Monday, 19 August 2013

BANKRUPTCY REGULATIONS 1996 - SCHEDULE 4A/Performance standards for trustees (including controlling trustees)

Performance standards for trustees (including controlling trustees)

(1) This Schedule sets out standards for the minimum level of acceptable conduct and performance of:

(a) a registered trustee when exercising the powers, or carrying out the duties, of a registered trustee under the Act; and

(b) a solicitor exercising the powers, or carrying out the duties, of a controlling trustee under the Act.

Note 1: Subsection 155H(1) of the Act provides that the Inspector-General may ask a registered trustee to give the Inspector-General a written explanation why the trustee should continue to be registered, if the Inspector-General believes that the trustee has failed to comply with a standard prescribed in Schedule 4A. Under subsection 155H(2) of the Act, if the Inspector-General does not receive an explanation within a reasonable time, or is not satisfied by the explanation, the Inspector-General must convene a committee to consider whether the trustee should continue to be registered. Section 155I of the Act sets out the committee's powers when considering whether a trustee should continue to be registered.

Matters that the Inspector-General or a committee might consider include:

(a) the importance of a standard that has not been complied with; and

(b) the seriousness of the effect of a failure to comply with a standard, including the impact the failure to comply has on a particular estate; and

Note 2: Under paragraph 8.35(2)(a), the Inspector-General may determine that a person who is or has been a controlling trustee is not eligible to act as a controlling trustee because the person has failed to meet a standard in this Schedule that applies to a controlling trustee.

(2) The purpose of these standards is to ensure:

(a) that a person to whom these standards apply acts at all times in accordance with the person's powers and duties under the Act and these Regulations and in relation to the practice of bankruptcy law generally; and

(b) that an administration to which these standards apply is carried out consistently at a high level.

1.2 Definitions

In this Schedule:

"administration" means:

(a) the administration of the estate of a bankrupt; or

(b) the administration of a composition or scheme of arrangement under Division 6 of Part IV of the Act; or

(d) the administration of a debtor's property that has become subject to control under Division 2 of Part X of the Act; or

(e) the administration of the estate of a deceased person under Part XI of the Act.

"contribution assessment period" , in relation to a bankrupt, has the meaning given by section 139K of the Act.

"contributions liability" , in relation to a bankrupt, means the contribution that a bankrupt is liable to pay in respect of a contribution assessment period, calculated in accordance with section 139S of the Act.

"controlling trustee" means a registered trustee or a solicitor who is controlling the property of a debtor under an authority given under section 188 of the Act.

"deceased person" means a deceased person in respect of whose estate an order for administration under Part XI of the Act has been made.

"divisible property" :

(a) in relation to a bankrupt, means property divisible among his or her creditors within the meaning of section 116 of the Act; and

(b) in relation to a debtor, means property divisible among his or her creditors within the meaning of section 187 of the Act; and

(c) in relation to a deceased person, means the divisible property of that person's estate as defined by subsection 249(6) of the Act.

Part 2 -- General standards

Division 2.1 -- Application

2.1 Application of Part 2

This Part applies to:

(a) the trustee of the estate of a bankrupt; and

(b) the trustee of a composition or scheme of arrangement under Division 6 of Part IV of the Act; and

(d) a controlling trustee; and

(e) the trustee of the estate of a deceased person.

Division 2.2 -- General

2.2 Duty to act honestly and impartially

(1) The trustee must act honestly and impartially in relation to each administration, including not signing, or associating himself or herself with, a document that the trustee knows, or ought reasonably to know, is false or misleading.

(2) The trustee must not include in any document prepared by the trustee a clause that disclaims the trustee's responsibility for the document's authenticity.

2.3 Conflict of interest

If, during an administration, it becomes apparent that the trustee has an actual or potential conflict of interest in relation to the administration, the trustee must, as soon as practicable after becoming aware of the conflict of interest:

(a) notify the creditors, the person who appointed the trustee, a committee of inspection or the court, as appropriate, of the conflict of interest; and

(b) take appropriate steps to avoid the conflict of interest.

Examples: Conflicts of interest

1. The appointer or, in the case of a sequestration order, the bankrupt is or was a client of the trustee or the trustee's firm in relation to a financial, trust or insolvency planning matter.

2. The trustee or a member of the trustee's firm is a personal friend, relative or business associate of the debtor.

2.4 Use of information relating to an administration

The trustee must comply with section 16A of the Privacy Act 1988 when dealing with information relating to an administration.

Note: Section 16A of the Privacy Act 1988 provides that an organisation must not do an act, or engage in a practice:

(a) that breaches an approved privacy code binding the organisation; or

(b) to the extent (if any) that the organisation is not bound by an approved privacy code--that breaches a National Privacy Principle.

