The CATSI Act and Regulations, their NIAA Review Report, and the proposed Amendment Bill are extensive and at times legalistic, and the Australian Greens deeply appreciate the effort of those who have participated in the inquiry, and made themselves and their expertise available, especially considering the short timeframe in which the inquiry was conducted. We particularly thank First Nations people and companies involved in the inquiry.
The Australian Greens aim for First Nations corporations to operate in self-determined ways and appreciate the role the CATSI Act plays in assisting them to deliver critical services to First Nations communities, while providing for accountability and transparency of their operations to their members. There are thousands of CATSI regulated corporations across Australia with diverse purposes and representing a range of diverse First Nations Clans and their peoples. The Australian Greens acknowledge the proposed changes to the CATSI Act as a step in the right direction to ensure cost efficiency, greater transparency and accountability of First Nations corporations.
Whilst in support of the recommendation outlined in the committee report, The Australian Greens wish to add the following.
The Australian Greens acknowledge the concerns expressed by stakeholders on the short timeframe of this parliamentary inquiry and the possibility to make considered submissions, as well as the possibility to comment on the exposure draft of the Bill. This concern is also reflected in the small number of submissions received in the inquiry. The Australian Greens stress the importance of giving stakeholders the necessary time to properly consider the proposed Bill.
The National Aboriginal Community Controlled Health Organisation (NACCHO), states in its submission to the inquiry:
Of most recent concern is the rushed process for the consideration of the 27 written submissions on the exposure draft of the CATSI Act Amendment Bill. They were due by 9 August 2021 and yet the Bill was tabled in Parliament just 14 days later. This was not enough time to consider carefully the 27 submissions and it appears that this element of the consultation and feedback process was disingenuous.
Our feedback was provided in the midst of the pandemic when so many of our members and staff were exhausted. To have such a rushed consideration of a submission in which we diverted valuable resources to invest in its preparation was very disappointing.
The Australian Greens are concerned with some of the new provisions in the Bill potentially being racially discriminatory through not complying with some common and criminal law principles such as through the reversal of evidential burden, the inclusion of strict liability and the abrogation of the principle against self-incrimination, as pointed out by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest 14 of 2021.
The Australian Greens are further concerned about the application of different standards and higher penalties proposed for corporations under the CATSI Act as compared to the Corporations Act 2001.
Some of the changes are discriminatory in that different standards are expected for Aboriginal organisations. The changes set higher standards (e.g. remuneration reports) and penalties for directors and officers than what other Australians are expected to meet under the Corporations Act 2001 and the regulatory frameworks of ASIC and the ACNC.
The Australian Greens wish to flag that, while the introduction of a two-member corporation has some advantages, concerns remain as to the possibility of undue influence of non-First Nations people in two-member corporations where only one member is a First Nations person. While that person receives a casting vote, we are aware that this provision will not fully eliminate the possibility of undue influence, pressure or coercion being exercised by the non-First Nations member. There also remains the possibility of unconscionable conduct by non-First Nations parties. The issue of so-called ‘black-cladding’ needs to be investigated and appropriate measures taken as to its prevention.
While the proposed Bill does not cover this subject, the Australian Greens are further concerned about the possibility of fraud and deception under the CATSI Act regarding non-First Nations people falsely claiming Aboriginality to benefit from the provisions made for First Nations people under the Act. Similar concerns extend to the false claim of Traditional Ownership under the CATSI Act and other Commonwealth, state and territory legislation.
However, the Australian Greens reserve caution as to the Commonwealth’s ability to determine Aboriginality and therefore believe that, where there is reasonable belief of fraud or deception as outlined above, the Office of the Registrar of Indigenous Corporations (ORIC) should work with Traditional Owners and communities of the Country concerned to confirm an individual’s Aboriginal identity or a community’s Traditional Ownership.
The Australian Greens do not support the proposed changes in the Bill providing for small corporations being permitted to avoid holding Annual General Meetings (AGMs) as we regard AGMs as an important opportunity for members to scrutinise the activities of a corporation and engage more deeply with it. For some members, this might be the only opportunity each year they are given to do this, and corporations should be supported to conduct AGMs rather than avoid them.
This view is also reflected in NACCHO’s submission to the inquiry:
This may seem like a minor concern, but it is a critical element for some of the more remote, smaller and vulnerable communities. It will have the effect of depriving members of a key mechanism to ensure the accountability of its boards and officials.
NACCHO does not support changes that reduce an organisation’s accountability to members. They are counter to the fundamental principle of community control. We do not, therefore support recommendations that allow small corporations to avoid holding AGMs. Transparency and accountability to members is very important and we encourage any revisions to be targeted towards greater transparency around operations and membership. Furthermore, AGMs serve as a touch-point for the communities the corporations serve and provide a familiar means for members to ask questions about their management and results achieved (or lacking).
