Director Identification Numbers – ASIC is on the war-path

Late in the course of the COVID pandemic, the Corporations Act was amended to provide for the mandatory obligation upon company “officers” (in this context, a director of a company) to apply for a “director identification number” (DIN).

According to ASIC’s website, a DIN “is a unique identifier that a director will apply for once and keep for ever – which will help prevent the use of false or fraudulent director identities.”

Asa evidenced from a letter one of my clients recently received, ASIC has run out of patience with directors who, so far, have failed to register for their DIN.

The legislative obligation

Section 1272C of the Corporations Act 2001 requires that an eligible officer must have a DIN. If a person has never been a director before, a DIN must be obtained before the day that person becomes a director. A director who contravenes this section is liable to a civil penalty order of up to $16,500.

The ASIC strategy

I have no arguments with the new provisions, which came into force on 5 April 2022. My argument is the manner in which ASIC is currently going about enforcing the provisions.

My client is a director of a company that is in liquidation, as well as another company that is registered, but dormant. My client received a letter from an ASIC “Investigator” that stated:

I am an investigator with ASIC. I am conducting an investigation relating to the affairs of [company names].

ASIC records and my inquiries indicate that you are a director during the period to which this investigation relates.

I am offering you the opportunity to participate in a formal record of interview, where allegations in relation to suspected contraventions of the law will be put to you… Should you decide to attend the record of interview, your participation would be voluntary…

No wonder my client got a little anxious and got in touch with me.

When inquiries were made with the ASIC Investigator, my client was informed that the investigation related to my client’s failure to obtain a DIN. Sadly, the ASIC letter failed to mention that.

My client then immediately applied for and was granted a DIN, and the ASIC Investigator confirmed that the record of interview would not be undertaken. Problem solved.

People have busy lives, and they sometimes forget to do things that the law requires of them. The obligation to obtain a DIN had, up to that point, escaped my client’s attention. Had the ASIC letter made it clear the basis upon which ASIC was wishing to interview him, my client would have avoided the need to obtain my legal advice, and would have simply obtained his DIN (which he obtained immediately).

I accept that the legislative requirement has been in place now for 18 months, but how many people have received such a letter and agreed to attend the record of interview in an unnecessary state of panic? How many resources of ASIC have effectively been wasted on dragging these people into those interviews, just to enforce the obligation upon them to obtain a DIN? I’m not sure how many directors that exist on the ASIC register have still failed to obtain a DIN, however this tactic smacks of attempting to smash a peanut with a government sledgehammer. It works, but it’s still a sledgehammer.

And, if you are a director without a DIN, go to the Australian Business Registry Service (https://www.abrs.gov.au/director-identification-number ) and register.  It costs nothing, and will avoid you receiving one of these nasty letters.