The National Privacy Principles are set out in Schedule 3 to the Privacy Act 1988 .

2.5 Compliance with standards by trustee's employees

The trustee must ensure that his or her employees comply with these standards.

2.6 Preliminary inquiries and actions

The trustee must undertake preliminary inquiries and actions at the start of each administration, including the following:

(a) informing the bankrupt, debtor or legal personal representative of the deceased person of his or her obligations under the Act and the penalties for failing to comply with those obligations;

(b) obtaining and reviewing the statement of affairs of the bankrupt, debtor or deceased person;

(c) if necessary, interviewing the bankrupt, debtor or legal personal representative of the deceased person to clarify any matters in the statement of affairs;

(d) identifying and making an assessment of realisable assets that could be expected to:

(i) provide, on a cost-benefit basis, a return to creditors; or

(ii) contribute to the payment of the costs and fees of the administration;

(e) assessing a bankrupt's contributions liability;

(f) determining the likelihood of whether the estate of the bankrupt or deceased person, or the property of the debtor, includes property that can be realised to pay a dividend to creditors;

(g) if the trustee has a genuine reason for believing that a bankrupt, debtor or legal personal representative of the deceased person may not have disclosed an interest in real or other registered property--conducting appropriate searches for such property;

(h) if information obtained from a search mentioned in paragraph (g) shows that the bankrupt, debtor or legal representative of the deceased person has not made full and true disclosure of his or her interest in property:

(i) making inquiries of third parties about the information; or

(ii) if further inquiries are not made, explaining to the creditors why further inquiries were considered unnecessary;

(i) if the trustee considers that there may have been antecedent transactions--making inquiries of third parties to identify those transactions;

(j) cooperating with the Inspector-General by, for example, responding to reasonable requests for information.

2.7 Investigation of matters affecting administration

(1) The trustee must consider the views of creditors regarding the extent to which investigations are undertaken in an administration.

(2) The trustee must inform creditors, as soon as practicable, of the outcomes of inquiries undertaken in the administration.

Division 2.3 -- Assets

2.8 Realising assets

The trustee must realise only those assets:

(a) that will give a cost-effective return to creditors; or

(b) that contribute to the payment of the costs of the administration; or

2.9 Ownership or interests in assets

In determining the ownership of, or an interest in, an asset that is part of divisible property, the trustee must act reasonably and claim only the amount that fairly represents the interest in, or value of, the asset.

2.10 Obtaining advice about interest or value

If the value of divisible property is likely to have a material impact on the administration, the trustee must obtain advice from an independent expert in assessing:

(a) the extent of the trustee's interest in any realisable asset; and

(b) the value of the property or offers for the property.

2.11 Disposal of property

The trustee must act independently and impartially in undertaking transactions and dealings relating to the disposal of the property of a bankrupt, debtor or deceased person.

2.12 Records

If, in an administration, the trustee makes a decision about the identification, protection, realisation or write-off of a significant asset of a bankrupt, debtor or deceased person that may have a material impact on the administration, the trustee must:

(a) record the decision in writing; and

(b) keep the record on the trustee's file for the administration.

Division 2.4 -- Remuneration and costs

2.13 Costs incurred to be necessary and reasonable

In conducting an administration, the trustee must:

(a) incur only those costs that are necessary and reasonable; and

(b) before deciding whether it is appropriate to incur a cost, compare the amount of the cost likely to be incurred with the value and complexity of the administration.

2.14 Receipt of moneys as trustee's remuneration

(1) If the trustee receives moneys from a debtor, bankrupt, legal personal representative of a deceased person, creditor or third party that are intended to cover the trustee's remuneration, the moneys must be:

(a) included in the trustee's remuneration fixed in accordance with section 162 of the Act; and

(b) properly accounted for in accordance with sections 168 and 169 of the Act.

2.15 Rate for tasks undertaken by trustee's staff

The trustee must ensure that time billed for a task undertaken in conducting an administration is charged at the appropriate rate for the level of staff who would be reasonably expected to undertake the task.

2.16 Records

The trustee must ensure that proper records are kept that:

(a) provide evidence of the time spent on work done in conducting an administration; and

(b) adequately describe the nature of the work.

Division 2.5 -- Files and access to information

2.17 File maintenance

(1) The trustee must keep separate files for each administration.

(2) The trustee must keep a record of every material decision in an administration, and any supporting documentation relied on in relation to the decision, on the file for the administration.

2.18 Provision of information to creditors

(1) This clause applies to:

(a) the trustee of a composition or scheme of arrangement under Division 6 of Part IV of the Act; and

(b) the trustee of a personal insolvency agreement; and

(2) The trustee and the trustee's staff must give information about an administration to a creditor who reasonably requests it.

