Corporations Act 2001

SCHEDULE 2 - INSOLVENCY PRACTICE SCHEDULE (CORPORATIONS)  

Note: See section 600K .

PART 2 - REGISTERING AND DISCIPLINING PRACTITIONERS  

Division 10 - Introduction  

SECTION 10-1   SIMPLIFIED OUTLINE OF THIS PART  

SECTION 10-5  

10-5   WORKING COOPERATIVELY WITH THE INSPECTOR-GENERAL IN BANKRUPTCY  
In performing its functions and exercising its powers under this Act in relation to persons who are, have been or may become both registered liquidators under this Act and registered trustees under the Bankruptcy Act 1966 , ASIC must work cooperatively with the Inspector-General in Bankruptcy.

Division 15 - Register of liquidators  

SECTION 15-1   REGISTER OF LIQUIDATORS  

15-1(1)    
ASIC must establish and maintain a Register of Liquidators.

15-1(2)    
The Register of Liquidators may be kept in any form that ASIC considers appropriate.

15-1(3)    
The Insolvency Practice Rules may provide for and in relation to the Register of Liquidators.

15-1(4)    
Without limiting subsection (3), the Insolvency Practice Rules may provide for and in relation to:

(a) the details to be entered on the Register of Liquidators; and

(b) the parts of the Register that are to be made available to the public.

15-1(5)    
Without limiting paragraph (4)(a), those details may include:

(a) details of any disciplinary action decided by a committee under section 40-55 ; and

(b) details of persons who have had their registration as a liquidator under this Act suspended or cancelled.

Division 20 - Registering liquidators  

Subdivision A - Introduction  

SECTION 20-1   SIMPLIFIED OUTLINE OF THIS DIVISION  

Subdivision B - Registration  

SECTION 20-5   APPLICATION FOR REGISTRATION  

20-5(1)    
An individual may apply to ASIC to be registered as a liquidator.

20-5(2)    
The application must be lodged with ASIC in the approved form.

Note: Fees for lodging documents may be imposed under the Corporations (Fees) Act 2001 .

20-5(3)    
The application is properly made if subsection (2) is complied with.

SECTION 20-10   ASIC MAY CONVENE A COMMITTEE TO CONSIDER  

20-10(1)    
ASIC may convene a committee for the purposes of considering an application, or applications, for registration as a liquidator.

20-10(2)    
The committee must consist of:

(a) ASIC; and

(b) a registered liquidator chosen by a prescribed body; and

(c) a person appointed by the Minister.

Note 1: Section 50-5 sets out the knowledge and experience that a prescribed body must be satisfied a person has before making an appointment under paragraph (2)(b).

Note 2: Section 50-10 sets out the matters of which the Minister must be satisfied before making an appointment under paragraph (2)(c).

SECTION 20-15   ASIC MUST REFER APPLICATIONS TO A COMMITTEE  

20-15(1)    
ASIC must refer an application for registration as a liquidator that is properly made to a committee convened under section 20-10 for consideration.

20-15(2)    
ASIC must do so within 2 months after receiving the application.

SECTION 20-20   COMMITTEE TO CONSIDER APPLICATIONS  
Committee must consider referred applications

20-20(1)    
If an application for registration as a liquidator is referred to a committee, the committee must consider the application.

20-20(2)    
For the purposes of considering the application, the committee:

(a) must interview the applicant; and

(b) may require the applicant to sit for an exam.

Decision of committee

20-20(3)    
Within 45 business days after interviewing the applicant, the committee must decide whether the applicant should be registered as a liquidator or not.

20-20(4)    
The committee must decide that the applicant should be registered as a liquidator if it is satisfied that the applicant:

(a) has the qualifications, experience, knowledge and abilities prescribed; and

(b) will take out:

(i) adequate and appropriate professional indemnity insurance; and

(ii) adequate and appropriate fidelity insurance;

against the liabilities that the applicant may incur working as a registered liquidator; and

(c) has not been convicted, within 10 years before making the application, of an offence involving fraud or dishonesty; and

(d) is not, and has not been within 10 years before making the application, an insolvent under administration; and

(e) has not had his or her registration as a liquidator under this Act cancelled within 10 years before making the application, other than in response to a written request by the applicant to have the registration cancelled; and

(f) has not had his or her registration as a trustee under the Bankruptcy Act 1966 cancelled within 10 years before making the application, other than in response to a written request by the applicant to have the registration cancelled; and

(g) is not disqualified from managing corporations under Part 2D.6 of this Act, or under a law of an external Territory or a law of a foreign country; and

(h) is otherwise a fit and proper person; and

(i) is resident in Australia or in another prescribed country.

20-20(5)    

The committee may decide that the applicant should be registered even if the committee is not satisfied of a matter mentioned in paragraph (4)(a), (e), (f) or (i), provided the applicant would be suitable to be registered as a liquidator.

Registration may be subject to conditions

20-20(6)    

The committee may decide that the applicant ' s registration is to be subject to any conditions specified by the committee.

Spent convictions

20-20(7)    
Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914 .

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

SECTION 20-25  

20-25   COMMITTEE TO REPORT  
The committee must give the applicant and ASIC a report setting out:

(a) the committee ' s decision on the application; and

(b) the committee ' s reasons for that decision; and

(c) if the committee decides under subsection 20-20(5) or (6) that the applicant should be registered subject to a condition:

(i) the condition; and

(ii) the committee ' s reasons for imposing the condition.

SECTION 20-30   REGISTRATION  
Registration as liquidator

20-30(1)    
ASIC must register the applicant as a liquidator if:

(a) the committee has decided that the applicant should be registered; and

(b) the applicant has produced evidence in writing to ASIC that the applicant has taken out:

(i) adequate and appropriate professional indemnity insurance; and

(ii) adequate and appropriate fidelity insurance;

against the liabilities that the applicant may incur working as a registered liquidator.

