Can we see the board’s minutes? Member access to the records of a CATSI Act Corporation

Under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act), Aboriginal and Torres Strait Islander corporations are required to maintain various records, referred to as “books”.

There are certain books that a corporation must make available to members, and these are specified under the CATSI Act. Where not specified, members of a corporation may request access to inspect the corporation’s books, but access is subject to specific restrictions and requirements under the CATSI Act.

What records must a corporation share with its members?

Members are entitled to access the following records of a corporation:[1]

ORIC commentary about a member’s right to access corporation records is available here: Members' rights | Office of the Registrar of Indigenous Corporations. 

What are “books” of a corporation?

Members’ access to a corporation’s books

Members of a CATSI Act corporation do not have an automatic right to access its books. Rather, the directors of a corporation, or the corporation by resolution in a general meeting, may authorise a member to inspect its books (section 175-15 of the CATSI Act). 

This is a replaceable rule under the CATSI Act, and will apply unless the rule is modified or replaced by another rule addressing this issue.  A corporation is free to adopt an alternative rule that establishes a different process for members seeking access to books.

Where the replaceable rule applies, members seeking to access a corporation’s book will need to apply to the corporation.  Access can only be granted if authorised by: 

• the Board of Directors, through a resolution approving the request; or
• the Members, by passing a resolution at a general meeting. 

Restrictions on Access

While members may request access, certain documents are generally not considered appropriate for inspection or third party access, in order to protect sensitive or confidential information. By way of example this includes:

Restrictions of this nature may be relevant because the material contains commercially sensitive information, confidential information or private information about individuals. Restricting access to these documents may also be required to protect the corporation’s business interest, or to ensure the corporation complies with its contractual and/or legislative obligations.

Court orders for inspections of books

A member may also apply to the Court for an order authorising them (or another person on their behalf) to inspect books of a corporation (CATSI Act s 175-1). 

The Court will only grant an order if it is satisfied that the member is acting in good faith and that the request is made for a proper purpose. The scope of the Court’s order (i.e. the scope of materials available for inspection) will depend on the factual circumstances of the case, regardless of whether these two requirements are satisfied.  It is not intended that the process under section 175-1 be used as a substitute for inspection of documents after discovery as would occur in litigation proceedings.[2]

Members sometimes request access to board minutes or board papers.  The Courts have had cause to consider this question in the context of applications for inspection under section 247A of the Corporations Act 2001 (Cth), which is similar to section 175-1 of the CATSI Act. 

There has been some commentary in the Courts on a “general rule”, that if inspection were permitted, it would be limited to the outcomes of final decisions made by the directors, rather than underlying documents such as board papers or materials related to the decision-making process.  This has been expressed as the starting point, because ultimately the Court will determine the appropriate scope of access based on the facts of each case.[3]

Needing further assistance?

The team at Jackson McDonald has significant experience navigating the requirements for Aboriginal and Torres Strait Islander corporations under the CATSI Act.  If your corporation needs assistance responding to requests from members to inspect particular books or records, please let us know.

This article was written by Emma Chinnery Partner, Chantal Kong Associate and Nisali Pallewela Restricted Practitioner. 

The Indigenous artwork featured in the above infographics has been designed by Kevin Wilson, a Wongutha artist and designer with family ties to the Goldfields region, Leonora and South Australia.

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[1] Note that section 72-5 of the CATSI Act says that a corporation must provide to a member, on request, the internal governance framework rules of the corporation which are the rule book, applicable replaceable rules, and “any other material concerning the internal governance of the corporation that is prescribed”. The Corporations (Aboriginal and Torres Strait Islander) Regulations 2017 (Cth) do not currently prescribe any material for the purpose of section 72-5 of the CATSI Act. However, ORIC’s informal commentary on its website suggests that the internal governance framework rules include internal corporation policies and procedures. 

[2] Re Claremont Petroleum NL (No 2) [1990] 2 Qd R 310 at 314.

[3] Refer to the limited commentary on this subject in Re Claremont Petroleum NL (No 2) [1990] 2 Qd R 310; Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344; Yara Australia Pty Ltd (ACN 076 301 221) v Burrup Holdings Ltd (ACN 097 138 353) and Another [2010] FCA 1273; London City Equities Limited v Penrice Soda Holdings Limited [2011] FCA 674.