Insolvency Practice Rules (Corporations) 2016

20‑2 Qualifications, experience, knowledge and abilities required by applicants for registration to practise only as a restructuring practitioner

(1) This section: (a) is made for the purposes of paragraph 20‑20(4)(a) of the Insolvency Practice Schedule (Corporations); and (b) applies in relation to an application (a restructuring practitioner application) for registration as a liquidator if the applicant wishes to be registered to practise only as a restructuring practitioner for a company or for a restructuring plan. (2) A committee to which a restructuring practitioner application is referred under section 20‑15 of the Insolvency Practice Schedule (Corporations) must be satisfied that the applicant has each of the following qualifications, experience, knowledge and abilities: (a) the applicant is a recognised accountant; (b) the applicant has demonstrated the capacity to perform satisfactorily the functions and duties of a restructuring practitioner for a company and for a restructuring plan; (c) the applicant is able to satisfy any conditions to be imposed under the Insolvency Practice Schedule (Corporations) if the applicant is registered as a liquidator. Definitions (3) In this section:

recognised accountant means:

(a) a member of Chartered Accountants Australia and New Zealand (CAANZ) who:
(i) holds a Certificate of Public Practice issued by CAANZ; and
(ii) is entitled to use the letters “CA” or “FCA”; and
(iii) is subject to, and complies with, CAANZ’s continuing professional education requirements; or
(b) a member of CPA Australia who:
(i) holds a Public Practice Certificate issued by CPA Australia Ltd; and
(ii) is entitled to use the letters “CPA” or “FCPA”; and
(iii) is subject to, and complies with, CPA Australia’s continuing professional education requirements; or
(c) a member of the Institute of Public Accountants (IPA) who:
(i) holds a Public Practice Certificate issued by IPA; and
(ii) is entitled to use the letters “FIPA” or “MIPA”; and
(iii) is subject to, and complies with, IPA’s continuing professional education requirements.

20‑5 Conditions on registration of liquidators

(1) This section is made for the purposes of section 20‑35 of the Insolvency Practice Schedule (Corporations).

Registered liquidators generally (2) It is a condition on the registration of any person as a registered liquidator that: (a) the person undertake at least 120 hours of continuing professional education during: (i) the period of 3 years starting on the day the person is first registered as a liquidator; and (ii) each subsequent period of 3 years during which the person is registered as a liquidator; and (b) at least 30 hours of the 120 hours of continuing professional education is capable of being objectively verified by a competent source. Restructuring practitioners (3) If a committee decides under 20‑20(6) of the Insolvency Practice Schedule (Corporations) that a person’s registration is to be subject to a condition that the person act as the external administrator of a company only in the capacity of a restructuring practitioner for the company or for a restructuring plan made by the company, it is a condition on the registration of the person as a registered liquidator that the person must not carry out work as an external administrator of a company otherwise than in that capacity. Suspended registrations

(4) It is a condition on the registration of any person whose registration as a liquidator has been suspended that the person must, during the period of the suspension, maintain:

(a) adequate and appropriate professional indemnity insurance; and

(b) adequate and appropriate fidelity insurance;

against the liabilities that the person may incur as a result of work carried out as a registered liquidator before the suspension takes effect.

Division 35—Notice requirements

35‑1 Events of which a registered liquidator must notify ASIC

The following are events in relation to which a registered liquidator must lodge a notice with ASIC under paragraph 35‑5(1)(b) of the Insolvency Practice Schedule (Corporations):

(a) the registered liquidator ceases to practise;

(b) the registered liquidator changes his or her name;

(c) if the registered liquidator practises as a member of a firm, or under a name or style other than the person’s own name—the name of the firm, or that other name or style, changes;

(d) the address of any place where the registered liquidator practises as such changes.

Division 40—Disciplinary and other action

40‑1 Industry bodies that may notify ASIC of grounds for disciplinary action

The following industry bodies are prescribed for the purposes of section 40‑110 of the Insolvency Practice Schedule (Corporations):

(a) ARITA;

(b) CPA Australia;

(c) Chartered Accountants Australia and New Zealand;

(d) the Institute of Public Accountants;

(e) the New South Wales Bar Association;

(f) the Law Society of New South Wales;

(g) the Victorian Legal Services Commissioner;

(h) the Victorian Legal Services Board;

(i) the Bar Association of Queensland;

(j) the Queensland Law Society;

(k) the Legal Practice Board of Western Australia;

(l) the Law Society of South Australia;

(m) the Legal Profession Conduct Commissioner of South Australia;

(n) the Law Society of Tasmania;

(o) the Law Society of the Australian Capital Territory;

(p) the Law Society Northern Territory.

