BYE LAW 1 INTERPRETATION

Transcription

1 BYE LAW 1 INTERPRETATION Preliminary 1.1 In the interpretation of these bye laws the words and expressions defined in Article 1 and Article 48 of the Articles have the same meanings as set in Article 1and Article 48 of the Articles. 1.2 In these bye laws, a reference to any statute or statutory provision includes reference to that statute or statutory provision as from time to time amended extended or re-enacted, with or without amendment. 1.3 In these bye laws, unless there is something inconsistent in the subject or context, words denoting the singular number only include the plural and vice-versa; words denoting one gender only include the other genders; words denoting individuals include corporations and vice-versa; and references to "person" include reference to a Firm, or corporation, or other body of persons; words such as "hereunder", "hereto", "hereof" and "herein" and other words commencing with "here" shall refer, unless the context clearly indicates to the contrary, to the whole of these bye laws and not to any particular section or paragraph thereof. 1.4 The headings and captions to the paragraphs in these bye laws are inserted for convenience of reference only and do not affect its construction or interpretation. 1.5 Defined terms are shown in italics

2 BYE LAW 2 THE NOMINATING COMMITTEE 2.1 THE PURPOSE AND FUNCTION OF THE NOMINATING COMMITTEE The purpose of the nominating committee is to make recommendations to the Council regarding the composition of the Council, Committees and Task Forces. 2.2 RESPONSIBILITIES The responsibilities of the nominating committee are to proactively source and to recommend to the Council: The candidates for nomination by Council for election to Council The filling of any casual vacancies on Council as they may arise The candidate(s) to be elected to the office of Vice President Non Members to be appointed to Council The composition of CPA Committees, Task Forces and Working Parties including the appointment of non- Members The appointment of Chairs and Vice Chairs to such Committees, Task Forces and Working Parties Nominees to represent CPA at CCABI, FEE, IFAC, APB, Edinburgh Group and other external representative roles The removal of any Council, Committee, Task Force or Working Party Member for non-performance or other good cause. 2.3 COMPOSITION OF THE COMITTEE The nominating committee shall be composed of five Members as follows : the President, the Vice-Presidents, and

3 two other elected Council Members to be appointed by Council on an annual basis. The Council may appoint from time to time persons to fill any casual vacancy that arises in the Membership of the nominating committee Each Member of the committee shall sign an annual statement declaring that they will act in the public interest and with integrity in discharging their role within the nominating committee. 2.4 RECOMMENDATIONS The recommendations of the nominating committee shall not be binding on Council.

4 BYE LAW 3 COMMITTEES 3.1 APPOINTMENT: The Council may appoint, on the recommendation of the nominating committee, a Committee or Committees or Authorised persons who shall have authority, subject to the directions of, and in accordance with, the principles laid down from time to time by the Council, to exercise all or any of the powers of the Council, as the Council may by resolution direct. Such Committee or Committees or Authorised persons may be composed of Members and/or non-members of the Institute. The Council, upon recommendation of the nominating committee, shall appoint a Chairman and a Vice- Chairman of any Committee, Committees or Authorised persons TERMINATION: The Council, on recommendation of the nominating committee (such recommendation is not binding on Council), at a meeting at which any Committee or Committees or Authorised persons cease to remain in office, may appoint a new Committee or Committees or Authorised persons, and may reappoint all or any of the members of the previous Committee or Committees or Authorised persons if they be still qualified. If no appointment of a new Committee shall be made the Committee or persons retiring shall, unless, otherwise determined by the Council, remain in office until a new committee or persons are appointed by the Council (which may be done at any meeting of the Council) POWERS 3 : Without prejudice to the extent of the general powers which the Council is authorised to confer on any Committee or Committees or Authorised persons, and to any provisions of the Act or the Articles, the Council shall have full power to delegate to any Committee or Committees or person the following special powers and duties, and every Committee and Authorised persons (save the Disciplinary Committee, the Investigation Committee and Appeals Panel ) shall be bound to obey and carry into effect the resolutions of the Council, and to report to the Council any matters which it considers material to the Institute, or its objects or interests as defined in the Memorandum, or which appears to it to affect the interest of the Profession and make any recommendations it considers proper in relation thereto Powers to regulate, by Bye-Laws, the examinations of candidates for admission as Fellows or Associates and to hold examinations for the same, at such times and places, and in such a manner as it may think fit, and to appoint examiners with or without remuneration to conduct such examinations. 1 See Article 42 2 See Article 45 3 See Article 47

