Shares

Recommendation 1: Audit of share register at Lake Tyers Aboriginal Trust

First Peoples – State Relations should provide assistance to the Lake Tyers Aboriginal Trust to undertake an audit of the share register at Lake Tyers.

Recommendation 2: Improving awareness of the Act

First Peoples – State Relations should prepare plain English summaries of the Act in consultation with the Lake Tyers and Framlingham Aboriginal Trusts.

Recommendation 3: Materials advising shareholders of information about their shares

First Peoples – State Relations should provide assistance to the Framlingham Aboriginal Trust and Lake Tyers Aboriginal Trust to develop and disseminate materials advising shareholders of:

a. how to clarify the number of shares they own; and

b. how to transfer shares, and to who shares can be transferred.

Recommendation 4: Clarify power of the Committee of Management in relation to the transfer of shares

Amend the Act to provide that the Committee of Management has power to refuse to approve a transfer but that:

a. the Committee of Management cannot refuse a transfer if the transfer is made under a will, or by the executor of a deceased estate, and the transfer is made to a class of persons to who shares are capable of transfer under the Act; unless

b. the person to who shares are to be transferred is ineligible under s 15(6) of the Act to be a member at the time of transfer.

Recommendation 5: Instrument of Transfer

Amend the Act to provide for the existing form for the transfer of shares at Appendix A be a prescribed document and for the Act to prescribe the documents which are to be provided in support of the application for transfer.

Recommendation 6: Notice of Transfers

Amend the Act to:

a. require the person or body maintaining the share register to give notice of any change to the share register to the other shareholders; and

b. require that the Trusts, and the person or body maintaining the share register, ensure that the register is available for inspection by shareholders upon request.

Recommendation 7: Class of Transferee

Amend the Act to provide that the Committee of Management can refuse to register a transfer if the sale is to a person outside the class of people identified in s 14(2) of the Act, which includes:

a. the Trust

b. another member

c. the Crown; or

d. a person whom the Trust believes to be:

(i). the husband or wife, or a child or remoter issue, brother, sister or parent of the member;

(ii). a brother or sister of a parent of the member; or

(iii). a child of remoter issue of a parent of the member, or of a brother or sister of a parent of the member.

Recommendation 8: Confirmation that shares have not been sold contrary to the Act

Amend the Act to require that in requesting a transfer of shares, the Instrument of Transfer is to be accompanied by a statutory declaration from the person selling the shares and the purchaser, confirming that the transfer is not a sale or exchange for any other consideration.

Recommendation 9: Shares to only be held by Aboriginal people

Amend the Act to provide that shares are to only be held by Aboriginal persons, subject to an exception that a non-Aboriginal person may hold shares on trust for children until they turn 18 if it is approved by the Committee of Management.

Recommendation 10: Assistance to identify and notify families of deceased shareholders

First Peoples – State Relations (or an Independent Registrar) should provide assistance to the Lake Tyers Aboriginal Trust to identify and notify families of deceased shareholders, and to provide information to those families as to how those shares can be transferred and to who shares can be transferred.

Recommendation 11: Role of Committee of Management in relation to transfers in accordance with a Will

Amend the Act to provide that the Committee of Management is required to approve transfer of shares but is not to refuse a transfer to a person under the will or an intestacy of the deceased person if the transfer is to a person within the class of persons listed in s 14(2) of the Act.

1. Amend s 14(3)(a) of the Act to provide:

2. Nothing in this section shall be construed as preventing a transfer of shares –

a. by the personal representative of a deceased member to the persons entitled thereto under the will or on the intestacy of the deceased member provided the person is within the class of person listed in s 14(2) of this Act.

Recommendation 12: Powers of an executor in relation to transfers

Amend the Act to provide that, despite anything in any other Act or any obligation of an executor at common law or in equity, in the event that a will provides that shares are to be transferred to persons outside the class of people identified in s 14(2), and such a transfer is refused by the Committee of Management, the executor of the estate is nonetheless empowered to transfer the shares to a person within that class (including the Trust or the Crown) and that no claim can be made against the executor in that circumstance provided that:

a. the transfer is an even distribution of shares to the surviving children of the deceased; or, in the absence of any such children,

b. the transfer is to another person, provided the person is not the executor or a person who was on the Committee of Management at the time the decision to refuse the transfer in accordance with the will was made.

Recommendation 13: Distribution of shares on intestacy

1. Amend the Act to allow for a Trust to transfer shares held in a deceased estate in the absence of a will or grant of letters of administration in circumstances where:

a. a period of 3 years has elapsed;

b. the Committee of Management is satisfied that there is no will or letters of administration;

c. prior notice of the proposed transfer is given to other shareholders; and

d. the shares are only to be transferred evenly to:

(i). the children of the deceased person, and to their children if they are also deceased and

(ii). in the absence of any children, they are transferred evenly among the children of the deceased person’s siblings and

e. the shares may be transferred other than in accordance with (d) if the people referred to in that clause as being entitled to the shares agree in writing.

2. Amend the Act to provide that where the shares are transferred in the absence of a will and letters of administration it removes any claim or right to the shares by any other person.

3. Any such amendment should be drafted to make clear that the terms of the Act take priority over any other legislative and common law rules.

Recommendation 14: Definition of “personal representative”

Amend the Act to define “personal representative” to have the same meaning as in the Administration and Probate Act 1958 (Vic).

Recommendation 15: Maintenance of share register

Amend the Act to provide that the share registers are to be maintained by an independent person. The independent person would be responsible for recording transfers of shares but would only be authorised to make such a change where they are satisfied that:

a. there is a resolution of the Committee of Management authorising the transfer; and

b. the transfer is being made in accordance with the Act.