Technical Governance Series: RITANZ

Supplied courtesy of the Institute of Directors

RITANZ Chair, John Fisk recently presented a very important session for Company Directors to the IOD as part of their Technical Governance Series. View the pdf here

The session looks at:

Key external business risks for 2002

Where do you sit on the curve?

Potential for Personal Liability

Case Law – when good governance failed

Working in the twilight zone

Insolvency options: when, why and how

Practical implications when facing insolvency

AML/CFT Statutory Review – Further Engagement Sessions

RITANZ has recently received the following communication from the AML/CFT Statutory Review Project Team at the Department of Justice:

Tēnā koutou katoa,

We trust this email finds you all well. This email is an update about the AML/CFT Statutory Review and what is happening over the final months of the review.

All submissions have been reviewed and summarised

The Ministry has finished reviewing the submissions received on the statutory review of the AML/CFT Act. We would like to express our deep gratitude to everyone who submitted – we received over 200 submissions, which is a record number of submissions for an AML/CFT reform project.

All submissions the Ministry received have been published with personal information redacted, except where the submitter requested we not publish the submission or keep the submission confidential. The Ministry has also produced a thematic summary of the submissions received. 

Read our update and view published submissions

Read the summary of submissions

We would like to invite you to attend further engagement workshops in April

The project team is busy identifying our intended recommendation for each topic. To support this process, we would like to invite you to attend further engagement workshops in April. The purpose of these sessions is to hear from the project team about the intended recommendation on several topics and provide input about the proposed approach. Attendees will be invited to share their views on the intended recommendation as well as the analysis supporting the recommendation with a view to ensuring that, as much as possible, recommendations which are put forward reflect the consensus of the private sector and AML/CFT agencies.

The sessions we are proposing to run are as follows:

Purpose and approach to AML/CFT Regulation (9:00 – 12:30 on 12 April, 9:00 – 12:30 on 13 April)

Supervision, regulation, and enforcement (9:00 – 12:30 on 20 April, 9:00 – 12:30 on 21 April)

Customer due diligence (9:00 – 12:30 on 22 April)

Prescribed transaction reporting and suspicious activity reporting (9:00 – 12:30 on 27 April)

Politically exposed persons and sanctions (9:00 – 12:30 on 28 April)

We are also intending to run sector specific workshops on Virtual Asset Service Provider obligations, CDD for real estate agents, wire transfer obligations, money or value transfer service business obligations, and high value dealers and pawnbrokers.

You can read more about the workshops and register for those topics which are of interest to you using this link: https://my.forms.app/form/622e7c0317a64c6cae93ac87

What happens next?

The Ministry’s review will conclude the review on 30 June 2022 with a report to the Minister of Justice about how the Act has performed since 2017 and whether any amendments are necessary or desirable. Our recommendations will be based on the submissions we have received and further engagement we conduct. The Minister will then make the report public as soon as practicable after it has been received.

Discussion document on the AML/CFT Act

In December 2021, RITANZ submitted a discussion document, to the Department of Internal Affairs, on behalf of its insolvency practitioner-specific accountant members.

The aim was to share what we perceive as shortcomings and ambiguity in the legislation which gives rise to critical issues and additional compliance for Licensed Insolvency Practitioners.

The full discussion document can be viewed here.

Ministry of Justice requests feedback on AML

On the 1 July 2021, the Minister of Justice asked the Ministry of Justice to review the Act. This review will look at:

How has the Act operated since 2013?

Is there any part of the Act that should change?

The review will finish by 30 June 2022, with the Ministry providing a report to the Minister. The Minister will then make the report public.

The Ministry is asking for submissions from the public with a deadline of 3 December 2021. RITANZ will be making a submission but we encourage all interested members to also make their own submissions to the MoJ.

To access the consultation document and obtain more information, click here.

Small businesses ‘on their knees’

RITANZ Chair, John Fisk recently noted in an NBR article, that even though some industries were doing it hard there had not yet been a rise in the number of businesses going to the wall.

There were 1008 liquidations (including those of solvent companies) in the nine months to September, he said.

This compares with 1129 liquidations in the same period in 2020, and 1285 in 2019.

Because of the lockdown, the number of court applications to wind up companies was at its lowest for a September month, Fisk said.

