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- The purpose of this document is to outline AFSA’s expectations of personal insolvency practitioners to maintain both real and perceived independence in their roles within the personal insolvency system.
To whom this practice document applies
- This practice document applies to:
- registered trustees
- registered debt agreement administrators.
The above are collectively referred to in this document as personal insolvency practitioners, unless otherwise stated.
- All personal insolvency practitioners are expected to observe the principles and guidance outlined in this practice document to ensure they comply with their statutory and common law duties and meet best practice standards.
To what this practice document applies
- This practice document applies to any behaviour, conduct, arrangements, transactions or relationships which may compromise the independence of personal insolvency practitioners and/or affect their ability to effectively perform their duties under legislation, professional codes or best practice standards.
- It covers any activity which personal insolvency practitioners may engage in that requires the exercise of professional judgment to ensure they act honestly, impartially and avoid actual or potential conflicts of interest. This includes before or during appointment to a:
- composition/scheme of arrangement
- controlling trusteeship
- personal insolvency agreement
- debt agreement.
- The legislative framework regulating the conduct of personal insolvency practitioners is found within the following:
- The Bankruptcy Act, Schedule, Regulations and Rules impose a range of duties on personal insolvency practitioners which require them to act independently.
Standards for registered trustees
- The Rules impose specific standards for registered trustees to ensure that:
- they always act according to their powers and duties under the Bankruptcy Act, Regulations and Rules and bankruptcy law practice generally
- carry out administrations consistently to a high standard.
- Division 42 of the Rules outlines the standards for registered trustees to:
- act honestly and impartially (section 42-10)
- communicate objectively (section 42-15)
- notify relevant parties of actual or potential conflicts of interest and take appropriate steps to avoid them (section 42-20)
- act reasonably when determining ownership of (or an interest in) assets and claim only the amount(s) that fairly represent divisible property (section 42-45)
- obtain advice from an independent expert when required to assess the value of divisible property likely to have a material impact on the administration (section 42-50)
- act independently and impartially in undertaking transactions and dealings for the disposal of property (section 42-55).
- The duties to act honestly and impartially are especially important whenever registered trustees exercise powers under the Bankruptcy Act, including:
- discretionary powers in subsection 134(1)
- investigatory powers in sections 19AA, 77A, 81, 139U and subsection 6A(3)
- recovery powers in sections 129, 120-122, 128B, 128C.
- The standards apply to registered trustees; however, the Official Trustee will, where appropriate, observe these standards.
- The standards in Division 42 of the Rules also apply to controlling trustees.
- Section 189A of the Bankruptcy Act requires a controlling trustee to make a written declaration stating whether they (or their related entity) are related to the debtor. A copy must be provided to AFSA and to each of the creditors.
- In addition, subsection 70-30(3) of the Rules imposes a duty on registered trustees to give a written declaration to creditors at the same time as they first communicate with them about a regulated debtor’s estate stating:
- whether they, a partner or a body corporate (or associate of that body corporate) has had a relationship with the regulated debtor (or their former trustee) within the preceding 24 months
- if so, reasons for believing that none of those relationships result in a conflict of interest or duty.
- Where a declaration of relevant relationships is given to creditors and it becomes outdated or the trustee becomes aware of an error, subsection 70-51(2) of the Rules requires that a replacement declaration be given to creditors as soon as practicable.
- Paragraph 75-100(2)(b) of the Rules imposes a duty on trustees when deciding whether a creditor is entitled to vote at a meeting of creditors. This duty requires trustees to act impartially and independently without regard to the regulated debtor’s wishes.
- A trustee commits an offence when they agree or offer to give to another person any valuable consideration to secure their own appointment or nomination as a trustee, or secure or prevent the appointment or nomination of someone else as a trustee.
Guidelines for registered debt agreement administrators
- Guidelines made under section 186Q of the Bankruptcy Act prescribe duties that registered debt agreement administrators must comply with to effectively perform their functions.
- Central to these are the duties of registered debt agreement administrators to:
- ensure debt agreement proposals are correctly certified
- ensure the debtor’s property is dealt with as specified in the debt agreement
- not be reimbursed for expenses incurred as administrator unless they are specified in the agreement
- handle and properly account for money and keep books and records of the administration
- consider whether a debtor has committed an offence against the Bankruptcy Act and refer to any evidence to AFSA or to a relevant law enforcement authority.