5 3.3.2 Power to interview and/or examine, accept for admission or reject any candidates for admission to the Institute Power to issue audit registration, practising certificate and investment business authorisation to Members and/or Firms Power to superintend the publications of the Council Power to appoint all employees of the Institute necessary for the carrying on of the business of the Institute, upon such terms and (except in the case of any such employee being an elected Member of the Council) with such remuneration as it shall think fit, and from time to time to remove such employee Power to carry out, subject to the provisions of the Acts and the Memorandum, the purchase, hiring, sale, mortgage letting and other disposition of any real or personal property for or on behalf of the Institute, which has been authorised by a resolution of the Council Power to use the seal of the Institute Power to receive all incomings and pay all outgoings, and to have the superintendence of the disposition of the funds and property administered by the Institute Power to make, vary and annul Bye Laws for any of the purposes for which Bye Laws may be made by Council but any purported exercise of such power shall be void to the extent that such exercise would constitute an addition or alteration of the Memorandum or the Articles Any other power which the Council may consider necessary from time to time for the proper running of the affairs of the Institute. 3.4 MEETINGS OF COMMITTEES 4 A meeting of a Committee may consist of a conference between some or all of the committee members who are not all in one place, but each of whom is able (directly or by means of telephonic, video or other electronic communication) to speak to each of the others and to be heard by each of the others and a Committee member taking part in such a conference shall be deemed to be present in person at the meeting and shall be entitled to vote and be counted in a quorum 4 See Article 36

6 accordingly; and such a meeting shall be deemed to take place where the largest group of those participating in the conference is assembled, or, if there is no such group, where the chairman of the meeting is located.

7 BYE LAW 4 CLIENT MONEY 4.1 This Bye Law 4 applies to all client monies held by a Firm other than monies held in respect of investment services/investment business under Bye Law 14. A Firm which receives or holds client s money must immediately open one or more client bank accounts. A Firm may maintain one or more client bank accounts as appropriate. A Firm is not required to have separate client money bank accounts for individual clients. All money which is clients' money must be held in a client bank account if it is not being passed directly to the client or on the client s instructions paid directly to a third party if the cheque can be endorsed over. 4.2 A Firm may not override this Bye Law 4 on the instructions of a client. 4.3 No money in a client bank account can be used for any purpose other than in accordance with the client s authority and order. 4.4 Client money shall be kept in a client bank account by a Firm for a specific purpose and for no longer than is necessary for that specific purpose. 4.5 A Firm may not hold client money in a client bank account for the sole purpose of holding the money on deposit for the client. 4.6 Opening a Client Bank Account On opening a client bank account, a Firm must notify the bank In Writing that: 1. all money is held by the Firm as a trustee (or agent) and that the bank may not combine the account with any other account or exercise any right to set off or counterclaim against that account for any money owed to it by any other account of the Firm; 2. interest payable on the money in the account must be credited to that account; 3. the bank must describe the account in its records to make it clear that the money in the account does not belong to the Firm; and 4. the bank must acknowledge In Writing that it accepts these terms.

8 4.6.2 If the bank does not provide the acknowledgement required as set out above within 20 business days of the Firm sending the notice, the Firm must: withdraw all money from the account close the account; and deposit the money with another bank in a client bank account; or as a last resort, return the money to the client A Firm may only hold clients' money in a bank outside the Republic of Ireland if the client is informed In Writing: of the country or territory where the account will be held: and the client has agreed In Writing to the money being paid into, or remaining in, that bank. either; 1. that the bank has given the acknowledgement required as set out above 2. where the bank's acknowledgement has not been received, the Firm has advised the client that the clients' money held in that account may not be protected as effectively as it would if held in a bank in the Republic of Ireland; A Firm may not hold clients' money (or money which would, if held in a bank be clients' money) outside the European Union unless: the client is informed In Writing of the country or territory where the account will be held; and the client has agreed In Writing to the money being paid into, or remaining in, the institution where the money is held: and the client accepts In Writing that where money is so held it will not have the protection afforded by this bye law. 4.7 When a Firm Must Pay Money into a Client Bank Account A Firm must only pay money into a client bank account, if: the Firm is required to make such payment under this Bye Law 4 ; or the money is the Firm's own money and: (i) it is required to be so paid for the purpose of opening and maintaining the account and the amount is the minimum amount required for that purpose; or (ii) it is so paid in order to restore in whole or in part any money paid out of the account

9 in contravention of this Bye Law 4. A Firm shall not be regarded as having breached this Bye Law 4 simply because it transpires that money which the Firm paid into a client bank account in the reasonable belief that it was required so to do under this Bye Law should not have been paid into such an account, provided that immediately upon discovering the error the Firm takes the necessary steps to withdraw the money which has been paid into such account in error. 4.8 WHEN MONEY CAN BE WITHDRAWN FROM A CLIENT BANK ACCOUNT Money may only be withdrawn from a client bank account for or towards payment of fees payable by the client to the Firm if: the precise amount thereof has been agreed by the client or has been finally determine by a court or arbitrator; or the fees have been accurately calculated in accordance with a formula agreed In Writing by the client on the basis of which the amount thereof can be determined; or thirty business days have elapsed since the date of delivery to the client of a statement of fees and the client has not questioned the amount therein specified as due. 4.9 CLIENT RECORDS A Firm must keep clients' money records including the notice to the Bank and acknowledgement from the Bank set out in this Bye Law 4. The records must have: details of all money paid into and out of all client bank accounts; entries of all clients' money paid direct to the client, or, on the client's instructions, paid to a third party, identifying that person; entries of all cheques received and endorsed over by the Firm to the client or, on the client's instruction endorsed over to a third party, identifying that person; adequate documentation supporting the reasons for cheque endorsement must be retained entries of all electronic transfers received or made of money and transferred direct to the client or, on the client's instructions, transferred to a third party, identifying that person; and details of all transactions on each client's ledger account which will easily identify the balance held for each client and which will reconcile to the total or clients' money held in the client bank

