Merry Christmas to Peter Wilson. When it was suggested that Peter Wilson should be independent of the old board so that we can have a fresh start Peter responded with "That's your issue". Summary of the meeting here: viewtopic.php?f=23&t=594
A good summary of where we are up to by Joe Aston of the AFR, linked to from here: viewtopic.php?f=5&p=4137#p4137
If you are new to this website read the story so far: viewtopic.php?t=321#p1793
Check out some of the AFR articles, too many to list and check out some of the ABC reports: http://www.afr.com/business/accounting/ ... 215-h055ej http://www.afr.com/business/accounting/ ... 211-h02x1d http://www.abc.net.au/news/programs/the ... s,/8626662
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Tax Practitioners Board - Recognised professional associations

Discussions about the constitution and how CPA Australia is run
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JWheldon
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Tax Practitioners Board - Recognised professional associations

Post by JWheldon » Fri Mar 02, 2018 2:39 pm

Does CPA Australia currently meet these requirements?

https://www.tpb.gov.au/tpbi-332018-reco ... quirements

TPB Information Sheet
TPB(I) 33/2018
Recognised professional associations – Corporate governance related requirements for recognition under the Tax Agent Services Regulations 2009

This information sheet is also available as a PDF, download TPB(I) 33/2018 Recognised professional associations - Corporate governance related requirements for recognition under the Tax Agent Services Regulations 2009 (548 KB)

Legislative framework
Eligibility to become a recognised association
9. The TASR contains, among other things, a number of requirements for recognition that a professional association must meet before it can be recognised as a RTAA, RBAA or RTFAA by the TPB.
10. Under the TASR, an organisation seeking recognition as a recognised professional association must apply to the TPB for recognition using a form approved by the TPB.[9]
11. The TASR provides that the TPB must recognise an organisation as a recognised professional association if the organisation meets the requirements for recognition set out in the TASR.[10]
12. The focus of this TPB(I) is on the corporate governance related eligibility items. These items are specified as follows:
Recognised BAS agent association (Schedule 1, Part 1 of the TASR)
Item 102
The organisation has adequate corporate governance and operational procedures to ensure that:
a. it is properly managed; and
b. its internal rules are enforced.
Item 107
The management of the organisation:
a. is required to be accountable to its members; and
b. is required to abide by the corporate governance and operational procedures of the association.

Recognised tax agent association (Schedule 1, Part 2 of the TASR)
Item 202
The organisation has adequate corporate governance and operational procedures to ensure that:
a. it is properly managed; and
b. its internal rules are enforced.
Item 207
The management of the organisation:
a. is required to be accountable to its members; and
b. is required to abide by the corporate governance and operational procedures of the association.

Recognised tax (financial) adviser association (Schedule 1, Part 3 of the TASR)
Item 302
The organisation has adequate corporate governance and operational procedures to ensure that:
a. it is properly managed; and
b. its internal rules are enforced.
Item 307
The management of the organisation:
a. is required to be accountable to its members; and
b. is required to abide by the corporate governance and operational procedures of the association.

Continued recognition as a recognised association
13. In addition to the above items being requirements that a professional association must meet in order to be eligible for recognition as a recognised professional association by the TPB, a recognised association must also ensure that it continues to meet these requirements to maintain its recognition with the TPB.
14. Regulation 4G of the TASR provides that the TPB may terminate the recognition of a RBAA in certain circumstances. These include if the TPB:
o has reasonable grounds for believing the association has ceased to meet the requirements for recognition for the association; and
o is not satisfied that it is appropriate for the association to be recognised, having regard to the purposes of the Tax Agent Services Act 2009 (TASA) and the role of RBAAs under the TASR.
15. Regulation 5E of the TASR provides that the TPB may terminate the recognition of a RTAA in certain circumstances. These include if the TPB:
o has reasonable grounds for believing the association has ceased to meet the requirements for recognition for the association; and
o is not satisfied that it is appropriate for the association to be recognised, having regard to the purposes of the TASA and the role of RTAAs under the TASR.
16. Regulation 5L of the TASR provides that the TPB may terminate the recognition of a RTFAA in certain circumstances. These include if the TPB:
o has reasonable grounds for believing the association has ceased to meet the requirements for recognition for the association; and
o is not satisfied that it is appropriate for the association to be recognised, having regard to the purposes of the TASA and the role of RTFAAs under the TASR.