Note: Fees may be imposed under the Corporations (Fees) Act 2001 for the doing of an act by ASIC.

20-30(2)    
ASIC registers an applicant by entering on the Register of Liquidators the details relating to the applicant prescribed for the purposes of subsection 15-1(3) .

Registration subject to current conditions

20-30(3)    
The registration is subject to the current conditions imposed on the registered liquidator.

Certificate of registration

20-30(4)    
After registering a person as a liquidator, ASIC must give the person a certificate of registration.

20-30(5)    
The certificate may be given electronically.

Period of registration

20-30(6)    
The registration has effect for 3 years.

SECTION 20-35   CONDITIONS IMPOSED ON ALL REGISTERED LIQUIDATORS OR A CLASS OF REGISTERED LIQUIDATORS  

20-35(1)    
The Insolvency Practice Rules may impose conditions on all registered liquidators, or registered liquidators of a specified class.

20-35(2)    
Without limiting subsection (1), a condition may be imposed limiting the kinds of activity in which a liquidator may engage, either for the duration of the registration or for a shorter period.

Subdivision C - Varying etc. conditions of registration  

SECTION 20-40   APPLICATION TO VARY ETC. CONDITIONS OF REGISTRATION  

20-40(1)    
If a committee has decided under this Schedule that a person ' s registration as a liquidator is to be subject to a condition, the person may apply to ASIC for the condition to be varied or removed.

20-40(2)    
However, an application cannot be made:

(a) if the person ' s registration as a liquidator is suspended; or

(b) if the condition is of a prescribed kind; or

(c) in prescribed circumstances.

20-40(3)    
The application must be lodged with ASIC in the approved form.

20-40(4)    
The application is properly made if:

(a) an application can be made; and

(b) subsection (3) is complied with.

20-40(5)    
A single application by a registered liquidator may deal with more than one condition.

SECTION 20-45   ASIC MAY CONVENE A COMMITTEE TO CONSIDER APPLICATIONS  

20-45(1)    
ASIC may convene a committee for the purposes of considering an application, or applications, made under section 20-40 .

20-45(2)    
The committee must consist of:

(a) ASIC; and

(b) a registered liquidator chosen by a prescribed body; and

(c) a person appointed by the Minister.

Note 1: Section 50-5 sets out the knowledge and experience that a prescribed body must be satisfied a person has before making an appointment under paragraph (2)(b).

Note 2: Section 50-10 sets out the matters of which the Minister must be satisfied before making an appointment under paragraph (2)(c).

SECTION 20-50   ASIC MUST REFER APPLICATIONS TO A COMMITTEE  

20-50(1)    
ASIC must refer an application that is properly made under section 20-40 to a committee convened under section 20-45 for consideration.

20-50(2)    
ASIC must do so within 2 months after receiving the application.

SECTION 20-55   COMMITTEE TO CONSIDER APPLICATIONS  

20-55(1)    
If an application to vary or remove a condition of registration is referred to a committee, the committee must consider the application.

20-55(2)    
Unless the applicant otherwise agrees, the committee must, for the purposes of considering the application, interview the applicant.

20-55(3)    
The committee must, within 20 business days after interviewing the applicant or obtaining the agreement of the applicant as referred to in subsection (2):

(a) decide whether the condition to which the application relates should be varied or removed; and

(b) if a condition is to be varied - specify the way in which it is to be varied.

SECTION 20-60  

20-60   COMMITTEE TO REPORT  
The committee must give the applicant and ASIC a report setting out:

(a) the committee ' s decision on the application; and

(b) the committee ' s reasons for that decision; and

(c) if the committee decides that a condition should be varied - the variation that is to be made.

SECTION 20-65  

20-65   COMMITTEE ' S DECISION GIVEN EFFECT  
If the committee decides that a condition imposed on a registered liquidator is to be varied or removed, the condition is varied or removed in accordance with that decision.

Subdivision D - Renewal  

SECTION 20-70   APPLICATION FOR RENEWAL  

20-70(1)    
An individual may apply to ASIC to have the individual ' s registration as a liquidator renewed.

20-70(2)    
The application must be lodged with ASIC in the approved form:

(a) if the Court makes an order under subsection (3) - on or before the time specified in the order; or

(b) otherwise - before the applicant ' s registration as a liquidator ceases to have effect.

Note: Fees for lodging documents and late lodgement fees may be imposed under the Corporations (Fees) Act 2001 .

20-70(3)    
The Court may, on application, extend the time within which the individual may apply to ASIC to have the individual ' s registration as a liquidator renewed.

20-70(4)    
The application for renewal is properly made if subsection (2) is complied with.

SECTION 20-75   RENEWAL  
Renewal of registration

20-75(1)    
On application under section 20-70 , ASIC must renew the registration of the applicant as a liquidator if:

(a) the application is properly made; and

(b) the applicant has produced evidence in writing to ASIC that the applicant maintains:

(i) adequate and appropriate professional indemnity insurance; and

(ii) adequate and appropriate fidelity insurance;

against the liabilities that the applicant may incur working as a registered liquidator; and

(c) the applicant has complied with any condition dealing with continuing professional education to which the applicant is subject during the applicant ' s current registration.

20-75(2)    
ASIC renews the registration of the applicant by entering, or maintaining, on the Register of Liquidators the details relating to the applicant prescribed for the purposes of subsection 15-1(3) .

Registration subject to current conditions

20-75(3)    
The renewed registration is subject to the current conditions imposed on the registered liquidator.

Certificate of registration

20-75(4)    
After renewing the registration of a person as a liquidator, ASIC must give the person a certificate of registration.

20-75(5)    
The certificate may be given electronically.

