First director charged for skipping vital step.
ASIC (the Australian Securities & Investments Commission) has recently commenced its first prosecution of a director for failing to comply with their obligations to have a Director Identification Number (DIN).
Refresher
From 1 November 2021, company directors have been required to verify their identity.
The DIN requirement was introduced as part of the provisions to combat illegal phoenix activity. It allocates a unique identifier for each director to help prevent fictious directors and trace directors’ associations with companies over time.
When the legislation was introduced, existing directors had until 30 November 2022 to apply for a DIN. Since 5 April 2022, all new directors have been required to apply for a DIN prior to their appointment. The Australian Business Registry Services (ABRS) is responsible for administering the DIN and instructions on how to apply can be found on their website.
Directors who fail to apply for a DIN may face the following actions:
Being asked to attend an interview with a delegate of the Registrar to explain why they have not obtained a DIN, and/or;
Referral to ASIC to consider investigation and prosecution.
ASIC Action
On 19 March 2024, a director was formally charged with one count of failure to have a DIN when required to do so (s1272C(1) of the Corporations Act 2001). The defendant is facing a maximum penalty of $13,320. The matter is currently subject to an interim non-publication order.
It is apparent that ASIC is looking to put directors on notice that they are monitoring director compliance with the new requirements and failure to do so may result in penalties.
Any existing directors who have not complied with the obligation to obtain a DIN should obtain advice on how they can mitigate any potential breaches with the obligations. Reach out to your local Worrells Principal for a complimentary and confidential discussion.
