Attempts by the Office of the Registrar of Indigenous Corporations (ORIC) to have legal sanctions imposed against dozens of small Aboriginal corporations within the Northern Land Council’s jurisdiction have failed in court.

The NLC’s legal branch helped get the corporations out of trouble, but not before ORIC and the Commonwealth Director of Public Prosecutions expended considerable investigative and legal resources pursuing them.

Two Northern Territory magistrates have declined to record any convictions against the corporations, and resisted arguments to subject them to a bond.

ORIC is a commonwealth statutory authority which administers the unwieldy Corporations (Aboriginal and Tories Strait Islander) Act (the CATSI Act). About 2500 Indigenous corporations are registered under the Act, and they’re required to submit annual reports of differing complexity according to their size.

The first round of prosecutions by ORIC, against nine small corporations, was dealt with by Magistrate Sue Oliver in the Darwin Magistrates Court in June 2012. All nine pleaded guilty to not having filed annual reports for the financial year ending 20 June 2010, but Ms Oliver dismissed the charges.

Further, she did not accept, as the Commonwealth argued, that the corporations should be subject to a bond requiring them to be “of good behaviour.”

Six of the corporations existed only to hold title to small tracts of land; another two existed to hold exploration licences which have never been acted on. None of the eight had ever traded, operated a bank account or employed anyone. The ninth corporation oversaw the operation of the store at Ngukurr for a few years till the early 2000s, but has not been commercially active since then.

Magistrate Oliver also found that in most of the cases, a large number of people listed as directors of the corporations had passed away, “leaving only one or a small number of quite elderly directors to carry on the reporting obligations of the corporation.” In one case, a surviving director was in her late 70s, blind and living in care in Katherine.

The NLC was in early negotiations with ORIC to assist corporations within its domain comply with the CATSI Act, and to head off prosecutions. The NLC gave assurances that the corporations, having realised they were in default by not having filed returns, would become compliant; others, having no reason at all to continue operating, would be deregistered.

But while those talks were in train, ORIC was already on a course of prosecution.

The NLC engaged Darwin barrister Mark Johnson, who told Ms Oliver when the matters came to court:

“What we didn’t find out was that whilst [NLC lawyer] Mr Gosford and ORIC were in communications as to, ‘Let’s get this done, let’s progress this in a constructive way,’ at the same time they [ORIC] were sending off details and papers to the Commonwealth DPP’s office to commence the prosecutions.

“Now, one can draw one’s own conclusions as to the appropriateness of that.”

Another two corporations were charged before Deputy Chief Magistrate Michael Carey in December last year. Neither had ever done any business for which it had been established and Mr Carey followed the same course as Ms Oliver, discharging them without conviction. The main director of one of the corporations was a 96-year old traditional owner who lives on a small, remote island in Arnhem Land.

“It is fairly trivial this matter, because it is not like a tax matter where there is taxation payment being avoided,” the Magistrate said.

In both cases before Magistrate Carey, ORIC had served warning notices on solicitors who no longer acted for the corporations, even though both solicitors had long before advised ORIC in writing that they had stopped being official representatives.

Mr Carey identified the problem for ORIC. “It is rather difficult for you [the prosecutor] to sit there now and say, ‘We want a conviction because they [the corporations] didn’t comply, when all of our notices went astray and our office, or ORIC’s office, was informed of the correct situation and didn’t alter its records accordingly’.”

Mr Carey said ORIC’s flawed record keeping was one of several factors he took into account in refusing to enter convictions.

The very organisation that was attacking small Aboriginal corporations of no commercial consequence for being late with their paperwork itself had an out-of-date data base. By way of another example, in some of the matters dealt with by Magistrate Oliver, ORIC was regularly forwarding correspondence to the NLC at its old address at Casuarina, long after it had moved to its Darwin CBD address in July 2007.

Aside from the matters which did get to court, the NLC managed to convince the Commonwealth Director of Prosecutions to abandon legal action against many other small Aboriginal corporations.

With the help of the NLC, all the corporations are now compliant with their obligations under the CATSI Act.

And ORIC, which as a Commonwealth authority has obligations to behave as a model litigant, has spent a lot of taxpayers’ money but achieved nothing from its court actions.

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Taking a different approach

I have removed the article from the Land Rights News (Northern Edition) that was re-posted here following the receipt of advice from the Registrar of Indigenous Corporations. I will update this situation upon my return from leave. My apologies to my readers and to ORIC and the Registrar for presenting any information that may have been misleading or inaccurate. 

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This article was first published in the Northern Land Council’s Land Rights News (Northern Edition).