Corporate governance and operational procedures
17. Items 102, 202, 302, 107, 207 and 307 of Schedule 1 of the TASR set out the requirements for recognition in relation to corporate governance, operational procedures and accountability that an association must meet, in addition to other recognition requirements, to be eligible for recognition and to maintain its continued recognition as a recognised professional association.
18. There are many definitions of what ‘corporate governance’ means. Generally, corporate governance can be defined as the rules, relationships, policies, systems and processes whereby authority within an organisation is exercised, managed and held to account.
19. The key elements of items 102, 202 and 302 are as follows:
o adequate
o corporate governance
o operational
o procedure
o properly
o manage
o ensure
o enforce.
20. The above elements are not defined in the TASA or TASR and therefore take on their ordinary meaning. The Macquarie Dictionary[11] defines the above words and phrases as follows:
a. ‘adequate’
 equal to the requirement or occasion; fully sufficient, suitable, or fit
 (law) reasonably sufficient for starting legal action; adequate grounds

b. 'corporate governance'
 the system by which a business institution is controlled and directed, especially with regard to regulation of decision-making procedures

c. 'operational'
 of or relating to an operation or operations

d. 'procedure'
 the act or manner or proceeding in any action or process; conduct
 a particular course or mode of action

e. 'properly'
 in a proper manner
 correctly
 appropriately
 decorously
 accurately
 justifiably

f. 'manage'
 to take charge or care of
 to handle, direct, govern or control in action or use
 to succeed in accomplishing a task, purpose etc.
 to conduct affairs

g. 'ensure'
 to secure, or bring surely, as to a person
 to make sure or certain to come, occur, etc.

h. 'enforce'
 to put or keep in force; compel obedience to
 to impose (a course of action) upon a person
 to support (a demand, etc) by force.