- Implicit in these duties is that registered debt agreement administrators act honestly and impartially when dealing with debtors, creditors and AFSA.
Debt agreement administrator disclosures
- New disclosure and voting measures were introduced under the 2019 debt agreement law reforms to improve transparency and independence in the administration of debt agreements.
- When an administrator lodges a debt agreement proposal with the Official Receiver, it must be accompanied by a certificate signed by the administrator, stating information that includes whether a person (the broker) referred the debtor to the proposed administrator, and if so, setting out details of the relationship between the broker and the proposed administrator and details of any payments made, or to be made, to the broker by the proposed administrator in connection with that referral.
- If a creditor under the debt agreement is a related entity of the proposed administrator, the certificate must also specify the name of the creditor and the nature of the relationship between the affected creditor and the proposed administrator.
- Neither the administrator nor any creditor who is a related entity of the administrator is entitled to vote in relation to the acceptance, variation or termination of the debt agreement.
- For debt agreement proposals lodged on or after 27 June 2019, an administrator commits an offence when they give, agree or offer an affected creditor an incentive for voting on a proposal, variation or termination.
Why is independence important?
- The insolvency profession requires practitioners to act with independence. Personal insolvency practitioners are trustees for property and income received and have a fiduciary relationship to the creditor and debtor. As fiduciaries, practitioners must discharge a duty of care to creditors and debtors to properly perform their role, which requires avoiding conflicts of interest.
- Practitioners also have statutory duties to administer estates/trust funds in the interests of creditors, the person made bankrupt and the debtor and to exercise as a public duty and for the public welfare, certain powers given and duties imposed under the Bankruptcy Act.
Common law principles
- The duty of registered trustees to be independent is closely related to their role as fiduciaries and recognition as officers of the Court. Their special position as custodians of regulated debtors’ property on behalf of creditors imposes common law duties on registered trustees to use care and skill and to act in good faith when they administer a personal insolvency.
- This legislative framework is supported by relevant legal cases in which the Courts have considered and determined whether insolvency practitioners (both personal and corporate) have failed to act honestly or impartially or to avoid conflicts of interest. The relevant test for independence or “apprehended bias” has been considered and determined by the Courts as being the same test as that which applies to the judiciary and administrative decision makers, namely whether a fair-minded lay observer:
- is aware of the statutory duties which an insolvency practitioner must discharge impartially and without influence by relationships
- might reasonably apprehend that the insolvency practitioner might not bring an impartial mind to the resolution of the question.
- This “double might” test was applied in the Full Court of the Federal Court matter Walton Constructions Pty Ltd. The Court found that a conflict of interest arose where the liquidators of the company were required to investigate transactions with an entity that also referred work to the liquidators.
- Practitioners should avoid situations where an appointment might create an obligation that conflicts, or may be perceived to conflict, with the personal interests of them or their firm. Courts will remove liquidators (and trustees) in these circumstances, despite potential inconvenience and cost to the liquidation. Common law has set the bar high for the degree of independence required of insolvency practitioners.
- A similar situation relating to liquidators (and which applies similarly to trustees) was explored in Re Allebart Pty Ltd (in Liq.) and The Companies Act  1 NSWLR 24 at . Street J. (as he then was) said:
A liquidator is bound to be on guard lest he compromise his position of independence and impartiality in all respects in the discharge of his functions as an officer of the Court administering the winding up of a company. Not only is it his prerogative to decide what steps should be taken, but it is his duty to exercise himself, according to the dictates of his own opinions, what should and what should not be done in the course of any given winding up. It is for him to decide what steps are to be taken, and when, how and by what means such steps are to be taken. Where he draws upon financial assistance from a creditor, it is incumbent upon him to ensure that he does not place in jeopardy his independence in the discharge of his duties. It is indispensable that in point of substance the liquidator’s independence should be preserved; and it is undesirable that a liquidator should permit a situation to develop in which it might appear that he has yielded up in any degree whatever his exclusive independent control in the decision-making processes and administration of a winding up.
