Under Governance Standard 4, charities must be satisfied that their Responsible Persons (such as board or committee members, or trustees – what the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act) calls ‘responsible entities’) are not disqualified from managing a corporation nor disqualified by the ACNC from being a Responsible Person.

An important part of meeting this obligation is for your charity to check, before appointing a Responsible Person, that the person is not disqualified. A charity can do this by:

Disqualification information

alert iconImportant: read this information before signing the Responsible Person declaration

Who may be disqualified from being a Responsible Person for a charity?

You may be disqualified from being a Responsible Person if you:

  • have been disqualified by the ACNC in the past year, or
  • are disqualified from managing a corporation within the meaning of the Corporations Act 2001 (Cth). This may occur if you:
    • have been convicted of certain offences, such as serious offences, dishonesty offences or other offences that can affect a corporation,
    • are an undischarged bankrupt or are subject to a ‘personal insolvency agreement’ you have not followed, or
    • have been disqualified by the Australian Securities and Investments Commission (ASIC), the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations (ORIC), or an Australian or New Zealand court.

Most people will know straight away that these categories do not apply to them.

However, if you think one or more of these categories may apply to you, the questions below will help you work out if you are disqualified from managing a corporation.

Q1: Have I been convicted of certain offences?

Have you been convicted of any of the following:

  • a serious (‘indictable’) offence that involves making or participating in making, a decision that affects the whole or a substantial part of the business of a corporation (including an Aboriginal and Torres Strait Islander corporation)
  • a serious (‘indictable’) offence for actions that could significantly affect a corporation’s (including an Aboriginal and Torres Strait Islander corporation’s) finances
  • an offence that is a contravention of the Corporations Act or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) that is punishable by imprisonment for more than 12 months
  • an offence involving dishonesty that is punishable by imprisonment for at least three months, or
  • a serious offence against the law of a foreign country that is punishable by imprisonment for a period greater than 12 months.

These include offences against the law of a foreign country.

No. Move to Q2 below

Yes. Read below

If you have been convicted of one of these offences, has:

  • it also been less than five years (from conviction, if no prison sentence, or from release from prison for the offence), or
  • a court extended your disqualification time (and it is still within this disqualification time)?

No. Move to Q2 below

Yes. You are disqualified from managing a corporation. Please do not sign the declaration. If you still want to act as a Responsible Person for a registered charity, see below.

However, if the corporation affected is or was a registrable Australian body or foreign corporation contact us to work out if you are disqualified (since an exception may apply).


Q2: Am I bankrupt or under personal insolvency?

Have you:

  • ever been bankrupt (under Australian or any foreign law) and have not been discharged from this bankruptcy, or
  • made a ‘personal insolvency agreement’ and not complied with the agreement?

No. Move to Q3 below

Yes. You are disqualified from managing a corporation. Please do not sign the declaration. If you still want to act as a Responsible Person for a registered charity, see below.

Note: A personal insolvency agreement is a formal agreement between a person and their creditors, when that person cannot pay what they owe. This agreement is set out in a deed under Part X of the Bankruptcy Act 1966 (Cth) or a similar law of an external territory or a foreign country.


Q3: Have you been disqualified by a court or regulator?

Have you:

  • had a New Zealand court order made against you preventing you from being a director or being involved in the management of a foreign company, or
  • been disqualified by an Australian court, ASIC or ORIC and this disqualification is still current?

No. You are not disqualified from managing a corporation. You can sign the declaration.

Yes. You are disqualified from managing a corporation. Please do not sign the declaration. If you still want to act as a Responsible Person for a registered charity, see below.

Note: If you are unsure, ASIC keeps a register of people who have been disqualified by ASIC, ORIC or an Australian court (but not by a New Zealand court) on their Banned & Disqualified register.


If you can answer ‘no’ to each of the above three questions, you can sign the Responsible Person declaration.

Please contact the ACNC if you are still unsure about any of these questions.

Yes. Even if you are disqualified from managing a corporation, you may still be able to be a Responsible Person of a registered charity if the ACNC allows you to do so (as well as ASIC or ORIC if necessary).

We will allow this if it is reasonable to do so in your circumstances. Please contact the ACNC for more information if you are disqualified, but would like to request the Commissioner to allow you to be a Responsible Person.

alert iconImportant: read the guidance and checklist before signing the disqualification declaration

Charities can use the following words when asking a potential Responsible Person to declare that they have not been disqualified from being a Responsible Person, for the purposes of Governance Standard 4.

I, [insert name] of [insert address or other identification information] declare that:

  • I am not disqualified from managing a corporation, within the meaning of the Corporations Act 2001 (Cth) and
  • I have not been disqualified by the Australian Charities and Not-for-profits Commissioner at any time during the previous year from being a responsible person (what the ACNC Act calls a ‘responsible entity’) of a registered charity.

While I am a Responsible Person for [insert charity name], I agree to notify this charity as soon as possible if I do become disqualified from managing a corporation within the meaning of the Corporations Act 2001, or am disqualified by the Australian Charities and Not-for-profits Commissioner. Responsible Persons are the members of a charity’s governing body who share responsibility for the governance of the charity (called ‘responsible entities’ under the ACNC Act).

Declared at: [insert location]

……………………………………………………

On: [insert date]

……………………………………………………

Signature:

……………………………………………………

Name:

……………………………………………………

Position:

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