Because the main purpose of a PBC is to hold or manage native title rights and interests of their native title holders, the membership of a PBC is generally limited to those native title holders. Non-native title holders may become members if the PBC’s rule book allows for it and the native title holders have consented.
However, native title holders do not automatically become members. They must apply for membership and be accepted.
The CATSI Act has legal requirements for PBC membership structures and processes. There are also a number of replaceable and exemptible rules related to membership application and eligibility.
All PBCs must have a rule in their rule book that describes who can become a member.
In 2021, the Native Title Legislation Amendment Act 2021 (Cth) (NTLAA) introduced changes to membership rules for PBCs. One of the new rules is that PBC directors must accept a membership application if the person meets the membership eligibility requirements and applies in the correct way according to the PBC’s rule book.
Another new rule is that the PBCs’ membership eligibility criteria must allow for all native title holders to be represented as a PBC member either directly (as a member themselves) or indirectly (for example, each family line is represented by a single family member). See below at ‘Membership structures’ for further information.
The definition of native title holders must be the same as the definition approved by the Federal Court in the native title determination. The PBC cannot change the description of who the native title holders are (unless they re-open the native title determination in the Federal Court).
The CATSI Act says that members must be at least fifteen years of age, but corporations can choose to raise this age in the membership eligibility requirements.
PBCs may allow for non-native title holders to become members, but only if the native title holders agree. The Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (PBC Regulations) say that allowing non-native title holders to become PBC members is a ‘native title decision’. See Rules about decision-making for more information.
Inclusive vs representative
Most PBCs have an ‘all-inclusive’ (or ‘direct representation’) membership structure whereby all native title holders who are old enough can become members of the PBC. In areas where people live in close proximity to each other PBCs might benefit from an all-inclusive membership to ensure everyone has the opportunity to attend meetings and actively participate in the running of the PBC.
A small number of PBCs have ‘representational’ (or ‘indirect representation’) membership structures where there are a limited number of members who work to represent the interests of the other native title holders. PBCs employing this structure have limited members, and may also limit the length of time membership is held for. Representational membership structures might occur when a PBC represents the native title interests of more than one group in one determination, or where native title holders are geographically dispersed and all-inclusive membership becomes less practical.
When considering a representational membership structure PBCs should be aware that under s 77.5 of the CATSI Act, a corporation needs at least five members, otherwise it requires an exemption for less. Also, the corporation structure must meet the Indigeneity requirement which means a majority of the members must be Indigenous.
Example for representational membership
Nyangumarta Karajarri has a limit of 40 total members, with a maximum of twenty members each from the Nyangumarta PBC and the Karajarri PBC. A person cannot be a member for longer than four years, but can be nominated to continue for a further term by their nominating group.
Classes of membership
The CATSI Act says that corporations’ rule books can provide for different ‘classes’ of members (s 153-1). If a corporation has different classes of members the rule book can give each ‘class’ different rights. For example, there might be a class of members that don’t have voting rights on certain decisions.
A few PBCs have different classes of membership. This might include having a membership category for:
- members under 18; and/or
- individuals who have a strong connection to the group such as the spouses of members, but are not native title holders themselves. Since the 2021 CATSI Act changes, these members need to be approved by the native title holders.
Example membership classes
Tatampi Puranga have two classes of membership:
- ordinary members which shall comprise all members 18 years of age and over; and
- youth members which shall comprise all members aged at least 15 years and under 18 years of age.
A PBC cannot charge membership fees, unless their rule book says they can.
The CATSI Act says a corporation's rule book may impose membership fees. If the rule book says members have to pay a fee then the amount of the fee must be decided by the members at a general meeting (CATSI Act, s 144-15). The members must also decide whether the fee will be paid as a once off fee or as a recurring payment.
PBCs should weigh up any benefits of charging membership fees with the potential costs. Charging a small fee might not be worth it because of the administrative costs on the PBC. On the other hand, charging a higher fee might create a barrier to native title holders becoming members.
The default rule in the CATSI Act is that a person must apply in writing to become a member of the corporation. However, this is a replaceable rule which can be changed in the corporation’s rule book.
Most corporations keep the rule about applying in writing and require people to apply using a membership application form. This makes it easier to keep track of member applications.
After an application has been submitted, it is the director’s responsibility to assess and decide on membership applications. Directors must accept membership applications if they are submitted in the correct manner and the applicant meets the PBC’s membership requirements. However, if the rule book allows non-native title holders to become members, they can only be accepted if the native title holders agree.
If a person applies for membership after a general meeting (including an annual general meeting) has been called they cannot become a member until after the general meeting has been held.