What is ‘corporate governance’?
21. ‘Corporate governance’ (and related concepts and requirements, such as ‘accountability’) and what constitutes an adequate or appropriate ‘corporate governance’ framework are not intended to be prescriptive, but rather flexible and variable. It depends on such considerations as the applicable legislative and regulatory regimes, the specific industry and the nature, size, structure and maturity of the association or organisation in question. For something to be adequate, it must be sufficient or suitable for the relevant purpose (such as the rules, policies and relationships) to ensure that authority within the organisation is appropriately exercised, managed and held to account.
22. Definitions of corporate governance include:
a. The mechanisms by which corporations are directed and controlled and the mechanisms by which those who direct and control the corporation are monitored and supervised. That is, it is about mechanisms that ensure those who are in control are accountable.[12]
b. The process by which organisations are directed, controlled and held to account. It encompasses authority, accountability, stewardship, leadership, direction and control exercised in the organisation.[13]
c. The framework of rules, relationships, systems and processes within and by which authority is exercised and controlled within corporations. It encompasses the mechanisms by which companies, and those in control, are held to account.[14]
d. The system or framework of rules by which companies are managed, controlled, and made accountable. Corporate governance describes the manner in which transparency, integrity, and accountability is achieved by management in a company in general and, in particular, by its board of directors. It is a wide concept and also includes the study of how risks are monitored and assessed and how corporate performance is optimised to deliver value to stakeholders and to shareholders in particular.[15]
23. There is also additional public guidance available on what corporate governance means from a number of key organisations. These definitions are not dissimilar to those outlined in paragraphs 20 to 22 above. See also further definitions contained in Appendix 1 to this document.
24. The corporate governance framework in Australia has evolved over time and generally comprises a combination of:
a. legislation and other legally enforceable rules (e.g. the Corporations Act 2001[16] and related legislation, the State and Territory legislation that governs the incorporation of an association[17], the ASX Listing Rules and the Australian Accounting Standards Board (AASB) Australian Accounting Standards) where applicable
b. judicial principles highlighted in cases relating to similar requirements in other legislative regulatory contexts
c. principles and recommendations that have some regulatory force (e.g. the ASX Corporate Governance Council corporate governance principles and recommendations)[18]
d. other non-regulatory advisory guidelines including those issued by such organisations as the Australian Shareholders’ Association and the Australian Institute of Company Directors
e. voluntary codes of practice
f. other principles adopted by governments in developing regulatory corporate governance frameworks (e.g. the OECD Principles of Corporate Governance).
25. In particular, it is noted that the Corporations Act 2001 contains various provisions and requirements governing matters that are generally relevant to the corporate governance of companies registered under that Act. These include, amongst other things, provisions and requirements governing:
a. the conduct of directors and other officers of a company in the exercise of their powers and discharge of duties[19]
b. the appointment, remuneration and cessation of appointment of directors of companies[20]
c. the conduct of company meetings and access by members to minutes of meetings[21]
d. the selection and appointment of auditors of companies and related matters[22]
e. regulate the conduct of audits on the financial reports of a company and reporting by the auditor to members[23]
f. the keeping of financial records, the preparation of financial reports and directors’ reports, annual financial reporting to members, and the lodgement of annual reports (and half-year reports as required) with the Australian Securities and Investments Commission (ASIC).[24]
26. Further, it is also noted that the various Acts and regulations that govern the incorporation of an association in the different States and Territories contain various provisions and requirements governing matters that are generally relevant to the corporate governance of associations that are incorporated under the relevant legislation.
27. Generally, the various State and Territory statutory regimes which govern the incorporation of associations across Australia appear to codify the corporate governance and operational procedures required of an incorporated association to ensure that it is adequately managed and its internal rules are enforced. There are set financial management requirements in each jurisdiction which include the maintenance and retention of certain financial documentation and particular auditing requirements. Each jurisdiction also sets out general operational requirements that include those relating to the conduct and frequency of general meetings and relevant decision-making processes.
28. These requirements include, amongst other things, provisions and requirements governing:
o objects/purpose
o membership details (fees, membership rejection/termination processes, classes of membership, condition/s for membership, voting rights, disciplinary procedure and grievance procedures)
o meeting minute recording and verification
o rule amendment processes
o the way association income and property may be used
o custody of documents
o financial year end date for association
o winding up and dissolution processes
o management committee (position designation, election processes, terms of office, resignation process, meeting frequency, procedures and functions and powers)
o general meeting procedures
o income and property management
o funding arrangements
o financial reporting requirements – preparation and auditing of financial statements; and preparation of financial accounts, presentation of audited statements at general meetings and lodgement of statements.

