law, taxation, trusts, occupational health and safety, employment law and the many other legal obligations that emerge across native title operations.²¹⁵

This list only considers other legal obligations under Australian law, and must also be considered alongside Aboriginal and Torres Strait Islander laws, customs and protocols.

PBCs are often expected by government to fulfil a broader role in regard to Aboriginal and Torres Strait Islander issues outside their native title functions.²¹⁶ This can include, but is not limited to, economic development, town planning, social harmony projects and cultural protocols.²¹⁷ In some instances, PBCs have been ‘observed to operate as quasi-local governments’, particularly those located in remote and regional locations.²¹⁸

Mantziaris and Martin in Native Title Corporations: A Legal and Anthropological Analysis make three observations about the PBC scheme that courts should be mindful of:

‘Statutory corporation’ — ‘Oppression’ — ‘Conduct of meetings’ — ‘Participation of members in meetings’ — ‘Admission of members’ — ‘Obligations of directors with respect to financial reports’ — ‘Whether appointment of receiver appropriate’ — ‘Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 166-1, 166-5’.

The failure of the directors of the Yindjibarndi Aboriginal Corporation (YAC) to ensure that members could effectively express their views constituted oppressive conduct and was contrary to the interests of the members as a whole for the purposes of s 166-1(1)(e) and (d) of the Corporations (Aboriginal and Torres Strait Islander Act 2006 (Cth). The oppressive conduct included the rejection and acceptance of membership applications in order to control the outcome of voting on a matter, the holding of meetings to vote on important issues without notifying members, and the exclusion of members from meetings.

The plaintiffs are members of the Yindjibarndi people and the Yindjibarndi Aboriginal Corporation RNTBC (YAC).²²⁵ The plaintiffs claimed that since 2010, YAC had acted in contravention of the Corporations (Aboriginal and Torres Strait Islander Act 2006 (Cth) (‘the CATSI Act’) and the YAC Rule Book and engaged in oppressive conduct, pursuant to s 166-1(1)(e) of the Act.²²⁶

There were opposing views within the Yindjibarndi community and within YAC’s membership as to whether the Yindjibarndi people should enter into a land access agreement with a mining company.²²⁷ YAC was the agent for the Applicant in the Yindjibarndi’s native title claim and an agreement with the mining company could not occur without YAC’s approval.²²⁸ YAC was unwilling to continue pursuing the negotiations, however a number of the members of YAC were in favour of continued negotiations which caused the establishment of the Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC).²²⁹

The plaintiffs claimed that YAC engaged in oppressive conduct, which included:

In determining whether conduct is oppressive ‘the Court must decide whether, in balancing the interests of the company as a whole against minority interests, the directors of the company have acted so as to unfairly prejudice the interests of the minority.’²³⁰ Conduct that is not in the interests of the members as a whole, pursuant to s 166-1(1)(d) of the CATSI Act, may also constitute oppressive conduct, pursuant to s 166-1(1)(e) of the CATSI Act.²³¹

Test for oppressive conduct:

Contrary to the interests of the members as a whole:

Concerning the right of members to have their view expressed:

‘Contraventions under the CATSI Act involving Duties of Directors and Officers’ — ‘Duty of Care and Diligence, Not to Improperly Use Position to Gain Advantage or Cause Detriment and Record Keeping’ — ‘Multiple Contraventions of Civil Penalty Provisions’ — ‘Totality Principle’ — ‘Whether to Make Declarations and Orders for Disqualification, Compensation and/or Pecuniary Penalties’ — ‘Admissions by some respondents’

This matter considered breaches of statutory duties by directors and officers of an Aboriginal and Torres Strait Islander Housing corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (‘CATSI Act’). The court-imposed disqualification of five years on the first and second respondents and six months on the third respondent. The first and second respondent were also ordered to pay pecuniary penalty of $38,500 and costs. The case exemplifies challenges faced by Indigenous directors/officers in the discharge of duties, namely no prior experience or training in managing an Aboriginal corporation, complex health problems, conflict between statutory duties and responsibilities as Elders to their community.

The respondents, Mr Fred Monaghan (‘Mr Monaghan’), Ms Teresa Monaghan (‘Ms Monaghan’), and Ms Kim Peters (‘Ms Peters’), were directors and/or officers of the Southside Housing Aboriginal Corporation (the Corporation).1 The primary objective of the Corporation is to provide affordable alternative housing for Aboriginal people in the inner south Canberra region. The Registrar alleged they breached their statutory duties under the CATSI Act, specifically ss 265-1(1), 265-10(1), and 363-1(1), by mismanaging the Corporation’s finances, failing to recover outstanding rent and not maintaining accurate financial records.

