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Michael Murray’s on-going commentary on issues in corporate and personal insolvency law and related policy and law reform, in Australia and internationally. Given the scope of insolvency, this extends to business, consumer and professional conduct, and ethics, governance and regulation, criminal, tax, environmental and administrative law, and the courts and government.

 

ASIC’s Corporate Plan 2019-2023 – Insolvency Practitioners

ASIC’s corporate plan 2019-2023 contains much detail about the various sectors it regulates and what regulatory approaches it is taking.

This is a list of what ASIC says are its ‘continuing actions’ in relation to corporate insolvency with ASIC’s stated particular focus of each action under the plan.

This is for the information of corporate insolvency practitioners who each will make their own assessment of what messages ASIC is conveying, some of which may be a little opaque.

ASIC’s ‘ACTION 2019-2020’

This is a list from ASIC’s corporate plan of what ASIC says are its ‘continuing actions’ and the particular focus of each under the plan.

 

Insolvency practitioners Assetless Administration Fund

Focus

Enhancing internal process to support funding the right matters and engaging with industry to promote improved outcomes ›

Publishing revised Regulatory Guide 109 Assetless Administration Fund (RG 109) and GrantConnect guidelines

 

Liquidator remuneration

Focus

  • Reviewing how remuneration is charged and disclosed and supporting improved industry practices ›
  • Publishing relevant information in ASIC’s Corporate Insolvency Update (quarterly)

 

Independence of liquidator referral relationships

Focus

  • Identifying independence concerns by reviewing existing registered liquidator referral relationships and monitoring the impact of structural changes. This is later in the plan referred to as “a lack of gatekeeper independence” of insolvency practitioners, and also accountants and auditors ›
  • Publishing relevant information in ASIC’s Corporate Insolvency Update (quarterly)

 

Funds handling of companies in administration

Focus

  • Reviewing current controls via industry survey and establishing guidelines ›
  • Publishing revised Regulatory Guide 258 Registered liquidators: Registrations, disciplinary actions and insurance requirements (RG 258), to reflect project findings

 

Proactive and reactive surveillance of registered liquidators

Focus

  • Undertaking proactive risk-based reviews of industry to identify poor conduct, illegal phoenix activity and emerging industry risks ›
  • Informing the market through regulatory publications including: ›
  1. our report on regulation of registered liquidators ›
  2. our insolvency statistics report ›
  3. a report on our observations on deeds of company arrangement that were commenced and finalised in the period 1 July 2013 to 30 June 2019.

 

Corporate failures

ASIC provides this assessment of the market.

“There has been a small increase in the number of insolvencies in 2018–19. In the 12 months to May 2019, 8,076 companies entered into external administration (up 2.3% from the same period the previous year).16 Some 18.4% of those companies were in the construction industry.17 However, the number of insolvencies remain well below levels observed following the global financial crisis.

The insolvency practitioners sector continues to contract, with 654 liquidators currently registered – the lowest number since records were kept.18 The decrease is being driven by increased competition for fewer appointments, a reduction in the number of firms, more stringent initial and ongoing registration processes and the relatively depressed insolvency market. A shortage of liquidators may present challenges if the number of insolvencies rise”.

More soon.

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