Division 2.6 -- Meetings of creditors

2.19 Need for meeting

The trustee must consider whether the matters sought to be addressed at a meeting of creditors:

(a) require the holding of a meeting; or

(b) could be addressed more cost effectively by another form of communication with creditors, for example, a creditors' resolution without a meeting in accordance with section 64ZBA of the Act.

2.20 Matters to be considered when holding a meeting

In deciding whether the proposed time and place for a meeting of creditors is convenient for the creditors, the trustee must consider the following:

(a) the requirements for meetings set out in the Act and these Regulations;

(b) the location of creditors;

(d) the complexity of issues to be considered by creditors before the meeting.

2.21 Attendance at meeting

The trustee, or a person appointed under subsection 63B(1) of the Act to represent the trustee at a meeting of creditors, must attend the meeting.

2.22 President's duties at creditors' meeting

(1) This clause applies to the following persons:

(a) a trustee who is elected to preside at a meeting of creditors;

(b) a person appointed under subsection 63B(1) of the Act to represent the trustee at a meeting of creditors;

(2) The person must:

(a) ensure that proper meeting procedures are followed; and

(b) ensure that the requirements relating to meetings set out in the Act and these Regulations are complied with; and

(c) ensure that all persons attending the meeting who are entitled to ask questions of the trustee, the bankrupt, the debtor or the legal personal representative of the deceased person are given an opportunity to do so; and

(d) ensure that the minutes secretary complies with the requirements of section 64Z of the Act; and

(e) take reasonable steps to establish whether there is sufficient evidence to support a creditor's statement under section 64D of the Act in relation to the amount of liability of the bankrupt, the debtor or the estate of the deceased person to the creditor.

2.23 Attendance of Inspector-General at meetings

The trustee must not prevent the Inspector-General from attending, or participating in, a meeting of creditors.

Division 2.7 -- Trustee's accounts

2.24 Records of accounts

(1) The trustee must maintain a separate record of receipts and payments for each administration.

(2) If a single bank account is kept for 2 or more administrations, the trustee must collectively reconcile the records for the individual administrations with the bank records each month.

2.25 Verifying payments and transfers

The trustee must verify all payments from an administration, and transfers between estates, by reference to appropriate supporting vouchers and original documents kept on the administration file.

2.26 Cash book

The trustee must regularly reconcile the cash book for an administration with the bank records for the administration, in accordance with the amount of activity in relation to the administration.

Part 3 -- Standards for trustees other than controlling trustees

Division 3.1 -- Application

3.1 Application of Part 3

This Part applies to:

(a) the trustee of the estate of a bankrupt; and

(b) the trustee of a personal insolvency agreement; and

Division 3.2 -- Reporting to creditors

3.2 Notification of administration

The notice given by the trustee to the creditors of a bankrupt, debtor or deceased person must include the following information:

(a) the name, date of birth, address and occupation of the bankrupt, debtor or legal personal representative of the deceased person;

(b) the business name or name of any associated entity or related entity of the bankrupt, debtor or deceased person;

(d) an outline of matters investigated by the trustee up to the date of the notification;

(e) advice about any possible contributions liability of the bankrupt;

(f) any matters the trustee has identified as needing further investigation.

Division 3.3 -- Creditors' claims

3.3 Provable debts in a joint administration

In conducting an administration in relation to joint bankrupts or debtors, the trustee must ensure that a debt is proved in the appropriate estate.

3.4 Evidence relating to proof of debt

The trustee must ensure that each creditor's claim or proof of debt in relation to an administration bears evidence of:

(a) its admission or rejection; and

(b) the reason for its admission or rejection; and

3.5 Evidence of liability for debt

(1) If necessary, the trustee must ask a creditor to give evidence in writing in relation to a debt claimed by the creditor:

(a) to establish the liability of a bankrupt, a debtor or the estate of a deceased person for the debt; or

(b) to identify the estate or property against which the claim should be admitted.

(2) If the trustee considers that evidence given under subclause (1) is insufficient for the purposes of paragraph (1)(a) or (b), the trustee, before asking for further information, must have regard to the expected dividend rate and the materiality of the issue requiring clarification.

(3) The trustee must keep a copy of any evidence or information relied on in deciding, for the purposes of voting or distributing dividends, whether to accept or reject the creditor's claim.

Division 3.4 -- Distribution of dividends

3.6 Creditors' views to be considered

The trustee must consider the views of creditors in relation to whether moneys held by the trustee should be:

(a) applied to conduct further investigations in relation to the administration; or

(b) distributed as a dividend.

3.7 Distribution of estate funds

(1) The trustee must distribute estate funds in a timely manner, having regard to:

(a) the complexity of the administration and the claims of creditors; and

(b) the amount of funds available for distribution; and

(2) The trustee must make an interim distribution of dividends to creditors unless an existing or expected commitment is likely to account for a significant level of the available funds from the estate or property.