Under the CATSI Act, members have the right to:
- attend, speak and vote at PBC meetings
- ask directors or the corporation’s auditor (if any) about PBC business and financial matters at the AGM
- participate in appointing PBC directors
- nominate to become a director
- ask directors to call meetings to discuss particular business and put forward resolutions to be voted on
- be provided access to minutes of AGMs and general meetings
- be provided access to the PBC’s financial records
- inspect the register of members, free of charge
- get information about payments made to directors by the PBC (if a certain amount of members request the information together)
- complain to ORIC or seek a court order if the PBC is acting inappropriately and not in the best interest of members
- engage the PBC’s dispute resolution process
Native title holders who are not members do not have the same rights.
According to the CATSI Act, corporation members have to:
- pay their membership fees (if the rule book requires it)
- let the corporation know if their address changes
- not behave in a way that seriously interferes with the corporation’s business or meetings
The CATSI Act (s147.5) also allows corporations to attach additional obligations for members of their corporation in their rule book. Therefore, PBC rule books may include a range of different membership responsibilities.
A number of PBC have added additional member responsibilities in their rule books, like:
- members must follow the Code of Conduct
- members must act in accordance with tradition and culture
- members must attend meetings
- members must not make improper use of information or opportunities received through membership of the corporation
- members must comply with any dispute resolution or other policy adopted by the corporation
- members must not claim to act with the authority of the corporation or any trust of which the corporation is trustee other than in accordance with the rules as set out in the rule book
- members must not make any public statement on behalf of the corporation unless authorised by the board of directors
- members must not bring the corporation into disrepute
- members must treat other members, employees of the corporation and the directors with respect and dignity and not engage in personal attacks or abusive behaviour
Membership can be cancelled if a member:
- no longer meets the membership eligibility criteria in the rule book
- doesn’t pay membership fees, if they are required by the rule book
- hasn’t been able to be contacted at their recorded address for two years, despite attempts by the PBC
- behaves disruptively, in a manner that significantly interferes with corporation’s operations or meetings
Some PBCs rule books have expanded the list of reasons for which members can be removed from the PBC. However, under changes introduced by the NTLAA in 2021, membership can now only be cancelled for reasons listed in the CATSI Act (and set out above). If a PBCs rule book says membership can be cancelled for any other reason, the PBC must change their rule book.
Process for cancelling membership
The process for cancelling a person’s membership depends on the reason for cancelling. If the PBC wants to remove a member for not paying fees, they must follow the below process.
- Write to the member, telling them they intend to cancel their membership and the reason why, and give them 14 days to respond.
- If the member doesn’t respond in 14 days, the directors can cancel their membership by removing them as a member on the register of members and entering their name on the register of former members.
- If the member responds within 14 days and objects, the only way the member can be removed is if the members pass a resolution to cancel their membership at a general meeting. The directors must give the cancelled member a copy of the resolution.
If the PBC wants to remove a member for any of the other permissible reasons they must use the following process.
- The directors call a general meeting and include the exact words of the proposed resolution to remove the member in the notice of the meeting.
- The members must pass a ‘special resolution’ at the general meeting, meaning that 75% or more of the members at the meeting must vote in favour.
- The directors must give a copy of the resolution and outcome to the removed member as soon as possible after the meeting.
The above processes are set in law and cannot be changed by a corporation. They should also be set out in the corporation’s rule book.
Disputes about membership
The PBC rule book must include a process for dealing with internal disputes (CATSI Act s 66-1(3A)) and disputes with a person who is or claims to be a common law holder (CATSI Act s 66-1(3B)) about whether or not the person is a common law holder and the PBC’s performance of its native title functions. See the Rules about dispute resolution webpage for more information.
Under the CATSI Act PBCs can design their own dispute resolution processes to fit their specific circumstances. See the Dispute management webpage for more information.
Under changes introduced by the NTLAA, the National Native Title Tribunal can help solve disputes relating to native title if the PBC or a native title holder asks it to (Native Title Act 1993 (Cth), s 60AAA).
Register of members and former members
The CATSI Act says that corporations must keep a ‘register of members’ and a ‘register of former members’, which any person can inspect and make copies of. While members must be allowed to inspect the registers for free, the PBC can charge a fee for other people.
A person becomes a member of the corporation when their name is entered on the register of members and ceases to be a member when it is removed.
The register of members must contain the following information for each member:
- The member’s full name.
- The member’s address.
- The date on which the person’s name was entered on the register (i.e. the date they became a member).
If the PBC’s rule book (and the native title holders) allow non-Indigenous members, the register must also identify when a member is non-Indigenous.
The register of former members must contain the full name and last known address of any former members, and the date on which they ceased to be a member.
Corporations must make the register of members available for inspection at AGMs and ask attending members to check the register to make sure their address is correct.
What do PBCs need to do to respond to changes introduced in 2021?
PBCs registered before 25 March 2021 need to change their rule books within two years to ensure that:
- Rules for cancelling membership align with those set out in the CATSI Act (and above) and there are no additional grounds for cancellation
- Membership rules allow all common law holders to be represented either directly or indirectly
- There are rules for resolving disputes between the PBC and people who are or claim to be common law holders