AFSA is responsible for monitoring standards of personal insolvency practitioners (including registered trustees, the Official Trustee, and debt agreement administrators) under the Bankruptcy Act.
Its role includes dealing with complaints against trustees and administrators and dealing with requests for review of certain decisions made by trustees on behalf of the Inspector-General in Bankruptcy.
The Australian Securities and Investments Commission (ASIC) is responsible for monitoring standards of, and dealing with allegations of misconduct against, corporate insolvency practitioners (including liquidators, receivers and administrators).
Who may complain to AFSA Regulation and Enforcement?
Anyone may complain if they are concerned about an action taken by a:
- bankruptcy trustee, including the Official Trustee
- debt agreement administrator, including any person who provides assistance in setting up a debt agreement
- controlling trustee of a Part X arrangement or
- trustee of a personal insolvency agreement.
Enquiries about voting on a debt agreement proposal, or varying or terminating a debt agreement should be directed to AFSA’s Debt Agreement Team on 1300 364 785.
Enquiries or reports about misconduct by a liquidator, receiver or administrator should be directed to ASIC on 1300 300 630 or visit www.asic.gov.au/complain.
How to complain?
First try and resolve your concerns with the trustee or administrator. If you remain dissatisfied or feel unable to raise the issue with them, you may contact AFSA Regulation and Enforcement:
|Online||Please use our Send us feedback form.|
|Phone||You can call us on 1300 364 785.|
Australian Financial Security Authority
|Fax||07 3360 5402|
|regulation [at] afsa.gov.au|
All complaints are treated seriously.
What does it cost?
There is no charge for this service.
How is my complaint handled?
AFSA will acknowledge written complaints within seven days.
Generally, we are able to deal with most complaints within 28 days. If the issues you raise are complex this may take longer but we will keep you informed.
If you wish to remain anonymous, or have concerns about your details being made available, please make this clear to AFSA.
AFSA aims to finalise the investigation within 60 days of receiving your complaint and will keep you informed of the progress of the investigation.
If your complaint is beyond AFSA’s powers to investigate, or it cannot be resolved, you will be advised of your options, such as making an application to the Court. AFSA can also facilitate meetings between parties with a view to quicker resolution of disputes. You should indicate when making the complaint if you wish to consider this option.
How is my complaint investigated?
Where the matter is not resolved through discussions with the personal insolvency practitioner, we will obtain a written response from the trustee or administrator addressing the issues of your complaint and we may inspect their file.
Report on the investigation
AFSA will provide you and the trustee or administrator with a copy of any complaint report.
Decisions that can be reviewed by AFSA
In some instances AFSA can review a trustee’s decision such as:
- filing of a notice of objection to discharge
- issuing an income contribution assessment
- deciding on and or refusing to consider a hardship application with respect to an income contribution assessment
- using a supervised account for recovering income contributions
- paying trustee’s remuneration and third party costs (e.g. legal costs).
If your complaint relates to a decision of a trustee that is reviewable, you should follow the procedure set out in Can I Appeal?
Review of trustee's remuneration and third party costs
If the bankruptcy, personal insolvency agreement or section 188 authority in Part X commenced prior to 1 December 2010.
A creditor or bankrupt who is dissatisfied with a registered trustee’s claim for remuneration and third party costs may either:
- complain to AFSA or
- request AFSA to undertake a review of the trustee’s remuneration.
This process is called a ‘taxation of costs’ and it examines the nature of work undertaken, time taken and the amount charged. A fee is charged for this service and you may also be required to pay the trustee’s costs if the remuneration is not significantly reduced.
AFSA can examine the legality of the remuneration and whether the trustee has complied with standards set out in the Bankruptcy Act and can only require the trustee to vary their remuneration if it has not been legally taken or in accordance with regulated standards.
If the bankruptcy, personal insolvency agreement or section 188 authority in Part X commenced on/after 1 December 2010.
A creditor or bankrupt who is dissatisfied with a registered trustee’s claim for remuneration may apply to AFSA for a review. A review will only be appropriate where the creditor or bankrupt can demonstrate failure to follow legislative requirements in the fee approval process, improper conduct by or on behalf of the trustee or similar exceptional circumstances. The person applying for a review must also demonstrate that they have an interest in the outcome of the review. You should make any request for a review of remuneration in writing within 28 days of receiving a ‘Remuneration claim notice’ from the trustee.
A creditor or bankrupt, who is dissatisfied with a trustee’s bill of costs for services provided by a third party, may request the trustee to apply to AFSA for a review. A review of third party costs includes those costs incurred by AFSA in its capacity as the Official Trustee. A review in respect of fees does not extend to the Official Trustee as its fees are determined by statute.
The outcome of AFSA’s review may be appealed to Court.
What if AFSA cannot help?
If AFSA’s intervention cannot resolve your complaint your only remedy may be to apply to the Court. We will inform you if this is the case.
If you do not feel you have been treated with dignity and respect or are otherwise dissatisfied with the way that AFSA has handled your complaint, please raise your concerns further by asking to speak with the actioning officer’s manager. If you remain dissatisfied you have a right to complain to the Commonwealth Ombudsman.
Further information about what you can expect from AFSA is available in the
Records of complaints
AFSA retains a record of all complaints. The record is kept as valuable feedback to assist in:
- ongoing monitoring of the standard of that trustee or administrator
- determining the scope of AFSA’s monitoring of trustees and administrators
- provision of guidance to trustees and administrators
- advising Government on personal insolvency policy issues.
AFSA policies and practice
For further information on AFSA’s role in reviewing certain trustee decisions please refer to the Inspector-General’s Practice Statement 12.
You can find both practice statements on AFSA’s website at www.afsa.gov.au