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Nomination due diligence procedures

Note:

The nomination due diligence procedures outlined below are from the 2023 APNIC Executive Council election.

Following the reforms to the APNIC By-laws in 2023, the Electoral Committee is now responsible for confirming the eligibility of all Executive Council nominees. This page has been retained for informational purposes only and does not apply to EC Elections after 2023.

Overview

  1. APNIC Executive Council (EC) Members are considered shadow or de-facto directors for the purpose of the Corporations Act 2001 (Cth) (Corporations Act).

  2. The eligibility criteria, duties, and obligations imposed on shadow directors under the Corporations Act are the same as those for appointed directors. Misuse of power or failure to comply with such duties and obligations can:

    1. Threaten the good governance and reputation of APNIC as well as impact the trust placed in APNIC by the community, and

    2. Attract both civil and criminal penalties depending on the nature and severity of the conduct

  3. As such, it is necessary for the APNIC Secretariat to make reasonable efforts to confirm that nominees for the APNIC EC (Nominees) meet the eligibility requirements under Australian law.

  4. This document sets out the processes and procedures for how the APNIC Secretariat will review, verify, and report on the eligibility of Nominees.

Procedure

Request for information

  1. The APNIC Secretariat will, prior to the call for nominations for each EC election, consider the information and declarations required to be provided by each Nominee as a requirement of their self-nomination or acceptance of their nomination (if nominated by another person) (Required Information).

  2. The Required Information will consist of questions and requests for information necessary to, as far as reasonably practicable:

    1. Confirm the identity of the Nominee

    2. Confirm the contact details of the Nominee, and

    3. Confirm the Nominee satisfies the eligibility criteria for Directors of Australian companies

Responsibility for information

  1. APNIC’s General Counsel (or their delegate) will be responsible for this procedure and ensuring the Required Information provided by a Nominee is reviewed and appropriate searches are conducted.

Review of information

  1. The APNIC Secretariat will, as soon as practicable after receiving the Required Information:

    1. Confirm the Nominee’s personal information

    2. Conduct searches on relevant registers, including those relating to bankruptcy and banned or disqualified directors, and

    3. Conduct any other searches or investigations deemed necessary to confirm the Nominee’s eligibility to stand in the EC election

  2. The APNIC Secretariat may also request a background check be conducted on a Nominee through a competent third party.

  3. It is understood that due to time constraints, the searches or investigations conducted may not be able to be completed before the opening of voting for an EC election.

Assessment and opportunity to respond

  1. The APNIC Secretariat will:

    1. Review the results of any searches conducted, and

    2. Assess those results against the relevant eligibility requirements

  2. The assessment against eligibility requirements will be reported to the community as set out below.

No issues identified

  1. If no information is identified that would render a Nominee ineligible to stand for election, the APNIC Secretariat will publish on that Nominee’s profile page a notice in a form similar to the notice below:

“APNIC Eligibility Statement:
APNIC has not, based on the information provided by the Nominee, identified any information that would prevent the Nominee from serving on the APNIC EC if elected.”

Issue(s) identified

  1. If information is identified that is not consistent with the Required information supplied by the Nominee (Issue), the Nominee will be notified and provided with an opportunity to respond to the Issue.

  2. If, after giving due attention and consideration to the Nominee’s response (or if the Nominee fails to respond within 48 hours of being notified), the Secretariat honestly and genuinely believes the Issue is substantiated, the Nominee will be notified of this finding and given the opportunity to provide a reply to be published under the Issue (Right of Reply).

  3. The APNIC Secretariat may refuse to publish the Right of Reply where it is not consistent with the APNIC EC Election Code of Conduct.

  4. The Issue will be published by APNIC in a form similar to the notice below:

“APNIC Eligibility Statement:
APNIC has identified the following issue regarding the information provided by the Nominee:

  • [details of Issue]

The Nominee has been provided a right of reply on this issue and requested the following be published:

  • [Nominee’s Right of Reply, if applicable]”

Ineligible Nominee

  1. If information is identified that immediately disqualifies a Nominee from serving as an EC Member (Disqualifying Information), such as the Nominee being banned from being a director or managing a corporation, the Nominee will be notified and provided with an opportunity to respond to correct any potential errors made by the Secretariat in assessing the information identified.

  2. If the Nominee is unable to identify or substantiate any potential errors in the information provided (or if the Nominee fails to respond within 48 hours of being notified), the Nominee’s nomination will be removed either through their voluntary withdrawal or by APNIC removing the nomination. The nomination will be replaced with a notice in a form similar to the notice below:

“APNIC Eligibility Statement:
This nomination has been:

  • [Removed by APNIC as it did not meet the eligibility requirements under law]

  • [Withdrawn by the Nominee]”