Division 50—Part 2 committees

50‑1 Authority

Unless otherwise stated, a provision of this Division is made for the purposes of section 50‑25 of the Insolvency Practice Schedule (Corporations).

50‑5 Part 2 committee may generally determine its own procedures

Subject to the Insolvency Practice Schedule (Corporations) and these Rules, a Part 2 committee may determine its own procedures.

50‑6 Virtual meetings

(1) This section applies in relation to any meeting of a Part 2 committee, including a meeting convened for the purposes of interviewing an applicant under the Insolvency Practice Schedule (Corporations). Meetings may be held using virtual meeting technology (2) Virtual meeting technology may be used in holding the meeting, provided the technology gives each member of the committee a reasonable opportunity to participate without being physically present in the same place. (3) All members so participating in the meeting are taken for all purposes to be present in person at the meeting while so participating. (4) If virtual meeting technology is used in holding the meeting, each member must be given the opportunity to participate in the vote in real time. Place and time of virtual meetings (5) If any of the members is entitled to physically attend the meeting: (a) the place for the meeting is taken to be: (i) if there are 2 or more locations at which persons who are entitled to physically attend the meeting may do so—the main location for the meeting as set out in the notice of the meeting; and (ii) otherwise—the location where the persons may physically attend the meeting; and (b) the time for the meeting is taken to be the time at the place for the meeting. (6) If none of the members is entitled to physically attend the meeting: (a) the place for the meeting is taken to be the address of the ASIC office of ASIC’s delegate to the committee; and (b) the time for the meeting is taken to be the time at the place for the meeting. Tabling of documents at virtual meetings (7) If: (a) virtual meeting technology is used in holding a meeting; and (b) a document is required or permitted to be tabled at the meeting; the document is taken to have been tabled at the meeting if a copy of the document is made reasonably accessible to persons attending the meeting, for example by: (c) giving a copy of the document before the meeting to the persons entitled to attend the meeting; or (d) giving a copy of the document during the meeting to the persons attending the meeting; or (e) screencasting the document in a reasonable way during the meeting to the persons attending the meeting, as a whole.

50‑7 Electronic recording and keeping of minutes

(1) If minutes are required to be recorded, the minutes may be recorded in electronic form if, at the time of the recording of the minutes, it was reasonable to expect that the minutes would be readily accessible so as to be useable for subsequent reference. (2) If minutes are required to be kept, the requirement is taken to be satisfied if: (a) the minutes are kept in electronic form; and (b) having regard to all the relevant circumstances at the time of the generation of the electronic form of the minutes, the method of generating the electronic form of the minutes provided a reliable means of assuring the maintenance of the integrity of the information contained in the minutes; and (c) at the time of the generation of the electronic form of the minutes, it was reasonable to expect that the information contained in the electronic form of the minutes would be readily accessible so as to be useable for subsequent reference. (3) For the purposes of paragraph (2)(b), the integrity of information contained in the minutes is maintained if, and only if, the information has remained complete and unaltered, apart from: (a) the addition of any endorsement; or (b) any immaterial change; which arises in the normal course of communication, storage or display.

50‑10 ARITA may appoint a member of a Part 2 committee

For the purposes of the following provisions of the Insolvency Practice Schedule (Corporations), the prescribed body is ARITA:

(a) paragraph 20‑10(2)(b) (applications for registration);

(b) paragraph 20‑45(2)(b) (applications to vary etc. conditions of registration);

(c) paragraph 40‑45(2)(b) (disciplinary action);

(d) paragraph 40‑75(2)(b) (applications to lift or shorten a suspension).

50‑15 Knowledge and experience required of a member of a Part 2 committee appointed by ARITA

(1) This section is made for the purposes of paragraph 50‑5(2)(a) of the Insolvency Practice Schedule (Corporations).

(2) A person appointed by ARITA as a member of a committee convened under Part 2 of the Insolvency Practice Schedule (Corporations) must have at least 5 years’ experience as a registered liquidator.

50‑20 Chair of a Part 2 committee

ASIC’s delegate to a Part 2 committee is to be the Chair of the committee.

50‑25 Resignation of Part 2 committee members

(1) A member of a Part 2 committee may resign from the committee by giving notice in writing of that fact to the Chair.

(2) The resignation takes effect on the later of:

(a) the day on which the notice is given; and

(b) a day specified in the notice.

50‑30 Part 2 committee to be reconstituted—removing ARITA members

(1) This section applies if the Chair of a Part 2 committee is satisfied that a member of the committee chosen by ARITA:

(a) is unable to perform the duties of a member because of physical or mental incapacity; or

(b) has neglected his or her duties as a member; or

(c) is unable to carry out the duties of a member because of a material personal interest in a matter to be considered by the committee; or

(d) has been convicted of an offence involving fraud or dishonesty.

