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.
These roles are managed by AFSA’s Enforcement and Practitioner Surveillance team.
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).
How to complain?
For information on how to complain, see: Submit a complaint or feedback
It is AFSA’s preference that complainants first raise their concerns with the practitioner. Each practitioner is required to have an internal complaint handling process. In the event that a complainant’s concern has not been adequately addressed through this process, they may then refer the matter to AFSA. To assist us in considering your complaint, please provide us with evidence that you have raised your concerns with the practitioner, in writing where possible, and their response(s). We recognise that there may be circumstances where it is not appropriate to raise your concerns with the practitioner in the first instance. If applicable, please provide us with details about why you are not able to do so.
How is my complaint handled?
If you wish to remain anonymous or have concerns about your details being made available, please make this clear to AFSA.
AFSA will acknowledge written complaints within seven days. Generally, we can deal with most complaints within 28 days. This may take longer if the issues you raise are complex, but we will keep you informed.
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. This may include making an application to the Court. AFSA can also facilitate meetings between parties to help everyone come to a solution faster. You should indicate in your complaint if you wish to consider this option.
How is my complaint investigated?
If the matter is not resolved through discussions with the practitioner, we will obtain a written response from them addressing the issues of your complaint. We may also inspect their file.
Report on the investigation
AFSA will provide you and the practitioner 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 one of the above decisions, 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. See: Request for review.
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. The trustee is only required 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. See: Request for review.
A request for a review of remuneration must be made in writing within 20 business days after receiving a ‘Remuneration Claim Notice’ or within 20 business days after the end of the administration of the estate. This is prescribed by Rule 90-5 of the Insolvency Practice Rules.
A review will only be done if the creditor or bankrupt can show the trustee failed to follow legislative requirements in the fee approval process, there was improper conduct by or on behalf of the trustee, or other similar exceptional circumstances. The person applying for a review must also show that they have an interest in the outcome of the review.
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 option 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 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 your debt agreement administrator is a member of an external dispute resolution scheme such as the Australian Financial Complaints Authority (AFCA), you can make a complaint to them.
More information about what you can expect from AFSA is available in the Client Service Charter.
Records of complaints
AFSA keeps a record of all complaints 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 more information on AFSA’s role in reviewing certain trustee decisions, see the Inspector-General’s Practice Statement 12.
For more information on AFSA’s role in reviewing trustee remuneration and third party costs, see the Inspector-General’s Practice Statement 16.
You can find both practice statements on AFSA’s website at www.afsa.gov.au