“In my view, many of the businesses impacted to date are just closing down or hibernating, and creditors are being paid or have chosen not to take legal action to recover the debt, at this stage.

“If history is anything to go by, there is also always a lag of some months between financial hardship and formal insolvency appointments actually happening,” he said.

Government support measures had helped, as had the IRD and landlords rescheduling or waiving debt.

Banks were also being supportive, and low interest rates along with rising property values were providing small firms with options for now.

To view the full article in NBR

Financial Professional Services Trading Advice Transparency Bill

On 21 October the Financial Professional Services Trading Advice Transparency Bill was drawn from the ballot of Private Members Bills. Here is a link to the parliamentary website with the details:

https://urldefense.com/v3/__https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_116381/financial-professional-services-trading-advice-transparency__;!!Nyu6ZXf5!5_G2HnFkw4wcz5Q5qC9CBtwL8iJYNIKG8dWAWwSKWqaKzzntADZ7RKQKOrmiyrg$

The Bill seeks to prevent professional advisers (defined as a person “providing advice on the financial management of companies”) who recommend receivership, liquidation, or administration of a business from subsequently undertaking any of those roles in respect of the entity in question. Clearly an Investigating Accountant (IA) type role would fall foul of this and the drafter points to an inherent conflict of interest in these circumstances.

The RITANZ Regulatory Committee intends to raise its concerns at this proposed law reform (with MBIE and in any subsequent consultation or committee phase) on the basis that:

1.    Receiverships are largely created by contract with the secured creditor entitled to make the decision when and who to appoint. Receivers have duties to their appointer and statutory duties to other parties. They are governed by the IP licensing regime and the rules and guidelines imposed on them;

2.    Liquidators and administrators are also Licensed Insolvency Practitioners and are subject to statutory duties of disclosure and engagement, actions of creditors to replace them and, ultimately, the supervision of the Court;

3.    This issue was extensively reviewed by the Insolvency Working Group in 2016 whose recommendations were largely adopted in the 2019 law reforms;

4.    Prior to the above law reform, the Courts, in Companies Act s280 applications, had reached the position where Investigating Accountants (who might otherwise have disqualifying relationships with the debtor or the secured creditor) were often in the best position to administer the debtor entity in the most efficient manner, for the benefit of all parties;

5.    Other jurisdictions (Australia in particular) which have a licensing regime, do not have laws of this nature.

If any members have any further views they wish to add then please make contact with our Executive Director or make your own views known to MBIE.

NZICA makes changes to their professional and ethical standards

CA ANZ has released the following communication to their members:

This email is to notify you of some important changes to some of our professional and ethical standards.  Please ensure you read the below information carefully as it is a condition of your licence that you comply with these standards.

If you have any queries or concerns regarding the below or any other aspect regarding your licence, please don’t hesitate to contact us on regulation.nzica@charteredaccountantsanz.com

  1. Revised NZICA Insolvency Services Standard

The New Zealand Regulatory Board has issued a revised NZICA insolvency services standard, IS: Insolvency Services that will apply to all NZICA members and all insolvency practitioners licensed by NZICA from 1 November 2021 (early adoption permitted).

The revised standard reflects changes to New Zealand laws and regulations(in particular, the new insolvency practitioners regime) and the NZICA Code of Ethics.

You can find out more about the changes and obtain a copy of the standard here

  1. Revised NZICA Code of Ethics – Role and Mindset

The New Zealand Regulatory Board has issued a revised NZICA Code of Ethics that incorporates ED 2020-1 Revision of the NZICA Code of Ethics to promote the role and mindset expected of members (revised code).  The NZICA Code of Ethics applies to all insolvency practitioners licensed by NZICA.

The changes included in the revised code reflect recent changes made by the International Ethics Standards Board for Accountants (IESBA) to the International Code of Ethics.  The changes highlight a member’s and LIP’s responsibility to act in the public interest and enhance the fundamental principles and conceptual framework by further clarifying existing requirements and introducing new concepts including the requirement to “have an inquiring mind”.

The changes will take effect on 31 December 2021 (early adoption permitted).

You can find out more information on the changes and obtain a copy of the revised code here

  1. Revised Regulation CR 7 – Continuing Professional Development (CPD)

The New Zealand Regulatory Board and the Chartered Accountants Australia and New Zealand Board have issued a revised regulation CR 7.  This regulation sets out the minimum CPD requirements for all members, LIPs and Non Member Principals approved by NZICA.

