Bankrupts and fraudsters are about get their comeuppance!

Peter Switzer
14 July 2023

Today I will chair a panel of experts who will react to proposed changes to the laws that have dogged many small business owners, who have either come a cropper in business off their own bat, or else have been sucked into the collapse of another business that ruins their operation and kills their personal wealth.

The latest story on this latter theme involves a developer who has gone missing leaving a trail of financial destruction behind him. Right now, the prevailing laws aren’t offering many of this guy’s victims much hope that they will survive his near criminal behaviour.

Championing these insolvency reforms is Senator Deborah O’Neill, who chaired the Joint Committee on Corporate and Financial Services, which was tabled in Parliament on Wednesday and begins reforms to laws that have gone effectively unchanged in decades.

“The current structure of corporate insolvency is not fit for purpose, and unfairly disadvantages individuals and small businesses involved in and with liquidated corporations and can result in related individuals suffering from personal insolvency,” the committee said in a statement.

The report calls the current legal system dealing with insolvency as “overly complex, difficult to access”, and is a nightmare for individuals and small businesses, who become victims of company collapses.

Senator O’Neill is hopping mad about how the law deals with the perpetrators of business collapses and the victims. “In just the last 24 hours we’ve seen news of three construction companies collapse, with Toplace owned by an accused fraudster going into administration and costing the residents of his incomplete and unsafe builds $50 million,” she said.

“Clearly a review of the principles which govern insolvency law is required in order to improve the effectiveness of interaction between the personal and corporate insolvency systems and provide more equitable outcomes.”

In a phone call I had with Senator O’Neill after the report had been tabled, and ahead of my interview with her today, she expressed a desire to target “the shonks” of business and said both sides of Parliament support the thrust of the 28 recommendations to make sure our laws covering insolvency were fit for purpose.

The report suggests that ASIC and the Government make changes to regulation and reporting requirements, which should be a part of a detailed review of the laws governing insolvency. And let me add, if anyone is likely to make that happen, it’s Senator O’Neill.

The report says the implementation of recommendations of the Safe Harbour Review (which said that the Safe Harbour provisions should be amended to clarify the advice directors are required to obtain to satisfy the requirement that the course of action is reasonably likely to lead to a better outcome) would provide directors with greater certainty, making the provisions more effective.

The report also wants potential reforms around how small businesses in financial trouble can restructure or have a simplified liquidation pathway that can allow greater returns for creditors and employees if the company collapses.

As The Australian’s Glenda Korporaal revealed: “The report recommends tighter regulation and action against ‘untrustworthy pre-insolvency advisers’ which it said was a high priority recommendation for government consideration.”

We also should see reforms around trusts that not only can protect the guilty but make the insolvency work so costly that it reduces the returns to creditors, who are often small businesses such as tradies, service providers and suppliers of materials.

We often laugh at the old line: “I’m from the government and I’m here to help” but this report into inadequate insolvency laws and processes genuinely looks like a government plan with a decent goal that’s likely to help a lot of Australians.

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