10 accounts. A Firm must prepare, for the year ending on its accounting reference date, a summary of all clients' money received or held since the last summary showing, for clients' money: the closing balance from the previous summary; total receipts; total payments; and the total of all reconciled balances on all client accounts at the accounting reference date, the number of individual bank accounts and the number of different clients for whom money is held; The Secretary of the Institute has the power at any time to inspect and take copies of all documentation in the possession of the Firm in relation to clients account(s). The Secretary has the right to delegate this power Interest It is the duty of a Firm to agree all matters in relation to interest with a client in advance of accepting any client money. That agreement must be evidenced In Writing and signed by the client. That agreement must be retained by the Firm for six years from the date the account is closed Receipts A receipt must be issued by a Firm when it receives money from a client A receipt must contain details of the following: The name and address of the Firm; The nature and reasons for the transaction; The value or amount of the payment; The date the payment was received; The purpose of the payment; If the payment is for onward transmission to an agent, the name and address of that agent; and

11 The name and address of the person furnishing the payment.

12 BYE LAW 5 MEMBERSHIP 5.1 ADMISSION OF MEMBERS The Institute s rules in relation to Membership of the Institute shall operate in accordance with the Articles All applications for admission to the Institute shall be made to the Council in the form the Council may from time to time determine. The Council shall have full discretion (subject only to the Articles and to the Bye-Laws) to determine as to the admission of the applicants No Member of the Institute shall enter into Public Practice without first having obtained from the Institute a practising certificate authorising him so to practice in accordance with these Bye Laws 1-14 inclusive All registrations, practising certificates, auditing certificates, Membership certificates or investment business authorisations remain at all times the property of the Institute. The Member or Firm shall be bound to return all such documents and/or certificates to the Institute on ceasing to be a Member or Firm for any reason whatsoever Every person and Firm shall, upon applying for admission satisfy the Council that they are a person/firm of good repute and undertake to remain thus whilst a Member/Firm of the Institute. If in the opinion of Council the activities of a Member/Firm are incompatible with the requirements of good repute such Member/Firm shall be liable to disciplinary action. 5.2 CATEGORIES OF MEMBERS The Members of the Institute shall consist of two categories, i.e. Members in Practice 5 See Article 7(b)

13 Members Not In Practice Only those Members who hold a practising certificate shall engage in Public Practice and be eligible for the category: Member In Practice. Whether a Member is engaged in Public Practice is governed by the rules laid out in Bye Law Annual list of Members, Bye-Laws, etc.: The Council may from time to time publish a list (whether on the Institute s Website or otherwise) of the Members, Firms, Affiliated Partners and or Registered Students and the Bye-Laws and other regulations of the Institute for the time being in force, lists of Council Members and Officers, and such other matters as the Council shall consider it desirable to publish Every Member and Firm is required to comply with These Presents 6 Article 128 of Articles

14 BYE LAW 6 DISCIPLINE In this Bye-Law 6, a reference to any statute or statutory provision includes reference to that statute or statutory provision as from time to time amended, extended or re-enacted, with or without amendment In this Bye-Law 6, unless there is something inconsistent in the subject or context, words denoting the singular number only include the plural and vice-versa; words denoting one gender only include the other genders; words denoting individuals include corporations and vice-versa; and references to "person" include reference to a Firm, or corporation, or other body of persons; words such as "hereunder", "hereto", "hereof" and "herein" and other words commencing with "here" shall refer, unless the context clearly indicates to the contrary, to the whole of this Bye-Law 6 and not to any particular section or paragraph thereof The headings and captions to the paragraphs in this Bye-Law 6 are inserted for convenience of reference only and do not affect its construction or interpretation The defined terms set out in Article 1 and Article 48 of the Articles have the same meaning in this Bye Law DUTIES AND LIABILITY TO DISCIPLINARY ACTION It shall be the duty of every Member, Affiliated Partner, Student and Firm to co-operate fully at every phase of the disciplinary process provided for under this Bye-Law 6. It shall be the duty of every Member, Affiliated Partner, Student andfirm (including such Members, Affiliated Partners, Students and Firms who are not involved in or the subject of the said disciplinary process) to provide such information, explanations, documents and computer and other electronic records as the Secretary, the Investigation Committee, a Special Investigator, the Independent Reviewer, the Disciplinary Committee, a Disciplinary Tribunal or an Appeal Tribunal, as the case may be, may consider necessary to enable it or him to carry out its or his duties 7. 7 See Article 48(b)