As set out in the standard conditions of your licence, should the NZICA requirements exceed those set out in the Prescribed Minimum Standards, you must comply with the NZICA requirements.

For trienniums (3 year period) beginning on or after 1 July 2021, all LIPs must undertake:

At least 120 hours of CPD;

At least 90 hours of the 120 must be verifiable CPD;

At least 20 hours of the 90 verifiable hours must relate to insolvency;

At least 2 hours of the verifiable hours must be ethics training; and

A minimum of 20 hours of the total 120 must be completed each year.

You can find out more about the changes here

Soaring out of Administration – The Virgin Australia Restructure Story

RITANZ is proud to be hosting the following webinar on 28 September 2021:

In March 2020, Virgin Australia Airlines was dramatically impacted by travel restrictions due to COVID-19. What was once a $6 billion turnover business experienced a 95% drop in domestic revenue almost overnight and an immediate shutdown of all international operations. Deloitte were appointed administrators on 20 April 2020, with the goal of making sure this airline survived.

Deloitte, along with its advisors, Houlihan Lokey and Clayton Utz, completed a substantial operational and financial restructure of the business during the administration. In parallel with an operational restructure, a rapid sale campaign resulted in the sale of the business to Bain. The sale was completed on 17 November 2020. With the transaction, Virgin successfully exited voluntary administration, being one of few companies of their size and scale to do so. Virgin was given a second life, and the chance to re-establish itself as an iconic Australian airline.

There were also a multitude of innovative legal applications and hearings to effect the restructure.

At this event, the administrators will tell the story of how Virgin was restructured, sold and successfully exited from administration in the midst of one of the most challenging operating environments ever. 

Sal Algeri

National Restructuring Leader, Deloitte

Sal Algeri is the National Deloitte Restructuring Leader. He has extensive experience in supporting key stakeholders through independent commercial, strategic and financial reviews and supporting the implementation of strategic, financial and operational restructuring initiatives for businesses. 

Sal’s primary focus is to work with the stakeholders and management teams within corporates to rapidly address the improvement in financial performance. His experience covers a wide range of sectors and his assignments vary from crisis management situations, development of business plans and option analysis, and the implementation of performance turnaround strategies.

John Greig

Deputy Chairman, Deloitte Australia Board and Managing Partner, Deloitte Queensland

John is the Deputy Chairman of the Deloitte Australia Board and Managing Partner of Deloitte in Queensland.

Over his 26-year career as a Deloitte Partner, John has served the firm across most of its dimensions. As a Board member overseeing transitions of CEO and Chair, as the Qld Market Leader, as a national Business Unit Executive member, as a Qld Industry Leader, as a Lead Client Service and Advisory Partner on major accounts, as a National Operating Unit Leader and most importantly as a high performing client service delivery partner. 

Richard Hughes

Partner, Financial advisory Deloitte

Richard is the Lead Partner of the Queensland Restructuring Services team of Deloitte and has over 28 years’ professional experience at Deloitte including 20 years with our Restructuring Services team.  Richard specialises in restructuring distressed companies – both as a formally appointed external administrator, but also as an informal advisor to boards, shareholders, lenders and other major stakeholders.

Richard is a chartered accountant, and a member of the FINSIA, ARITA, TMA and AICD organisations.  He is also a registered liquidator.  Richard is a committee member of TMA in Queensland.

Richard’s work includes advising businesses on their operations, restructuring and improving performance.  He is regularly called to negotiate on behalf of clients arrangements with their banks creditors, landlords and other stakeholders and is a safe harbour advisor.

Richard led the teams that were awarded the National Small Business Turnaround of the Year both in 2015 and in 2018 from the Turnaround Management Association for their work with Withcott Seedlings and the Brisbane Broncos, respectively.

Richard has also variously been receiver, administrator or liquidator of a number of companies.  His major assignments have included Kleenmaid, Karen Millen, Riviera Marine, Bryan Byrt, Denmac Ford, Betta Electrical, Harts Australasia and Sam’s Seafood.  More recently Richard was one of the four administrators of Virgin Australia.

