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Published online by Cambridge University Press: 01 January 2025
The most desirable outcome from corporate insolvency is one that achieves the greatest return for all creditors including revenue authorities; minimises the cost of administering the system so that money is not pointlessly consumed; lessens reliance on government safety nets; and deters and punishes those who would use insolvency to their own advantage. This paper explores these intersecting priorities and argues for a new approach to insolvency administration that achieves these objectives.
Australian Research Council Discovery Project: DP140102277, ‘Phoenix Activity: Regulating Fraudulent Use of the Corporate Form’. I thank the two anonymous referees for their helpful comments
1 See cases noted below at n 69 and accompanying text.
2 For a discussion of the causes of company failure, see Rose Kenney, Gianni La Cava and David Rodgers, ‘Why Do Companies Fail?’ (Research Discussion Paper, Reserve Bank of Australia, September 2016).
3 Corporations Act s 95A.
4 Those holding security over a non-circulating security asset take priority over all other creditors, and those holding security over a circulating security asset take priority over unsecured creditors except for employees: Corporations Act s 561.
5 Corporations Act ss 556(1)(a)–(df).
6 Ibid ss 556(1)(e)–(h).
7 This is discussed below at Part IIC.
8 Corporations Act s 560.
9 This reporting is done in compliance with ASIC, ‘Regulatory Guide 16: External Administrators—Reporting and Lodging’, (Report, July 2008) (‘ASIC Regulatory Guide 16’). The form completed by the external administrator is ASIC, Form EX01: Schedule B of Regulatory Guide 16—Report to ASIC under ss 422, 438D or 533 of the Corporations Act 2001 (Cth) or for Statistical Purposes (13 January 2016).
10 The latest is ASIC, ‘Report 558: Insolvency Statistics—External Administrators’ Reports (July 2016 to June 2017)’ (Report, December 2017) (‘ASIC Report 558’).
11 Ibid 7, table 2. In 2015–16 and 2014–15, it was 97% of cases, ibid. The average returns are for all forms of external administration and are likely to be even less if only liquidations were considered.
12 Ibid [87].
13 Ibid [11].
14 Corporations Act s 601AB.
15 Email from Adrian Brown to author, 18 March 2016, indicating that about 37600 companies are deregistered by ASIC every year for failing to lodge documents or pay fees. (University of Melbourne Ethics ID: 1341343). This dwarfs the number of companies that enter liquidation: 6235 companies in 2016–17: ASIC, ‘Australian Insolvency Statistics: Series 1—Companies Entering External Administration, January 1999–August 2017’ (October 2017), 8 table 1.3. This figure has been calculated by aggregating the annual figures for ‘[c]ourt wind-up’, 2432, and ‘[c]reditors wind-up’, 3803, in 2016–17.
16 This is discussed further below at n 45 and accompanying text.
17 ASIC, ‘ASIC Report 558’, above n 10, 50 (table 39). Note that table 26 (page 33–4) also records external administrator reports of alleged criminal and civil breaches relating to unpaid taxes.
18 Australian Taxation Office, Why We Measure the Tax Gap (30 October 2017) <:https://www.ato.gov.au/About-ATO/Research-and-statistics/In-detail/Tax-gap/Australian-tax-gaps-overview/?anchor=Overview#Overview>. State taxes are also lost to insolvency and other causes, and to consider Victoria alone, its estimate of unrecoverable taxes due to insolvency in 2016–17 was $65.7 million. Over $30 million in unremitted payroll tax was written off during 2016–17. See State Revenue Office Victoria, Analysis of Debt 2016–17 (2017) <:http://annualreview1617.sro.vic.gov.au/content/analysis-debt>.
19 This amount is currently 9.5% of eligible wages: Superannuation Guarantee (Administration) Act 1992 (Cth) s 19(2) (definition of ‘charge percentage’ item 6).
20 Superannuation Guarantee (Administration) Act 1992 (Cth) pt 3A (‘SGAA’), inserted by Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2004 (Cth) sch 1 item 22.
21 Superannuation is one of the entitlements which are subject to employees’ statutory priority: Corporations Act s 556(1)(e)(i). The SGC enjoys that same statutory priority: s 556(1)(e)(ii).