For the purposes of transparency and accountability, the Australian Greens believe that the provision of documents for AGMs and Special General Meetings, mailed out in sufficient time (three weeks) before the meetings, would provide for improved accessibility of information to members. We recognise that it might be challenging for small corporations to meet these requirements and believe they should be exempted from this provision. Relevant documents to provide to members include the
Incorporation Certificate, Rule Book, Notices, Agenda, Annual Audits and other statutory documents
Native Title Act 1993 (Cth) Native Title Documents such as a Native Title Determination or an Indigenous Land Use Agreement
The Australian Greens would like to point out the importance of the Rule Book for accessibility of information of the corporation to its members and beyond. The draft Bill does not set out any changes to the Rule Book, but the Australian Greens would like to point out the importance of culturally appropriate Rule Books. While a standard ORIC template for a Rule Book is about 30 pages, many First Nations corporation have taken greater control on what we see as a culturally appropriate Rule Book, including covering issues such as Sovereignty, cultural heritage, Native Title, land justice, Treaty, and socio-economic objectives. Some Rule Books are also, subject to ongoing research, recognising Clans, Ancestors, Descendants and Country. While Rule Books are living documents and can be amended at AGMs, a review of the template could ensure it is culturally appropriate and inclusive, and provides corporations with guidelines around how they can make references in the Rule Book to Native Title determinations, Indigenous Land Use Agreements (ILUAs) and other relevant considerations for its membership.
Given the unique nature of Registered Native Title Body Corporates (RNTBCs), the Australian Greens support the CATSI Act review recommendation 62 for a separate division of the Act to be dedicated for provisions specific to RNTBCs.
As the National Native Title Council submitted:
RNTBCs are very different to other corporations incorporated under the CATSI Act, or companies incorporated under the Corporations Act 2001. RNTBCs are not entities established voluntarily by a group of individuals to pursue a common purpose, nor are they entities that can be conveniently reconfigured, replaced or wound up.
This was also supported by the Victorian Aboriginal Heritage Council:
Council fully accepts that CATSI corporations established to hold or manage native title rights and interests (Prescribed Bodies Corporate – PBCs) are in a unique position arising from the fact that due to the subject matter of the rights and interests in question they can only be held by Aboriginal and Torres Strait Islander Peoples and that these rights and interests are held collectively. This fact warrants particular rules being put in place for PBCs. In Council’s view this fact also supports the recommendation contained in the Final Review Report that provisions relating to PBCs should be in a distinct chapter.
Furthermore, the Australian Greens believe in the importance of equitable distribution of Native Title or land justice benefits such as through ILUAs. Transparency around such wealth distribution is important to ensure accountability towards affected communities. Therefore, the Australian Greens believe there is a need for strengthened governance and reporting requirements around such wealth distribution, as per Recommendation 57 of the CATSI ACT Review Final Report:
It is recommended to amend the Prescribed Body Corporate Regulations to require reporting to common law holders on the management and use of native title monies and non-monetary benefits negotiated on behalf of common law holders held on trust under external trust arrangements.
It is recommended the Registrar give consideration to introducing reporting requirements under section 336-5 of the CATSI-Act, consistent with the reporting requirements to be implemented through changes to the Prescribed Body Corporate Regulations.
It is recommended that should the registrar decide against additional reporting under the CATSI Act, changes to the Prescribed Body Corporate Regulations outlined above be extended to include reporting on all native title benefits held by Registered Native Title Body Corporate.
Lastly, the Australian Greens believe that a standardised framework for First Nations organisations should be considered, given the discrepancies in regulations of CATSI corporations vs corporations incorporated under other Commonwealth or state and territory legislation, to ensure increased transparency and accountability towards members.
Recommendations
Given the above considerations, the Australian Greens recommend:
Recommendation
That the CATSI Act be amended to have a separate but succinct section to simplify matters relating to Prescribed Body Corporates (PBCs), Registered Native Title Body Corporates (RNTBCs), and Indigenous Land Use Agreements (ILUAs).
Recommendation
Small corporations under the CATSI Act continue to be required to hold AGMs.
Recommendation
For increased transparency and accountability, medium and large corporations under the Act, be required, with sufficient notice before an upcoming Annual General Meeting or Special General Meeting, to provide members with hard copies of:
the Incorporation Certificate,
Notices and Agenda for the meeting,
Other statutory documents
Native Title Act 1993 (Cth) Native Title Documents such as a Native Title Determination or an Indigenous Land Use Agreement
Recommendation
That recommendation 57 of the CATSI ACT Review Final Report be fully implemented, as well as annual audits of use of native title monies and non-monetary benefits be required.
Recommendation
The Office of the Registrar of Indigenous Corporations (ORIC) establish processes to confirm CATSI corporations’ compliance with the majority First Nations board members and members requirements, including working with Traditional Owners and communities of the Country concerned to confirm an individual’s Aboriginal identity or a community’s Traditional Ownership where needed.
Recommendation
Penalties in the CATSI Act, where higher than for similar offences under the Corporations Act, be aligned with the penalties under the Corporations Act.
Recommendation
The abolishment of exemptions granted to the requirement organisations receiving grant funding of $500,000 or more in any single financial year under the Indigenous Advancement Strategy to be incorporated under the CATSI Act, as per the Australian government’s Strengthening Organisational Governance policy.
Recommendation
The Australian government increase funding for the Office of the Registrar of Indigenous Corporations to ensure continued and increased capacity to support First Nations corporations.
Recommendation
The Australian government to undertake a Truth and Reconciliation Royal Commission to investigate allegations of corruption and mismanagement across Commonwealth and State First Nations incorporated bodies, as well as historical dispossession, dispersal and deculturalisation.
Senator Lidia Thorpe
Greens Senator for Victoria