The commentary contained in this section is general. All native title claim groups or PBCs should seek legal advice that considers their specific circumstances.
Constitution or rule book?
The constitution of a PBC, often called the ‘rule book’, lists the rules of the corporation. Under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) PBCs must have a rule book, which sets out the main rules about how the corporation will operate. The rules may include:
- The legal requirements dictated by the CATSI Act that cannot be changed. These are known as inflexible rules or non-replaceable rules and will apply to the PBC even if they are not included in the rule book.
- The rules that individual PBCs can modify or remove to suit their needs. These are known as flexible or replaceable rules. They are listed at section 57-5 of the CATSI Act.
- The PBC's own rules (so long as they're not inconsistent with the CATSI Act).
Rule books are effectively a contract between the members and directors of a corporation, guiding how the PBC must operate.
A PBC’s rule book must cover the corporation’s name, objects, and dispute resolution mechanisms. A PBC rule book also includes information about membership criteria and applications, meetings, director duties, record keeping and finance.
Creating a rule book
ORIC provides rule book templates (see the 'Model rule book for RNTBCs'). Further, the rule books of existing PBCs are publicly and freely available on the ORIC website. Search for the name of a PBC, click on ‘documents’ and open the rule book. These can be useful resources when attempting to create your own. ORIC also provides services through reviewing drafted rulebooks.
When setting up a PBC draft rules must be approved by ORIC prior to incorporation. The Registrar can write to the corporation asking for more information and 75 per cent of members must also approve the proposed rule book, which can be shown through passing a resolution at a pre-incorporation meeting.
The corporation then sends the completed resolution, proposed rule book and completed application for registration form to the Registrar. The new rules only take effect when the Registrar has approved and registered them with ORIC.
Changing a rule book
PBCs are able to make changes or add to their rule book after it has been initially approved by ORIC.
In order to make changes to their rules, PBCs are required to first hold a general meeting to receive approval from members. The changes must be approved by 75% of the members at the meeting.
ORIC must then be provided with the required documentation for the change.
Again, new rules do not take effect until approved and registered.
The CATSI Act was amended in 2021. Prior to the 2021 changes, PBCs only had to have a dispute resolution clause in their rule book for resolving internal disputes. Now, PBCs must also have a dispute resolution process in their rule book about native title disputes that native title holders (or people who claim they are native title holders) can use to resolve disputes with the PBC about:
- Whether or not a person is a native title holder
- The way the PBC is dealing with native title business
The dispute resolution process for these native title disputes can be the same as the PBC’s existing dispute resolution process, or it can be different. Even if it is the same, PBCs still needed to change their rule books so that it says native title holders can use the dispute resolution process (even if they are not members of the PBC).
See rule 20 in ORIC’s model rule book for RNTBCs for an example.
Since the changes, PBC's must also make sure:
- the rule about membership eligibility allows all native title holders to be represented in the PBC either directly as a member or indirectly
- the rule about deciding membership applications requires directors to accept an application if the person meets the eligibility criteria
- the rule about cancelling membership only allows membership to be cancelled for the reasons listed in the CATSI Act (see section 150–15(2)) and by following the process set out in the CATSI Act (see section 150-22).
If a PBC's rule book doesn't include these rules the PBC must amend their rule book.
See ORIC’s webpage Rule book changes for RNTBCs for more information.
- What’s in the corporation rulebook?, ORIC
- A corporation’s rulebook: what you need to know, ORIC
- Changing the rulebook, ORIC
- The Rule Book Condensed, ORIC
- The rule book info-kit, ORIC
- A guide to writing good governance rules for Prescribed Body Corporates and Registered Native Title Body Corporates, ORIC
- Native title corporations: A legal and anthropological analysis, Christos Mantziaris & David Martin, Annandale, 2000