22 Difficulties in recovering this tax are examined below in Part IIIA2.
23 SGAA pt 8.
24 To ensure that superannuation coverage is as wide as possible, the constitutional basis of the SGC is the taxation power: Australian Constitution, s 51(ii), supported by the ‘invalid and old aged pensions’ power in Australian Constitution, s 51(xxiii). The taxation underpinnings of the SGC were challenged in Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97 but the majority upheld the constitutional validity of the charge, at 112–13 [48].
25 Australian Government, Department of Jobs and Small Business, Fair Entitlements Guarantee (FEG) (20 February 2018) <:https://www.employment.gov.au/fair-entitlements-guarantee-feg>.
26 Under s 5 of the Fair Entitlements Guarantee Act 2012 (Cth) (‘FEG Act’), an ‘employment entitlement’ means annual leave, long service leave, payment in lieu of notice, redundancy pay and wages.
27 FEG covers both companies and unincorporated employers including sole traders and partnerships: FEG Act s 5 definition of ‘insolvency event’.
28 Corporations Act s 560.
29 Australian Government, Department of Employment, ‘Annual Report 2016–17’ (Report, 29 September 2017), 54.
30 Ibid. In 2015–16, the Department of Employment (DE) (as it then was; now DJSB) recovered $54.43 million: at 52.
31 FEG Act s 49(2)(a) does permit the Minister to declare that employees of companies in voluntary administration can claim where the company's liquidation is expected.
32 Fair Entitlements Guarantee Act 2012 (Cth) s 5. See also above n 26 and accompanying text.
33 Construction and Building Unions Superannuation and Industry Super Australia, ‘Overdue: Time for Action on Unpaid Super’ (Report, December 2016) 3.
34 ASIC, ‘ASIC Report 558’, above n 10, 46 (table 37).
35 Ibid. See also Industry Fund services, Submission No 53 to Senate Economics References Committee, Inquiry into Superannuation Non-Repayment, 1 March 2017, 4: ‘In 2015/16 the IFS insolvency team managed 9,725 insolvency cases. … Of the insolvency cases managed by IFS 28% of cases closed returned a dividend for 23,362 members from 1,472 employers, recovering $23.4M.’
36 Jim Stanford, ‘The Consequences of Wage Suppression for Australia's Superannuation System’ (Report, Centre for Future Work, Australia Institute, 18 September 2017) 10.
37 ASIC, Annual Report 2016–2017 (Report, 5 October 2017) 14.
38 Corporations Act Part 2D.1, enforceable as civil penalty breaches under Part 9.4B of the Act.
39 Ibid s 588G(2), as a civil penalty breach under Part 9.4B and directly under s 588J.
40 Corporations Act s 206F. In 2016–17, 51 people were disqualified or removed from directing companies: ASIC, above n 37, 5.
41 Australian Securities and Investments Commission Act 2001 (Cth) s 13.
42 Corporations Act ss 459A, 462 (allowing ASIC to seek a winding up order in relation to grounds specified in s 461), 464.
43 For example, ASIC may bring action against directors for failing to provide books and records to liquidators or to assist liquidators: Corporations Act s 530A(6). In 2016–17, ASIC prosecuted 409 directors of failed companies for 723 offences of this type: ASIC, ‘Annual Report 2016–2017’ above n 37, 4.
44 These include criminal breaches of directors’ duties under Corporations Act s 184, criminal insolvent trading under s 588G(3), and fraud offences such as s 596.
45 Corporations Act s 489EA, which was introduced by the Corporations Amendment (Phoenixing and Other Measures) Act 2012 (Cth).
46 ASIC, ‘17-310MR ASIC Winds up 11 Abandoned Companies Owing More Than $650,000 in Employee Entitlements’ (Media Release, 12 September 2017).
47 See above n 15 and accompanying text.
48 The Hon David Bradbury, ‘Legislation Introduced to Help Workers Access Their Entitlements’ (Media Release, NO.006, 15 February 2012); See also ASIC, ‘ASIC's Power to Wind Up Abandoned Companies’ (Consultation Paper, No 180, July 2012), 6, [4].
49 ASIC, ‘Regulatory Guide 242: ASIC's Power to Wind Up Abandoned Companies’ (Report, January 2013) 7 (table 1).
50 Corporations Act s 477(2)(a).
51 Ibid s 477(1)(d). A compensation order can be granted for breach of civil penalty provisions under Corporations Act s 1317H.