Period of registration

20-75(6)    
The renewed registration has effect for 3 years, beginning on the day after the person ' s immediately preceding registration as a liquidator ceased to have effect.

Subdivision E - Offences relating to registration  

SECTION 20-80  

20-80   FALSE REPRESENTATION THAT A PERSON IS A REGISTERED LIQUIDATOR  
A person commits an offence if:

(a) the person makes a representation; and

(b) the representation is that the person is a registered liquidator; and

(c) the representation is false.

Penalty: 30 penalty units.

Division 25 - Insurance  

SECTION 25-1   REGISTERED LIQUIDATORS TO MAINTAIN INSURANCE  

Registered liquidator must maintain insurance

25-1(1)    
A registered liquidator must maintain:

(a) adequate and appropriate professional indemnity insurance; and

(b) adequate and appropriate fidelity insurance;

against the liabilities that the liquidator may incur working as a registered liquidator.

25-1(2)    
ASIC may, by legislative instrument, determine what constitutes adequate and appropriate professional indemnity insurance, and adequate and appropriate fidelity insurance, in relation to either or both of the following:

(a) specified circumstances;

(b) one or more specified classes of registered liquidators.

Offence

25-1(3)    
A person commits an offence if:

(a) the person is subject to a requirement under subsection (1); and

(b) the person intentionally or recklessly fails to comply with the requirement.

Penalty: 1,000 penalty units.

25-1(4)    
A person commits an offence of strict liability if:

(a) the person is subject to a requirement under subsection (1); and

(b) the person fails to comply with the requirement.

Penalty: 60 penalty units.

Division 30 - Annual liquidator returns  

SECTION 30-1   ANNUAL LIQUIDATOR RETURNS  
Registered liquidator must lodge annual return

30-1(1)    
A person who is a registered liquidator during all or part of a liquidator return year for the person must, within 1 month after the end of that year, lodge with ASIC a return that conforms with subsection (3).

30-1(2)    
Each of the following is a liquidator return year for a person who is or was registered as a liquidator under section 20-30 :

(a) the period of 12 months beginning on the day on which that registration first began;

(b) each subsequent period of 12 months.

30-1(3)    
A return under subsection (1) must:

(a) be in the approved form; and

(b) include evidence that the person has, during the whole of any period of the year during which the person was registered as a liquidator, maintained:

(i) adequate and appropriate professional indemnity insurance; and

(ii) adequate and appropriate fidelity insurance;

against the liabilities that the person may incur working as a registered liquidator.

30-1(4)    
ASIC may, on the application of the registered liquidator made before the end of the period for lodging a return under subsection (1), extend, or further extend, that period.

Offence

30-1(5)    
A person commits an offence of strict liability if:

(a) the person is subject to a requirement under subsection (1); and

(b) the person fails to comply with the requirement.

Penalty: 20 penalty units.

Division 35 - Notice requirements  

SECTION 35-1   NOTICE OF SIGNIFICANT EVENTS  
Registered liquidator must lodge notice

35-1(1)    
A registered liquidator must lodge with ASIC a notice, in the approved form, if any of the following events occur:

(a) the liquidator becomes an insolvent under administration;

(b) a bankruptcy notice is issued under the Bankruptcy Act 1966 in relation to the liquidator as debtor, or a corresponding notice is issued in relation to the liquidator as debtor under a law of an external Territory or a law of a foreign country;

(c) the liquidator is convicted of an offence involving fraud or dishonesty;

(d) the liquidator is disqualified from managing corporations under Part 2D.6 of this Act, or under a law of an external Territory or a law of a foreign country;

(e) the liquidator ceases to have:

(i) adequate and appropriate professional indemnity insurance; or

(ii) adequate and appropriate fidelity insurance;

against the liabilities that the liquidator may incur working as a registered liquidator;

(f) the liquidator is issued with a notice under section 40-40 of Schedule 2 to the Bankruptcy Act 1966 (a show-cause notice) in relation to the liquidator ' s registration as a trustee under that Act;

(g) the liquidator ' s registration as a trustee under the Bankruptcy Act 1966 is suspended or cancelled;

(h) any other event prescribed.

The notice must be lodged within 5 business days after the registered liquidator could reasonably be expected to be aware that the event has occurred.

Offence

35-1(2)    
A person commits an offence if:

(a) the person is subject to a requirement under subsection (1); and

(b) the person intentionally or recklessly fails to comply with the requirement.

Penalty: 100 penalty units.

SECTION 35-5   NOTICE OF OTHER EVENTS  
Registered liquidator must lodge notice

35-5(1)    
A registered liquidator must lodge with ASIC a notice, in the approved form, if any of the following events occur:

(a) information included in an annual liquidator return, an annual administration return or an end of administration return, prepared by or on behalf of the liquidator, is or becomes inaccurate in a material particular;

(b) any other event prescribed.

The notice must be lodged within 10 business days after the registered liquidator could reasonably be expected to be aware that the event has occurred.

Offence

35-5(2)    
A person commits an offence if:

(a) the person is subject to a requirement under subsection (1); and

(b) the person intentionally or recklessly fails to comply with the requirement.

Penalty: 30 penalty units.

Division 40 - Disciplinary and other action  

Subdivision A - Introduction  

SECTION 40-1   SIMPLIFIED OUTLINE OF THIS DIVISION  

Subdivision B - Direction to comply  

SECTION 40-5   REGISTERED LIQUIDATOR TO REMEDY FAILURE TO LODGE DOCUMENTS OR GIVE INFORMATION OR DOCUMENTS  

Application of this section

40-5(1)    
This section applies if a registered liquidator fails to comply with a requirement to lodge any document, or give any information or document, that the liquidator is required under this Act to lodge with or give to ASIC.

ASIC may give direction to comply

40-5(2)    
ASIC may, in writing, direct the liquidator to comply with the requirement within 10 business days after the direction is given.

