Dispute resolution for Indigenous corporations

Resources for Indigenous Communities

Many Indigenous not-for-profit and charitable organisations are set as companies limited by guarantee. This information sheet (INFO 236) explains what right members have in these types of companies and how to resolve disputes about members rights.

Rights of members in Indigenous corporations

The Corporations Act 2001 (Corporations Act) gives members of any company limited by guarantee the right to:

  • access the company's register of members
  • access a copy of the company’s constitution
  • access minutes of meetings of members
  • cast a single vote in company meetings.

Small companies limited by guarantee must provide members with a financial report and directors’ report if requested by 5% (or more) of members.

Large companies limited by guarantee must provide members with a financial report and a directors’ report.

For a description of large and small companies limited by guarantee, see Information Sheet 131.

Companies limited by guarantee that are registered charities

If you are a member of a company limited by guarantee that is a registered charity, registered with the Australian Charities and Not-for-profits Commission (ACNC), this will affect your rights and obligations as a member. A number of provisions of the Corporations Act do not apply to registered charities.

You can find out more information on meeting ACNC and ASIC requirements for charitable organisations and your rights and obligations on the ACNC website.

Common types of disputes

Internal disputes can occur between the directors of the company, or between the members and the governing body of the company, about:

  • financial reporting
  • meetings of members
  • minutes of meetings
  • breaches of the company constitution
  • breaches of directors' duties.

How ASIC can assist with disputes in Indigenous corporations

ASIC does not usually get involved in disputes about the rights of members of companies limited by guarantee. These disputes are normally about your position as a member of the company, and generally do not affect consumers or investors in the broader community. Our role in helping you resolve these disputes is limited to providing you with information to help you address your concerns.

Sometimes, we may take action where the outcome of a dispute is likely to affect the broader community or creditors of the company, or where there is serious wrongdoing by company directors, officers or employees. For example, serious breaches of directors’ duties, misuse of company funds or insolvent trading are matters that we may take action on. It is important to remember that any action taken by ASIC may not resolve disputes about members’ rights.

We will carefully consider a range of factors when deciding whether to take enforcement action. For more information on how ASIC decides which issues to take action on, see Information Sheet 151.

Resolve disputes about members’ rights

The constitution of a company limited by guarantee usually sets out the rights and responsibilities of members and directors. It should also have information on how the company handles disputes.

If you would like to resolve a dispute about your rights as a member of a company limited by guarantee, there are a number of options available to you.

Check the company register on ASIC Connect

Check whether the company you have a dispute with is a company limited by guarantee. You can check this by doing a search on ASIC’s online database, ASIC Connect.

Contact the company

Write an email or letter to the company that explains your concerns and ask for the information that you are entitled to as a member.

Negotiate a solution

Try to resolve the dispute yourself or with the help of an independent mediator in your state or territory. It is best that disputes about members’ rights are dealt with between the parties involved. Otherwise, you can try and settle the dispute through mediation or, failing that, through the courts.

Example of an internal dispute

The directors of a small company limited by guarantee must give members a copy of the company’s financial report if 5% of members ask for it. If they do not, it is not an offence, and ASIC cannot take action. However, the courts can order the directors to follow through with the request and provide the report to members.

Seek legal advice

If you have contacted the company to try to resolve the dispute and you are still unhappy with its response, you can also talk to a legal adviser about what you should do next to enforce your rights as a member.

If you are unsure about how to access legal advice, contact the Law Society in your state or territory.

ASIC’s Indigenous Helpline

For further assistance, you can also contact ASIC's Indigenous Help Line on 1300 365 957 or email iop@asic.gov.au. ASIC staff can’t give detailed advice or information about a company or its officers, but they can take your details and help you find the right person within ASIC.

Resolving disputes about other matters

If you are having a dispute about native title, land use, heritage, environmental issues, tax, employee super or entitlements or your corporation has been caught up in a scam there are places you can go for help and assistance.

Native title or Indigenous land use

If you have concerns about a native title application or claim, who is a member of the relevant nation for native title, Indigenous land use agreements (ILUAs), heritage or cultural issues please contact the National Native Title Tribunal on freecall 1800 640 501 (may not be free on mobiles) or email: enquiries@nntt.gov.au. You can also contact your local native title representative body and service provider.

Environmental issues

If you have concerns about environmental issues you can contact your local state or territory environment protection authority:

Tax, super and employee entitlements

For concerns about tax obligations, employee superannuation entitlements or self-managed superannuation funds contact the Australian Taxation Office on 13 10 20.

For issues about unpaid employee entitlements or employment awards and agreements contact the Fair Work Ombudsman on 13 13 94.

Scams and misleading claims

If your Indigenous corporation has been caught up in a scam or has had misleading claims or offers from another business or has concerns about non-financial goods and services, contact the Australian Competition and Consumer Commission on 1300 302 502 or your local state or territory consumer protection agency.

Please note that this information sheet is a summary giving you basic information about a particular topic. It does not cover the whole of the relevant law regarding that topic, and it is not a substitute for professional advice.

You should also note that because this information sheet avoids legal language wherever possible, it might include some generalisations about the application of the law. Some provisions of the law referred to have exceptions or important qualifications. In most cases your particular circumstances may be taken into account when determining how the law applies to you.

Last updated: 30/03/2021 09:26