52 Ibid pt 5.7B. See for example, Featherstone v Ashala Model Agency Pty Ltd (in liq) & Anor [2017] QCA 260, where the Queensland Court of Appeal considered that s 588FE(5) allowed the recovery of payments made to defeat creditors in an apparent phoenix transaction. The payments had been made five years prior to the company's eventual liquidation.
53 Corporations Act s 588M.
54 Ibid pt 5.9 div 1. Liquidators are ‘eligible applicants’ as defined in s 9 of the Act.
55 Above n 9 and accompanying text.
56 ASIC, ‘ASIC Regulatory Guide 16’, above n 9.
57 ASIC, ‘ASIC Report 558’, above n 10, 22 [41].
58 ASIC, ‘ASIC Regulatory Guide 16’, above n 9, reg 16:4(c). See also reg 16.122 regarding documentary evidence and the substantiation of allegations of wrongdoing.
59 Ibid reg 16.5.
60 See the lengthy debate on the issue in Senate Economics References Committee, Parliament of Australia, Performance of the Australian Securities and Investments Commission, (2014) chs 15–16.
61 Karen Chester, Mark Gray and David Galbally, ‘Fit For the Future: A Capability Review of the Australian Securities and Investments Commission’ (Report to Australian Government, 4 December 2015).
62 Senate Economics References Committee, Parliament of Australia, The Regulation, Registration and Remuneration of Insolvency Practitioners in Australia: The Case for a New Framework (2010).
63 Note that registered liquidators who are members of a professional association such as ARITA are subject to a code of professional practice, breach of which renders them subject to disciplinary proceedings including termination of their membership. The Insolvency Law Reform Act 2016 (Cth) inserted sch 2 into the Corporations Act and now contains extensive new provisions including with regards to the registration of liquidators, their remuneration and disciplinary proceedings against them.
64 See, eg, ASIC, ‘ASIC Corporate Plan 2017–18 to 2020–21, Focus 2017–2018’ (Report, August 2017) 7. ASIC presents ‘what good looks like’ for insolvency practitioners: ‘Registered liquidators: act independently and competently; ensure cost-effective, timely and appropriate outcomes; [and] perform their role in accordance with proper standards of professional conduct’.
65 ASIC, ‘Annual Report 2016–2017’, above n 37, [3.2.2]. See also, Treasury (Cth), Proposed Industry Funding Model for the Australian Securities and Investments Commission, Consultation Paper (2015) 49 (‘Proposed Industry Funding Model: Consultation Paper’).
66 ASIC, ‘Information Sheet 151: ASIC's approach to enforcement’ (Report, 20 February 2012) 3.
67 Evidence to Parliamentary Joint Committee on Corporations and Financial Services, Parliament of Australia, Canberra, 12 September 2012, 15 (Greg Medcraft, Chairman of ASIC). From 1 February 2018, the ASIC Chair is James Shipton.
68 Corporations Act s 545.
69 Note the recognition of the public interest role of liquidators in bringing litigation in Hall v Poolman (2009) 75 NSWLR 99, [128]–[129]; Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38, [58].
70 ARITA, Submission No 31 to Productivity Commission, Inquiry into Business Set-up, Transfer and Closure, 2 March 2015, 30; Productivity Commission (Cth), Business Set-up, Transfer and Closure Final Report, Parl Paper No 75(2015) 364 (‘Business Set-Up Report’).
71 ARITA, Submission to Treasury, Insolvency Law Reform Bill 2014, 18 December 2014, [3.5].
72 Inspector General of Taxation (Cth), Debt Collection: A Report to the Assistant Treasurer (2015), [2.84]. ‘In taking debt recovery actions, certain stakeholders have advised that creditors often rely on the ATO to take quick and appropriate action in relation to insolvent taxpayers.’
73 ASIC, ‘ASIC Report 558’, above n 10, [78]. For reports in 2016–17 where external administrators reported possible misconduct, 167 indicated the external administrator had referred, or was intending to refer, the matter to another authority. The three highest number of referrals to other authorities were to the Australian Taxation Office (105 reports), state or territory police (18 reports) and Fair Trading/Consumer Affairs (18 reports).
