Family law and bankruptcy – ‘creditors should be expected in these times to be aware’…
The Civil Law and Justice Legislation Amendment Bill 2017 is before parliament, one purpose of its many amendments being both to fill a gap in family and bankruptcy law, and to clarify the family courts’ jurisdiction. While these would clarify existing law, the changes may need to be reconsidered in light of the announced reforms […]
ASIC’s annual ‘Dashboard’ report
With the 2018 financial year over, government agencies need to prepare their annual reports, which, commonly, are becoming increasingly opaque. But two interesting reports will be those of ASIC, in relation to corporate insolvency, and AFSA, in relation to personal insolvency. As to ASIC, under the changes made under the industry funding levy legislation, and […]
ASIC’s fees – how high and counter-productive
The article in the Australian newspaper of 2 July 2018, although typically low-brow in its heading – how ASIC gouges fees for business – gives useful coverage of ASIC’s high fees for accessing essential business and company information that it holds. In the corporate financial governance and insolvency field, it is worse than just the […]
Litigation funding of liquidators – the ALRC inquiry
The current law reform inquiry into class actions and their funding may also need to look at the funding of another type of collective litigation action, claims by liquidators in insolvency proceedings. The Australian Law Reform Commission is conducting its litigation funding inquiry with an emphasis on class action proceedings and the important role they […]
NZ insolvency practitioner co-regulation – new law proposed
In a forthcoming article, I examine an aspect of Australia’s new regime for the (over) regulation of insolvency practitioners, which involves an unsatisfactory system of close government regulation supported, purportedly, by professional body and government agency involvement. I compare this unfavourably with the UK and what is proposed in New Zealand, saying that “New Zealand […]
Australia’s insolvency regime (in administration) – ideas for its restructure
In my preparation for a panel discussion at the major AIIP Insolvency Conference in Canberra on the future of insolvency, my conclusion is that our insolvency regime should go into Part 5.3A administration, and be restructured under a deed, allowing the regime to cast aside its many inefficiencies, and to emerge anew as a streamlined […]
ASIC “pointing to scalps and easy wins … might satisfy a shallow media day” but …
In the appearance of ASIC before the House Economics Committee today, 22 June, inquiring into ASIC’s 2016-2017 annual report, Mr Trevor Evans questioned ASIC about its opening statement offering “a long list of undertakings, media releases, scalps and so on”, and approached that Mr Evans said “worries me somewhat”. Mr Evans continued: “It strikes me that pointing […]
The exploitation of cleaners
The Senate Education and Employment References Committee is to conduct an inquiry into the exploitation of general and specialist cleaners working in retail chains for contracting or subcontracting cleaning companies. The Committee is to report by 15 October 2018. The inquiry is to have particular reference to a) frameworks at both Commonwealth and industry level […]
Review of ASIC’s Annual Report 2016-2017 – 22 June 2018
The House Standing Committee on Economics is conducting an inquiry into ASIC’s 2017 annual report, this Friday 22 June, in Canberra. An inquiry report on ASIC’s 2016 annual report is here, covering many banking, financial planning, superannuation, industry funding and other issues to which ASIC will, in light of recent developments, no doubt be expected […]
The government is really serious this time – law reform protecting employee entitlements
Following the government’s public consultation process on the Reforms to address corporate misuse of the Fair Entitlements scheme consultation paper in 2017, an exposure draft of legislative amendments to the Corporations Act 2001 has now been released for public consultation at https://treasury.gov.au/consultation/c2018-t297751. The consultation closes on 9 July 2018. These reforms were in fact recommended […]
Registration of a liquidator, on conditions – Mansfield
The AAT has confirmed that a corporate insolvency practitioner’s ‘exposure’ to bankruptcy as being one criterion required to be met for liquidator registration, means what it says, and does not necessarily call for direct experience in bankruptcy. This corrects a view to the contrary that had been causing some concern. ASIC has reported in the […]
No responsibility for the folly of her purchase …’They knew I couldn’t afford it’.