3.8 Advice relating to dividends and administration

The trustee must, when distributing dividends to the creditors of a bankrupt, a debtor or the estate of a deceased person, advise creditors about whether:

(a) further dividends are expected to be distributed; or

(b) the administration is finalised.

3.9 Records

The trustee must keep a record of the following information for each administration:

(a) the name of each creditor who received a dividend;

(b) the amount of each admitted claim;

Part 4-- Standards for trustees of bankrupt estates

Division 4.1 -- Application

4.1 Application of Part 4

This Part applies to:

(a) the trustee of the estate of a bankrupt; and

(b) the trustee of the estate of a deceased person.

Division 4.2 -- Assets

4.2 Identifying assets for vesting

The trustee must take appropriate steps to identify the assets of the estate of a bankrupt or deceased person that will vest in the trustee, including the following:

(a) obtaining and reviewing the statement of affairs of the bankrupt or deceased person;

(b) considering the size of the deficiency in the estate for the purpose of finding possible assets or determining whether an issue needs to be investigated;

(c) considering the activities and circumstances of the bankrupt or deceased person to decide whether assets disclosed by the bankrupt or the legal representative of the deceased person are consistent with what would be expected of a bankrupt having a similar background or undertaking a similar activity;

(d) if the bankrupt is or was, or the deceased person was, involved in significant corporate or trust activity--making inquiries of third parties (for example, solicitors, accountants, creditors, associated entities and financial institutions) to establish whether there is any divisible property or antecedent transactions.

4.3 Protecting certain assets

The trustee must take appropriate steps to protect assets with a commercial value that have vested in him or her, including doing any or all of the following:

(a) ensuring that the assets are adequately insured;

(b) taking possession of the assets;

Division 4.3 -- Contributions

4.4 Application of Division 4.3

This Division applies to the trustee of the estate of a bankrupt.

4.5 Income and contribution assessment

(1) The trustee must, as soon as possible after all necessary information has been made available, make an assessment of:

(a) the income of a bankrupt in respect of a contribution assessment period; and

(b) the contribution that the bankrupt is liable to pay.

(2) The trustee must:

(a) act fairly and reasonably in determining the time for payment of contributions liability; and

(b) if full payment within the contribution assessment period or before discharge would cause hardship to the bankrupt, consider giving the bankrupt an extension of the time for payment of contributions liability.

(3) The trustee must give the bankrupt a copy of the assessment of income and contributions liability, setting out and explaining the basis on which the amount of any contributions liability has been calculated.

4.6 Monitoring payment of contributions

The trustee must:

(a) monitor the payment of contributions by a bankrupt to ensure the contributions liability is discharged; and

(b) if necessary, take appropriate steps to recover contributions that remain unpaid after the time for payment has passed.

Part 5 -- Standards for controlling trustees

5.1 Application of Part 5

This Part applies to a controlling trustee.

5.2 Notification of administration

The notice given by the controlling trustee to the creditors of the debtor must include the debtor's name, date of birth, address and occupation.

5.3 Investigating debtor's property and income

(1) As soon as practicable after an authority under section 188 of the Act becomes effective, the controlling trustee must conduct appropriate investigations of the debtor's property and income.

(2) If the debtor's property includes significant real estate, company structures or motor vehicles, the controlling trustee must:

(a) search the appropriate registries for information about the property; and

(b) obtain advice from an independent expert about the value of the property.

(3) If the debtor was or is involved in significant corporate or trust activity, the controlling trustee must take appropriate steps to identify the assets of the debtor that will be subject to the personal insolvency agreement, including making inquiries of third parties (for example, solicitors, accountants, creditors, associated entities and financial institutions) to establish whether there is any divisible property or antecedent transactions.

5.4 Report to creditors

The controlling trustee's report under section 189A of the Act must also include the following:

(a) information about each matter mentioned in subsection 188A(2) of the Act;

(b) the basis on which the debtor's property has been valued;

(c) the kind of investigations the controlling trustee has carried out and whether any other matters need to be investigated;

(d) the reasons for the controlling trustee's opinion about whether creditors' interests would be better served by accepting the debtor's proposal for dealing with the debtor's affairs under Part X of the Act or by the bankruptcy of the debtor.

5.5 Records

The controlling trustee must ensure that:

(a) bank accounts maintained in accordance with sections 168 and 169 of the Act; and

(b) records maintained in accordance with section 173 of the Act in respect of all transactions relating to the debtor's property;

are kept separate from records relating to any later administration that takes place in relation to the debtor.

5.6 Voting at creditors' meeting

In deciding whether a creditor is entitled to vote at a meeting of creditors, the controlling trustee must:

(a) have regard to the merits of the creditor's claim; and

(b) act impartially and independently, without regard to the debtor's wishes.