Prior to the trial, Mr Monaghan and Ms Monaghan reached an agreement with the Registrar regarding the relief sought after admitting to breaches of their duties. They acknowledged allowing tenants, including themselves, to accrue over $26,000 in rent arrears without taking adequate action to recover the amount. They also caused the Corporation to pay tenant-related expenses, such as excess water charges and property damage, which should have been the tenants’ responsibility. As a result, the Court granted the agreed relief. The focus then shifted to the Registrar’s case against Ms Peters, addressing her conduct and responsibilities within the Corporation.

The Court found that Mr Monaghan and Ms Monaghan contravened multiple provisions of the CATSI Act. They breached section 265-1(1) by failing to exercise the necessary care and diligence, section 265-10(1) by misusing their positions for personal gain and causing detriment to the Corporation, and section 363-1(1) by neglecting to ensure the Corporation maintained proper financial records. Mr Monaghan and Ms Monaghan also failed to ensure proper property maintenance, neglected to recover rent arrears, and did not implement required systems for financial record-keeping, AGM management, and compliance with the CATSI Act. Additionally, they did not disclose personal interests in matters discussed at directors’ meetings, breaching the Corporation’s Rule Book.

In relation to Ms Peters, the Court found a breach of section 363-1(1) concerning the Corporation’s record-keeping and reporting obligations.9 Ms Peters was disqualified from managing any Aboriginal and Torres Strait Islander corporation for six months and ordered to repay any outstanding rent owed.10 The Court noted that the Registrar’s case against her was limited. The proposed orders against the Monaghans were approved, and the Court issued a declaration and disqualification order for Ms Peters, alongside the repayment order. The parties were directed to seek agreement on costs or submit outlines if no agreement could be reached.

‘Aboriginal and Torres Strait Islander Corporation’ — ‘Alleged Contravention of the CATSI Act’ — ‘Conflict between Corporate Governance Standards and Cultural Obligations’ — ‘Disqualification and Pecuniary Penalties.’

The respondent and member of the Kalkadoon People, Mrs Kerkhoffs, was the chairperson of the Aboriginal and Torres Strait Islanders Corporation for Welfare Services (‘the Corporation’) and was an officer of the Corporation within the meaning of s 683-1(3)(b) of the CATSI Act. The Corporation is a not-for-profit charitable entity which provides affordable rental accommodation to Aboriginal and Torres Strait Islander people in Mt Isa, many of whom face difficulty securing housing in Mt Isa due to the tight rental market caused by extensive mining activities in the surrounding region.

On 15 October 2012, the Corporation was placed under special administration by a delegate of the Registrar of Aboriginal and Torres Strait Islander Corporations (‘the Registrar’) pursuant to s 487-1 of the CATSI Act. The Corporation was insolvent at this time. Its cash assets amounted to $444.13 whereas it owed its creditors $650,643.57 (excluding GST), and it was not collecting sufficient rent to cover its outgoings. The special administrator was required to sell four of the Corporation’s properties to pay all of the debts of the Corporation, and the number of rental properties owned by the Corporation was reduced from 33 to 29. Nearly all of the properties had been purchased with public funds, sourced from the Commonwealth Government.

The Respondent was a director of the Corporation during 1997 and remained a director of the Corporation until the Corporation was placed into special administration on 15 October 2012 (Relevant Period). In April 2009, the Respondent was elected as the chairperson of the Corporation and remained in that role until the Corporation was placed under special administration on 15 October 2012. Throughout the Relevant Period, the Respondent made, or participated in making, decisions that affected the whole, or a substantial part, of the business of the Corporation. By reason of this, she was an ‘officer’ of the Corporation within the meaning of s 683-1(3)(b) of the CATSI Act.

The majority of the board of directors of the Corporation were relatives of the respondent, and it is acknowledged that she felt considerable family pressure, particularly from her mother and elder in relation to matters concerning the corporation’s governance.

The contraventions in respect of which the Registrar sought pecuniary penalties and disqualification are summarised as:

The court ordered that the respondent be disqualified from managing Aboriginal and Torres Strait Islander corporations for a period of 5 years, and that she pays a pecuniary penalty of $50,000. She was also required to pay the Corporation $31,414.17, which was the total amount of the financial benefits she received, as well as the applicant’s costs of the proceeding.