- Given their position as custodians of property, registered debt agreement administrators are similarly regarded as fiduciaries at common law with duties owed to both debtors and creditors for whom they act.
Independence of trustees as employees
- Trustees in bankruptcy have a common law duty to avoid any conflict of duty or interest whether as the appointee or otherwise. The need for absolute independence prevented employees from becoming registered as trustees for most of the twentieth century as it was perceived that they would be subject to the control of their employers and therefore could not act independently.
- In Re Partridge (unreported) 22 September 1982, Lockhart J. said of a trustee:
He must be scrupulously careful to ensure that he never allows himself to be placed in a position of conflict between various duties or between duty and interest; nor must he ever allow the situation to arise where he may be seen to be in that position of conflict or potential conflict. A registered trustee must not only be impartial; he must be seen to be impartial.
- In Re Lamb at , Sweeney J said:
The objects of the Act are of public importance and it is of great importance to the community that the role given by the legislature to a trustee, is fulfilled only by persons who are, and who are seen to be, completely independent.
- Sweeney J’s comments were made in a decision to cancel the registration of a trustee who went from a partner in a firm to an employee in another firm. The Full Federal Court, while citing Sweeney J’s comments with approval, overturned the decision, noting in its judgment the undertakings by the trustee’s employers to respect his independence and not interfere in his engagements as a trustee.
- The types of arrangements that need to be in place to ensure any applicant for registration as a trustee would be able to avoid conflicts of interest flowing from the dual capacity as trustee and employee were discussed comprehensively in Re Tracy Joy Dare; Ex Parte Tracy Joy Dare Art  FCA 509; (1992) 110 ALR 659 (1992) 38 FCR 356 (21 October 1992). The arrangements are discussed in Process for registration of trustees and should be carefully observed by any employee applying for trustee registration.
Professional codes and bodies
- Personal insolvency practitioners who are members of professional bodies may also be subject to codes of conduct that regulate their activities.
- The main professional bodies representing personal insolvency practitioners in Australia are:
- the Australian Restructuring Insolvency and Turnaround Association (“ARITA”)
- the Association of Independent Insolvency Practitioners (“AIIP”)
- the Personal Insolvency Professionals Association (“PIPA”).
- Two of these bodies have professional codes of practice that govern the conduct of their members and provide specific guidance about independence:
- The ARITA Code of Professional Practice – Insolvency Services deals extensively with independence, uses an independence hierarchy diagram to set out the test of independence, describes in detail the different circumstances that may be threats to independence and explains the contents required in a Declaration of Independence, Relevant Relationships and Indemnities (“DIRRI”).
- The ARITA Code incorporates the “double might test” but instead of the fair-minded lay observer refers to the “reasonable and informed third party”:
A member must be seen to be independent, that is, they must not accept an appointment, or continue to act under an existing appointment, if: a reasonable and informed third party; on the information available (or which should have been available) at the time might reasonably form the opinion that the Member might not bring an independent mind to the Administration and thus may not be impartial or may in fact act with bias; because of a lack of independence, or a perception of a lack of independence.
- ARITA’s Practice Statement 1 – Independence provides further guidance to its members to assist with the assessment of their independence before and during an appointment. ARITA’s Practice Statement 12 provides guidance to members on preparing a DIRRI.
- Many personal insolvency practitioners are also members of the main professional bodies representing accountants in Australia:
- CPA Australia (“CPAA”)
- Chartered Accountants Australia and New Zealand (“CAANZ”)
- Institute of Public Accountants (“IPA”).
- These accounting bodies also have professional codes of practice which govern the conduct of their members. Members are bound by the code of ethics and standards set by the national Accounting Professional and Ethical Standards Board (“APESB”).
- APESB provides specific guidance to members of CPAA, CAANZ and IPA on independence in these standards and guide:
- The guide (while specifically aimed at auditors and assurance services) outlines the fundamental principles that members of these bodies must observe and with which they must comply. They include integrity, objectivity, professional competence and due care, confidentiality and professional behaviour.
- The guide also states the following:
Independence is linked to the fundamental principles of objectivity and integrity. Members are obliged to be straightforward and honest in professional and business relationships and not to allow their judgement to be compromised by bias, conflict of interest or the undue influence of others.