Key principles of corporate governance
29. The Australian Institute of Company Directors (AICD) Good Governance Principles and Guidance for Not-for-Profit Organisations details ten principles on what constitutes good governance in a not-for-profit organisation.[25] These principles are contained in Appendix 2 to this document.
30. In addition, the Australian Securities Exchange (ASX) Governance Council has released the Corporate Governance Principles and Recommendations Guide (Guide) to assist all ASX listed companies. In particular, the Principles and Recommendations in the Guide are structured around, and seek to promote, eight central principles. While the principles apply only to ASX listed companies, the TPB may consider these principles when assessing whether an association meets the requirement to have adequate corporate governance and operational procedures when seeking recognition, or to maintain its continued recognition as a recognised professional association, as appropriate to the particular circumstances of that association. These eight principles are contained in Appendix 3 to this document.
31. When the TPB is considering an application for recognition as a recognised professional association or an annual declaration[26] by a recognised professional association, the TPB will take into account the principles outlined in the AICD’s Good Governance Principles and Guidance for Not-for Profit Organisations in the first instance. The TPB will also consider ASX Corporate Governance Principles and Recommendations Guide.
32. Generally items 107, 207 and 307 may be summarised to require that the person/s responsible for managing a recognised professional association (e.g. its board of directors):
o is/are liable to be called to account, or responsible, to the members of a recognised professional association; and
o is/are required to observe the recognised professional association’s systems for controlling and directing at the management level for the purpose of achieving transparency, integrity and accountability, as well as the recognised professional association’s procedures relating to its operations.
33. The key elements of items 107, 207 and 307 are as follows:
o management
o accountable
o abide by
o corporate governance
o operational
o procedure.
34. In addition to the terms also contained in items 102, 202 and 302 (as outlined in paragraph 17 above), the Macquarie Dictionary[27] defines each of the relevant terms contained in items 107, 207 and 307 as follows:
a. 'Management'
 the act or manner of managing, handling, direction or control
 the person or persons managing an institution, business, etc
 executives collectively

b. 'Accountable'
 liable to be called to account; responsible (to a person, for an act, etc)
 that can be explained

c. 'Abide by'
 to accept and continue to observe (an undertaking, promise, agreement, rule, law, etc).

What does it mean to be 'accountable'?
35. Critical to any association's operations is its ability to deliver benefits to its members and to promote the profession in which their members operate. By being accountable to its members, an association should be best placed to deliver those benefits.
36. In addition to its ordinary meaning, being accountable to members generally requires that an association communicates and consults with its members on a regular and timely basis. It also generally requires that an association:
o is being held to account through agreed processes
o consult with members about any significant and material changes to the association’s services and policies
o has a culture of openness, particularly in relation to complaint processes and handling.
37. Further guidance on what being accountable to members means can be taken from the Australian Charities and Not-for-Profit Commission’s (ACNC) Governance Standard 2: Accountability to members.[28]
38. While Governance Standard 2 only applies to charities with members, the key principles equally apply to professional associations that are, or are seeking to be, recognised by the TPB.
39. In particular, Governance Standard 2 requires charities to:
o take reasonable steps to be accountable to their members; and
o allow their members adequate opportunities to raise concerns about how the charity is run.
40. Guidance by the ACNC[29] on Governance Standard 2 explains that being accountable includes letting members know about the charity’s activities and what the results of those activities are. It is also about allowing members to raise concerns and ask questions about how the charity is run.
41. As referred to in paragraphs 24 to 26 above, the various Acts and regulations that govern the incorporation of associations in the different States and Territories across Australia also have a number of mechanisms which endeavour to ensure the accountability of an incorporated association, its management committee and office holders. These mechanisms include:
o the management committee must ensure that the association complies with its rules for meetings
o the management committee members must take all reasonable steps to ensure the association complies with the relevant legislation
o the association is bound by rules of natural justice in adjudicating upon the rights of its members conferred by its rules
o the office holder must exercise his or her powers and discharge his or her duties with the degree of care and diligence that a reasonable person would, if that person were an office holder of the association, in the same circumstances
o the office holder must exercise his or her powers and discharge his or her duties in good faith in the best interests of the association and for a proper purpose
o the office holder/former office holder must not make improper use of information to gain an advantage for themselves or another person or to cause detriment to the association
o rules must set out how member may initiate grievance procedures against the association
o the office holder must disclose material personal interests and certain procedures are to apply (i.e. cannot vote or be present at a meeting/s considering matters).
42. For the purposes of determining what it means to be accountable to members, when the TPB is considering an application for recognition as a recognised professional association or an annual declaration by a recognised professional association, the TPB will take into account the principles outlined by the ACNC and in this information sheet (see paragraphs 32 to 41).

