Corporations (Aboriginal and Torres Strait Islander) (Eligible Officer Exclusion - resigned directors) Determination 2023

This determination is made under subsection 308-15(3) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006. It identifies a class of persons who are not eligible officers for CATSI Act purposes in a particular resigned-director scenario.

The instrument is narrow. It does not create the general director identification number regime and it does not set out the full law on eligible officers. Its job is to exclude a defined class where the person falls within the stated timing rules, no longer holds any relevant appointed director or alternate director role, and does not have a director identification number.

For organisations, the practical issue is not abstract legal theory. It is record checking. You need to know the person’s role history, whether they still hold any covered director or alternate director role, and whether they have a director ID. You also need to remember that the instrument applies regardless of the name given to the role, so unusual titles do not avoid the test if the role is really a director or alternate director role of the kind described.

The determination is aimed at Aboriginal and Torres Strait Islander corporations and the people whose status as an eligible officer is being assessed under the CATSI Act. It is also relevant to governance staff and advisers who need to verify whether a person can still be treated as an eligible officer.

The instrument refers to roles as an appointed director or an alternate director acting in that capacity of an Aboriginal and Torres Strait Islander corporation, a company, a body corporate that is a registered Australian body, or a registered foreign company. It says this applies regardless of the name given to that role. That means organisations should not rely only on job titles when checking whether the rule applies.

People are usually outside this determination if they do not fit the timing categories, if they still hold a relevant appointed director or alternate director role, or if they have a director identification number. The determination also does not answer every eligibility question under the CATSI Act. It only identifies one excluded class.

Sections 5 and 6 set out the core tests. Both sections start with the same timing categories. The person must either have been an eligible officer immediately before 4 April 2021, or not have been an eligible officer immediately before 4 April 2021 but become an eligible officer between 4 April 2021 and 31 October 2022.

Section 5 deals with the ongoing class of persons who are not eligible officers. It applies where the person does not hold any role as an appointed director or an alternate director acting in that capacity of any covered entity after 30 November 2023, and does not have a director identification number.

Section 6 deals with the period from 4 April 2021 to 30 November 2023. It applies where the person stopped holding any role as an appointed director or an alternate director acting in that capacity of any covered entity prior to 1 December 2023, and does not have a director identification number.

In practice, the determination usually becomes relevant when a person resigns, when a corporation is reviewing whether a former director can still be treated as an eligible officer, when governance records are being updated, or when an appointment is being considered and the organisation needs to verify the person’s status. The dates are not background context only. They are part of the legal test and should be matched carefully against the person’s records.

This determination does not impose a long list of operational steps, but it creates clear practical checks for organisations that rely on a person’s status as an eligible officer. The main obligation in practice is to verify the facts before treating the person as eligible.

That means checking more than one board or one corporation. The instrument asks whether the person holds any relevant appointed director or alternate director role in an Aboriginal and Torres Strait Islander corporation, a company, a registered Australian body or a registered foreign company. A resignation from one entity may not be enough if the person still holds another covered role elsewhere.

It also means checking director ID status. The exclusion in both sections depends on the person not having a director identification number. If your records do not clearly show whether the person has one, you may not be able to apply the determination confidently.

Good governance records matter here. Resignation notices, board minutes, appointment records and director ID confirmations should be kept together so the organisation can show how it reached its conclusion. This is particularly important where the organisation is reviewing historical status for the period from 4 April 2021 to 30 November 2023 as well as the position after 30 November 2023.

Because this determination turns on factual matters, document quality is critical. Organisations should be able to show when the person became an eligible officer, when they stopped holding relevant roles, and whether they have a director identification number.

Useful records may include board minutes, resignation letters, appointment forms, governance registers and any internal records showing whether the person still acts as an alternate director. The instrument also makes clear that the name given to the role is not decisive, so records should describe the actual function of the role where there is any doubt.

If there is uncertainty about whether a role is really an appointed director role or an alternate director role acting in that capacity, or whether the person remains eligible under the CATSI Act despite this determination, the organisation should check the parent legislation carefully before relying on an internal assumption. A clean paper trail will make that review much easier.

The safest way to read this determination is as a targeted exclusion rule. It does not say that every former director is excluded. It does not say that every person without a director ID is excluded. It only applies where the person fits the timing category, no longer holds any relevant appointed director or alternate director role, and does not have a director identification number.

It also does not displace the broader CATSI Act framework. If your organisation is deciding whether someone can be appointed, retained or recorded as an eligible officer, this determination is one part of the analysis, not the whole analysis.

For practical governance purposes, the key checks are simple but important: identify the relevant dates, check all covered roles across all covered entities, confirm director ID status, and keep records that support the conclusion reached. If any of those facts are uncertain, the organisation should not assume the exclusion applies or does not apply without checking further.

The instrument is dated 24 January 2023 and was registered on 17 February 2023. It commenced on the day after registration, which is 18 February 2023.

The operative dates inside the legal test are also important. The instrument refers to 4 April 2021, 31 October 2022, 30 November 2023 and 1 December 2023. These are not just background dates. They are part of the conditions that determine whether the exclusion applies.

The register entry shows the instrument is in force. Register metadata also indicates a future repeal date of 1 April 2033 under the Legislation Act 2003. Before relying on this page for a live decision, organisations should still check the current Federal Register of Legislation entry in case the status or related legislation has changed.

A common question is whether the instrument only matters if a person resigned from the corporation currently doing the review. The answer is no. The text looks across roles in an Aboriginal and Torres Strait Islander corporation, a company, a registered Australian body and a registered foreign company. The organisation needs to check whether the person still holds any relevant role in any of those entities.

Another common question is whether the instrument applies if the person has a director identification number. On the text of sections 5 and 6, the answer is no, because both sections require that the person does not have a director identification number.

A further point is that this determination does not rewrite the general director ID regime and does not answer every eligibility question under the CATSI Act. It creates a specific exclusion for a defined class only. If the broader eligibility position matters for an appointment or governance decision, the parent legislation still needs to be checked.

This page is based on the in-force text of the Corporations (Aboriginal and Torres Strait Islander) (Eligible Officer Exclusion - resigned directors) Determination 2023 on the Federal Register of Legislation. The instrument states that it is made under subsection 308-15(3) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

The determination uses terms that pick up meanings from the CATSI Act and, for registered Australian body and registered foreign company, from the Corporations Act 2001. Those definitions should be checked if you need to apply the instrument to a specific person or role.