Submission on Insolvency Practitioner Regulation To the Competition, Trade & Investment Branch, Ministry of Economic Development.

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1 Submission on Insolvency Practitioner Regulation To the Competition, Trade & Investment Branch, Ministry of Economic Development Prepared by

2 Grant Thornton Submission on Insolvency Practitioner Regulation 2 February Contents Page Introduction 2 Questions raised by the Ministry 3 Issues not raised by the Ministry 7 Grant Thornton 8

3 Grant Thornton Submission on Insolvency Practitioner Regulation 2 February Introduction We are pleased to have an opportunity to present this submission on the regulation of Insolvency Practitioner regulation. We would be pleased to discuss our views, should you wish. Richard Simpson National Director Recovery and Reorganisation Grant Thornton P O Box Wellington T E

4 Grant Thornton Submission on Insolvency Practitioner Regulation 2 February Questions raised by the Ministry 1. Do you think that a competitive licensing system, in addition to the measures already contained within the Insolvency Law Reform Bill, will effectively manage the risks associated with corporate insolvency in relation to competence and professionalism of practitioners? If not, why not? What other factors should be considered? We have concerns that if there is more than one professional body responsible for the licensing of insolvency practitioners it will be difficult to ensure that consistent licensing standards are applied by each professional body. Notwithstanding this we are supportive of a segregation of responsibilities or the positioning of the Ministry of Economic Development as an overall review body. We support the comments in the discussion document concerning the Ministry s expertise in the insolvency area and believe that an operational relationship between the licensing entity and the Ministry (encompassing the Registrar of Companies) which holds the current enforcement powers under the Companies Act 1993 would be beneficial. Clearly it will be paramount that any involvement from the Ministry is supported by an increase in the Ministry resources. 2. What impact (positive and negative) do you see might be associated with such a scheme? The benefits of such a scheme have been set out in previous submissions calling for a regime and we will not repeat these at this time other than to state our overall support for a change from the existing status quo. In respect to potential negatives we believe that which ever scheme is implemented this should met the requirements of the recognition principle in the Trans Tasman Mutual Recognition Act. This will assist New Zealand practitioners to gain experience and recognition in Australia and may contribute to an increase in the number of available competent practitioners in New Zealand via immigration from Australia.

5 Grant Thornton Submission on Insolvency Practitioner Regulation 2 February In terms of entry requirements, what key features would you expect to see in the licensing systems of approved professional bodies and why? As noted above, we have concerns that if there is more than one professional body responsible for the licensing of insolvency practitioners, it will be difficult to ensure consistent standards. In the event that there is more than one professional licensing body, we believe the following key features should be applied by professional bodies to a common standard: 1. The professional bodies must make enquiries into the professional suitability of applicants, including the use of referees; 2. Applicants must agree to apply the professional and ethical standards of conduct prescribed by the professional bodies; 3. A requirement for an underlying appropriate academic qualification or the satisfying of such requirement by the evidence of significant direct experience; 4. Applicants must be able to demonstrate a sufficient knowledge of insolvency practice (based on either a minimum number of cases or a minimum length of time in insolvency practice) for which they have been responsible in a management capacity; 5. The professional bodies must be responsible for providing a program of continuing professional education; 6. There must be a system for the periodic review of the practitioner s work; 7. A requirement for a mandatory minimum level of professional indemnity insurance; 8. Specific ethical and professional requirements covering the operation of trust accounts, payment of practitioner costs and management of assignment funds or assets. 4. Should on-going professional development or on-going competency testing be a mandatory feature of an approved body s systems and processes? If so, do you have any views on the form this requirement should take? In answering this question we have assumed that a practitioner will as part of the licensing or accreditation process, have displayed a high level of practical insolvency experience and will hold an appropriate underlying academic qualification or have satisfied such requirement by the evidence of significant direct experience during the grandfathering or transition period. Professional Development Yes, there should be on-going professional development requirements. We believe the requirements of The New Zealand Institute of Chartered Accountants ( NZICA ) are appropriate. NZICA requires its members to undertake 20 hours of structured (i.e. formal) continuing education and 20 hours of unstructured continuing education annually. On Going Competency We believe that the files of insolvency practitioners should be subject to regular independent review. We give the following examples in support of our views.

