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Michael Murray is an Australian author and commentator on corporate and personal insolvency law and related policy and law reform, in Australia and internationally. No legal advice is offered or given.

ARITA’s response to the Ombudsman’s small business insolvency inquiry

ARITA has offered a 60-page submission to the Ombudsman’s inquiry, which, given the quality of the inquiry, may be rather excessive but is nevertheless useful.

It may also be seen as surprising, given ARITA’s criticism of the Ombudsman’s inquiry, which, as ARITA has explained, was announced only 2 months after ARITA had written to all federal politicians informing them of its own inquiry, through its proposed Financial Recovery Law Reform Commission, as outlined in ARITA’s 2020 strategic plan.

ARITA had in fact expressed ‘disappointment’ at the announcement of the Ombudsman’s inquiry, saying that it ‘fails to address the need for a whole of system reform’, compared with the ‘very narrow focus’ of her inquiry. And ARITA ‘hardly saw any value’ in the chair of the inquiry, former Senator John Williams, and expressed concern that the inquiry’s reference group was ‘poorly formed’. It expressed concerns that the inquiry was

‘more about generating media attention than actually seeking to improve the insolvency regime’.

While the ARITA submission reacts and responds to the various queries raised by the Ombudsman, it does not go further and offer much about what insolvency law and practice reforms should be made. It appears these ideas are reserved for the yet to be announced details of the FRLRC and its ‘Commissioners’ who will include many practitioners, judges, academics and other stakeholders.[1] Government funding for the FRLRC is, we are told, being requested.

The submission does devote many pages, perhaps defensively, to past commentary on insolvency practitioner remuneration and independence, but confined only to corporate insolvency.

Nevertheless, ARITA has been usefully busy in putting forward many of its ideas on insolvency law reform with which we are familiar.

These and other submissions and survey responses will assist the Ombudsman in writing her final report, due in March 2020.

[1] See ARITA 2020; and (2019) 31(3) ARITA J 2, President’s Notes.

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