Dear Parliamentary Counsel

The Commonwealth Integrity Commission Bill 2020 is important in many respects and some would see the following aspect of it as not.  But I’ll press on anyway. Under s 220(2) of the Bill, the Governor-General must terminate the appointment of a commissioner (a CIC office holder) if he or she “(i) becomes bankrupt; or (ii) […]

Do the Australian small to medium business insolvency reforms add up?

The numbers upon which the government is relying for the proposed SME reforms[1] don’t seem to add up. Apart from the fact that the reforms ignore around 60% of small business, less than 20% of the remainder might benefit from the process. This is apparent from many available resources including a 2019 report of the […]

Is Australia’s insolvency safe harbour protection working – who knows?

The 2 year review of Australia’s safe harbour protection for directors, due from the government over a year ago, never took place. Q: The Treasurer is presently breaking the law in relation to the obligations in the Corporations Act? … A: That’s probably not how I’d express it. On 26 October 2020 the Economics Legislation […]

Australia’s insolvency law reforms – useful information from government officers

On 26 October 2020 the Economics Legislation Committee inquired of various Treasury officers about personal and corporate insolvency law reform, in particular about the proposed corporate SME related insolvency reforms.  Statistics were offered on the day which don’t seem to relate to other information available, perhaps because the figures were only those of ASIC; but […]

Caution against “reasoning backwards” in assessing the validity of liquidators’ litigation

A judge has cautioned against “reasoning backwards” to assume that insolvency practitioners’ failed or injudicious legal proceedings either should not reasonably have been commenced or continued, noting that the conduct of litigation often involves difficult strategic decisions, the outcomes of which are notoriously difficult to predict. ASIC’s claim that the liquidator had breached his duties […]

SME insolvency reforms – a one year bankruptcy and more

The Australian government’s 2015 proposal to reduce the 3 year period for the imposition of the restrictions of bankruptcy to 1 year remains on foot; and there is no indication that any period of restriction will be imposed in the parallel corporate failure situation on a director of a liquidated company.  As to a one […]

Spent convictions of insolvency practitioners

According to a report from Stuff in New Zealand, a long-established liquidator has been denied permission to continue to practise based upon his convictions for fraud offences over 25 years ago.  Australia’s law of spent convictions might not allow that. Mr Damien Grant is reported to have been denied permission to continue to practise because […]

Transparency in the selection process of liquidators and trustees

The Insolvency Law Reform Act 2016 introduced some, let’s say, novel provisions in relation to the registration and discipline of Australian insolvency practitioners which I have explained elsewhere.  The law strikes some balance between privacy of the individual practitioner and public disclosure of the selection or discipline processes.  In light of the government’s proposed SME […]