74 Corporations Act s 459E(2)–(3).
75 Ibid s 459E(5). Ability to make estimates: Income Tax Assessment Act 1936 (Cth) (‘ITAA36’) pt VI div 8; Taxation Administration Act 1953 (Cth) (‘TAA’) sch 1 div 268.
76 TAA sch 1 s 268-85(5); TAA s 14ZZM, 14ZZR.
77 Australian Taxation Office (Cth), Annual Report 2016–2017 (2017) 213.
78 Corporations Act s 461(1)(k). See, for eg, Deputy Commissioner of Taxation v Casualife Furniture International Pty Ltd [2004] VSC 157.
79 Corporations Act s 447A. See, eg, Deputy Commissioner of Taxation v Woodings (1994) 13 WAR 189.
80 See, eg, Deputy Commissioner of Taxation v Gashi [2010] VSC 120 where an order was made under Order 37A of the Supreme Court (General Civil Procedure) Rules.
81 Note also the ATO's privileged position in relation to appeals and AAT reviews: TAA s 14ZZMR, s 14ZZM respectively. Also, the ATO's ability to recover against liquidators and receivers: see, eg, TAA sch 1 ss 260-45, 260-75.
82 TAA sch 1 s 260-5(2).
83 Ibid s 255-100.
84 Ibid s 269-15.
85 See also Villios, Sylvia, ‘Tax Collection, Recovery and Enforcement Issues for Insolvent Entities’ (2016) 31(3) Australian Tax Forum 425Google Scholar; Villios, Sylvia, ‘Director penalty notices—promoting a culture of good corporate governance and of successful corporate rescue post insolvency’ (2016) 25(1) Revenue Law Journal 1CrossRefGoogle Scholar.
86 TAA s 353-10.
87 Ibid.
88 Criminal Code Act 1995 (Cth) ss 135.2.
89 Criminal Code Act 1995 (Cth) s 135.4.
90 TAA ss 8K, 8L.
91 See, eg, the general anti-avoidance rule (GAAR): ITAA36 s177D; the promoter penalty regime: TAA sch 1 div 290. Because the company has committed no offence by simply not remitting their properly incurred tax, accessory liability pursuant to TAA s 8Y is ineffective, as are reparation orders under Crimes Act 1914 s 21B. The court can only order a person to make reparation for any Commonwealth loss where there is a tax offence.
92 See ss 5 (arrangements to avoid payment of tax), 6 (accessory liability for arrangements to avoid payment of tax).
93 See Grabosky, Peter, Wayward governance: illegality and its control in the public sector (Australian Institute of Criminology, 1989) ch 9Google Scholar.
94 CTOA ss 5, 17. See also Xynas, Lidia, ‘Tax Planning, Avoidance and Evasion in Australia 1970–2010: The Regulatory Responses and Taxpayer Compliance’ (2011) 20 Revenue Law Journal 38CrossRefGoogle Scholar.
95 Superannuation Guarantee Charge Act 1992 (Cth).
96 SGAA ss 46, 64A.
97 ATO, Unpaid Super (30 Jan 2018) <:https:/www.ato.gov.au/Individuals/Super/In-detail/Growing/Unpaid-super/>.
98 ATO, Further Information About the Process (30 Jan 2018) <:https://www.ato.gov.au/Individuals/Super/In-detail/Growing/Unpaid-super/?page=4>.
99 See Anderson, Helen and Hardy, Tess, ‘Who Should be the Super Police? Detection and Recovery of Unremitted Superannuation’ (2014) 37 UNSW Law Journal 162Google Scholar.
100 Evidence to Senate Economics References Committee, Parliament of Australia, , Canberra, 3 March 2017, 39 (Michael Campbell, Deputy Fair Work Ombudsman): ‘In simple terms, the work we [as the FWO] focus on is that which is clearly within our jurisdiction. The ATO has a broader jurisdiction than ours. It reaches more employees and employers and it has a better toolkit and set of powers to seek out and recover unpaid superannuation. So we refer it to them and we think that is an appropriate approach’. In 2015–16, the FWO made 2405 referrals to the ATO: Australian Taxation Office, Submission No 6 to Senate Economics References Committee, Inquiry into Superannuation Guarantee Non-payment, January 2017, 10.
101 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557, [115], [151], [496], [507].
