07/04/2022 - 14:33

New regulator for Aboriginal trusts

07/04/2022 - 14:33

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Long-running efforts by Attorney General John Quigley to increase scrutiny of Aboriginal trusts has culminated in plans for a new regulator with powers akin to a royal commission.

New regulator for Aboriginal trusts
John Quigley says he receives many complaints from Indigenous groups. Photo: David Henry

Long-running efforts by Attorney General John Quigley to increase scrutiny of Aboriginal trusts has culminated in plans for a new regulator with powers akin to a royal commission.

The Charitable Trusts Bill 2022, introduced to state parliament today, establishes the Western Australian Charitable Trusts Commission.

It will be able to conduct investigations upon receiving a complaint about a charitable trust.

The proposed new body extends to all charitable trusts but Mr Quigley’s concern relates mainly to Aboriginal trusts.

Today’s tabling of the bill comes three years after a report commissioned by Mr Quigley into the Njamal People's Trust was tabled in state parliament.

Mr Quigley said the bill addressed a series of gaps in the current framework identified in the report, including the absence of any compulsive powers to require a person to attend and give evidence on oath.

He believes there are recurring issues in the management of Aboriginal charitable trusts.

“Tens of millions of dollars of native title settlement monies are being paid into these trusts,” he said.

“Invariably, the trustees are corporations often with their registered offices in Perth.

“As the Attorney General I receive many complaints from Indigenous groups that funds of a charitable trust are being misused by the trustees or by others involved in the administration of the trust.”

The Njamal inquiry focused on the actions of certain individuals, notably Rodney Carter and Sharon Westerman, after Indigenous Services Pty Ltd (ISPL) was appointed as trustee of the Njamal People’s Trust.

The Trust’s most recent annual report, for the year to June 2021, shows ISPL continues as trustee.

ISPL replaced Australian Executor Trustees (AET) as trustee of the Njamal trust.

AET, Perpetual Trustee Co and other national businesses act as trustees for many Aboriginal trusts, including some of the largest, such as Nyiyaparlia Charitable Trust and Banjima Charitable Trust.

WA’s largest Aboriginal trust, The General Gumula Foundation, has a special purpose trustee company chaired by former politician Brendon Grylls.

Mr Quigley said the Charitable Trusts Commission, constituted by the Ombudsman, will undertake investigations under significantly expanded powers akin to those of a Royal Commission.

These will include the ability to issue a notice requiring a person to provide a document or other information relating to a charitable trust or concerning any person involved in the administration of a charitable trust, or any other assistance that is reasonably necessary.

It will have the ability to compel the production of documents and the attendance of persons to answer questions before the investigator and be examined under oath or affirmation.

It will also have the ability to carry out an audit of the accounts of a charitable trust under investigation.

Non-compliance with these requirements will attract a maximum penalty of $50,000 - a ten-fold increase to the existing penalty.

The Bill introduces a new power enabling the Attorney General to apply to the Supreme Court to seek orders removing a trustee or person involved in the administration of a charitable trust.

This would be in circumstances where there has been misconduct or mismanagement, where the person is not a fit and proper person to be involved in the administration of a charitable trust, or where it is necessary or desirable to protect the existing or future property held by the charitable trust.

Mr Quigley said the new body would enhance cooperation with other regulators, namely the Australian Charities and Not-for-profits Commission and the Office of the Registrar of Indigenous Corporations (which focuses on registered bodies corporate, as opposed to Aboriginal charities).

STANDING BY BUSINESS. TRUSTED BY BUSINESS.

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