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Australian Honors system/Robert Cornall AO/ Skanky Helen Daniels

What is the citeria for Australian Honors system?

Considering that corruption and corrupt conduct is rampant in Government departments it is also interesting that the Commonwealth Ombudsman Colin Neave is an AM and Robert Cornall is an AO so the criteria in these awards would overlook that both of these public servants have protected corruption and corrupt conduct.

Part of the criteria must be how many Government Minister's arses they have licked and kissed!!!

Well, we in Australian have all kinds of fuckers who have letters after their names because they believe they are distinguished people.

Clearly the Fucker Robert Cornall who was secretary in the Attorney Generals Department is one of them...... and just how does the Governor General hand out these awards and what is the critria?

The Australian Public Service Commissioner , the corrupt Steven Sedgwick who is protecting corruption in Government agencies ask the fucker Cornall to do an investigation into a complaint from a whistleblower......... again this clearly is a conflict of interest because the fucker Cornall had worked as a public servant and therefore had a motive to cover-up this whistleblower complaint .

It also should be noted that the Attorney General department where Cornall was secretary also is protecting corruption at ITSA or now AFSA. Helen Daniels,the skanky bitch who is assistant secretary of the Law branch has been given extensive evidence of this and instead of exposing it has chosen to protect it.

Open and Shut‏

Open and Shut (timminsp@ozemail.com.au)

Schedule cleanup

17/08/2013

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Open and Shut

FOI coverage of Governor General's Office off to High Court

Posted: 16 Aug 2013 12:40 AM PDT

I hear that the High Court granted leave to appeal today in the Kline case concerning Freedom of Information coverage of documents about the operation of the Australian Honours system. More when the transcript appears.

A long line of decisions in the case to date have all gone the Governor General's way, the most recent a unanimous decision of the Federal Court that gave broad interpretation to the exemption from the act for documents held by the Office of the Governor General that relate to matters of an administrative nature.

The recently released Hawke Report rejected submissions that the FOI act should be amended to broaden the scope as it applies to the Office of the Governor General, but gave no reasons (p 64), recommended that the parliamentary departments should be subject to the act to the same extent, and while citing the Federal Court decision by name gave no attention to the Court's interpretation of the relevant words "relates to matters of an administrative nature" (p 62) and its narrowing effect.

Saturday, 17 August 2013

Investigating corruption/ Commonwealth Ombudsman
Under section 15 the Commonwealth Ombudsman is required to refer any matter of systemic corrupt conduct or corruption to the relevant Minister. However this is almost never done and allows all corruption and corrupt conduct to flourish.
Clearly if the correct numbers were exposed in Federal Government Agencies the CDDA scheme would be overwhelmed with compensation claims.
It clearly it makes no difference whether it was Alan Asher, the Ombudsman who ripped his skirt off and resigned or the fat bitch Alison Larkin who acted as Ombudsman or the replacement or the faggot Colin Neave who was Banking industry Ombudsman and only investigated 18% of complaints and fucked over systemic corrupt conduct in the Banking Industry.

