Corporations (Eligible Officer Exclusion - non-individuals and resigned directors) Determination 2023

The Corporations (Eligible Officer Exclusion - non-individuals and resigned directors) Determination 2023 is a Commonwealth legislative instrument made under subsection 1272B(3) of the Corporations Act 2001. Its function is narrow. It identifies classes of persons who are not eligible officers for the purposes of that provision.

The instrument does two main things. First, it excludes a person who would otherwise be an eligible officer if that person is not an individual. Second, it excludes a class of people who had eligible officer status at an earlier point in time, but who no longer hold any role as an appointed director or alternate director acting in that capacity after 30 November 2022 and do not have a director identification number. It also separately states that a class of persons were not eligible officers for the historical period from 4 April 2021 to 30 November 2022.

The instrument refers to people connected with roles as an appointed director or alternate director acting in that capacity. It expressly says this applies regardless of the name given to the position. That matters because businesses sometimes use internal titles or informal descriptions that do not match the legal role. The instrument looks to whether the person holds the relevant kind of role, not just what the business calls it.

The entities mentioned are broad enough to cover a company, a body corporate that is a registered Australian body, a registered foreign company, and an Aboriginal and Torres Strait Islander corporation. If your organisation falls into one of those categories and you are dealing with the eligible officer concept under subsection 1272B(3), this instrument is relevant.

What is usually outside the permitted class under this instrument is also clear. A non-individual is excluded. Certain former directors and former alternate directors are also excluded if they meet the timing and director identification number conditions set out in sections 4 and 5.

The first exclusion class is the easier one. Under section 4(3), a person who would otherwise be an eligible officer is not an eligible officer if the person is not an individual. In practical terms, a company, corporate services entity or other non-individual cannot fill the role for this purpose.

The second exclusion class is more specific and depends on timing. Under section 4(2), a person is excluded if three things are true. First, the person was either an eligible officer immediately before 4 April 2021, or was not an eligible officer immediately before 4 April 2021 but became one between 4 April 2021 and 31 October 2021. Second, the person does not hold any role as an appointed director or alternate director acting in that capacity after 30 November 2022. Third, the person does not have a director identification number.

That means this second class is not about every former director. It is about a defined group of people whose earlier status, later resignation or cessation of role, and lack of a director identification number combine to place them outside the eligible officer class.

Businesses usually encounter this instrument when something has changed in the board or governance structure. Common examples include a founder resigning as director but still being treated internally as the person responsible for company compliance, an alternate director arrangement ending without the register being updated, or a business assuming that an external corporate services entity can stand in as the relevant officer.

Another common trigger point is a records review. During due diligence, fundraising, a sale, a restructure or an ASIC records clean-up, businesses often discover that internal templates, board minutes, registers and adviser instructions do not all point to the same current officeholders. This instrument is a reminder that those inconsistencies matter.

If your business has had board changes around 2021 or 2022, the historical period in section 5 is especially important. It may affect how you assess who was inside or outside the eligible officer class during that earlier period.

Section 5 is important because it does not just deal with the position after commencement. It says that, for the period from 4 April 2021 to 30 November 2022, a class of persons were not eligible officers if they met the criteria in section 5(2).

Those criteria are similar to the section 4 timing rules, but they are framed for the earlier period. The person must have been an eligible officer immediately before 4 April 2021, or have become an eligible officer between 4 April 2021 and 31 October 2021. The person must also have stopped holding any role as an appointed director or alternate director acting in that capacity prior to 1 December 2022. The person must also not have a director identification number.

For businesses, the practical point is that historical reviews need to be date-specific. If you are checking old filings, notices, governance records or internal assumptions from that period, do not assume that a person remained within the eligible officer class just because they had once held a director-related role. You need to check when they ceased the role and whether they had a director identification number.

The instrument itself does not explain every legal consequence of that historical exclusion. So if you are trying to assess the validity or effect of a past compliance step, you should read the instrument together with the underlying Corporations Act provision and the facts of the particular situation.

This instrument does not create a broad operating code for everyday trade. Its practical effect is more targeted. It tells businesses who cannot be treated as an eligible officer for the relevant Corporations Act mechanism. That means your main job is to make sure your governance records and compliance processes reflect the actual legal position.

In practice, that means checking current officeholder status, removing former officeholders from workflows where appropriate, and not substituting a non-individual entity where the law expects a person who is an individual. It also means paying attention to director identification number status where the instrument makes that relevant.

If there has been a resignation, board refresh, founder exit or use of external governance support, do not rely on assumptions or old templates. Check the appointment and resignation dates, the exact role held, and whether your internal and external records are consistent.

The instrument is named the Corporations (Eligible Officer Exclusion - non-individuals and resigned directors) Determination 2023. It was made by the Registrar on 24 January 2023 under subsection 1272B(3) of the Corporations Act 2001. Under the commencement table, the whole instrument commenced, or is taken to have commenced, on 1 December 2022.

The text also contains a separate historical rule for the period from 4 April 2021 to 30 November 2022. That historical period should not be overlooked when reviewing older records. The official register page describes the instrument as in force.

Before relying on this page, make sure you are actually dealing with the eligible officer concept under subsection 1272B(3) of the Corporations Act 2001. This page explains the exclusions in the Determination, not the whole statutory framework.

You should also check whether the person in question is an individual, whether they currently hold any role as an appointed director or alternate director acting in that capacity, when any resignation or cessation took effect, and whether they have a director identification number where the instrument makes that relevant.

If the issue concerns a past filing, notice or other historical compliance step, review the exact dates carefully. The instrument is explicit about the periods 4 April 2021 to 31 October 2021, after 30 November 2022, and the historical period from 4 April 2021 to 30 November 2022. Date errors can change the analysis.