(2) The Chair must give ARITA notice of that fact as soon as reasonably practicable after becoming satisfied.

(3) If ARITA is given notice under subsection (2), the person ceases to be a member of the committee on the day on which the notice is given.

50‑35 Part 2 committee to be reconstituted—removing members appointed by the Minister

(1) This section applies if the Minister is satisfied that a member of a Part 2 committee appointed by the Minister:

(a) is unable to perform the duties of a member because of physical or mental incapacity; or

(b) has neglected his or her duties as a member; or

(c) is unable to carry out the duties of a member because of a material personal interest in a matter to be considered by the committee; or

(d) has been convicted of an offence involving fraud or dishonesty.

(2) The Minister must give the Chair notice of that fact as soon as reasonably practicable after becoming satisfied.

(3) If the Chair is given notice under subsection (2), the person ceases to be a member of the committee on the day on which the notice is given.

50‑40 Part 2 committee to be reconstituted—replacing members

(1) If a person chosen by ARITA to be a member of a Part 2 committee ceases to be a member of the committee, ARITA must choose a replacement in accordance with the Act.

(2) If a person appointed by the Minister to be a member of a Part 2 committee ceases to be a member of the committee, the Minister must choose a replacement in accordance with the Act.

(3) Notice of the replacement of a member under subsection (1) or (2) must be given to the person in relation to whom the Part 2 committee has been convened.

50‑45 Termination of consideration, and transfer, of a matter

(1) If the Chair of a Part 2 committee is satisfied that a matter could more efficiently or fairly be dealt with by terminating the consideration of the matter by the committee and transferring the matter to another committee (the new committee), the Chair may do so.

(2) If a matter is transferred under subsection (1), the new committee must deal with the matter afresh.

50‑50 Duty to disclose interests

(1) A member of a Part 2 committee who has a material personal interest that relates to a matter to be considered by the committee under Part 2 of the Insolvency Practice Schedule (Corporations), must disclose details of that interest to the Chair.

(2) The member must disclose the details of the interest as soon as practicable after the member becomes aware that the member has the material personal interest that relates to the matter.

50‑55 Natural justice and rules of evidence

(1) A Part 2 committee must observe natural justice.

(2) A Part 2 committee is not bound by any rules of evidence but may inform itself on any matter as it sees fit.

50‑60 Decisions made at a meeting

(1) A Part 2 committee may make a decision in relation to a matter at a meeting, provided each member of the committee is present at the meeting.

(3) At a meeting of a Part 2 committee, a matter is to be decided by a majority of the votes of the members.

(4) A committee must keep minutes of proceedings at its meetings.

50‑65 Decisions made without a meeting

(1) A Part 2 committee may make a decision in relation to a matter without a meeting.

(2) A Part 2 committee makes a decision in relation to a matter without a meeting if a majority of the members of the committee sign a document that:

(a) sets out the terms of the decision; and

(b) states that each member signing the document is in favour of the decision.

(3) A decision under this section is taken to have been made:

(a) on the day on which the document is signed; or

(b) if the members sign the document on different days—on the day on which the document is signed by the last member to sign the document who makes up the majority.

(4) Two or more separate documents that are identical in all material respects (apart from signatures), each of which is signed by one or more members of a Part 2 committee, are taken for the purposes of subsection (2) to constitute a single document.

50‑70 Keeping records of decisions

(1) A Part 2 committee must keep a written record of its decisions.

(2) A written record of a decision of a Part 2 committee may be kept in electronic form if, at the time of the making of the record, it was reasonable to expect that the record would be readily accessible so as to be useable for subsequent reference. (3) If a written record of a decision of a Part 2 committee is required to be kept at a place, the requirement is taken to be satisfied if: (a) an electronic form of the record is open for inspection at the place in accordance with the Act, the regulations or these Rules; and (b) having regard to all the relevant circumstances at the time of the generation of the electronic form of the record, the method of generating the electronic form of the record provided a reliable means of assuring the maintenance of the integrity of the information contained in the record; and (c) at the time of the generation of the electronic form of the record, it was reasonable to expect that the information contained in the electronic form of the record would be readily accessible so as to be useable for subsequent reference. (4) For the purposes of paragraph (3)(b), the integrity of information contained in a record is maintained if, and only if, the information has remained complete and unaltered, apart from: (a) the addition of any endorsement; or (b) any immaterial change; which arises in the normal course of communication, storage or display.

50‑75 Inquiries by a Part 2 committee

(1) A Part 2 committee considering a matter under Part 2 of the Insolvency Practice Schedule (Corporations) may make inquiries of any person for the purposes of making a decision in relation to the matter.