15 6.2.2 In any case where a Firm is the subject matter of a Complaint, it shall be the duty of the Firm to nominate which of its principals are to deal with the Complaint and any Formal Complaint or Appeal that may arise there from. The Firm must nominate which of its principals are to deal with the Complaint within a time period prescribed by the Secretary. Failure of a Firm to nominate a principal in accordance with this bye law does in and of itself constitute a prima facia case of misconduct Where an order is made pursuant to this Bye-Law 6 by a Disciplinary Tribunal or an Appeal Tribunal for the withdrawal of any authorisation, licence or permit the Respondent or, as the case may be, the Appellant concerned, shall comply with the requirements imposed by the Registration Committee (or any replacement thereof) as a consequence of such withdrawal. 6.3 LIABILITY TO DISCIPLINARY ACTION Every Member, Firm, Affiliated Partner and Student shall be liable to disciplinary action in the circumstances set out in these Bye Laws. For the avoidance of doubt, a Member, Firm, Affiliated Partner and Student shall be liable to disciplinary action in accordance with the Articles of the Institute and the Bye Laws in force at the time the matters complained of take place; but for the avoidance of doubt, all disciplinary proceedings shall be conducted in accordance with the Articles of the Institute and the Bye Laws in force at the time of such proceedings. A Member, Firm, Affiliated Partner and Student shall be liable to disciplinary action whether or not he or it was a Member, Firm, Affiliated Partner and Student at the time of the occurrence giving rise to his becoming so liable Notwithstanding anything in this Bye-Law 6, no Member, Affiliated Partner, Student or Firm may be subject to disciplinary proceedings on grounds that did not constitute misconduct under the Bye-Laws effective at the time the alleged misconduct occurred. 6.4 MISCONDUCT 8 See Article 48(c)

16 6.4.1 For the purposes of the disciplinary process set out in this Bye Law 6 misconduct includes but is not confined to any act or default on the part of the Member, Firm, Affiliated Partner or Student likely to bring discredit to himself/the Firm, the Institute or the Profession of accountancy. 6.5 LIABILITY OF A MEMBER, AFFILIATED PARTNER OR STUDENT TO DISCIPLINARY ACTION A Member, Affiliated Partner or a Student shall be liable to the disciplinary process in accordance with this Bye Law 6 if it is alleged that in the course of carrying out his professional duties or otherwise that he is guilty of misconduct. Without prejudice to the generality the disciplinary process shall be instigated where the allegation is made alleging that: (a) He has committed any breach of or has failed refused or neglected to comply with These Presents; or (b) He has been duly disciplined by any other professional body or some other disciplinary process; or (c) He has failed, refused or neglected to comply with orders duly made pursuant to this Bye Law 6 other than pending the outcome of an Appeal under this Bye Law; or (d) He has failed to satisfy a judgement debt in any jurisdiction individually or as a partner or jointly with any other person(s)or (e) He provided or purported to provide financial services in connection with any matter in which he has been engaged by a client and it is alleged that those services were inadequate in any material respect and were not of the quality that could reasonably be expected of him; or (f) He performed his professional duties inefficiently or incompetently to such an extent, or on such a number of occasions, as to bring discredit to himself, the Institute or the Profession of accountancy; or (g) He has, before a Court of competent jurisdiction in Ireland or elsewhere, pleaded guilty to or has been found guilty of any offence involving fraud, dishonesty, violence or indecency, subversion, drug trafficking, money laundering, tax evasion, breach of companies legislation or complicity in any such offences; or (h) He has in any civil or criminal proceedings before a Court of competent jurisdiction in Ireland or elsewhere, been found to have acted fraudulently or dishonestly; or (i) He has failed to co-operate fully with any enquiry or investigation being conducted by or on behalf of the Institute; in particular he failed to respond to correspondence by or on behalf of the Institute; in particular he failed to respond to correspondence or other communications from the Secretary or any person acting on behalf of the Investigation Committee, a Special Investigator, the Disciplinary Committee, a Disciplinary Tribunal, the Appeal Panel, an Appeal Tribunal, the Registration Committee or the Registration Appeal Committee of the Institute ; or (j) He has acted or defaulted in some manner not mentioned above which tends to discredit himself, the Institute or the Profession of accountancy; or (k) He failed to co-operate with the quality assurance process as per Bye Law 7.