- Independence of mind…
- Independence in appearance…
This means that members must not only act independently but they must also be perceived, by a reasonable and informed third party, to be independent.
- AFSA supports this position as a set of principles that all personal insolvency practitioners should observe and comply with and which are consistent with the legal duties imposed under the Bankruptcy Act, Regulations and Rules.
- The expectations of AFSA accord with the professional codes of practice about independence.
- We expect all personal insolvency practitioners to ensure that they comply with their legislative duties relating to independence, together with relevant case law, codes of professional practice and best practice standards.
- To demonstrate independence, we expect practitioners to (and be seen to):
- act impartially and objectively in exercising a duty
- avoid a real or perceived conflict between duty and interest
- be unaffected by influences that may compromise professional judgment.
- We will investigate and discipline personal insolvency practitioners who breach their legal duties under the Bankruptcy Act, Regulations or Rules or engage in conduct which undermines the integrity of the personal insolvency system.
- A decision to discipline a personal insolvency practitioner for failure to act honestly, impartially or to avoid conflicts of interest will depend on:
- the nature of the breach
- the seriousness of the effect of a failure to comply, including the impact on an administration or individual
- the performance and compliance history of the practitioner.
- Personal insolvency practitioners might encounter independence issues in various contexts. Common examples are outlined below.
- It is accepted practice for personal insolvency practitioners to accept appointments from third parties such as solicitors, accountants (including other insolvency practitioners), creditors, brokers and financial counsellors.
- However, third-party referrals may compromise the independence of personal insolvency practitioners whenever there is an express arrangement or implicit expectation that:
- Such arrangements (whether periodic or ongoing) undermine the independence of practitioners by creating actual or perceived conflicts of interest.
- Every referral will not necessarily result in an independence issue. However, practitioners must take care not to make arrangements which might affect their impartiality or create that impression in a reasonable minded observer.
- Relevant factors to consider include:
- the frequency and financial value of referrals accepted and services procured from third parties
- the nature and extent of any undertakings sought by or concessions given to third-party referrers.
- Although not exhaustive, the above are useful indicators that the Courts have considered when asked to review conduct of registered trustees about their independence or conflicts of interest.
- Another aspect of third-party referrals to which personal insolvency practitioners must be alert are untrustworthy advisors. Certain advisors target debtors whose businesses or individual circumstances may be in financial distress and suggest that they take actions which are unethical or illegal (e.g. suggest or arrange the transfer of assets to another person or company without payment). These actions can lead to serious consequences for debtors including large fines or imprisonment.
- We expect personal insolvency practitioners to make appropriate enquiries and conduct reference checks of any advisors from whom they intend to accept referrals to ensure that they do not:
- provide unqualified or unlawful advice to debtors
- facilitate any voidable transfers to related entities for debtors.
- Where a personal insolvency practitioner engages with an untrustworthy advisor, either knowingly or unknowingly, the association will attract the attention of AFSA. We expect the conduct and decisions of personal insolvency practitioners in an administration to be independent and free from the influence of an untrustworthy advisor. Failure to maintain independence from this influence could result in disciplinary sanctions, including cancellation of registration.
- It is common for personal insolvency practitioners to develop professional relationships in the ordinary course of their business.
- When they realise assets, registered trustees often engage agents such as:
- real estate agents
- insurance brokers
- stock brokers
- stock and station agents
- Registered debt agreement administrators often engage brokers who advertise debt agreements or develop networks with providers of debt help and financial management services. Administrators must, as a condition of their registration, ensure that any advertisements and promotion of their services, whether done by the administrator or by someone on their behalf, are not false, misleading or deceptive. The advertisement or promotion must also include the registration name and number of the administrator.
- These professional relationships can adversely affect the independence of personal insolvency practitioners where they create conflicts of interest or give rise to potential breaches of fiduciary duties. This might include:
- services supplied in a personal insolvency administration by an entity in which the appointee has an interest, e.g. a registered trustee engages a solicitor who is also their sibling to recover a voidable transaction
- a supplier of services used by a practitioner in all personal insolvency administrations without ensuring value for money, e.g. a registered trustee uses a preferred auctioneer to sell any bankruptcy assets without reference to the costs of realisation
- marketing done on behalf of a practitioner to generate leads by promoting services to debtors which are misleading, e.g. a broker who advertises debt agreements as “debt consolidation”
- a supplier of services offers inducements to a practitioner expecting to be engaged on future appointments, e.g. a registered trustee who regularly accepts invitations to VIP events.
