Footnotes

Chapter 1 - Introduction

[1]        Australian Government, Action against fraudulent phoenix activity: proposals paper, November 2009, p. 1.

[2]        Australian Taxation Office, 'Phoenix practices are on the radar', Targeting tax crime: A whole‑of-government approach, issue 1, July 2009, p.15.

[3]        Australian Government, Action against fraudulent phoenix activity: proposals paper, November 2009, p. 5.

[4]        Australian Taxation Office, 'Phoenix practices are on the radar', Targeting tax crime: A whole‑of-government approach, issue 1, July 2009, p.16.

[5]        Australian Government, Action against fraudulent phoenix activity: proposals paper, November 2009, p. 1.

[6]        Department of the Treasury, Submission 6, p. 2.

[7]        Australian Government, Action against fraudulent phoenix activity: proposals paper, November 2009.

[8]        Further detail about the Protecting workers' entitlements package can be found at: www.alp.org.au/protecting-workers-entitlements-package.

[9]        An employee may be eligible for GEERS assistance if they: (a) lost their employment because their former employer became bankrupt or a liquidator was appointed and are owed employee entitlements; (b) lodged their claim within the required timeframe; and (c) are entitled to reside permanently in Australia. Department of Education, Employment and Workplace Relations, 'How your GEERS claim will be assessed', www.deewr.gov.au/WorkplaceRelations/Programs/
EmployeeEntitlements/GEERS/Common/Pages/HowClaimWillBeAssessed.aspx (accessed 23 March 2012).

[10]      Department of Education, Employment and Workplace Relations, 'How your GEERS claim will be assessed' www.deewr.gov.au/WorkplaceRelations/Programs/EmployeeEntitlements/
GEERS/Common/Pages/HowClaimWillBeAssessed.aspx (accessed 23 March 2012).

[11]      The Hon. David Bradbury MP, Parliamentary Secretary to the Treasurer, Second Reading Speech, Proof House of Representatives Hansard, 15 February 2012, p. 10.

[12]      See www.alp.org.au/protecting-workers-entitlements-package.

[13]      Australian Government, Proposals paper: A Modernisation and Harmonisation of the Regulatory Framework Applying to Insolvency Practitioners in Australia, December 2011, p. 45.

[14]      Corporations and Markets Advisory Committee, Issues in external administration, November 2008, pp. 81–82.

[15]      The Hon. Chris Bowen MP, Minister for Financial Services, Superannuation and Corporate Law, 'Corporate insolvency law reform package', Media release, no. 4 of 2010, 19 January 2010.

[16]      Australian Government, Proposals paper: A modernisation and harmonisation of the regulatory framework applying to insolvency practitioners in Australia, December 2011.

[17]      The Hon. David Bradbury MP, Parliamentary Secretary to the Treasurer, Second Reading Speech, Proof House of Representatives Hansard, 15 February 2012, pp. 10, 11.

[18]      Senate Standing Committee for the Scrutiny of Bills, Alert Digest, no. 2 of 2012, 29 February 2012, p. 9.

Chapter 2 - Provisions of the Bill

[1]        Senate Economics References Committee, The regulation, registration and remuneration of insolvency practitioners in Australia: the case for a new framework, September 2010, p. 29.

[2]        Senate Economics References Committee, The regulation, registration and remuneration of insolvency practitioners in Australia: the case for a new framework, September 2010, p. 30.

[3]        See schedule 1, part 1, item 1, subsections 489EA(1)–(4).

[4]        Explanatory Memorandum, paragraph 1.3.

[5]        Explanatory Memorandum, paragraph 1.4.

[6]        Department of the Treasury, Submission 6, p. 2. The voidable transaction provisions in Part 5.7B of the Corporations Act enables liquidators to challenge uncommercial transactions, unfair loans, unfair preferences and unreasonable director related transactions. See Department of the Treasury, Submission 6, p. 4.

[7]        Department of the Treasury, Submission 6, p. 4.

[8]        Insolvency Practitioners Association, Submission 5, p. 1.

[9]        Australian Manufacturing Workers' Union, Submission 2, p. 1.

[10]      Australian Institute of Company Directors, Submission 1, p. 1.

[11]      Master Builders Australia, Submission 3, pp. 3, 4.

[12]      Master Builders Australia, Submission 3, p. 3. As noted in chapter 1, the government has announced that GEERS will be replaced with the Fair Entitlements Guarantee, a scheme that will be enshrined in legislation.

[13]      Master Builders Australia, Submission 3, p. 7.

[14]      Explanatory Memorandum, paragraph 1.10.

[15]      Explanatory Memorandum, paragraph 1.26.