17 6.6 LIABILITY OF FIRMS TO DISCIPLINARY ACTION A Firm shall be liable to the disciplinary process in accordance with this Bye Law 6 if it is alleged that in the course of carrying out its professional duties or otherwise that it is guilty of misconduct. Without prejudice to the generality the disciplinary process shall be instituted where the allegation is made alleging that: (a) It has committed any breach of or has failed refused or neglected to comply with These Presents; or (b) It has been duly disciplined by any other professional body or some other disciplinary process; or (c) It has failed, refused or neglected to comply with orders duly made pursuant to this Bye Law 6 other than pending the outcome of an Appeal made pursuant to this Bye Law; or (d) It has failed to satisfy a judgement debt in any jurisdiction individually or as a partner or jointly with any other person (s); or (e) It provided or purported to provide financial services in connection with any matter in which it has been engaged by a client and it is alleged that those services were inadequate in any material respect and were not of the quality that could reasonably be expected of it; or (f) It performed his professional duties inefficiently or incompetently to such an extent, or on such a number of occasions, as to bring discredit to itself, the Institute or the Profession of accountancy ; or (g) It has, before a court of competent jurisdiction in Ireland or elsewhere, pleaded guilty to or has been found guilty of any offence involving fraud, dishonesty, violence or indecency, subversion, drug trafficking, money laundering, tax evasion, breach of companies legislation or complicity in any such offences ; or (h) It has in any civil or criminal proceedings before a court of competent jurisdiction in Ireland or elsewhere, been found to have acted fraudulently or dishonestly; or (i) It has failed to co-operate fully with any enquiry or investigation being conducted by or on behalf of the Institute; in particular it failed to respond to correspondence by or on behalf of the Institute; in particular it failed to respond to correspondence or other communications from the Secretary or any person acting on behalf of the Investigation Committee, a Special Investigator, the Disciplinary Committee, a Disciplinary Tribunal, the Appeal Panel, an Appeal Tribunal, the Registration Committee or the Registration Appeal Committee of the Institute; or (j) It has acted or defaulted in some manner not mentioned above which tends to discredit itself, the Institute or the Profession of accountancy; or (k) Any principal in the Firm or any employee thereof is (or would, if he or she were a Member or Affiliated Partner of the Institute, be) liable to disciplinary action in accordance with this Bye Law 6: or (l) It has failed to co-operate fully with the quality assurance process as per Bye Law 7.

18 6.7 PRESUMPTION OF MISCONDUCT Where a Member, Firm, Affiliated Partner, or Student has, before a Court of competent jurisdiction in Ireland or elsewhere, pleaded guilty to or has been found guilty of any offence involving dishonesty, fraud, violence or indecency, subversion, drug trafficking, money laundering, tax evasion, breach of companies legislation or complicity in any such offences or has in any civil proceedings being found to have acted fraudulently or dishonestly, it shall be presumed, unless the contrary is established, that such conviction or finding constitutes proof of misconduct PRIMA FACIE CASE OF MISCONDUCT Failure by a Member, Firm, Affiliated Partner or Student to respond to correspondence or other communications from the Secretary or any person acting on behalf of the Investigation Committee, the Special Investigator, a Disciplinary Tribunal, an Appeal Tribunal, the Registration Committee or the Registration Appeal Committee of the Institute, or failure to co-operate fully with any enquiry or investigation being conducted by or on behalf of the Institute, does in itself constitute a prima facie case of misconduct. 6.9 APPOINTMENTS In each year the Council shall appoint an Investigation Committee, a Disciplinary Committee and an Appeal Panel No person who is an employee of the Institute or a Member of Council shall be a Member of the Investigation Committee, Disciplinary Committee or Appeal Panel. No person shall be a Member of more than one of the Investigation Committee, the Disciplinary Committee and the Appeal Panel. However, if during the course of a hearing of a Complaint a Member of the Disciplinary Tribunal hearing that Complaint, or during the hearing of an Appeal a Member of the Appeal Tribunal hearing that Appeal, is elected or appointed to the Council he shall 9 Article 48(d) 10 Article 49(a)

19 continue in office as a Member of such Disciplinary Tribunal or of such Appeal Tribunal (as the case may be) until such hearing has finalised The Council shall have power to pay remuneration to and reasonable expenses of: (i) members of the Investigation Committee, the Disciplinary Committee and the Appeal Panel provided always that no remuneration shall be paid to any such person who is a Member of the Institute; (ii) a Special Investigator appointed by the Investigation Committee in accordance with these Bye- Laws; and (iii) the Independent Reviewer appointed under these Bye-Laws The Investigation Committee, the Disciplinary Committee and the Appeal Panel shall each have power to make standing orders (not being inconsistent with the express provisions of the Bye Laws or the Articles) as may be considered by them necessary for the performance of the respective functions The Council shall appoint no less than two persons who are neither Members nor employees of the Institute to the Independent Reviewer Panel annually to carry out the functions of Independent Reviewers specified in this Bye Law 6. An Independent Reviewer will be appointed from the panel by the Secretary of the Institute on a case by case basis and the appointment will occur within 2 Months of the Complainant indicating In Writing to the Institute that he/she wishes the matter to be independently reviewed in accordance with this Bye Law Article 49(b) 12 See Article 49(c) 13 Article 49(d) 14 Article 49(e)

