Addressing the confusion
It is not often that professional and ethical standards in the accounting profession cause so much controversy, confusion and concern. However, after six years of consultation with a wide range of global stakeholders and to be implemented in over 100 countries, that is exactly what NOCLAR has caused.
What exactly is NOCLAR and what does it mean for accountants in Australia?
NOCLAR is the acronym for “Responding to Non-compliance with Laws and Regulations”. The official line is that NOCLAR is a framework designed by the International Ethics Standards Board for Accountants (IESBA) to guide Professional Accountants in what actions to take in the public interest when they become aware of a potential illegal act committed by a client or employer. Some might call this a type of mandated whistleblowing. It has a start date of 15 July, 2017.
NOCLAR is defined as any “act of omission or commission, intentional or unintentional, committed by a client or employer, including by management or by others working for or under the direction of the client or employer, which is contrary to prevailing laws or regulations”. The laws and regulations covered, violations of which are acts of NOCLAR, are those that directly affect the client’s or the employing organisation’s financial statements or its business in a material or fundamental way.
The Standard applies to all categories of Professional Accountants, including auditors, professional accountants in public practice and professional accountants in organizations, including those in businesses, government, education and the not-for-profit sector. It addresses breaches of laws and regulations that deal with matters such as fraud, corruption and bribery, money laundering, financial products and services, securities markets, environmental protection, data protection, banking, proceeds of crime, securities trading, tax and pension liabilities, tax payments, terrorist financing and public health and safety.
Among other matters, the new Standard provides a clear pathway for Professional Accountants to disclose potential non-compliance situations to appropriate public authorities in certain situations without being constrained by the ethical duty of confidentiality. It also places renewed emphasis on the role of senior-level accountants in business in promoting a culture of compliance with laws and regulations and prevention of non-compliance within their organizations. The Standard will also directly affect those to whom Professional Accountants will raise NOCLAR including management, Board of Directors, those involved with governance, regulators and other public authorities. That is, to be effective the Standard needs to create a link in the financial reporting supply chain in preventing and raising potential acts of non-compliance.
In fact, this will be the first time that accountants will be permitted to set aside the duty of confidentiality under the Code of Ethics in order to disclose NOCLAR to appropriate public authorities in certain circumstances.
Why is NOCLAR important?
The idea is that NOCLAR will encourage greater accountability among organisations, it will help to protect stakeholders and the general public from substantial harm resulting from violation of laws and regulations; and to strengthen the reputation of the profession. NOCLAR also positions the accounting profession to play a much greater role in the global fight against breaches of legislation and regulations, including financial fraud, money laundering and corruption. In a world where cyber crime is also on the rise, it is important that accountants realise the significant role that they can and should play.
The standard was also developed to clarify that for Professional Accountants it is not enough to simply turn a blind eye to breaches of the law, while also placing renewed emphasis on the roles of management and those charged with governance. It is also intended that earlier action by Professional Accountants and management will provide greater protection and reduce any adverse consequences for all stakeholders involved, including the general public. Overall, it is hoped that NOCLAR will lead to more trustworthy organisations and a healthier global financial system.
How is NOCLAR to be implemented?
The IPA believes that guidance will be needed as to how to implement and apply NOCLAR, how to interpret what constitutes “non-compliance”, the “public interest”, other concepts and to clarify the legal, regulatory and ethical responsibilities regarding how to respond to the Standard. There will be much ambiguity and greyness in how NOCLAR is to be interpreted and applied, not just across Australia, but also consistently across the world. It is also likely that stronger whistle blowing protections will be needed in Australia in a broader and more general sense.
IESBA will also be providing more guidance including “implementation support material”; and answering questions such as how the Standard will apply in countries that don’t have safe harbour provisions for whistle blowers. IESBA currently has some material on implementing NOCLAR including a Q&A video series and you can follow developments on Twitter #NOCLAR and #IESBA.
What was the IPA’s position on NOCLAR?
Usually when new standards are proposed by the global body IESBA, they are adopted and adapted as necessary for the Australian environment by APESB (Accounting and Professional Ethics Standards Board). The professional accounting bodies have the opportunity to provide comment and are consulted on the work being undertaken by APESB. We also have the opportunity to comment on and are involved in consultations undertaken by IESBA. In the case of NOCLAR the IPA made multiple submissions including supplementary commentary on how NOCLAR will impact other accounting and auditing standards, especially the International Standard on Auditing (ISA) 250, Consideration of Laws and Regulations in an Audit of Financial Statements.
The IPA broadly supports the proposals in relation to NOCLAR. The IPA in particular supported the explicit recognition of the responsibility for NOCLAR extending beyond Professional Accountants acting as auditors, to both accountants in practice providing non-audit services and accountants in business.
The IPA made two specific observations. Firstly, the category of “Professional Accountants in public practice providing services other than the Audit of Financial Statements” appears to include Professional Accountants providing other assurance including audits of information other than financial statements. The IPA is of the opinion that Professional Accountants performing any assurance engagements should have the same responsibility in relation to NOCLAR. For example, review engagements are substituted in some jurisdictions for the audit of financial statements for certain types of entities. The IPA is of the view the same duty of care in relation to NOCLAR exists in such circumstances.
Similarly, engagements may exist which require audit level assurance in respect of individual balances or transactions. In relation to such engagements NOCLAR obligations could arise and should be approached with a similar level of obligation consistent with the scope of an engagement to audit financial statements. Secondly, the IPA believes the proposed standard should include a requirement for Professional Accountants in practice to include an explicit paragraph as to their obligation in relation to NOCLAR in all engagement letters.
What have others said about NOCLAR?
Many stakeholders around the world were supportive of NOCLAR and the special position that accountants hold in business and in the economy.
PWC was reflective of many views which supported the NOCLAR standard, which clarifies the mandate and responsibilities of Professional Accountants. It has been said that “It is aligned with various international treaties on corruption,” and “If applied correctly NOCLAR could be a giant step forward for society as a whole as well as valuating the accountancy profession by demonstrating its relevance to the community.” In Canada, however, the conversation and debate continues as to whether the confidentiality rules as they stand act as a barrier to auditors responding appropriately and whether auditors need to play a greater role in reporting NOCLAR.