What an association should demonstrate to the TPB
43. In determining whether a professional association meets the requirements to become recognised as a recognised professional association, the TPB will have consideration to both form and substance. For example, in relation to the requirements relating to corporate governance, operational procedures and accountability, the TPB will consider:
o what the association’s corporate and procedural documents state and require
o how the principles stated in the association’s corporate and procedural documents are actually applied in practice and to decision making.
44. Without placing any limitations on the legislative requirements and noting that the TPB does not seek to prescribe the corporate governance practices that an association must adopt, the TPB considers that associations should consider the following questions in relation to the practices and procedures that they have in place to satisfy the requirements under items 102 / 202 / 302 and 107 / 207 / 307:
o Does the association hold annual general meetings (AGMs) and other general meetings as appropriate, and comply with relevant requirements for provision of notices of meetings to members of the association?[30]
o What general procedures exist to govern the holding of AGMs and other meetings (general / special / extraordinary meetings)? Such procedures include those relating to venues, quorums, the chairing of meetings, ability for members to proposed resolutions and voting entitlements, and allowing reasonable accessibility to the AGM for all members.
o Are there procedural processes in place to ensure that critical matters for associations are brought to the board for consideration and/or approval? Such mattes would include consideration of the annual declaration to the TPB.
o How are the proceedings of boards of directors and directors’ meetings regulated? Does the board meeting allow time in the agenda for in-camera discussions between directors?
o Are minutes of general / special / extraordinary meetings provided to members in a reasonable and timely manner?
o What is the composition of boards of directors?
o What procedures and rules are in place in relation to the directors? Such procedures include the election, appointment and disqualification of directors; duties and powers of directors, including provisions relating to disclosure and management of conflicts of interest; requirements to comply with the association’s constitution, by-laws and other corporate requirements; and the payment of remuneration and benefits to directors.
o Does the association have a risk management framework in place and is this framework being applied as required, recognising that the framework will reflect the nature, size, structure and maturity of an association?[31]
o How is the receipt and application of the income and property of the association governed and regulated by the association?
o Are auditors appointed and are their details and functions clearly defined and understood?
o What procedures are in place in relation to the establishment and powers of committees?
o What complaint handling processes are in place for handling complaints from members, other external stakeholders and internal staff and management about the association’s corporate governance, operational procedures and/or accountability? Do these processes facilitate independence when complaints are considered?
o How are financial records kept?
o What procedures are in place for financial reporting to members?
o Does the association meet its requirements to prepare and lodge financial reports with ASIC?
o Is the association meeting its obligations to comply with its constitution and relevant provisions of the Corporations Act 2001 (Cth) and/or other relevant legislation?
o Are there provisions in place indicating that the duties of directors and auditors are to be governed in accordance with relevant provisions of the Corporations Act 2001, other legislative requirements and the association’s constitution?
45. Therefore, the non-exhaustive examples of evidence that demonstrate compliance with the above items are as follows:
o appropriate notice of an AGM
o minutes of AGMs
o details of any changes in board of director or committee composition
o financial reports lodged with ASIC
o audited financial statements
o any relevant amendments to corporate governance documents, such as constitution, by-laws, rules, charters or codes
o annual report (if applicable)
o any documents outlining relevant details, including in regard to:
 board and management functions
 board and committee composition
 qualities and competencies for directors and members
 appointment and removal of the board of directors
 board elections
 processes and procedures for the conduct of board and committee meetings etc
o details of any changes in board of director or committee composition
o complaint handling processes and procedures.

Implementation
46. The TPB appreciates that any relevant changes made for the purpose of complying with the above requirements could take some period of time to implement (for example, where modification is required to an association’s constitution and an AGM is required to be held) and that the governance framework is unlikely to change on an annual basis.
47. The TPB observes that each association is different, particularly in regard to the nature, size, structure and maturity of the association, and that a board of an association may also consider that some principles are not applicable to their particular circumstances. However, if such a decision is made, the association must be able to explain why the principles have not been applied.
48. Where modification is required, the TPB will take a pragmatic approach in assessing an association’s ongoing compliance with requirements in the TASR. However, the TPB expects that an association would provide an undertaking to the TPB that a relevant process would be in place for the purpose of effecting any relevant changes where required, with the TPB kept informed in relation to status. Further, it is noted that where a decision is made that a relevant principle is not adopted, the association must be able to explain why it has not been adopted.