20 The Council shall from time to time appoint persons (who may be employees of the Institute) to act as registrars and to provide administrative support to the, Special Investigator, Independent Reviewer, Investigation Committee, the Disciplinary Committee, any Disciplinary Tribunal, the Appeal Panel and any Appeal Tribunal THE INVESTIGATION COMMITTEE The Investigation Committee shall consist of not less than eight persons, the majority of whom shall be persons who are not Members of the Institute. The Council may appoint from time to time persons to fill any casual vacancy that arises in the membership of the Investigation Committee. The Council shall from time to time appoint a Chairman and a Vice- Chairman of the Investigation Committee from amongst the members of the Committee The quorum for meetings of the Investigation Committee shall be three persons, so long as a majority of the attendance thereat consists of members who are not Members of the Institute The Investigation Committee may delegate such of its functions and powers to a sub-committee of its members as it may deem necessary and convenient 17. Any sub-committee so formed shall, in the exercise of the functions and powers so delegated, conform to any directions that may be imposed on it by the Investigation Committee. The quorum for meetings of any sub-committee of the Investigation Committee shall be three persons, so long as a majority of the attendance thereat consists of members who are not Members of the Institute It shall be the right of every Member and any other person to bring to the attention of the Secretary any Complaint or any facts or matters indicating that a Member, Firm, Affiliated Partner or Student may have become liable to disciplinary action as aforesaid and it shall be the duty of the Secretary to lay such Complaint or facts or matters before the Investigation Committee when deemed necessary following the procedures specified in this Bye Law Article 50 (a) 16 Article 50(b) 17 See Article 50(c) 18 See Article 50(e)

21 6.11 COMPLAINTS A Complaint means any complaint, allegation, expression of concern, matter or event touching or apparently touching upon the conduct (whether by act or omission), behaviour, performance or affairs of any Member, Firm, Affiliated Partner or Student in respect of any of the matters mentioned in the Bye-Laws whether brought to the attention of the Secretary by a Complainant or otherwise coming to the attention of the Secretary;. 19 A Complainant means a person who brings a Complaint to the attention of the Secretary A Complaint may come to the Secretary's attention as follows: (a) (b) written Complaints from Members, Affiliated Partners, Students, Firms and members of the public including any anonymous Complaints; Complaints, In Writing, from committees or staff within the Institute; and A matter may also come to the attention of the Secretary of the Institute as a result of reports in the media or by some other means which indicates that a Member, Firm, Affiliated Partner, or Student may be liable to disciplinary action. For the avoidance of any doubt such a matter that comes to the attention of the Secretary will be considered a Complaint for the purpose of this Bye Law COMPLAINT FORM A copy of the standard Complaint form is available on the Institute s Website.. Where a matter comes to the attention of the Secretary as a result of media report(s) or by some other means other than a Complaint In Writing the Secretary shall complete the appropriate form which is available on the Institute s Website. The failure of a Complainant to set out his Complaint on the standard Complaint form shall not prevent the Complaint being dealt with under the disciplinary process set out in this Bye Law 6. However, a Complaint must be set out In Writing for the 19 Article 48 of the Article of Association 20 Article 48 of the Articles of Association

22 matter to be dealt with under the disciplinary process set out in this Bye law 6. If the Complaint is received from an anonymous source the Secretary shall fill out the appropriate Complaint form PROCESS USED BY THE SECRETARY IN RELATION TO A COMPLAINT When a matter comes to the attention of the Secretary through media reports or by some other means other than a Complaint In Writing which indicates that a Member, Firm, Affiliated Partner or Student may be liable to disciplinary action under this Bye Law 6 the Secretary shall follow the following procedure: 1. The Secretary shall reduce the matter(s) into Writing in the standard form available on the Institute s Website.. If the Secretary is able to obtain a copy of the relevant media report(s) such report(s) will be attached to the standard form. 2. This form is sent to the Member, Firm, Affiliated Partner or Student for his/its response 3. The response shall be furnished In Writing within 14 days of the date that the form is sent to the Member, Firm, Affiliated Partner or Student 4. The Member, Firm, Affiliated Partner or Student can request In Writing that the Secretary extend this 14 day time limit. Such an extension shall be granted solely at the discretion of the Secretary. The length of that extension shall be a matter for the Secretary to determine. 5. The Secretary can, without such a request, decide to increase the 14 day time period if he is of the opinion that 14 days is not an adequate period of time to allow the Member, Firm, Affiliated Partner or Student respond. 6. The Secretary shall notify the Member, Firm, Affiliated Partner or Student of the time period for his/its response In Writing 7. The Secretary on receipt of the written response may request any further information he deems desirable from the Member, Firm, Affilated Partner or Student. The Secretary shall set a time limit within which this further information is to be provided. This time limit similarly can be extended if a request In Writing is made to the Secretary and he deems such an extension appropriate in the circumstances. 8. A failure to provide a response and/or furnish requested information within the set time period will automatically result in the matter being sent to the Investigation Committee When the Secretary receives a written Complaint in relation to a Member, Firm, Affiliated Partner or Student the Secretary shall follow the following procedure: 1. On receipt of a written Complaint the Secretary shall acknowledge receipt of same to the Complainant. The Secretary shall also advise the Complainant In Writing that a copy of the Complaint (together with any attached documentation) will be sent to the Member, Firm, Affiliated Partner or Student for his/its response and that a copy of the response, or a summary of same, shall be forwarded to the Complainant when received. 2. The Secretary shall send the written Complaint (together with any attached documentation) to the Member, Firm, Affiliated Partner or Student with a request for his/its response 3. The response shall be furnished In Writing within 14 days of the date that the form is sent to the Member, Firm, Affiliated Partner or Student

