This section explains what you should do if one of your officers becomes disqualified under the Charities Act 2005.
Section 16(2) of the Charities Act 2005 sets out ‘disqualifying factors’ that prevent an individual or body corporate from being an officer of a charity registered with Charities Services. We have listed the disqualifying factors below.
To be registered, charities must certify that each of their officers is qualified as an officer under the Charities Act 2005.
Sometimes officers become disqualified after they have been certified. For example, an officer may become bankrupt.
In this situation you must choose one of three options:
- Remove the officer from their role through the "Update Details" online form accessed from your Charity Dashboard.
- Ask for the charity to be allowed to remain on the Register with the disqualified officer in place.
- Ask us to remove the charity from the Register.
The disqualifying factors are set out in section 16 of the Charities Act 2005 and are listed below. They include being an undischarged bankrupt, being under 16 years of age, having a conviction for dishonesty within the last 7 years, as well as other criteria.
An individual or body corporate will not qualify as an officer under the Charities Act 2005 if they are:
an individual who is an undischarged bankrupt
an individual who is under the age of 16 years
an individual who, or a body corporate that, has been convicted of a crime involving dishonesty (section 2(1) of the Crimes Act 1961) or tax evasion or other offence under section 143B of the Tax Administration Act 1994 and sentenced within the last seven years
an individual who is prohibited from being a director or promoter of, or being concerned or taking part in the management of, an incorporated or unincorporated body under the Companies Act 1993, the Financial Markets Conduct Act 2013, or the Takeovers Act 1993
an individual who, or a body corporate that, has been disqualified from being an officer of a charitable entity by the Charities Registration Board under section 31(4) of the Charities Act 2005
an individual who is subject to a property order under the Protection of Personal and Property Rights Act 1988, or whose property is managed by a trustee corporation under section 32 of that Act (this relates to people who are not fully able to manage their affairs)
a body corporate that is being wound up, is in liquidation or receivership, or is subject to statutory management under the Corporations (Investigation and Management) Act 1989
an individual who, or a body corporate that, does not comply with any qualifications for officers contained in the rules of your charity.
If any of the above disqualifying factors apply to an officer who has been appointed under an Act or by the Governor-General, Governor-General in Council, or a Minister of the Crown, that officer will automatically qualify as an officer.
If you decide to remove the officer from their role, you must notify us within 3 months of becoming aware of the disqualification as per section 40(2)(d) of the Charities Act 2005. You can do this through the "Update Details" online form accessed through your Charity Dashboard.
The change won’t be published on the Charities Register, but in some cases, information that an officer has been disqualified may be displayed on the Charities Register if it is in the public interest to do so.
If you replace the officer with a new one, you can register the new officer's details through the "Update Details" online form accessed through your Charity Dashboard.
If you cannot do this online, please contact us for further help and guidance
If you believe it’s appropriate for your charity to remain on the Charities Register, even though an officer has become disqualified, you must let us know through the "Update Details" online form accessed from the Charity Dashboard.
We will consider your request and let you know the decision in writing. If we agree to the waiver, your charity can continue its operations.
However, if a waiver is not granted we will take steps to remove the disqualified officer from the Charities Register. Your charity will no longer continue to qualify for registration if it continues to operate with a disqualified officer in place. You have the option to seek voluntary deregistration from the Charities Register if you do wish to continue operating with that person as an officer.
If you do not agree with our decision to decline the waiver you may appeal to the High Court.
Our information about Deregistration explains how to take your charity off the Charities Register. We suggest you read the information carefully so that you fully understand the implications of deregistration, including how it will affect your charity’s tax exemptions.
How can you be sure your officers still qualify?
We suggest that you regularly ask them to confirm that they are still qualified to be officers. For example, you could do this each year prior to your Annual General Meeting.