40-5(3)    
ASIC may, on the application of a registered liquidator made before the end of the period referred to in subsection (2), extend, or further extend, that period.

Consequences for failing to comply

40-5(4)    
If the liquidator does not comply within the period, ASIC may do either or both of the following:

(a) give a direction under subsection 40-15(1) (direction not to accept further appointments);

(b) apply to the Court for an order, under subsection 1274(11) (registers), section 45-1 of this Schedule or any other provision that is relevant, directing the liquidator to comply with the requirement within such time as is specified in the order.

Direction is not a legislative instrument

40-5(5)    
A direction under subsection (2) is not a legislative instrument.

Relationship with other laws

40-5(6)    
Nothing in this section limits the operation of any other provision of this Act, or any other law, in relation to a person who fails to comply with a requirement to lodge a document with, or give information or a document to, ASIC.

SECTION 40-10   REGISTERED LIQUIDATOR TO CORRECT INACCURACIES ETC.  

Application of this section

40-10(1)    
This section applies if ASIC reasonably suspects that any information that a registered liquidator is required under this Act to give to ASIC (whether in a document lodged or given to ASIC or otherwise) is incomplete or incorrect in any particular.

ASIC may give direction to correct information etc.

40-10(2)    
ASIC may, in writing, direct the liquidator to do one or more of the following within a period of 10 business days after the direction is given:

(a) confirm to ASIC that the information is complete and correct;

(b) complete or correct the information (as the case requires);

(c) notify any persons specified by ASIC in the direction of the addition or correction.

40-10(3)    
ASIC may, on the application of a registered liquidator made before the end of the period referred to in subsection (2), extend, or further extend, that period.

Consequences for failing to comply

40-10(4)    
If the liquidator does not comply within the period, ASIC may do either or both of the following:

(a) give a direction under subsection 40-15(1) (direction not to accept further appointments);

(b) apply to the Court for an order, under subsection 1274(11) (registers), section 45-1 of this Schedule or any other provision that is relevant, directing the liquidator to comply with the requirement within such time as is specified in the order.

Direction is not a legislative instrument

40-10(5)    
A direction under subsection (2) is not a legislative instrument.

Relationship with other laws

40-10(6)    
Nothing in this section limits the operation of any other provision of this Act, or any other law, in relation to a person giving incomplete or incorrect information.

SECTION 40-15   DIRECTION NOT TO ACCEPT FURTHER APPOINTMENTS  

ASIC may give direction not to accept further appointments

40-15(1)    
ASIC may, in writing, direct a registered liquidator not to accept any further appointments under Chapter 5 (external administration), or not to accept any further appointments under Chapter 5 during a period specified in the direction, if:

(a) the liquidator has failed to comply with a direction given to the liquidator under section 40-5 (direction to remedy failure to lodge documents, or give information or documents); or

(b) the liquidator has failed to comply with a direction given to the liquidator under section 40-10 (direction to correct inaccuracies); or

(c) a committee has decided under paragraph 40-55(1)(d) that ASIC should give the direction referred to in that paragraph; or

(d) the liquidator has failed to comply with a direction given to the liquidator under section 70-70 (direction to give relevant material); or

(e) the liquidator has failed to comply with a direction given to the liquidator under subsection 75-20(1) or (2), or subsection 80-27(1) (direction to convene a meeting of creditors or comply with requirements in relation to such a meeting).

Condition of registration to comply with direction

40-15(2)    
If ASIC gives a direction to a registered liquidator under subsection (1), it is a condition of the liquidator ' s registration that the liquidator must comply with the direction.

Withdrawal of direction

40-15(3)    
ASIC may withdraw a direction given under subsection (1).

40-15(4)    
The condition is removed from the liquidator ' s registration if ASIC withdraws the direction.

Direction is not a legislative instrument

40-15(5)    
A direction under subsection (1) is not a legislative instrument.

Relationship with other laws

40-15(6)    
Nothing in this section limits the operation of any other provision of this Act, or any other law, in relation to:

(a) a person who fails to comply with a requirement to lodge a document with, or give information or a document to, ASIC; or

(b) a person giving incomplete or incorrect information; or

(c) any matter in relation to which a committee makes a decision under subsection 40-55(1) .

40-15(7)    
Nothing in this section limits ASIC ' s power under this Act, or any other law, to apply to the Court for an order in relation to a failure to comply with a direction mentioned in subsection (1).

Subdivision C - Automatic cancellation  

SECTION 40-20   AUTOMATIC CANCELLATION  

40-20(1)    
The registration of a person as a liquidator is cancelled if:

(a) the person becomes an insolvent under administration; or

(b) the person dies.

40-20(2)    
The cancellation takes effect on the day the event mentioned in subsection (1) happens.

Subdivision D - ASIC may suspend or cancel registration  

SECTION 40-25   ASIC MAY SUSPEND REGISTRATION  

40-25(1)    
ASIC may suspend the registration of a person as a liquidator if:

(a) the person is disqualified from managing corporations under Part 2D.6 of this Act, or under a law of an external Territory or a law of a foreign country; or

(b) the person ceases to have:

(i) adequate and appropriate professional indemnity insurance; or

(ii) adequate and appropriate fidelity insurance;

against the liabilities that the person may incur working as a registered liquidator; or

(c) the person ' s registration as a trustee under the Bankruptcy Act 1966 has been cancelled or suspended, other than in compliance with a written request by the person to cancel or suspend the registration; or

(d) if the Court has made an order under section 90-15 that the person repay remuneration - the person has failed to repay the remuneration; or

(e) the person has been convicted of an offence involving fraud or dishonesty; or

(f) the person lodges a request with ASIC in the approved form to have the registration suspended; or

(g) in the case of a person who is a leviable entity (within the meaning of the ASIC Supervisory Cost Recovery Levy Act 2017 ) - the following have not been paid in full at least 12 months after the due date for payment:

(i) an amount of levy (if any) payable in respect of the person;

(ii) an amount of late payment penalty payable (if any) in relation to the levy;

(iii) an amount of shortfall penalty payable (if any) in relation to the levy.