23 4. The Member, Firm, Affiliated Partner or Student can request In Writing that the Secretary extend this 14 day time limit. The decision to grant or refuse this extension is a matter solely at the discretion of the Secretary. The length of any extension shall be a matter for the Secretary to determine. 5. The Secretary can without such a request decide to increase the 14 day time period if he is of the opinion that 14 days is not an adequate period of time to allow the Member, Firm, Affiliated Partner or Student respond 6. The Secretary shall notify the Member, Firm, Affiliated Partner or Student of the time period for his response In Writing 7. The response, or a summary of same as appropriate, shall be furnished to the Complainant. The Secretary shall offer the Complainant the opportunity to respond In Writing to the response. Such a response by the Complainant must be made within 14 days. The Secretary may extend this time limit if the Secretary is of the opinion that such an extension is required. 8. If the Complainant does not respond within the time limit the Secretary shall deem that the Complainant has not made a response to the Member, Firm, Affiliated Partner or Student s response and the matter shall proceed. 9. The Secretary shall acknowledge the Complainant s response. If this response is relevant to the complaint the Secretary shall forward this response, or a summary of same as appropriate, to the Member who has an opportunity to provide a response. The Secretary, in his discretion may forward a copy of the member s response to the Complainant. 10. If the Complainant makes a written response the Member, Affiliated Partner, Student or Firm shall be given the opportunity to make a written response within 14 days or such further period as will be deemed appropriate by the Secretary. The Secretary shall notify the Member, Firm, Affiliated Partner or Student of this time period. The Member, Firm, Affiliated Partner or Student is not obliged to respond at this stage if he/it does not wish to. 11. The Secretary on receipt of the written response(s) of the Member, Firm, Affiliated Partner or Student and/or Complainant may request any further information he deems desirable from the Member, Firm, Affiliated Partner or Student. The Secretary shall set a time limit within which this further information is to be provided. This time limit similarly can be extended if a request In Writing is made to the Secretary and he deems such an extension appropriate in the circumstances. 12. A failure to provide a response and/or furnish requested information within the set time period by the Member, Firm, Affiliated Partner or Student will automatically result in the matter being sent to the Investigation Committee. 13. The Secretary shall have the power to summarise the issues between the parties when the matter is sent to the Investigation Committee 14. The Secretary at any time prior to the matter being sent to Investigation Committee may at his absolute discretion offer the parties the opportunity to resolve the subject matter of the Complaint by conciliation, however this offer shall be made strictly on the understanding that if the Secretary acts as conciliator and the matter is not resolved that this shall not prevent the Secretary laying the matter before the Investigation Committee and/or acting as Presenter if the Complaint proceeds to the Disciplinary Tribunal. No person other than the Secretary can act as a conciliator. 15. The Secretary, in his absolute discretion, with the agreement of the parties concerned refer the case to mediation in accordance with Bye Law The Secretary shall report to the Investigation Committee on a quarterly basis in relation to all Complaints that have been resolved by virtue of conciliation and all cases referred to mediation.

24 6.14 COMPLAINT S THAT ARE SPURIOUS OR FRIVILOUS OR VEXATIOUS OR CANNOT BE DEALT WITH BY THE INSTITUTE After following the procedure set out above the Secretary has the authority to decide whether the Complaint is spurious or frivolous or vexatious or is not a matter that can be dealt with by the Institute The Secretary makes such a determination based solely on the written Complaint and response(s) and further information provided as requested. No oral submissions or evidence shall be heard by the Secretary The Secretary shall make such a decision within 28 days from the date of the final response received. The Secretary has the power to extend this time period if he feels an extension is required given the particular circumstances of the case The Secretary shall inform both the Complainant and the Member, Firm, Affiliated Partner or Student In Writing of his decision that the Complaint was spurious or frivolous or vexatious or a matter that the Institute cannot deal with. The Secretary shall report to the Investigation Committee on a quarterly basis in relation to Complaints where he has deemed them to be spurious or frivolous or vexatious or a matter that the Institute cannot deal with RESOLUTION AT SECRETARIAL LEVEL In the following circumstances the Secretary shall deem a Complaint closed and shall not lay the matter before the Investigation Committee where both parties confirm In Writing to the Secretary that the Complaint is resolved as a result of conciliation. The Secretary shall also deem a Complaint closed and shall not lay the matter before the Investigation Committee where both parties confirm orally to the Secretary that the Complaint is resolved as a result of conciliation. In such circumstances the Secretary shall write to the Complainant notifying him that the case will be closed within 21 days of the date of the letter if the Complainant does not indicate that the matter has not been resolved by conciliation. In the following circumstances the Secretary may deem a Complaint closed and may decide not to lay the matter before the Investigation Committee: 1. Where both parties confirm either orally or In Writing to the Secretary that the Complaint is resolved otherwise than by conciliation or 2. Where the Complainant fails, refuses or neglects within 21 days to respond to a Secretary s written request for confirmation as to whether he wishes to proceed with his Complaint

