Referrals/ Shit from Mark Findlay Bankruptcy Regulation

According to Matthew Osborne Principal Legal Officer at ITSA/ AFSA a bankrupt signing a false affidavit and filing a false Statement of Affairs does not have to be referred to Enforcement because of S 134 ( Discretion of a Trustee)

6. Prompt referral of offences

Trustees in bankruptcy have a duty to refer to the Inspector-General or to relevant law enforcement authorities any evidence of an offence by a bankrupt against the Bankruptcy Act.

It is important that trustees refer alleged offences as soon as practicable as a significant delay may make a prosecution impossible. For example under section 15B of the Crimes Act 1914 (Cth), for an offence which carries a maximum penalty of imprisonment for 6 months or less, the prosecution must commence within one year of the commission of the alleged offence.

There are a host of offences under the Bankruptcy Act which attract a maximum penalty of 6 months:
Section 80 Failure to notify trustee re: change of name or address
Section 139U Failure to provide evidence of income
Section 139ZO Failure to comply with s.139ZL notice
Section 139ZP Employer not to dismiss or injure bankrupt because of giving of a s.139ZL notice
Section 139ZT Failure to comply with s.139ZQ notice
Section 152 Discharged bankrupt to give assistance
Section 263A False affidavits
Section 263C False claims about a creditor's entitlement to vote
Section 267D Failure of person to attend as required under subsection 77C(1)
Section 267F Refusal to be sworn or give evidence etc.
Section 267G Prevarication or evasion in the course of giving evidence

Apart from the statutory imperative for prompt referrals shown above, a delay in referring an alleged offence to the Inspector-General makes investigation of the offence much more difficult because of the increased risk that relevant evidence will not be available and witnesses will no longer have clear recollections of conversations and circumstances surrounding the alleged offence.

A recent review of the record of offence referrals by trustees showed that about a third of all trustees had not made any referrals of alleged offences in the last three financial years.

Time spent on offence referrals is able to be charged to the estate (subject to creditor approval), but whether or not there are funds available in the estate, it is expected that trustees comply with their duty to refer offences, in a timely fashion.
Enforcement welcomes queries in relation to potential offence referrals. If you wish to lodge a referral the preferred method is via email to fraud.enquiries@itsa.gov.au

Mark Findlay Julie Padgett
Business Manager Assistant Business Manager
Regulation & Enforcement, Sydney Regulation & Enforcement, Sydney

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