40-25(2)    
Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914 .

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

SECTION 40-30   ASIC MAY CANCEL REGISTRATION  

40-30(1)    
ASIC may cancel the registration of a person as a liquidator if:

(a) the person is disqualified from managing corporations under Part 2D.6 of this Act, or under a law of an external Territory or a law of a foreign country; or

(b) the person ceases to have:

(i) adequate and appropriate professional indemnity insurance; or

(ii) adequate and appropriate fidelity insurance;

against the liabilities that the person may incur working as a registered liquidator; or

(c) the person ' s registration as a trustee under the Bankruptcy Act 1966 has been cancelled, other than in compliance with a written request by the person to cancel the registration; or

(d) if the Court has made an order under section 90-15 that the person repay remuneration - the person has failed to repay the remuneration; or

(e) the person has been convicted of an offence involving fraud or dishonesty; or

(f) the person lodges a request with ASIC in the approved form to have the registration cancelled; or

(g) in the case of a person who is a leviable entity (within the meaning of the ASIC Supervisory Cost Recovery Levy Act 2017 ) - the following have not been paid in full at least 12 months after the due date for payment:

(i) an amount of levy (if any) payable in respect of the person;

(ii) an amount of late payment penalty payable (if any) in relation to the levy;

(iii) an amount of shortfall penalty payable (if any) in relation to the levy.

40-30(2)    
Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914 .

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

SECTION 40-35   NOTICE OF SUSPENSION OR CANCELLATION  

Application of this section

40-35(1)    
This section applies if ASIC decides under section 40-25 or 40-30 to suspend or cancel the registration of a person as a liquidator.

ASIC must give notice of decision

40-35(2)    
ASIC must, within 10 business days after making the decision, give the person a written notice setting out the decision, and the reasons for the decision.

When decision comes into effect

40-35(3)    
The decision comes into effect on the day after the notice is given to the person.

Failure to give notice does not affect validity of decision

40-35(4)    
A failure by ASIC to give the notice under subsection (2) within 10 business days does not affect the validity of the decision.

Subdivision E - Disciplinary action by committee  

SECTION 40-40   ASIC MAY GIVE A SHOW-CAUSE NOTICE  

40-40(1)    
ASIC may give a registered liquidator notice in writing asking the liquidator to give ASIC a written explanation why the liquidator should continue to be registered, if ASIC believes that:

(a) the liquidator no longer has the qualifications, experience, knowledge and abilities prescribed under paragraph 20-20(4)(a) ; or

(b) the liquidator has committed an act of bankruptcy, within the meaning of the Bankruptcy Act 1966 or a corresponding law of an external Territory or a foreign country; or

(c) the liquidator is disqualified from managing corporations under Part 2D.6 of this Act, or under a law of an external Territory or a law of a foreign country; or

(d) the liquidator has ceased to have:

(i) adequate and appropriate professional indemnity insurance; or

(ii) adequate and appropriate fidelity insurance;

against the liabilities that the person may incur working as a registered liquidator; or

(e) the liquidator has breached a current condition imposed on the liquidator; or

(f) the liquidator has contravened a provision of this Act; or

(g) the liquidator has been appointed to act as a reviewing liquidator under Subdivision C of Division 90 of this Schedule, and has failed to properly exercise the powers or perform the duties of a reviewing liquidator; or

(h) the liquidator ' s registration as a trustee under the Bankruptcy Act 1966 has been cancelled or suspended, other than in compliance with a written request by the liquidator to cancel or suspend the registration; or

(i) if the Court has made an order under section 90-15 that the liquidator repay remuneration - the liquidator has failed to repay the remuneration; or

(j) the liquidator has been convicted of an offence involving fraud or dishonesty; or

(k) the liquidator is permanently or temporarily unable to perform the functions and duties of a liquidator because of physical or mental incapacity; or

(l) the liquidator has failed to carry out adequately and properly (whether in Australia or in an external Territory or in a foreign country):

(i) the duties of a liquidator; or

(ii) any other duties or functions that a registered liquidator is required to carry out under a law of the Commonwealth or of a State or Territory, or the general law; or

(m) the liquidator is not a fit and proper person; or

(n) the liquidator is not resident in Australia or in another prescribed country.

40-40(2)    
A notice under subsection (1) is not a legislative instrument.

40-40(3)    
Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914 .

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

SECTION 40-45   ASIC MAY CONVENE A COMMITTEE  

40-45(1)    
ASIC may convene a committee to make a decision of a kind mentioned in section 40-55 in relation to a registered liquidator, or registered liquidators.

40-45(2)    
The committee must consist of:

(a) ASIC; and

(b) a registered liquidator chosen by a prescribed body; and

(c) a person appointed by the Minister.

Note 1: Section 50-5 sets out the knowledge and experience that a prescribed body must be satisfied a person has before making an appointment under paragraph (2)(b).

Note 2: Section 50-10 sets out the matters of which the Minister must be satisfied before making an appointment under paragraph (2)(c).

SECTION 40-50  

40-50   ASIC MAY REFER MATTERS TO THE COMMITTEE  

ASIC may refer a registered liquidator to a committee convened under section 40-45 if ASIC:

(a) gives the liquidator a notice under section 40-40 (a show-cause notice); and

(b) either:

(i) does not receive an explanation within 20 business days after the notice is given; or

(ii) is not satisfied by the explanation.