Further information
49. For further information relating to corporate governance, please refer to the following:
o ASX (including the ASX Corporate Governance Council)
o Australian Institute of Company Directors
o Governance Institute of Australia
o Australian Securities and Investments Commission
o Financial Services Council
o Australian Council of Superannuation Investors
o Australian Charities and Not-for-profits Commission

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Re: Tax Practitioners Board - Recognised professional associations

Post by nakedadmin » Fri Mar 02, 2018 9:40 pm

Most of this seems like mere formalities like if you have an AGM, financial statements and an auditor your sweet.

What is not a formality is so wishy washy as to be pointless in terms of enforcing everything.

Seems like TPB is helping out their stakeholders. I think it's giving in to stakeholders and a massive fail for the TPB.
What does it mean to be 'accountable'?

...

36. In addition to its ordinary meaning, being accountable to members generally requires that an association communicates and consults with its members on a regular and timely basis. It also generally requires that an association:

* is being held to account through agreed processes
I think CPAA may fail this. Currently the agreed process of managing Directors only relates to the appointment of Directors by the Representative Council. Plus if a majority of the RC agrees they can express their point of view to the board, however the board is not required to listen to them.

So there is no agreed process that holds the board to account.

However, would someone argue that the fact there is an AGM and Corporations Law requirements that the agreed process are those legal requirements. Personally I think these are legal processes not agreed processes. But it would be argued.
36. (cont.)
* consult with members about any significant and material changes to the association’s services and policies
This is probably fairly easy to pass they could even say they consulted on CPAA Advice. They had sessions. They didn't listen to a lot of people but they did have sessions with members and could easily spin that they consulted.
* has a culture of openness, particularly in relation to complaint processes and handling.
Well it would probably infuriate members to see TPB pass them on this. But I reckon TPB would pass them.
39. In particular, Governance Standard 2 requires charities to:
* take reasonable steps to be accountable to their members; and
Well that's just a circular definition. The forgoing just basically said if you have an AGM you are accountable so presumably reasonable steps means a reasonable attempt to have an AGM.
* allow their members adequate opportunities to raise concerns about how the charity is run.
Personally I don't think that they pass this. Unless perhaps the all powerful ability to go top the AGM and ask a probing question that may not be answered is adequate.

With 12 Directors resigning in one year and them not calling an EGM I think that's a clear breach. However, I'd expect the TPB to be forward looking. They will just say they have feedback sessions, discussion groups and committees so it's adequate. Well all of those things did not stop the disaster unfolding.

Summary:

So whilst we'd all agree that CPAA has lacked accountability to the members this wishy washy completely soft document has absolutely no way of being objectively enforced.

Further comment:

It seems like the TPB does not even want to enforce the criteria of accountability. As far as they are concerned associations are about providing services to their members:

E.g. Para 35 of the exposure draft:
35. Critical to any association's operations is its ability to deliver benefits to its members and to promote the profession in which their members operate. By being accountable to its members, an association should be best placed to deliver those benefits.
There is very little/absolutely no discussion of the role of associations in the regulation of their members. In the context of the provision of taxation services you would think this is the more important aspect.
6. The TPB is not a regulator of professional associations,[6] but instead recognises professional associations so that those individual entities who are voting members of a TPB recognised professional association have an additional pathway to seek registration with the TPB. ...
Yes, TPB is not a regulator. That's the point. Who is the regulator? The members! It's self regulating. But if the TPB don't enforce the requirement of the association being accountable to the members, it's unregulated!

The idea that an association could be managed by a small group that was not accountable to the members and would run it for a surplus and their own global growth, resume building aspirations, simply has not been considered. Letting it go on helps no one.
The Naked Webmaster

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