102 Fair Work Act 2009 (Cth) ss 45 (modern awards), 50 (enterprise agreements).
103 Ibid s 550.
104 See, eg, Fair Work Ombudsman v Step Ahead Security Services Pty Ltd & Anor [2016] FCCA 1482, [80].
105 Explanatory Memorandum, Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (Cth) 1.
106 Fair Work Act 2009 (Cth) pt 4-1 div 4A.
107 ASIC, ‘Annual Report 2016–2017’, above n 37, 26 [1.6.2].
108 Ibid 26 [1.6.3]. The government provided ASIC with an additional $61.1 million over four years to enhance its data management and analysis capabilities at 6.
109 See Department of Finance, ASIC Registry—FAQS (26 February 2018) <:http://www.finance.gov.au/procurement/scoping-studies/asic-faqs/>. It was described as ‘market testing for private sector interest to upgrade, operate and add value to the ASIC Registry’.
110 Ibid.
111 Corporations Act ss 556(1)(a)–(df).
112 For some of the history behind this legislation, see Treasury (Cth), Proposals Paper: A Modernisation and Harmonisation of the Regulatory Framework applying to Insolvency Practitioners in Australia (2011).
113 Corporations Act, sch 2 s 60-10.
114 Ibid s 60-1.
115 See, for eg, Templeton v Australian Securities and Investments Commission [2015] FCAFC 137.
116 [2017] NSWCA 38 (‘Sakr No 2’).
117 In the matter of Sakr Nominees Pty Ltd [2016] NSWSC 709 (‘Sakr No 1’).
118 The remuneration determination by the court was under Corporations Act s 473(3)(b)(ii) as it then was, prior to the passage of the remuneration provisions in the ILRA noted above.
119 The relevant factors for the court to consider were set out at Corporations Act s 473(10).
120 Sakr No 1 [2016] NSWSC 709, [16].
121 See ARITA, Major Victory for Reasonable and Proper Liquidator Remuneration (10 March 2017) https://www.arita.com.au/ARITA/News/ARITA_News/Major_victory_for_reasonable_and_proper_liquidator_remuneration.aspx>.
122 Sakr No 2[2017] NSWCA 38, 470 [52].
123 Ibid 471–2 [60].
124 Ibid 471 [57].
125 Ibid 471 [58].
126 In the matter of Sakr Nominees Pty Ltd [2017] NSWSC 668, [27] (‘Sakr No 3’).
127 Insolvency Act 1986 (UK) ss 246ZC–246ZD, introduced by Small Business, Enterprise and Employment Act 2015 (UK) ss 117–18.
128 Companies Act 1993 (NZ) s 260A(1).
129 Corporations Act sch 2, s 100-5(1).
130 Ibid s 100-5(2), (3) respectively.
131 Cant; Re Novaline Pty Ltd (in liq) (2011) 282 ALR 49.
132 After an initial pilot program, the FEG Recovery Program has become ongoing since 1 January 2017: Department of Jobs and Small Business, Australian Government, FEG Recovery Program (15 February 2018) <:https://www.employment.gov.au/feg-recovery-program>.
133 Parliamentary Joint Committee on Corporations and Financial Services, Parliament of Australia, Corporate Insolvency Laws: A Stocktake (2004), recommendation 28, 128 [7.50]. The Stocktake Report found assetless administrations ‘one of the more difficult, longstanding and important issues that it has had to consider’: 126 [7.43].
134 ASIC, ‘Regulatory Guide 109: Assetless Administration Fund: Funding Criteria and Guidelines’, (Report, November 2012), reg 109.1 (‘Regulatory Guide 109’).
135 Ibid regs 109.5–109.8.
136 ASIC received 562 banning applications under the AAF scheme. They resulted in 34 out of 36 bannings made by ASIC during that period: ASIC, Annual Report 2016–2017, above n 37, 186.
137 ASIC, ‘Regulatory Guide 109’, above n 134, reg 109.26.
138 Ibid pt E.
139 For example, ARITA submitted that insolvency practitioners ‘report that funding may be difficult to obtain and doesn't fully remunerate for the work involved’: ARITA, Submission No 31 to Productivity Commission, above n 70, 30. Business Set-Up Report, above n 70, 410–11.