Investigating corruption
Presented to the Commonwealth Ombudsman’s 30th Anniversary Seminar,
Improving administration: the next 30 years
Robert Needham
Chairperson and CEO, Crime and Misconduct Commission
I have been asked to speak to you today about current trends in investigating corruption in the public sector, particularly where there may be a fine line in determining whether the wrongdoing is corruption or maladministration.
I don’t propose to look at methodologies of investigation, as investigating corruption is something that would rarely be carried out by an ombudsman’s office. Rather I will look at how in Queensland we currently handle the interface between the Ombudsman’s office and my organisation, the CMC. I am referring to those cases where there is a combination of maladministration and corruption. Or where, at the outset of the investigation, it’s unclear whether the complaint involves mere maladministration or extends to corruption.
I will concentrate on what I know best – the situation in Queensland, where we have a public sector ethics and misconduct prevention body as well as an ombudsman. I will also look at situations, which go beyond the classic forms of “corruption”, where someone exploits their position of power for personal gain. In particular, I will look at instances of maladministration, which go so far beyond what is reasonably expected that they descend into what we in Queensland classify as “official misconduct”.
And the general message I will seek to convey is not that there is any particular new way to investigate. Rather there is a real need for all integrity agencies –Ombudsman’s offices, Auditor-General and agencies like the CMC – to cooperate together to most effectively improve and maintain standards of integrity in the public sector.
Typical “fine line” case
I would like to start with a typical example of a complaint made to an ombudsman.
It may concern a decision made by an agency. This is a decision which advantages one party and disadvantages another. The complaint discloses that the actions of the official may go beyond mere bad decision making and may have been made for an improper purpose – perhaps a payment or some other benefit from the party which was gained through the official’s decision.
What does the ombudsman do in this case?
Most Ombudsman Acts, on my quick checking, appear to give power to investigate administrative acts that are unlawful or made for an improper motive1. So prima facie, there is power to investigate corruption.
1 Eg. Ombudsman Act 1976(Cwth) s.15; Ombudsman Act 2001(Qld) s.49(2); Ombudsman Act 1974 (NSW) s.26.
1
Does the ombudsman’s office have the expertise and the powers to investigate
corruption? Generally I would suggest no. Often they have some limited powers to
obtain documents. They can also require the answering of questions by certain
persons. But typically ombudsman’s offices have none of the powers needed for a
full-scale corruption investigation, such as coercive hearings, search warrant powers
or surveillance powers and the resources to implement them.
In Queensland, the Ombudsman Act requires the ombudsman to liaise with a
complaints agency, which term includes the CMC, to ensure there isn’t a duplication
of resources. So, if the complaint raises issues of corruption, the Ombudsman will
refer the matter to the CMC.
In a case where a mere allegation of corruption is made, but there is no material to
support it, normally the Ombudsman would look into the matter initially and only if
some material suggesting corruption is found refer the matter to the CMC.
I will give you an example of a matter involving allegations of both maladministration
and corruption where the CMC and the Ombudsman co-operated in the investigation.
In late 2005, the CMC received various complaints against the Mayor of the Douglas
Shire Council. Subsequently, as is often the case when complaints receive some
publicity, we received a further, separate complaint against the Mayor. The allegation
was that he had supported in Council a particular contractor’s bid for a Council tender
in relation to the vehicular ferry service over the Daintree River, in exchange for that
contractor having undertaken earthworks on the Mayor’s partner’s property at no or
at a reduced charge. This complaint alleged corrupt behaviour on the part of the
Mayor and was clearly within the jurisdiction of the CMC.
The Ombudsman’s office saw the newspaper coverage of this latter complaint and of
related allegations of maladministration by various officials of the Council, including
the Mayor, in dealing with the tendering process. Following discussions between the
Deputy Ombudsman and the CEO of the Council, the Ombudsman decided to
commence an own initiative investigation.
The Ombudsman’s office contacted the CMC and the two offices agreed to jointly
investigate the allegations. The officers from the two organisations worked together
on an investigation including jointly conducting some interviews of relevance to both
offices.
At the conclusion of the investigation, separate reports were issued by the
Ombudsman and the CMC; each report referencing the other.
For the record, I should indicate that the allegations against the Mayor were found
unsubstantiated, though the Ombudsman did make some procedural
recommendations.
This was a good example of the two agencies working together, to avoid duplication
and to make best use of the expertise and powers of the respective offices.
2
That particular investigation did not call for the exercise of any particular extra investigative powers of the CMC, but many corruption allegations can. This must cause particular problems for those jurisdictions where, unlike Queensland, NSW and Western Australia, there is no public sector anti-corruption agency. I am aware that in some jurisdictions the police fraud squads, because of demand on their services, will not investigate fraud allegations involving less than about $.5m. Yet corruption of public officials involving just a few thousand dollars can have a very detrimental effect on public confidence in the public sector.
Incompetence or corruption
There are some cases brought to the CMC’s attention by the Ombudsman and, more frequently, by the Auditor-General, where it can be very difficult to prove whether problems are caused by maladministration, even incompetence, or by corruption of one form or another.
A good example of this type of case is financial management of very small councils, in particular Indigenous and Torres Strait Island Councils.
I’m not speaking out of place when I say that some councils are found on audit to have money unaccounted for, sometimes in the hundreds of thousands of dollars. Auditor-General reports tabled in the Queensland parliament attest to this.
The Audit is unable to ascertain whether the money is missing because of corrupt activities or through maladministration, principally because proper records are not kept.
Anyone who has ever prosecuted a fraud case knows that the most difficult case to prove is the one where there is no paper trail. Without the paper trail, normally it is impossible to prove what has occurred. Further, with the remoteness of these councils, any form of investigation is very difficult.
Theoretically some form of disciplinary action could be taken against the council staff in charge of the financial records for not ensuring that proper records are kept. However it would have to be taken by the council, which is probably the main cause of the problems in the first case. In Queensland, the only action, which can be taken against the councillors, being elected officials, is a criminal charge.
I reached the conclusion some time ago that some other form of action needs to be taken in these cases, aimed at preventing rather than prosecuting. For the Torres Strait Island councils, the legislation allowed the Director-General of the Department of Local Government to appoint a financial controller to a council, with broad powers. I urged the Director-General to take this action in relation to the worst councils and was pleased to see this was done. Subsequently, the government went further and amended the act to allow for a financial controller to be appointed to a mainstream council, and this has since happened in one council.
The use of this power is less drastic than dismissing the council but it will still be effective in ensuring that proper systems are put in place and acted on. In my view, it is a far better alternative to investigation.
3
To investigate cases where the outcome is bound to be inconclusive can only serve to embolden any individuals who are being corrupt and to reinforce in them the confidence that they can get away with their illegal activities. In such cases we must look to other ways to curb possible corrupt activities.
Breach of trust
A further area of potential overlap in jurisdiction between the Ombudsman and the anti-corruption agency involves those cases of maladministration which are so severe as to amount to a form of corruption, namely a breach of the trust placed in the public official as the holder of a public office. In Queensland, such conduct, if severe enough as to warrant dismissal, is characterised in the Crime and Misconduct Act as “official misconduct”. This may be investigated by the CMC and prosecuted as an offence before the Misconduct Tribunal2.
In the CMC, we have for our own purposes set out what we would consider is the type of conduct, which would constitute such a breach of trust. We characterise it as conduct of the office holder connected with exercising the skill of a professional or engaging in the performance of the specified duties or activities of the office, which is either:
• a course of conduct involving repeated and/or wilful behaviour that undermines the trust placed in the person by virtue of their position; or
• a single incident of behaviour indicating a callous or reckless disregard for, or indifference to, the skills required for the proper discharge of the duties or activities of the office.
A good example of this arose out of the Bundaberg Hospital Inquiry. The Commissioner found that the Director of Medical Services and the District Manager of the hospital could be prosecuted for official misconduct regarding various matters. In particular, he pointed to their failure to take appropriate action to investigate about 20 complaints of clinical malpractice received against Dr Patel over a period of about 18 months. Such inaction could clearly amount to a breach of the trust placed in those officers.
Issues of malpractice such as those in the Bundaberg Hospital Inquiry are a clear case of the complexities that can arise where there are claims of professional malpractice, administrative malpractice and, in the most severe cases, possible criminal conduct, all arising out of the same general set of circumstances.
Unless there exists clear cooperation, and understanding of how that cooperation will occur, between the agencies with responsibilities for dealing with the various aspects of such cases, allegations will not be fully and adequately dealt with. This could lead to the possibility of another scandal like the Bundaberg Hospital case.
2 Crime and Misconduct Act 2001 (Q) s14; for NSW see Independent Commission against Corruption Act 1988(NSW) s.7; for WA see Corruption and Crime Commission Act 2003 (WA) s.4.
4
Now in Queensland we have a new health complaints body, with the resources to assess complaints of clinical malpractice. A very clear memorandum of understanding has been entered into between that body and the Ombudsman, the CMC, the Coroner, the Queensland Police Service, the Medical Board, which registers doctors and the Nurses Board which registers nurses. The memorandum specifies very clearly the role of each agency in dealing with any complaints about doctors in the public sector.
Finally may I stress that this notion of breach of trust in the office can exist in virtually all public sector functions, but it is going to be of most relevance in those functions that can affect the safety or the human rights or the hip pocket of the citizen. Simple examples are officers such as Child Safety officers, whose decisions can affect the safety, and even the life, of children, or to take another topical example, Immigration officials, whose decisions can affect the liberty of individuals.
In conclusion, I have given a snapshot of how the Queensland Ombudsman’s office works with other relevant agencies. Without the cooperation between the Ombudsman and these agencies, including the CMC, I truly believe we cannot adequately service the public. In the case of the CMC and the Ombudsman, it’s only through working together that both agencies can best utilise resources and powers. This cooperative approach ensures that the fine line between corruption and maladministration is dealt with appropriately and that public resources are not wasted.
Finally, this cooperation assists each of the integrity agencies to have a better overall picture of the integrity landscape of the public sector, and to then make changes and recommendations that benefit the public.