(2) Inquiries made must be inquiries:

(a) that are reasonable, for the purpose of making an informed decision; or

(b) that the Chair of the committee believes are appropriate in order for the committee to have sufficient information to make the decision.

50‑80 Interviewing applicants

(1) This section applies if a Part 2 committee is required to interview an applicant under one of the following provisions of the Insolvency Practice Schedule (Corporations):

(a) paragraph 20‑20(2)(a) (application for registration as a liquidator);

(b) subsection 20‑55(2) (application to vary etc. conditions of registration);

(c) subsection 40‑85(2) (application to lift or shorten a suspension).

(2) The Chair of the committee must, after consultation with the other members of the committee:

(a) fix a date and time for the interview; and

(b) fix the manner of the interview; and
(c) give written notice of the following to the applicant and the other members of the committee:
(i) if there is only one location at which the applicant and the members may physically attend the interview—the date, time and place for the interview;
(ii) if there are 2 or more locations at which the applicant and the members may physically attend the interview—the date and time for the interview at each location, and the main location for the interview;
(iii) if virtual meeting technology is to be used in holding the interview—sufficient information to allow the applicant and the members to participate in the interview by means of the technology.

(3) A Part 2 committee must interview the applicant as soon as practicable and, for that purpose: (a) any member of the committee may participate in the interview by means of virtual meeting technology; and (b) the applicant may participate in the interview by means of virtual meeting technology.

(4) At an interview, the committee may ask the applicant any question that the committee reasonably believes to be related to:

(a) the application; or

(b) a reference accompanying the application; or

(c) any matter that is relevant to the committee’s decision in relation to the application.

50‑85 Interviewing liquidators—proposed cancellation of registration

(1) This section applies if:

(a) a Part 2 committee is convened under subsection 40‑45(1) of the Insolvency Practice Schedule (Corporations); and

(b) the committee is proposing to decide, under paragraph 40‑55(1)(c) of the Schedule, that the liquidator’s registration should be cancelled.

(2) The Chair of the Part 2 committee must, after consultation with the other members of the committee:

(a) fix a date and time to interview the liquidator; and

(b) fix the manner of the interview; and
(c) give written notice of the following to the liquidator and the other members of the committee:
(i) if there is only one location at which the liquidator and the members may physically attend the interview—the date, time and place for the interview;
(ii) if there are 2 or more locations at which the liquidator and the members may physically attend the interview—the date and time for the interview at each location, and the main location for the interview;
(iii) if virtual meeting technology is to be used in holding the interview—sufficient information to allow the liquidator and the members to participate in the interview by means of the technology.

(3) A Part 2 committee must interview the liquidator as soon as practicable and, for that purpose: (a) any member of the committee may participate in the interview by means of virtual meeting technology; and (b) the liquidator may participate in the interview by means of virtual meeting technology.

(4) At an interview, the committee may ask the liquidator any question that the committee reasonably believes to be related to any matter that is relevant to the committee’s proposed decision to cancel the liquidator’s registration.

50‑90 Decisions on disciplinary matters

If a matter is referred to a Part 2 committee under section 40‑50 of the Insolvency Practice Schedule (Corporations), the committee must use its best endeavours to decide the matter within 60 days after the matter is referred to it.

50‑95 Reports of a Part 2 committee

(1) This section applies if a Part 2 committee is required to give a report under one of the following provisions of the Insolvency Practice Schedule (Corporations):

(a) section 20‑25 (registration);

(b) section 20‑60 (varying etc. conditions of registration);

(c) section 40‑60 (disciplinary action);

(d) section 40‑90 (lifting or shortening suspension).

(2) The committee must prepare the report in writing.

(3) The report must include a statement of the reasons of any minority in the decision.

(4) Each member of the committee must sign the report.

50‑100 Industry disciplinary bodies to which a Part 2 committee may disclose information

The following bodies are prescribed for the purposes of subparagraph 50‑35(2)(b)(iv) of the Insolvency Practice Schedule (Corporations):

(a) ARITA;

(b) CPA Australia;

(c) Chartered Accountants Australia and New Zealand;

(d) the Institute of Public Accountants;

(e) the New South Wales Bar Association;

(f) the Law Society of New South Wales;

(g) the Victorian Legal Services Commissioner;

(h) the Victorian Legal Services Board;

(i) the Bar Association of Queensland;

(j) the Queensland Law Society;

(k) the Legal Practice Board of Western Australia;

(l) the Law Society of South Australia;

(m) the Legal Profession Conduct Commissioner of South Australia;

(n) the Law Society of Tasmania;

(o) the Law Society of the Australian Capital Territory;

(p) the Law Society Northern Territory.

Part 3—General rules relating to external administrations

Division 60—Remuneration and other benefits received by external administrators