Jim McKnight

Managing Director, Houlihan Lokey’s Financial Restructuring Group

Mr. McKnight is a member of Houlihan Lokey’s Financial Restructuring Group. He has over two decades of experience in investment banking and restructuring in Australia and Asia. Mr. McKnight is a market leader in restructuring and recapitalisations, having led most major Australian and Asian restructuring transactions since 2000, advising corporates, lenders (bank syndicates and bondholders), and shareholders across a wide range of sectors.

Mr. McKnight’s notable restructuring engagements include Virgin Australia, Bluewaters Power, CF Asia Pacific, LakeCoal, Wiggins Island Coal Export Terminal, Bis Industries, BrisConnections, Griffin Coal, Griffin Power, Asciano, Centro Retail Trust, GPT, Pacific Brands, Hong Kong Disneyland Resort, SK Global, Seiyu Group, Qenos Pty Ltd., Cross City Tunnel, Freightlink, Inc., Network Ten Pty Ltd., and Reliance Rail.

Prior to joining Houlihan Lokey, Mr. McKnight led the restructuring team at Fort Street Advisers as a Principal from 2013 to 2017 and was Head of Asia Pacific Restructuring and Head of Debt Advisory for Australia at UBS Investment Bank from 2002 to 2013. Prior to joining UBS in 2002, Mr. McKnight spent 12 years in the U.K. specializing in insolvencies, turnarounds, and restructurings.

Mr. McKnight holds a B.Acc. from the University of Glasgow and an MBA from Strathclyde Graduate Business School. He is also a Chartered Accountant with the Institute of Chartered Accountants of Scotland.

Timothy Sackar

National Practice Group Leader, Clayton Utz

With a strong international practice, Timothy Sackar specialises in business restructuring, distressed investing and insolvency. He is the National Practice Group Leader for the Restructuring & Insolvency Group as well as a leader of our Alternate Investment Funds practice.

Timothy has been involved in numerous significant matters in Australia, Asia and the UK, advising debtors, financial creditors, sponsors, bondholders and directors on all aspects of restructurings, workouts and cross-border insolvencies. He has extensive experience in advising on distressed investments and restructuring strategies generally, voluntary and compulsory insolvency regimes, trading of debt for distressed or par values and the sale of non-performing loan portfolios.

He also advises insolvency practitioners on their appointments, duties and the disposal of assets of the estate.

Govt implements temporary Covid-19 measures

A message from MBIE

The Government has decided to implement a range of temporary measures across Commerce and Consumer Affairs legislation that respond to the disruption and uncertainty caused by the re-emergence of COVID-19 in the community. These include delays to the commencement of some new regulatory obligations and flexibility to make it easier for businesses and other entities to operate safely during heightened alert levels. These changes affect forthcoming credit reforms, food country of origin disclosure requirements, and include reapplying temporary relief from 2020 in respect of corporate governance legislation and contract and commercial law.

Of significance to lenders and borrowers the Government agreed to:

1.

Delay the full commencement of the Credit Contracts Legislation Amendment Act 2019 (the Amendment Act) by two months, to 1 December 2021. This was necessary due to the impact of recent COVID-19 alert levels on lenders’ implementation of the reforms, which has disrupted training and other preparations and forced a reprioritisation of resources to support existing customers. This delay will include the regulations that were due to come into force on 1 October 2021, such as the Credit Contracts and Consumer Finance (Lender Inquiries into Suitability and Affordability) Amendment Regulations 2020.

2.

Subject to Parliament passing the necessary legislation, temporarily reactivate amendments made to the Contract and Commercial Law Act 2017 in 2020 to facilitate the electronic execution of security documents containing powers of attorney. It is currently anticipated that this modification will last for an initial period of 6 months from the date of Royal Assent. Relevantly, unlike the modification made in 2020, the Government does not currently intend to make this modification retrospective.

You may also be interested to hear that the Government has similarly, subject to Parliament passing the necessary legislation, agreed to reinstate the compliance relief contained in the COVID-19 Response (Requirements For Entities—Modifications and Exemptions) Act 2020. This will enable organisations:

a) to do certain matters – including holding meetings, signing instruments, and voting on certain matters – electronically even if their constitutions or rules do not provide for it; and

b) to more easily modify certain requirements or restrictions in their constitution or rules (for example, defer reporting, or waive members’ fees).