- It is important to recognise and understand that professional relationships are different to one-off commercial transactions. Both involve the exercise of judgment to ensure probity, but professional relationships are often more subtle and complex to manage.
- In this context, personal insolvency practitioners should consider whether a professional they might engage may themselves have an actual or perceived conflict of interest. For example, a trustee who intends to realise a residential unit in a bankruptcy arising from unpaid body corporate fees should consider whether engaging solicitors, who act for the petitioning creditor owner’s corporation, to undertake the conveyance might represent either an actual or perceived conflict of interest.
- Personal insolvency practitioners are exposed to pressures from various sources including debtors, creditors, the Courts, regulators, professional bodies, other professionals, competitors and the general public. Effectively balancing these can be challenging and lead some to take risks with their professional integrity and reputation.
- We expect personal insolvency practitioners to be aware of these risks and seek appropriate guidance from their relevant professional bodies when they have independence concerns.
Associated or related entity appointments
- Personal insolvency practitioners must be careful to avoid potential conflicts of interest involving appointments to an associated or related entity.
- An associated entity includes a person or private company that is associated with a debtor or bankrupt to which a practitioner may be appointed.
- A related entity includes:
- a relative of someone who is a bankrupt or a debtor
- a company of which the debtor or person made bankrupt (or their relative) is a director
- a beneficiary under a trust of which the debtor or person made bankrupt (or their relative) is a trustee
- a trustee of a trust under which the debtor or person made bankrupt (or their relative) is a beneficiary
- a member of a partnership of which the debtor or person made bankrupt (or their relative) is a partner.
- Registered trustees may be exposed to risks of actual or perceived conflicts by accepting an appointment (sequential or concurrent) from a debtor or someone made bankrupt and an associated or related entity. Trustees are expected to anticipate the risks and decline such appointments wherever possible.
- Issues usually arise when there are disputes between parties over:
- interests in vesting property (e.g. between spouses, siblings, parents, children)
- voidable transactions (e.g. loans or gifts to an associated entity or related entity)
- creditor claims to participate in voting and/or entitlement to dividend payment.
- We expect registered trustees to be proactive in minimising risks of disputes before they arise to avoid potentially costly and time consuming action after the fact (e.g. applying to the Court for directions, voluntary resignation or involuntary removal by creditors, the Court reviews into conduct and/or disciplinary proceedings).
- Before accepting an appointment, registered trustees must sign a Form 12 – Trustee consent to act declaration under section 156A of the Bankruptcy Act. The form includes a declaration of relationships that requires disclosure of whether the registered trustee (or their related entities) are related to the debtor to whom the consent relates.
- Registered trustees should be aware that failure to declare or properly disclose the existence of relationships may expose them to a potential:
- order of the Court that they cease to be trustee of an estate under paragraph 90-15(3)(b) of the Schedule
- offence referral under paragraph 263(1)(d) of the Bankruptcy Act for making a false declaration
- disciplinary action under section 40-40 of the Schedule.
- Personal insolvency practitioners must take care when accepting appointments where they have had prior professional dealings with debtors. This typically includes situations where they may have:
- provided advice to the debtor on personal or business asset structures or financing
- provided advice as an expert witness in a legal action involving the debtor, and/or
- acted for the debtor in a dispute, e.g. negotiated an informal arrangement with creditors.
- While meeting with a debtor to discuss their personal insolvency options before a formal appointment is not likely to create an actual or perceived conflict, the examples cited above may do so.
- Before accepting an appointment in such circumstances, practitioners should ask themselves whether the nature and extent of prior professional dealings with the debtor will (or may):
- impede or prevent them properly performing their duties or exercising their powers
- undermine confidence of creditors and/or the general public due to a perceived conflict.
- AFSA expects that, where the answer to either question is “yes” (and there is no reasonable and practicable way to mitigate these issues), the personal insolvency practitioner will decline the appointment.
