According to Matthew Osborne it is not a requirement to refer fraud to Enforcement
Section 19(i) clearly states that it is a duty of the trustee to refer to Veronique Ingram or Enforcement any evidence of offences against the bankruptcy Act.
As it can be seen the Commonwealth Ombudsman clearly protect fraud at ITSA and the Australian Financial Security Authority.
.Osborne advises all that is necessary to satisfy the Bankruptcy Act is that the matter is raised with Enforcement. This allows Enforcement ( Adam Toma) to protect Fraud. It is also a practice used by Julie Padget NSW BFI Manager
This practice also gives false statistics published in the Annual report.
BANKRUPTCY ACT 1966 - SECT 19
Duties etc. of trustee
(1) The duties of the trustee of the estate of a bankrupt include the
following:
(b) determining whether the estate includes property that can be
realised to pay a dividend to creditors;
(c) reporting to creditors within 3 months of the date of the bankruptcy
on the likelihood of creditors receiving a dividend before the end of the
bankruptcy;
(d) giving information about the administration of the estate to a
creditor who reasonably requests it;
(e) determining whether the bankrupt has made a transfer of property
that is void against the trustee;
(f) taking appropriate steps to recover property for the benefit of the
estate;
(g) taking whatever action is practicable to try to ensure that the
bankrupt discharges all of the bankrupt's duties under this Act;
(h) considering whether the bankrupt has committed an
offence against this Act;
(i) referring to the Inspector-General or to relevant law enforcement
authorities any evidence of an offence by the bankrupt against this Act;
(j) administering the estate as efficiently as possible by avoiding
unnecessary expense;
(k) exercising powers and performing functions in a commercially sound
way.
(2) Where a person who became a bankrupt on a creditor's petition is
unable to prepare a proper statement of affairs, the trustee may employ, at
the expense of the estate, a qualified person to assist in the preparation of
the statement.
2.1 Referral of allegations
Up one level
The allegation of an offence is the initial step in the investigation process.
Allegations of offences can arise from a variety of sources, such as:
Where referrals originate from outside AFSA, the referrer should be encouraged to provide the information on the form entitled “Alleged Offence Referral to AFSA Enforcement” available on the AFSA Regulation & Enforcement Internet site.
Trustees and other referring sources should be encouraged to report any evidence of bankruptcy-related fraud to their closest Enforcement office. Trustees and other referring sources may become discouraged from making referrals because of the perceived “minor” sentences handed down from some criminal prosecutions. It is important to assure them that referrals serve multiple purposes - including tracking trends in fraudulent activity and documenting the need for additional investigative resources. Enforcement should emphasise to referrers at any given opportunity that the content and thoroughness of the referral will assist Enforcement in their assessment process and assist in determining whether a matter should be investigated.
The Inspector-General Practice Statement 14 provides guidance to practitioners on when to refer matters to AFSA Enforcement and to clarify what information may be required to support an offence referral.
Where an allegation is made to a Trustee by an anonymous informant, the Official Trustee or the Registered Trustee responsible for the administration of the estate should endeavour to verify the allegation through the collection of substantiating information prior to referring the matter to Enforcement.
If an allegation is made directly to Enforcement by an anonymous informant, Enforcement personnel should obtain as much information as possible. Enquiries can then be made to verify / dismiss the allegation through the collection of further information.
If any party has any general enquiries with respect to Enforcement, the Bankruptcy Act 1966 offence provisions, or simply questions about whether or not to refer a matter to Enforcement for investigation, they can send an email to fraud.enquiries@afsa.gov.au and Enforcement will provide them with a response at the first available opportunity.
Where a referring source seeks verbal advice from Enforcement as to whether an offence may have been committed prior to a formal referral being submitted, Enforcement should, as soon as possible, indicate on the basis of the information at hand, whether there is sufficient information to disclose an alleged offence.
If Enforcement believes that an alleged offence has not been committed, or that the case is not suitable for investigation Enforcement should provide reasons to the referrer and indicate, if appropriate, what further action is required to finalise the matter.
Where Enforcement considers the case is suitable for investigation, Enforcement should advise the referrer to refer the matter on the form titled “Alleged Offence Referral to AFSA Enforcement”.
Allegations of offences can arise from a variety of sources, such as:
- AFSA staff, including the Official Trustee and the Official Receiver;
- Registered Trustees;
- members of the public including creditors and anonymous informers;
- other Commonwealth or State/Territory agencies - including police services;
- internal or external audit/inspection processes;
- Government or Ministerial referrals;
- referrals from overseas governments or agencies; and
- other sources.
Where referrals originate from outside AFSA, the referrer should be encouraged to provide the information on the form entitled “Alleged Offence Referral to AFSA Enforcement” available on the AFSA Regulation & Enforcement Internet site.
Trustees and other referring sources should be encouraged to report any evidence of bankruptcy-related fraud to their closest Enforcement office. Trustees and other referring sources may become discouraged from making referrals because of the perceived “minor” sentences handed down from some criminal prosecutions. It is important to assure them that referrals serve multiple purposes - including tracking trends in fraudulent activity and documenting the need for additional investigative resources. Enforcement should emphasise to referrers at any given opportunity that the content and thoroughness of the referral will assist Enforcement in their assessment process and assist in determining whether a matter should be investigated.
The Inspector-General Practice Statement 14 provides guidance to practitioners on when to refer matters to AFSA Enforcement and to clarify what information may be required to support an offence referral.
Where an allegation is made to a Trustee by an anonymous informant, the Official Trustee or the Registered Trustee responsible for the administration of the estate should endeavour to verify the allegation through the collection of substantiating information prior to referring the matter to Enforcement.
If an allegation is made directly to Enforcement by an anonymous informant, Enforcement personnel should obtain as much information as possible. Enquiries can then be made to verify / dismiss the allegation through the collection of further information.
If any party has any general enquiries with respect to Enforcement, the Bankruptcy Act 1966 offence provisions, or simply questions about whether or not to refer a matter to Enforcement for investigation, they can send an email to fraud.enquiries@afsa.gov.au and Enforcement will provide them with a response at the first available opportunity.
Where a referring source seeks verbal advice from Enforcement as to whether an offence may have been committed prior to a formal referral being submitted, Enforcement should, as soon as possible, indicate on the basis of the information at hand, whether there is sufficient information to disclose an alleged offence.
If Enforcement believes that an alleged offence has not been committed, or that the case is not suitable for investigation Enforcement should provide reasons to the referrer and indicate, if appropriate, what further action is required to finalise the matter.
Where Enforcement considers the case is suitable for investigation, Enforcement should advise the referrer to refer the matter on the form titled “Alleged Offence Referral to AFSA Enforcement”.
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