25 In either circumstances the Secretary shall write to the Complainant notifying him that the case may be closed within 21 days of date of the letter if he does not notify him that he does not want the case closed. The Secretary in either circumstance shall lay the Complaint before the Investigation Committee if he determines that the protection of the public interest requires the Complaint to be laid before the Investigation Committee On a quarterly basis the Secretary shall notify the Investigation Committee of the cases that he deemed closed and the reasons for same REFERAL OF A COMPLAINT TO THE INVESTIGATION COMMITTEE BY THE SECRETARY If the Secretary has not deemed the Complaint closed and determines that the Complaint is not spurious or frivolous or vexatious and is a matter that can be dealt with by the Institute he shall lay the matter before the Investigation Committee and shall do so as soon as reasonably possible When the Secretary lays a Complaint before the Investigation Committee he shall provide the Investigation Committee with a copy of the Complaint, any responses received and any further information received MEDIATION The Secretary and/or Investigation Committee may in its absolute discretion decide that it is in the best interests of all the parties to deal with the Complaint through mediation. The Secretary/ Investigation Committee will only make such a determination where the Complaint does not raise matters of consumer protection. The Investigation Committee can make this determination at any stage once the Complaint has been laid before it The Complaint shall not be dealt with by way of mediation unless both the Complainant and Respondent agree to engage in the process. If either party refuse to engage in the process or object to the person appointed as mediator

26 the Complaint shall be referred by the Secretary to the Investigation Committee or, if already referred, proceed as normal before the Investigation Committee The costs of the mediation process shall be borne by the parties to the Complaint and shall not be borne by the Institute The mediator shall be appointed by the Secretary from the Panel of Mediators The Council shall each year appoint not less 6 persons to the Panel of Mediators. Those persons may be but do not have to be Members of the Institute or Lawyers The Mediator appointed shall carry out the mediation in accordance with such scheme published by the Institute from time to time, and subject thereto, it shall be for the mediator in his absolute discretion to set out the mediation process to be adopted If the Mediator is of the opinion at any stage during the mediation process that either party is unwilling to engage in the mediation process he shall notify the Secretary of same and the Complaint shall be automatically referred to the Investigation Committee by the Secretary and the Secretary shall inform the parties of this In Writing Any discussion that occurs between the parties and/or the Mediator during the mediation process shall be on a confidential basis and cannot be relied upon before the Investigation Committee, the Special Investigator, or at any Disciplinary hearing or Appeal hearing If the mediation process resolves the Complaint the mediator shall notify the Secretary In Writing that the Complaint has been resolved. This notification shall include a document signed by the parties, witnessed and dated acknowledging that the Complaint has been resolved. No further action will be taken by the Institute in relation to this Complaint. 21 Article 49(ee)

27 The Secretary shall notify the Investigation Committee as soon as reasonably possible when a Complaint is resolved by mediation EMERGENCY POWERS The Secretary shall have the right to apply to the Investigation Committee for an Emergency Order on receipt of a written Complaint or where a matter comes to his attention that suggests that the Member, Firm or Affiliated Partner may be liable to disciplinary action Emergency Orders that can be sought in relation to a Member are: (a) suspension of the Member s Membership (b) suspension of the Member s Practising Certificate (c) suspension of any authorisation, licence or permit held by the Member Emergency Orders that can be sought in relation to Affiliated Partners are: (a) Suspension of the Affiliated Partner s status Emergency Orders that can be sought in relation to Firms are: (a) Suspension of any registration or authorisation (b) Suspension of the Firm describing itself as a Certified Public Accountant The application by the Secretary for such an Emergency Order shall only be heard by the Investigation Committee on an ex-parte basis if it is viewed by the Investigation Committee as so urgent to protect the public interest that there is not sufficient time to put the Member, Affiliated Partner or Firm on notice of the application If the application is on notice the Member, Firm or Affiliated Partner has the right to be heard and be represented by a lawyer or a Member of the Institute at the application and to call witnesses to give evidence if he/it desires If the application is heard on an ex-parte basis and granted by the Investigation Committee the Member concerned shall have the right to apply to the Investigation Committee for the Order to be vacated on 24 hours notice. The Member has the right to be heard and be represented by a lawyer or a Member of the Institute at the application and call witnesses to give evidence if he desires. If the Investigation Committee refuses to vacate the Order the Member, Firm or Affiliated Partner shall have the right to appeal to the Disciplinary Committee where he/it is entitled to be heard, to be represented by a lawyer or a Member of the Institute and to call witnesses to give evidence on his/its behalf. The Appeal shall be heard within 7 days of his notifying the Disciplinary Committee of his intention to appeal Where a Member is unsuccessful on appeal to the Disciplinary Committee the disciplinary process in relation to the Complaint shall be dealt with as expeditiously as possible. 22 To be provided for in the amended Articles of Association