Logan J held that the severity of the breaches and the need for general deterrence necessitated the imposition of significant penalties. Notwithstanding acknowledgement of the ‘very real’ tension that exists between conventional expectations of corporate governance and the behaviour of directors, and the obligations which individuals holds to their kin and to their Nation, Logan J held that the respondent’s contraventions had in fact caused ‘a detriment to Kalkadoon people and other Aboriginal Australians within the Mount Isa area’. The court thereby upheld the primacy of the corporate governance standards under the CATSI Act, which he affirmed are akin to those which exist under the Corporations Act, and which corporations registered under the CATSI Act must comply with.

This is a free, evidence-based resource for lawyers and legal decision-makers, as well as policymakers and other professionals. It is separated into chapters that are accessible summaries of key research about the impacts of experiences of trauma, socio-economic inequality, structural disadvantage and strengths-based rehabilitation. Chapters may provide an evidence base to support legal advocacy and decision-making and are intended to promote improved understanding of the experiences of people who are brought into contact with the legal system.

This book provides a legal and anthropological analysis of the legal framework for native title management by corporations. The authors rational for the analysis stems from ‘lack of legislative foresight and subsequent executive neglect’ which have ‘resulted in a mandatory system of title management by corporations which lacks unity and a firm basis in public policy’ (p.xvii). The authors believe that this lack of unity in the framework may cause institutions developed within this framework to fail, especially when subjected to a variety social, political, cultural and economic pressures (p.258). While the books analysis centres around the ACA Act which has since been replaced by the CATSI Act, issues raised in relation to native title management by corporations remain in varying degrees, salient.

Contested Governance: Cultural, Power and Institutions in Indigenous Australia is a collection of papers that examine the challenges experienced by Aboriginal and Torres Strait Islander peoples for the development and recognition of systems of governance that are recognised as both legitimate and effective by the Australian state. The authors highlight the nature of the contestation and negotiation between Australian governments, their agents, and Indigenous groups over the appropriateness of different governance processes, values and practices, and over the application of related policy, institutional and funding frameworks within Indigenous affairs. The research demonstrates that Indigenous and non-Indigenous governance systems are intercultural when it comes to issues of power, authority, institutions and relationships.

Associate Professor Nehme considers the extent to which the best interests obligation imposed on directors goes beyond the interest of members to consider the interest of stakeholders. Of note, is the articles review of s 265-5 of the CATSI Act and its sister provisions of s 265-5 of the corporations Act, to understand how the provision operates and the implications of this interpretation on the management of Indigenous corporations.

Associate Professor Nehme explores the introduction and evolution of directors’ duties imposed on directors of Indigenous corporations. This includes a discussion on the tensions between western standards of accountability being imposed on Indigenous corporate directors and the need to ensure that duties are culturally appropriate. Further, the article discusses the importance of capacity building being a key function of the Office of the Registrar of Indigenous Corporations as a support structure over a reliance on punitive processes.

Professor Nicole Watson, a Birri Gubba and Munanjali legal scholar, discusses the history of the ACA Act and issues identified through various reviews and provides an analysis of key provisions contained in the Corporations (Aboriginal and Torres Strait Islander) Bill 2005 (Cth).

The Final Report of the ACA Act review outlines recommendations from the 2002 Independent Review of the ACA Act that looked at how the ACA Act could be made more consistent with the Corporations Act. The findings of the review led to the introduction of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

In December 2019, a comprehensive review into the CATSI Act was announced. The National Indigenous Australians Agency (NIAA) led the review. This comprehensive review built on the findings of the Technical Review of the CATSI Act in 2017. Its scope was expanded to assess the effectiveness of the CATSI Act as a special measure under the Racial Discrimination Act 1975. This review also looked at whether the CATSI Act can better support economic and community development opportunities for Aboriginal and Torres Strait Islander people and considered the parts of the CATSI Act that are working, and areas that could be improved.

The CATSI Act Review Final Report informed the CATSI Amendment Bill Exposure Draft. The CATSI Act Amendment Bill was introduced in the House of Representatives on 25 August 2021. The Bill passed the House on 2 September. The Senate referred the bill to the Finance and Public Administration Legislation Committee for inquiry and report. The Committee’s report on Corporations (Aboriginal and Torres Strait Islander) Amendment Bill 2021 [Provisions] was published in October 2021.The bill lapsed when Parliament was prorogued on 11 April 2022.