140 This application was granted by Dowsett J in the Federal Court on 18th May 2016 (unreported). It was noted in Re Queensland Nickel (in liq) [2017] QSC 258 [9]. PPB Advisory will be attempting to recover approximately $69 million paid by FEG towards Queensland Nickel workers’ entitlements.
141 See above n 62 and accompanying text; See also, Australian Securities and Investments Commission v Dunner [2013] FCA 872.
142 Treasury (Cth), Proposed Industry Funding Model: Consultation Paper, above n 65, 1.
143 Treasury (Cth), Proposed Industry Funding Model for the Australian Securities and Investments Commission, Proposals Paper (2016) 5.
144 ASIC, ‘Cost Recovery Implementation Statement: Levies for ASIC Industry Funding (2017–18)’ (Report, October 2017) 5, 7 (‘Cost Recovery Implementation Statement’).
145 Ibid 7 [9].
146 ASIC, ‘Treasury consultation paper: Proposed industry funding model for the Australian Securities And Investments Commission: Submission by ASIC’ (Consultation Paper, October 2015) 6 [17(a)].
147 The full list of regulated populations subject to the levy is contained in: ASIC, ‘Report 535 ASIC Cost Recovery Arrangements: 2017–2018’ (Report, July 2017) 13–17. These include companies of different types and sizes, credit providers, margin lenders, superannuation trustees, securities exchange operators, credit ratings agencies and financial services licensees.
148 ASIC, ‘Cost Recovery Implementation Statement’, above n 144, 35 [107].
149 Small proprietary companies are defined as those with two out of the following three characteristics: consolidated revenue of less than $25 million, consolidated gross assets of less than $12.5 million and less than 50 employees: Corporations Act s 45A(2).
150 ASIC, ‘Cost Recovery Implementation Statement’, above n 144, [93]. This includes $455 000 for surveillance, or 18.9 cents per company, and $4.511 million, or $1.87 per company, on enforcement.
151 Ibid [109].
152 See, eg, Timothy Somerville, a solicitor found to be an accessory to multiple directors’ duty breaches: ASIC v Somerville & Ors [2009] NSWSC 934. Also Phillip Whiteman, raided by both ASIC and the ATO, who ran AHW Solicitors, A&S Services, Bolton & Swan Solicitors, and DNV Accountants. See further <:http://asic.gov.au/about-asic/media-centre/find-a-media-release/2015-releases/15-031mr-gold-coast-chartered-accountant-sentenced-following-asic-investigation/>; <:https://www.ato.gov.au/Media-centre/Articles/Media-releases/Phoenix-Taskforce-swoops-on-pre-insolvency-industry/>.
153 See Treasury (Cth), Proposed Industry Funding Model: Consultation Paper, above n 143, and accompanying text.
154 Note the comments of Brereton J in In the Matter of Dungowan Manly Pty Limited [2016] NSWSC 1346 (29 August 2016) [12].
155 Sakr No 3 [2017] NSWSC 668, [31]. ‘I should note, however, that in some cases and possibly in this case, the amount of remuneration ultimately recoverable by a liquidator on a time basis, after deducting the costs of leading adequate evidence to establish it, may be less than the amount that may have been allowed on a percentage basis on the basis of less detailed evidence.’
156 ASIC, ‘Annual Report 2016–2017’, above n 37, 4.
157 ASIC, ‘ASIC Report 558’, above n 10, [41] indicates that there were 18,734 alleged breaches for the year 2016–17. Compare this with the half-year results in ASIC, ‘Report 536 ASIC enforcement outcomes: January to June 2017’ (Report, August 2017) 21, table 6, which lists ‘actions against directors: 2 criminal, 1 civil and 1 administrative; insolvency: 1 civil’. Unfortunately the report provides no details as to the nature of these matters.
158 ASIC, ‘ASIC disqualifies director from managing companies for maximum five year period’ (Media release, 17-360MR, 27 October 2017) <:http://asic.gov.au/about-asic/media-centre/find-a-media-release/2017-releases/17-360mr-asic-disqualifies-director-from-managing-companies-for-maximum-five-year-period/>.