SECTION 40-55   DECISION OF THE COMMITTEE  

40-55(1)    
If a registered liquidator is referred to a committee under section 40-50 , the committee must decide one or more of the following:

(a) that the liquidator should continue to be registered;

(b) that the liquidator ' s registration should be suspended for a period, or until the occurrence of an event, specified in the decision;

(c) that the liquidator ' s registration should be cancelled;

(d) that ASIC should direct the liquidator not to accept any further appointments as liquidator, or not to accept any further appointments as liquidator during the period specified in the decision;

(e) that the liquidator should be publicly admonished or reprimanded;

(f) that a condition specified in the decision should be imposed on the liquidator;

(g) that a condition should be imposed on all other registered liquidators that they must not allow the liquidator to carry out any of the functions or duties, or exercise any of the powers, of a registered liquidator on their behalf (whether as employee, agent, consultant or otherwise) for a period specified in the decision of no more than 10 years;

(h) that ASIC should publish specified information in relation to the committee ' s decision and the reasons for that decision.

40-55(2)    
Without limiting paragraph (1)(f), conditions imposed under that paragraph may include one or more of the following:

(a) a condition that the liquidator engage in, or refrain from engaging in, specified conduct;

(b) a condition that the liquidator engage in, or refrain from engaging in, specified conduct except in specified circumstances;

(c) a condition that the liquidator publish specified information;

(d) a condition that the liquidator notify a specified person or class of persons of specified information;

(e) a condition that the liquidator publish a specified statement;

(f) a condition that the liquidator make a specified statement to a specified person or class of persons.

40-55(3)    
In making its decision, the committee may have regard to:

(a) any information provided to the committee by ASIC; and

(b) any explanation given by the liquidator; and

(c) any other information given by the liquidator to the committee; and

(d) if the liquidator is or was also a registered trustee under the Bankruptcy Act 1966 - any information in relation to the liquidator given to the committee by the Inspector-General in Bankruptcy or a committee convened under the Insolvency Practice Schedule (Bankruptcy); and

(e) any other matter that the committee considers relevant.

SECTION 40-60  

40-60   COMMITTEE TO REPORT  

The committee must give the registered liquidator and ASIC a report setting out:

(a) the committee ' s decision in relation to the liquidator; and

(b) the committee ' s reasons for that decision; and

(c) if the committee decides under paragraph 40-55(1)(f) that the liquidator should be registered subject to a condition:

(i) the condition; and

(ii) the committee ' s reasons for imposing the condition; and

(d) if the committee decides under paragraph 40-55(1)(g) that a condition should be imposed on all other registered liquidators in relation to the liquidator:

(i) the condition; and

(ii) the committee ' s reasons for imposing the condition.

SECTION 40-65  

40-65   ASIC MUST GIVE EFFECT TO THE COMMITTEE ' S DECISION  

ASIC must give effect to the committee ' s decision.

Subdivision F - Lifting or shortening suspension  

SECTION 40-70   APPLICATION TO LIFT OR SHORTEN SUSPENSION  

Application of this section

40-70(1)    
This section applies if a person ' s registration as a liquidator has been suspended.

Suspended liquidator may apply to ASIC

40-70(2)    
The person may apply to ASIC:

(a) for the suspension to be lifted; or

(b) for the period of the suspension to be shortened.

40-70(3)    
The application must be lodged with ASIC in the approved form.

40-70(4)    
The application is properly made if subsection (3) is complied with.

SECTION 40-75   ASIC MAY CONVENE A COMMITTEE TO CONSIDER APPLICATIONS  

40-75(1)    
ASIC may convene a committee for the purposes of considering an application, or applications, made under section 40-70 .

40-75(2)    
The committee must consist of:

(a) ASIC; and

(b) a registered liquidator chosen by a prescribed body; and

(c) a person appointed by the Minister.

Note 1: Section 50-5 sets out the knowledge and experience that a prescribed body must be satisfied a person has before making an appointment under paragraph (2)(b).

Note 2: Section 50-10 sets out the matters of which the Minister must be satisfied before making an appointment under paragraph (2)(c).

SECTION 40-80   ASIC MUST REFER APPLICATIONS TO A COMMITTEE  

40-80(1)    
ASIC must refer an application that is properly made under section 40-70 to a committee convened under section 40-75 for consideration.

40-80(2)    
ASIC must do so within 2 months after receiving the application.

SECTION 40-85   COMMITTEE TO CONSIDER APPLICATIONS  

40-85(1)    
If an application is referred to a committee, the committee must consider the application.

40-85(2)    
Unless the applicant otherwise agrees, the committee must interview the applicant for the purposes of considering the application.

40-85(3)    
Within 10 business days after interviewing the applicant or obtaining the agreement of the applicant as referred to in subsection (2), the committee must:

(a) decide whether the suspension should be lifted, or the period of the suspension shortened; and

(b) if the period of the suspension is to be shortened - specify when the suspension is to end.

SECTION 40-90  

40-90   COMMITTEE TO REPORT  

The committee must give the applicant and ASIC a report setting out:

(a) the committee ' s decision on the application; and

(b) the committee ' s reasons for that decision; and

(c) if the committee decides that the period of the suspension should be shortened - when the suspension is to end.

SECTION 40-95  

40-95   COMMITTEE ' S DECISION GIVEN EFFECT  

If the committee decides that a suspension is to be lifted or shortened, the suspension is lifted or shortened in accordance with the decision.

Subdivision G - Action initiated by industry body  

SECTION 40-100   NOTICE BY INDUSTRY BODIES OF POSSIBLE GROUNDS FOR DISCIPLINARY ACTION  

Industry body may lodge notice

40-100(1)    
An industry body may lodge with ASIC a notice in the approved form (an industry notice ):

(a) stating that the body reasonably suspects that there are grounds for ASIC:

(i) to suspend the registration of a registered liquidator under section 40-25 ; or

(ii) to cancel the registration of a registered liquidator under section 40-30 ; or

(iii) to give a registered liquidator a notice under section 40-40 (a show-cause notice); or

(iv) to impose a condition on a registered liquidator under another provision of this Schedule; and

(b) identifying the registered liquidator; and

(c) including the information and copies of any documents upon which the suspicion is founded.

