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Policy Position – Inclusion of the company secretary on the ACNC register

Governance Institute’s members are all involved in governance, corporate administration and compliance with the Corporations Act. Many of our members serve as officers of charities, or work for, or are involved with charities and are therefore involved in compliance with the requirements of the Australian Charities and Not-for-profits Commission (ACNC).
The introduction of the ACNC register has greatly improved the accuracy and completeness of records for charities. The work of the ACNC in deregistering organisations has also greatly assisted this outcome.

The requirements under the Corporations Act to notify ASIC of certain matters, including change of address and the retirement and appointment of directors and company secretaries have been turned off for companies that are registered charities. As a consequence, ASIC does not maintain this information on its register. Additionally, the responsibilities of company secretaries under section 188 of the Corporations Act have been turned off to the extent that they relate to other provisions of the Corporations Act that do not apply to charitable companies. The ACNC is aware of the inability of third parties such as financial institutions to check the names of current directors and company secretary of a charitable company by searching the ASIC register. Our members who are company secretaries of charities consistently report to us the practical issues their organisations face due to the inability of banks, landlords and other commercial parties, to check the details of responsible persons on the ASIC register. This difficulty is compounded by the fact that when directed to check the ACNC register, details of the company secretary do not appear unless the person is also a responsible person and listed as ‘secretary’.

The Corporations Act provides for methods that companies can use to execute documents and statutory assumptions as to due appointment and authority upon which third parties can rely. The efficacy of this statutory regime relies on the directors and company secretary details being available for inspection to third parties on a register. Unfortunately, as a company secretary is not a responsible person and has no responsibilities under the ACNC Act there is currently no basis for the ACNC to be required to collect details about the company secretary or display those details on the ACNC register. This is a problem that requires a solution.

It is vital to the efficacy, transparency and accountability of the sector that a charity’s company secretary details are displayed on the ACNC register, together with the details of the charity’s responsible persons. Placing the company secretary details on the ACNC register will then provide a ‘one-stop shop’ for third parties seeking details of the responsible persons and company secretary of a charity and will assist them in their dealings with the charity.

Governance Institute recommends amendments:
• To the ACNC framework to enable the ACNC to include the company secretary details on the ACNC register for charitable companies.
• To section 129 (2) of the Corporations Act to enable a person dealing with an ACNC registered entity that is a company, to rely on the assumption of due appointment and authority with respect to anyone who appears from information on the ACNC register to be a responsible person or company secretary of the registered entity.

March 2024