159 Ibid.
160 Above n 157 and accompanying text.
161 In terms of improving enforcement, note also the government's adoption as policy of the Director Identification Number (DIN): The Hon Kelly O’Dwyer, ‘A comprehensive package of reforms to address illegal phoenixing’ (Media Release, 12 September 2017) (‘Government Illegal Phoenixing Package’). In January 2018, the government also released an exposure draft of legislation, inter alia to improve the Single Touch Payroll system of tax liability reporting: Treasury Laws Amendment (Taxation And Superannuation Guarantee Integrity Measures) Bill 2018.
162 Treasury has sought feedback on this idea: Treasury (Cth), Combatting Illegal Phoenixing, (Consultation Paper, September 2017) 29 (‘Combatting Illegal Phoenixing’).
163 Bankruptcy Act 1966 (Cth) s 18. This is the Official Trustee in Bankruptcy, administered by the Australian Financial Security Authority (‘AFSA’). See Australian Financial Security Authority, Official Trustee Practice Statements <:https://www.afsa.gov.au/practitioner/trustees/official-trustee-in-bankruptcy>.
164 Productivity Commission, Business Set-Up Report, above n 70, 407–8.
165 Ibid 407.
166 Ibid 408.
167 Treasury (Cth), Combatting Illegal Phoenixing, above n 162, 26–9.
168 The Productivity Commission recognised funding issues: Productivity Commission, Business Set-Up Report, above n 70, 410–12. Where Assetless Administration Funding is reallocated to a ‘cab rank’ system, the Productivity Commission recommended it be renamed the Public Interest Administration Fund, to recognise the protective role of the liquidators’ work: Ibid.
169 Corporations Act s 601AB and accompanying text to footnote 14.
170 Fair Work Act 2009 (Cth) ss 45, 50 and accompanying text to footnote 102.
171 Section 127(2A)(g) was added to the ASIC Act by Treasury Laws Amendment (2017 Measures No 1) Act 2017 (Cth).
172 This was also a recommendation of the Senate Economics References Committee, Parliament of Australia, ‘I just want to be paid’: Insolvency in the Australian Construction Industry (2015) recommendation 5, 49 [3.72].
173 Australian Taxation Office, Submission No 6 to Senate Economics References Committee, Parliament of Australia, Inquiry into Superannuation Guarantee Non-payment, 2016–17, 10 [49]–[53]. It noted that in 2015–16, the Fair Work Ombudsman (FWO) made 2,405 referrals, with 73 from super funds, 651 community referrals, 70 internal ATO referrals and 57 from ‘other’.
174 See above n 100 and accompanying text.
175 See for example, ASIC, ‘Proposed Industry Funding Model for ASIC: Supporting Attachment’ (Supporting Attachment, November 2016) [107]; also, ASIC, 2017–18 ASIC Business Plan Summary by Sector: Insolvency Practitioners, 2.
176 Above n 152 and accompanying text.
177 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015; Accounting Professional and Ethical Standards Board, APES 110 Code of Ethics for Professional Accountants (December 2010).
178 Anderson, Helen et al, Phoenix Activity: Recommendations on Detection, Disruption and Enforcement (Research Report, Centre for Corporate Law and Securities Regulation, The University of Melbourne, February 2017)Google Scholar.
179 See ASIC, Search ASIC's Registers (11 January 2018) <:http://asic.gov.au/online-services/search-asics-registers/>.
180 See UK Companies House, Launch of the New Companies House Public Beta Service (22 June 2015): ‘[i]n line with the government's commitment to free data, Companies House is pleased to announce that all public digital data held on the UK register of companies is now accessible free of charge, on its new public beta search service. This provides access to over 170 million digital records on companies and directors including financial accounts, company filings and details on directors and secretaries throughout the life of the company.’ <:https://www.gov.uk/government/news/launch-of-the-new-companies-house-public-beta-service>.
181 UK Department for Business, Innovation & Skills, ‘Free Companies House Data to Boost UK Economy’ (Press Release, 15 July 2014).
182 Department of Finance, Australian Government, Australian Government Cost Recovery Guidelines, Resource Management Guide No. 304, July 2014—Third edition 2.
183 ASIC, ‘Cost Recovery Implementation Statement’, above n 144.
184 Ibid [92] (large proprietary companies); [91] (unlisted public companies); and [86]–[88] (listed public companies).
185 Ibid, table 10.
186 Ibid [109], table 9.
187 A recent example is Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 where an HR manager who falsified payroll records to deceive the FWO was penalised for her actions.