6 Grant Thornton Submission on Insolvency Practitioner Regulation 2 February NZICA Chartered accounting firms are subject to practice review by NZICA. (usually every 3 years). This is a detailed review across all service lines, including insolvency services. The reviewers check, amongst other things, that the professionals being reviewed have: used appropriate methodologies; fully documented their work undertaken a minimum level of continuing education properly managed money belonging to others. sufficient, appropriate experience International Accounting Firms We understand that the larger chartered accounting firms with international associations (such as Grant Thornton) are also subject to review by a firm s international representatives. Indeed, Grant Thornton International will not authorise an associated firm to undertake insolvency work unless it is satisfied, based on its review, that the firm is sufficiently experienced and properly resourced. New Zealand Law Society The New Zealand Law Society operates an inspection regime for solicitors trust accounts to help ensure that lawyers deal appropriately with their clients money. The Benefits of Such Reviews Such reviews help to ensure that practitioners are competent and that they comply with best practice. We think a licensing system should include the a system of reviews similar in content to those noted above. 5. Do you have any other views on variations to the proposals that could be used to manage risks effectively? Apart from our concern that having more than one professional body being responsible for licensing, there are no other variations that we wish to propose. However, from an overall prospective we believe that the focus which has been placed in the discussion document upon the costs of a licensing or accreditation regime should not be a primary reason for ignoring or not addressing the issues being caused by inappropriate or unethical practitioners.

7 Grant Thornton Submission on Insolvency Practitioner Regulation 2 February What would be the appropriate lead-in time that would ensure a smooth transition to the new regime? We think it is unlikely that a new regime could be introduced within 2 years. We consider that professional bodies would be unlikely to be able to establish systems and processes that would be needed within that time. However, from an overall perspective we believe that the focus which has been placed in the discussion document upon the costs of a licensing or accreditation regime should not be a primary reason for ignoring or not addressing the issues being caused by inappropriate or unethical practitioners. We are also aware that some insolvency practitioners are not currently members of a professional body such as NZICA or the New Zealand Law Society. They would need time to make arrangements either for the establishment of such an organisation or to explore the possibility of affiliation with an existing organisation. 7. Are there any other factors that you consider to be relevant to the transitional arrangements? A specific issue that we identify and is set out in the discussion document is excluding unethical or inappropriate practitioners at the time licensing or accreditation is implemented. As has been evidenced in prior submissions by our fellow practitioners and ourselves, there are currently such insolvency practitioners actively undertaking assignments in the market place. In some instances these practitioners have academic qualifications and are members of recognised professional bodies. In other instances these practitioners may have completed a considerable number of appointments, even to the extent of having completed more appointments than many other practitioners we would define as more ethically and professionally appropriate. We therefore submit that it will not be possible to remove all such practitioners at the time of implementation and believe that a secondary review of all licensed or admitted practitioners should be undertaken within one year of the regime being implemented. We further submit that it would be useful if the Registrar of Companies and other regulatory entities were to record (in a format that is legally available to the applicable licensing entity) from a point prior to the commencement of the implementation period all complaints or other issues in respect to insolvency practitioners so that these are available for consideration during the implementation process.

8 Grant Thornton Submission on Insolvency Practitioner Regulation 2 February Issues not raised by the Ministry Label 1. In our view there needs to be a suitable label to indicate that a person is authorized to offer insolvency services to the public. This is particularly important where a person is engaged in offering insolvency related advice as opposed to being considered for appointment as a liquidator, receiver or administrator. Otherwise the public will not be able to determine whether or not a person is competent and qualified to offer insolvency services. Receivers 2. The definition of insolvency practitioner does not include the office of Receiver. Banks and finance companies appoint most Receivers. No doubt these institutions will only appoint as Receivers those persons in whom they have confidence. However, other creditors who hold registered security interests in the assets of debtors may also appoint receivers. Accordingly we consider that the definition of insolvency practitioners should extend to Receivers.

9 Grant Thornton Submission on Insolvency Practitioner Regulation 2 February Grant Thornton Grant Thornton International is one of the world s leading international organisations of independently owned and managed accounting and consulting firm providing assurance, tax and specialist advice to privately held businesses and public interest entities. Member firms focus on helping businesses reach their commercial goals by providing practical, customised solutions and identifying and pursuing business opportunities domestically and internationally. Member firms throughout the international organisation demonstrate thought leadership to the accountancy profession and business community. Firms operate in over 110 countries in more than 520 offices worldwide. They share a commitment to providing the same high quality service to their clients wherever they do business. Experienced professional combine valuable local market knowledge with technically advanced systems to help businesses prosper in today s highly competitive international market. The member firms of Grant Thornton in New Zealand are in Auckland, Christchurch, Dunedin, Wellington and Whangarei. Each firm is an independent member firm of Grant Thornton New Zealand, which is a member firm of Grant Thornton International.

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