- Provisions of the Bankruptcy Act, Schedule, Regulations and Rules impose specific duties on personal insolvency practitioners to act with integrity and maintain professional independence when administering personal insolvencies.
- These duties are supplemented by common law, which recognises personal insolvency practitioners as fiduciaries who must use care, skill and act in good faith in the interests of debtors and creditors.
- Personal insolvency practitioners who are members of professional bodies must also comply with relevant codes of conduct. Central to the codes of conduct of the major insolvency and accounting bodies is the requirement to maintain professional independence.
- We expect all personal insolvency practitioners to observe and comply with their legal obligations and uphold the highest practice standards to maintain public confidence and integrity in the personal insolvency system.
- Practitioners must ensure that they always exercise appropriate professional judgment to ensure that their conduct, arrangements and relationships do not compromise their professional independence.
- For more information please contact AFSA on 1300 364 785 or at PractitionerSupervision [at] afsa.gov.au.
- ASIC INFO 84 – Independence of external administrators: a guide for creditors
- Personal bankruptcy and liquidation of a company: information for people in business and their advisers (this is a joint AFSA, ASIC and ARITA publication)
AFSA practice documents
Legislation and instruments
- Ebner v Official Trustee in Bankruptcy  HCA 63
- IND Energy Inc (BVI) v Langdon & Rocke as administrators of Petro Ventures International Ltd (Administrators Appointed)  WASC 364
- Australian Securities and Investments Commission v Franklin (liquidator), in the matter of Walton Constructions Pty Ltd  FCAFC 85
- BC39 Pty Ltd v Rambaldi, in the matter of Wharington (Bankrupt)  FCA 1076
- In the matter of Anglican Development Fund Diocese of Bathurst Board (Receivers and Managers appointed)  NSWSC 6
- In the matter of Sutton-Ford Pty Limited (in liq)  NSWSC 1552
- Scott (Trustee) v Icicek Holdings Pty Limited, in the matter of Icicek Holdings Pty Limited  FCA 1387
- Bank of Queensland Ltd & Anor v Ross Auto Auctions Pty Ltd (in liq) (Receivers and Managers appointed) & Anor  QSC 19
- Leroy as trustee of the bankrupt estate of Mogilevsky v Mogilevsky  FCCA 1742
- In the matter of 77738930144 Pty Limited (in liq) (formerly Commercial Indemnity Pty Ltd)  NSWSC 452
- S Kingston, “Pre-insolvency advisors and other relationships”, 2016, https://www.maddocks.com.au/pre-insolvency-advisors-relationships/
- ASIC/CPA, “At what cost? ASIC is concerned by the proliferation of pre-insolvency advisers”, 2015 www.intheblack.com/articles/2015/11/05/insolvency-at-what-cost
- ASIC, “Disrupting untrustworthy pre-insolvency advisors and improving information for creditors”, Australian Restructuring Insolvency & Turnaround Association Journal, vol. 28 no. 3, 2016
- Justice PW Young AO, “Fiduciary obligations and trustees in bankruptcy”, Australian Law Journal, vol. 83 no. 4, 2009
 Also note controlling trustees have a duty to exercise powers and perform functions in an impartial and independent manner under paragraph 190A(i) of the Bankruptcy Act
 If the firm is a partnership
 If the firm is a body corporate
 A similar duty applies under subsection 75-265(2) of the Rules to an incoming trustee appointed by resolution of creditors in place of an outgoing trustee
 See section 60-21 of the Schedule
 Re Lamb; Ex Parte Registrar in Bankruptcy  FCA 133; (1984) 1 FCR 391 (17 May 1984)
 Re Kenneth Wayne Lamb v the Registrar In the Bankruptcy of Victoria  FCA 282; 1984 Bankruptcy 4 FCR 269 (3 October 1984)
 For example, engaging the solicitor acting for a petitioning creditor to pursue legal action to recover property
 For example, selling assets or pursuing voidable transactions
 Typically calculated based on remuneration earned from appointments
 An interest may be direct or indirect and financial or personal in nature
 For example, CAANZ has a professional standards team to support members with practice issues, queries and ethics concerns: www.charteredaccountantsanz.com/member-services/mentoring-and-support/professional-and-ethical-support
 “Associated entity” and “related entity” are both defined in section 5 of the Bankruptcy Act