ASIC must consider information and documents

40-100(2)    
ASIC must consider the information and the copies of any documents included with the industry notice.

ASIC must give notice if no action to be taken

40-100(3)    
If, after such consideration, ASIC decides to take no action in relation to the matters raised by the industry notice, ASIC must give the industry body written notice of that fact.

45 business days to consider and decide

40-100(4)    
The consideration of the information and the copies of any documents included with the industry notice must be completed and, if ASIC decides to take no action, a notice under subsection (3) given, within 45 business days after the industry notice is lodged.

ASIC not precluded from taking action

40-100(5)    
ASIC is not precluded from:

(a) suspending the registration of a registered liquidator under section 40-25 ; or

(b) cancelling the registration of a registered liquidator under section 40-30 ; or

(c) giving a registered liquidator a notice under section 40-40 (a show-cause notice); or

(d) imposing a condition on a registered liquidator under another provision of this Schedule;

wholly or partly on the basis of information or a copy of a document included with the industry notice, merely because ASIC has given a notice under subsection (3) in relation to the matters raised by the industry notice.

Notice to industry body if ASIC takes action

40-100(6)    
If ASIC does take action of the kind mentioned in subsection (5) wholly or partly on the basis of information or a copy of a document included with the industry notice, ASIC must give the industry body notice of that fact.

Notices are not legislative instruments

40-100(7)    
A notice under subsection (3) or (6) is not a legislative instrument.

SECTION 40-105   NO LIABILITY FOR NOTICE GIVEN IN GOOD FAITH ETC.  

40-105(1)    
An industry body is not liable civilly, criminally or under any administrative process for giving a notice under subsection 40-100(1) if:

(a) the body acted in good faith in giving the notice; and

(b) the suspicion that is the subject of the notice is a reasonable suspicion.

40-105(2)    
A person who, in good faith, makes a decision as a result of which the industry body gives a notice under subsection 40-100(1) is not liable civilly, criminally or under any administrative process for making the decision.

40-105(3)    
A person who, in good faith, gives information or a document to an industry body that is included, or a copy of which is included, in a notice under subsection 40-100(1) is not liable civilly, criminally or under any administrative process for giving the information or document.

SECTION 40-110  

40-110   MEANING OF INDUSTRY BODIES  

The Insolvency Practice Rules may prescribe industry bodies for the purposes of this Subdivision.

Subdivision H - Consequences of certain disciplinary and other action  

SECTION 40-111   APPOINTMENT OF ANOTHER LIQUIDATOR IF LIQUIDATOR ' S REGISTRATION IS SUSPENDED OR CANCELLED  

40-111(1)    
If:

(a) the registration of a liquidator is suspended or cancelled under this Division; and

(b) the liquidator is conducting the external administration of a company at the time the registration is suspended or cancelled;

ASIC may, in writing, appoint another registered liquidator to conduct the external administration of the company.

40-111(2)    
If:

(a) a liquidator fails to renew his or her registration as a liquidator before that registration ceases to have effect;and

(b) no order has been made by the Court under subsection 20-70(3) extending the period during which the liquidator may apply for renewal; and

(c) the liquidator is conducting the external administration of a company at the time his or her registration as a liquidator ceases to have effect;

ASIC may, in writing, appoint another registered liquidator to conduct the external administration of the company.

40-111(3)    
Subsections (1) and (2) do not apply to:

(a) a liquidator appointed by the Court; or

(b) a winding up ordered by ASIC under section 489EA ; or

(c) a members ' voluntary winding up.

Note: For court-appointed liquidators, see section 473A . For a winding up ordered by ASIC, see section 489EA . For a members ' voluntary winding up, see section 495 .

40-111(4)    
An appointment of a registered liquidator by ASIC under subsection (1) must not be made without the written consent of the liquidator.

Division 45 - Court oversight of registered liquidators  

SECTION 45-1   COURT MAY MAKE ORDERS IN RELATION TO REGISTERED LIQUIDATORS  

45-1(1)    
The Court may make such orders as it thinks fit in relation to a registered liquidator.

45-1(2)    
The Court may exercise the power under subsection (1):

(a) on its own initiative, during proceedings before the Court; or

(b) on application under subsection (3).

45-1(3)    
Each of the following persons may apply for an order under subsection (1):

(a) the registered liquidator;

(b) ASIC.

45-1(4)    
Without limiting the matters which the Court may take into account when making orders, the Court may take into account:

(a) whether the registered liquidator has faithfully performed, or is faithfully performing, the registered liquidator ' s duties; and

(b) whether an action or failure to act by the registered liquidator is in compliance with this Act and the Insolvency Practice Rules; and

(c) whether an action or failure to act by the registered liquidator is in compliance with an order of the Court; and

(d) whether any person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the registered liquidator; and

(e) the seriousness of the consequences of any action or failure to act by the registered liquidator, including the effect of that action or failure to act on public confidence in registered liquidators as a group.

45-1(5)    
This section does not limit the Court ' s powers under any other provision of this Act, or under any other law.

SECTION 45-5   COURT MAY MAKE ORDERSABOUT COSTS  

45-5(1)    
Without limiting section 45-1 , the Court may make orders in relation to a registered liquidator that deal with the costs of a matter considered by the Court.

45-5(2)    
Those orders may include an order that:

(a) the registered liquidator is personally liable for some or all of those costs; and

(b) the registered liquidator is not entitled to be reimbursed by a company or its creditors in relation to some or all of those costs.

45-5(3)    
This section does not limit the Court ' s powers under any other provision of this Act, or under any other law.