Friday, 16 August 2013

Fraud/ Referring Allegations/ Australian Financial Security Authority/ Adam Toma
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:

(a) notifying the bankrupt's creditors of the bankruptcy;

(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:

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.

Referrals from within AFSA should be on the form entitled “Alleged Offence Referral to Enforcement” and include as much relevant information as possible, including all evidence obtained by the staff member. .
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”.

The following is all shit from Veronique Ingram and Adam Toma.

Bankruptcy Regulations protects corrupt trustees. Veronique Ingram and Adam Toma are both corrupt and protect fraud

Veronique Ingram – ITSA oversees practitioner de-registrations

Posted on May 27, 2013

On Friday I released a media notice about some of our recent regulatory focus – which has resulted in ITSA overseeing the termination of four insolvency practitioner registrations over the past six months.
I’m aware that most practitioners are very keen to protect the high level of trust and reputation they have earned, so it’s imperative that we weed out any unsatisfactory practices to protect your profession and its clients. Continue reading →

Thursday, 15 August 2013

IPAA/ Andrew Dunner/ Paul Pattison
You just have to laugh...... in May 2012 the IPA commenced investigations into shonkey Andrew Dunner.....
Simply put... how long had the IPA and ASIC been protecting Dunner?
I am aware ITSA or now Australian Financial Security Authority and the IPA protected the corrupt Trustee Paul Pattison in Victoria for years.................