[16]      Australian Institute of Company Directors, Submission 1, p. 3.

[17]      Master Builders Australia, Submission 3, p. 7.

[18]      The Hon. David Bradbury MP, Parliamentary Secretary to the Treasurer, Second Reading Speech, Proof House of Representatives Hansard, 15 February 2012, p. 10.

[19]      The High Court has considered the expression 'in the public interest' in a number of cases and contexts. Notably, in O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ  observed, 'the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission (N.S. W) v. Browning [(1947) 74 C.L.R., at p. 505], per Dixon J'; O'Sullivan v Farrer (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ). The phrase has also been considered in the context of corporations law by the Full Federal Court; see Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93.

[20]      ASIC may also order deregistration in certain circumstances associated with the winding up of a company (such as if the liquidator is no longer acting).

[21]      Corporations Act 2001, s. 601AH(1).

[22]      Schedule 1, item 2, section 601AA.

[23]      The Hon. David Bradbury MP, Parliamentary Secretary to the Treasurer, Second Reading Speech, Proof House of Representatives Hansard, 15 February 2012, p. 10.

[24]      Australian Securities and Investments Commission, Submission 7, p. 2.

[25]      Schedule 1, item 1, section 489EC.

[26]      Australian Council of Trade Unions, Submission 4, pp. 1, 2. Section 545 of the Corporations provides that a liquidator is not liable to incur any expense in relation to the winding up of a company unless there is sufficient available property, except in the circumstances otherwise provided for in the section.

[27]      Insolvency Practitioners Association, Submission 5, p. 2.

[28]      The Assetless Administration Fund 'finances preliminary investigations and reports by liquidators into the failure of companies with few or no assets, where it appears to us that enforcement action may result from the investigation and report'. Australian Securities and Investments Commission, 'Assetless administration fund', www.asic.gov.au/aafund (accessed 24 April 2012).

[29]      Australian Government, Proposals paper: A Modernisation and Harmonisation of the Regulatory Framework Applying to Insolvency Practitioners in Australia, December 2011, p. 40.

[30]      Department of the Treasury, Submission 6, p. 5.

[31]      Australian Securities and Investments Commission, Submission 7, p. 2.

[32]      Insolvency Practitioners Association, Submission 5, pp. 2–3.

[33]      Australian Securities and Investments Commission, Submission 7, p. 2.

[34]      Australian Securities and Investments Commission, Submission 7, p. 2.

[35]      Insolvency Practitioners Association, Submission 5, p. 3.

[36]      Australian Securities and Investments Commission, Submission 7, p. 3.

[37]      Schedule 1, part 1, item 1, subsection 489EA(5). The Explanatory Memorandum notes that this includes circumstances when ASIC has relied on the information it has to contact directors, but has been unsuccessful; Explanatory Memorandum, paragraph 1.15.

[38]      Explanatory Memorandum, paragraph 1.16.

[39]      It could be the case that other sections in the Corporations Act are relied on to require ASIC to publish the order, as there a number of notifications that take place when a company is in liquidation. However, the Explanatory Memorandum is not clear on this issue.

[40]      ASIC must give notice to the company, the company's liquidator (if any), the company's directors, on the ASIC database and publish it in the ASIC Gazette. Corporations Act 2001, s. 601AB(3).

[41]      ASIC also is required to give notice to the company's liquidator, if any, but this is not relevant for the comparison here.

[42]      Corporations Act 2001, s. 601AB(3). The amendments proposed in part 2 of schedule 2 to the Bill seek to amend this process to remove the reference to the ASIC Gazette and instead link the two month period to the prescribed manner of publication.

[43]      Explanatory Memorandum, paragraph 2.9.

[44]      Explanatory Memorandum, paragraph 2.4.

[45]      Australian Securities and Investments Commission, Submission 7, p. 3.

[46]      Explanatory Memorandum, paragraph 3.4.

[47]      See Explanatory Memorandum, paragraphs 3.6, 3.10.

[48]      Insolvency Practitioners Association, Submission 5, pp. 4–5.

[49]      See Master Builders Australia, Submission 3, pp. 7–8.

Coalition Senators' Dissenting Report

[1]        Australian Government, Action against fraudulent phoenix activity: proposals paper, November 2009, p. 1.

[2]        House of Representatives Standing Committee on Economics, Advisory report on the Tax Laws Amendment (2011 Measures No. 8) Bill and the Pay As You Go Withholding Non-compliance Tax Bill 2011, 3 November 2011, p. 27.

[3]        Australian Institute of Company Directors, Submission 1, p. 2.

[4]        Australian Institute of Company Directors, Submission 1, p. 3.

[5]        Master Builders Australia, Submission 3, p. 9.