The Tribune

By Fay Simmons

Tribune Business Reporter

jsimmons@tribunemedia.net

The Bahamas Institute of Chartered Accountants (BICA) is seeking to strengthen its investigation committee’s powers to take action when complaints are made against members, it was revealed yesterday.

Edgar Moxey, of the Institute’s legislative committee, told BICA’s accountant week seminars that the committee plans to present Ryan Pinder KC, the attorney general, with several proposed changes to legislation governing the accounting profession in the hope it will ultimately be passed by Parliament.

One amendment involves section 21(2) of the BICA Act, which speaks to the powers of its investigation committee. The Act presently says the committee “may seek agreement” with the person a complaint is made against before taking action.

Mr Moxey argued that the committee should not need to seek permission from the person that a complaint is made against before taking action, but should be “empowered” to exercise orders once they have been given the opportunity to object to the claims.

He said: “The investigation committee may seek agreement with a person against whom a complaint is made before taking action, provided that the complainant, or thus the person filing that complaint, has an opportunity to object before making the orders.

“Our committee is saying: ‘Hold on a minute, should you really be seeking permission? Should the investigation committee really not be empowered to just go ahead and make the orders provided the person against whom the complaint has been made has an opportunity to object?’

“So you see the difference there where the person against whom the complaint is being made can object, but you can go ahead as a committee and go ahead and exercise orders.”

Mr Moxey added that although the law does not say “shall” seek permission, the inclusion of “may’” implies that the investigation committee needs permission before taking action against persons who are the subject of complaints.

He added: “Now if we look at BICA, the Act section 21(2), it reads thus: ‘The investigating committee may with agreement of the person.. that is the point.. even though it says may you know that there is a difference in law between the may and the shall.. but our small contention there is that you do not necessarily need somebody’s permission if they are being complained against before you can proceed. You should give them only the opportunity to object.”

Mr Moxey also spoke about the need to address the definition of “privileged material”. He explained: “Privileged material means communication between a legal adviser, the client or any person representing their client, and any other person together with any enclosure or attachment with such communication created either in connection with the giving of legal advice to the client, or in connection with or in contemplation of legal proceedings and for the purpose of these proceedings. Save that a communication or item shall not be privileged material if it is created or held with the intention of furthering a criminal purpose.”

He explained that privileged material will not extend to information about fraud or illegal dealings, or when disclosure is required by legislation.

Mr Moxey said: “Now we do know that when you have privilege, there will always be exceptions. Primary exceptions would be where there is fraud or illegal purpose, clients waive the privilege or when the statute actually says or requires the disclosure.

“You cannot essentially hide behind privilege and some of the Acts, for example, we have Proceeds of Crime Act, the Securities Industries Act and the Financial Transactions Reporting Act. So certain things you won’t be able to hide behind privileged material to get away with not disclosing.”

Mr Moxey explained that the proposed changes are based on an opinion letter penned by their attorneys and, once the changes have been discussed by BICA members, they will be passed to the Attorney General’s Office for preparation of a draft Bill.

He said: “The backdrop of this entire presentation today is an opinion letter that we got based on some of the views espoused by counsel that was passed on to our attorneys, Sears and Company, and they came back with an opinion letter. And we as a committee kind of went through it and brought forward the issues.

“We seek to present the issues to you as a discussion. The next step is to have our counsel agree and finalise all the changes that we propose. And then, of course, we pass the information on to the attorney general, to the drafters who will then go ahead and draft all these changes.

“And then up comes a brand-new draft Bill. And BICA comes back to you as members in an EGM (extraordinary general meeting) and says here are the changes that we’re proposing. Do you agree or disagree? You pass them, and then we pass it on to get it through as a Bill into parliament”