Matulick, Toni --- "Reform of the Aboriginal Councils and Associations Act 1976" [2004] IndigLawB 13; (2004) 5(30) Indigenous Law Bulletin 5

• Reform Of The Aboriginal Councils And Associations Act 1976
• Reform Of The Aca Act
• Key Characteristics Of Aca Act Corporations
• Reform Directions

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Reform of the Aboriginal Councils and Associations Act 1976

by Toni Matulick

The Aboriginal Councils and Associations Act 1976 (ACA Act) is Commonwealth legislation which provides for the incorporation of groups whose members are Aboriginal or Torres Strait Islander persons over the age of 18 and their spouses.

The ACA Act is administered by the Registrar of Aboriginal Corporations, a statutory officer appointed by the Minister for Immigration and Multicultural and Indigenous Affairs. The Registrar is assisted by Office of the Registrar of Aboriginal Corporations (ORAC) staff, officers of Aboriginal and Torres Strait Islander Services (ATSIS)[1].

ORAC is in the process of refocusing its work in an attempt to contribute to an improved corporate operating environment for Indigenous corporations.

Reform of the ACA Act

The ACA Act was enacted in 1976 and was intended to support a simple incorporation process for Aboriginal and Torres Strait Islander groups. However the Act has failed to keep pace with growth in the number, size and diversity of corporations, or to provide alignment with modern principles of company law.

The ACA Act has undergone several independent reviews in the last decade, the most recent review commissioned in 2000. The review report was released in December 2002 for public comment, and found that an Indigenous-specific incorporation statute is still necessary to meet the special requirements of Aboriginal and Torres Strait Islander corporations.

ORAC, building upon extensive research and consultation conducted during the review, and in previous reviews, proposed a range of reforms to the ACA Act. These reforms aim to provide a legislative framework that better responds to the needs and circumstances of Aboriginal and Torres Strait Islander corporations. The Bill to reform the ACA Act is currently being drafted for consideration by the Australian Government.

Key characteristics of ACA Act corporations

There are almost 3000 corporations incorporated under the ACA Act and it is estimated that there are at least as many Indigenous corporations incorporated under other legislation. Corporations vary in size and function, ranging from service-providers to non-operating land holding corporations. The majority of ACA Act corporations are located in remote areas and most are funded by public funds, however some generate significant private income, for example corporations linked to mining compensation or the Indigenous arts industry.

Major known funding bodies under the Act are ATSIS and the Office of Aboriginal and Torres Strait Islander Health (OATSIH), through the Department of Health and Aging.

As most ACA Act corporations are located in remote areas, the consequences of corporate failure are out of proportion to the relatively low net values of the corporations. The loss of a corporation providing essential services can be devastating to the community in which it operates.

Reform Directions

The reforms aim to promote good corporate governance and management and create opportunities for innovation and best practice to occur within Indigenous corporations. Important changes to the Act will allow for modernised corporate governance practices and accountability standards (including alignment with the Corporations Act 2001 as far as practicable) and improved security for funding bodies, creditors and other parties doing business with Indigenous corporations. It will also provide flexibility for groups and communities to design the corporation's constitution, and provide strengthened measures to support and encourage the exercise of members’ rights.

Reforms to the legislation are being coupled with the development of a number of strategies to better support corporations through administrative tools such as ORAC’s Corporate Governance Training, a Guide to Good Constitutions and a Framework for Good Corporate Governance.

Toni Matulick is the Acting Director of Legislative Reform at the Office of the Registrar of Aboriginal Corporations.

ORAC welcomes feedback and comments on the reform directions. Further information can be obtained from www.orac.gov.au, or by contacting Toni Matulick, telephone [phone] or toll free 1800 622 431, email [e-mail].

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[1] ATSIS was established on 1 July 2003 and is an Executive Agency of the Commonwealth. It administers programs that were previously the responsibility of the Aboriginal and Torres Strait Islander Commission (ATSIC).