Craig Emerson has pointed out that, despite the stories coming from the Banking Royal Commission, ‘not every poor decision of a customer is the bank’s fault’. As he says, ‘if an elderly parent goes guarantor for a loan there can be consequences if the loan is not repaid. … If a couple on a modest […]
Bankruptcy by the hour
The ‘median’ hourly rates for trustees in bankruptcy are from $470 to $600, according to the Australian Financial Security Authority, with outlier rates potentially well out on either side of the median. These are rates that AFSA allows registered trustees in private practice who agree to take on the administration of bankrupt estates from the […]
Questions of advantage and efficiency in assessing insolvency practitioner independence
In a further indication of the changing views of the judiciary in relation to the need for the independence of insolvency practitioners, the Federal Court has accepted that a practitioner may be both the trustee of a director’s bankruptcy and the liquidator of his company: Abate, in the matter of Chang (No 2) [2018] FCA […]
Review of insolvency practitioner regulation
A review of aspects of the disciplinary process for insolvency practitioners that was introduced by the Insolvency Law Reform Act 2016 is being conducted. That Act introduced some novel arrangements for the regulation of bankruptcy trustees and company liquidators (insolvency practitioners or IPs). In particular, a range of ‘industry bodies’ are co-opted into the IP […]
The tax stories – history regurgitates
Australia’s new 2017 insolvency laws – described by one respected academic as the worst insolvency reforms he has seen in 30 years, and by another, more colourfully, as a dog’s breakfast and more – were prompted by the same sort of media and political debate that we are seeing in relation to the ATO right […]
Access by victims of crime to the perpetrator’s superannuation
Just as moneys in a bankrupt’s superannuation fund can in certain cases be used to pay their creditors, under the Bankruptcy Act, so too would a criminal’s super fund be available to pay compensation to their victim, under changes proposed by the government to superannuation laws. Treasury is canvassing views on whether a convicted criminal’s […]
Beautifully written analysis of a single word in the English language
Beautifully written judicial analysis of language from Justice Jonathan Beach in ASIC v Westpac (No 2) [2018] FCA 751 [references added]. Fifth, let me now say something concerning the vernacular of the traders. And it concerns the use of the “f***”[1] word and its various derivatives. There is little doubt that linguistic Darwinism has favoured […]
Ponzi investigations and their cost
Free liquidator investigations into failed Ponzi schemes are raised as an idea in a New Zealand government discussion paper on proposals to deal with the inevitable insolvency of a Ponzi scheme.[1] In recommending the liquidation process under the skilled hand of a liquidator, the paper says that if “there are insufficient assets to pay a […]
Bankrupt parliamentarians – ok or not?
At a time when the government has a Bill before Parliament to reduce the period of bankruptcy from three years to one, partly in order to reduce the stigma associated with bankruptcy, a Parliamentary Joint Committee has issued its report on s 44 of the Australian Constitution, one aspect of which is the prohibition in […]
One pre-packaged insolvency – coming up
An option for a quick resolution of an insolvent business is its quick pre-packaged exit, and transfer of assets to a new owner, avoiding the inevitable impact on value that a formal insolvency arrangement brings. A recent UK article compares the pre-pack scene in the UK and Australia, suggesting Australia’s ideas may provide insights for […]
by how much could we reduce white collar crime by imposing 30 year jail sentences? “Zero”.
The Honest Politician’s Guide to Crime Control never went into to a second edition, and it may by now be out of print. I studied with its co-author, Gordon Hawkins, whose objective and considered views were as relevant then in those Laura Norder days as they are now. Sadly, in the years since, I have […]
Insolvency law update – May 2018
This is one of my regular updates on where things are at in the insolvency law and practice world in Australia – one year bankruptcy, ASIC, safe harbour, practitioner discipline, INSOL and UNCITRAL, conferences, UK and NZ, and gift cards, Mossgreen, and more. Personal insolvency The law reform in relation to the one-year period of […]
Cross-border regulation of insolvency practitioners
The Insolvency Law Reform Act 2016 introduced a stronger regulatory regime over insolvency practitioners. It may not have been noticed that this new law went so far as to regulate the conduct of practitioners while overseas. The words “in a foreign country” now appear in s 40-40, in each of the Bankruptcy Schedule and the […]