Division 50 - Committees under this Part  

SECTION 50-1   SIMPLIFIED OUTLINE OF THIS DIVISION  

SECTION 50-5   PRESCRIBED BODY APPOINTING A PERSON TO A COMMITTEE  

Application of this section

50-5(1)    
This section applies if a prescribed body is to appoint a person to a committee under this Part.

Prescribed body must only appoint a person with appropriate knowledge and experience

50-5(2)    
The prescribed body is to appoint a person as a member of the committee only if the prescribed body is satisfied that the person has:

(a) if any knowledge or experience is prescribed in relation to appointments of the kind to be made - that knowledge or experience; or

(b) if no knowledge or experience is prescribed in relation to appointments of the kind to be made - the knowledge and experience necessary to carry out the person ' s functions as a member of the committee if appointed.

SECTION 50-10   MINISTER APPOINTING A PERSON TO A COMMITTEE  
Application of this section

50-10(1)    
This section applies if the Minister is to appoint a person to a committee under any of the following paragraphs:

(a) paragraph 20-10(2)(c) ;

(b) paragraph 20-45(2)(c) ;

(c) paragraph 40-45(2)(c) ;

(d) paragraph 40-75(2)(c) .

Matters of which the Minister must be satisfied before appointing

50-10(2)    
The Minister is to appoint a person as a member of the committee only if the Minister is satisfied that the person is qualified for appointment by virtue of his or her knowledge of, or experience in, one or more of the following fields:

(a) business;

(b) law, including the law relating to corporate insolvency;

(c) economics;

(d) accounting;

(e) public policy relating to corporate insolvency;

(f) administration of companies, including insolvent companies.

Minister must not appoint member or staff member of ASIC

50-10(3)    
The Minister must not appoint:

(a) a member of ASIC (within the meaning of section 9 of the Australian Securities and Investments Commission Act 2001 ); or

(b) a staff member of ASIC;

to be a member of the committee.

Delegation of power to appoint

50-10(4)    
The Minister may, in writing, delegate the Minister ' s powers to appoint a person to a committee to:

(a) ASIC; or

(b) a member of ASIC (within the meaning of section 9 of the Australian Securities and Investments Commission Act 2001 ); or

(c) a staff member of ASIC who is a senior staff member (within the meaning given by subsection 5(1) of that Act).

50-10(5)    
In exercising powers under a delegation, the delegate must comply with any directions of the Minister.

SECTION 50-15  

50-15   SINGLE COMMITTEE MAY CONSIDER MORE THAN ONE MATTER  
A single committee may be convened under this Part to consider one or more of the following:

(a) a matter or matters relating to one applicant for registration as a liquidator;

(b) a matter or matters relating to more than one applicant for registration as a liquidator;

(c) a matter or matters relating to one registered liquidator;

(d) a matter or matters relating to more than one registered liquidator.

SECTION 50-20  

50-20   ONGOING CONSIDERATION OF MATTERS BY COMMITTEE  
If a committee is convened under this Part to consider a matter:

(a) the committee ' s powers, functions and duties in relation to the matter are not affected by a change in the membership of the committee; and

(b) the committee may adjourn its consideration of the matter, and may do so more than once; and

(c) the matter may be transferred to another committee with powers, functions and duties under this Part in relation to matters of that kind.

SECTION 50-25  

50-25   PROCEDURE AND OTHER RULES RELATING TO COMMITTEES  
The Insolvency Practice Rules may provide for and in relation to:

(a) the manner in which the committees convened under this Part are to perform their functions, including:

(i) meetings of committees; and

(ii) the number of committee members required to constitute a quorum; and

(iii) disclosure of interests in a matter before a committee; and

(iv) the manner in which questions are to be decided by the committee; and

(b) the reconstitution of a committee; and

(c) the termination of the consideration of a matter by a committee, and the transfer of matters to another committee.

SECTION 50-30   REMUNERATION OF COMMITTEE MEMBERS  

50-30(1)    
A member of a committee convened under this Part is entitled to receive the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is entitled to receive such remuneration as the Minister determines in writing.

50-30(2)    
A member is entitled to receive such allowances as the Minister determines in writing.

50-30(3)    
This section has effect subject to the Remuneration Tribunal Act 1973 .

SECTION 50-35   COMMITTEE MUST ONLY USE INFORMATION ETC. FOR PURPOSES FOR WHICH DISCLOSED  
Offence

50-35(1)    
A person commits an offence if:

(a) the person is or was a member of a committee convened under this Part; and

(b) information or a document is or was disclosed to the person for the purposes of exercising powers or performing functions as a member of the committee; and

(c) the person uses or discloses the information or document.

Penalty: 50 penalty units.

Exception - information or document disclosed to the Inspector-General in Bankruptcy or another committee etc.

50-35(2)    
Subsection (1) does not apply if the information or document:

(a) is used or disclosed by the person for the purposes of exercising powers or performing functions as a member of the committee mentioned in subsection (1); or

(b) is disclosed:

(i) to the Inspector-General in Bankruptcy to assist the Inspector-General to exercise his or her powers or perform his or her functions under the Bankruptcy Act 1966 ; or

(ii) to a committee convened under Part 2 of the Insolvency Practice Schedule (Bankruptcy) to assist the committee to exercise its powers or perform its functions under that Part; or

(iii) to another committee convened under this Part to assist the committee to exercise its powers or perform its functions under this Part; or

(iv) to enable or assist a body prescribed for the purposes of this paragraph to perform its disciplinary function in relation to its members; or

(v) in order to enable or assist an authority or person in a State or Territory, or a foreign country, to perform or exercise a function or power that corresponds, or is analogous, to any of the committee ' s or ASIC ' s functions and powers; or

(vi) to a court or tribunal in relation to proceedings before the court or tribunal.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).