IPA Member suspended

In May 2012, the IPA commenced investigation of a concern in relation to Victorian IPA Member Andrew Dunner, following the commencement of proceedings against him by ASIC in the Federal Court of Australia. Further details regarding the action by ASIC is available on the ASIC website .

Mr Dunner has subsequently resigned from, and replacement practitioners have been appointed to, his appointments.
As a consequence of Mr Dunner's failure to adequately respond to reasonable inquiries made by the IPA in relation to the action taken by ASIC, in accordance with the IPA's Constitution, the National Committee has suspended his membership pending the receipt of an adequate response.

2-93MR ASIC acts against Melbourne liquidator

Tuesday 15 May 2012

ASIC has applied to the Federal Court in Melbourne to inquire into the conduct of Melbourne liquidator, Mr Andrew Leonard Dunner, concerning the performance of his duties as a registered and official liquidator and as a receiver or manager of a total of eleven companies to which he has been appointed.

ASIC is seeking orders that Mr Dunner be prohibited from holding the office of liquidator, provisional liquidator, voluntary administrator or administrator of a deed of company arrangement for such period as the Court sees fit, or alternatively, to declare there are grounds for the cancellation of Mr Dunner’s registration as an official liquidator.

Further, ASIC is seeking orders to pay into Court any remuneration received by him in his role as the registered and official liquidator of eight companies if the court finds that the remuneration was paid:

without proper approval of the creditors, a court or a committee of inspection; or
for work performed outside the period of the relevant liquidation; or
where the remuneration was not validly determined or fixed under the Act.

Yesterday, Mr Dunner notified ASIC of his resignation as liquidator of the three companies connected with the application where the liquidations are ongoing: Red Earth Facade Systems Pty Ltd, Rayunit Pty Ltd and Emberford Pty Ltd.

At today’s hearing, Justice Middleton ordered that:

James Downey be appointed as liquidator of Red Earth Facade Systems, Rayunit and Emberford;
Mr Dunner file any response to ASIC’s allegations by 11 July 2012;
The matter be listed for further directions on 13 July 2012.

Background

Under the Corporations Act 2001, ASIC may apply to the Court to undertake an inquiry where it appears an insolvency practitioner has not faithfully performed or is not faithfully performing his or her duties as a liquidator or receiver or adhering to relevant legal requirements.

Where the Court accepts ASIC’s application, it may conduct an inquiry and examination of the insolvency practitioner. It may also make such orders it thinks fit, including the payment of compensation to creditors.

ASIC is seeking orders from the Federal Court in relation to Mr Dunner’s role as the registered or official liquidator of:

Polymertechnik Pty Ltd (deregistered) ACN 122 433 550;
Polymertechnik Foam Pty Ltd (deregistered) ACN 122 433 587;
Regen Polymers Pty Ltd (deregistered) ACN 128 884 266;
Barra Trans Pty Ltd (deregistered) ACN 109 201 587;
Bartech International Pty Ltd (deregistered) ACN 086 553 586;
Red Earth Facade Systems Pty Ltd (in liquidation) ACN 094 326 753;
Rayunit Pty Ltd (in liquidation) ACN 062 998 378;
Emberford Pty Ltd (in liquidation) ACN 007 394 881;

and as the receiver and manager of:

Regen Polymers Pty Ltd (deregistered) ACN 128 884 266;
Environmental Polymer Holdings Pty Ltd (deregistered) ACN 122 431 832; and
EPFE Pty Ltd (deregistered) ACN 122 433 694.

Editor's note 1:
At a hearing in the Federal Court in Melbourne on Friday 27 July 2012, the Court ordered that:

there be an enquiry into the conduct of Mr Dunner as a liquidator and a receiver and manger in relation to the companies listed above pursuant to both section 536 and section 423 of the Corporations Act
until the determination of the proceeding, or further order of the Court, Mr Dunner give to ASIC a report every month setting out the remuneration he has received and the relevant approvals in relation to all current administrations where he has been appointed liquidator, receiver and manger or administrator
the proceeding be referred to a Registrar of the Court for mediation on a date after 21 September 2012 to be fixed, and
the matter be listed for a further directions hearing on 9 October 2012 at 10.15am.

Editor's note 2:
At a hearing in the Federal Court in Melbourne on Wednesday 24 October 2012, the Court ordered that:

the matter be set down for a final hearing for five days, starting on 11 February 2013, and
mediation to be held on 28 November 2012, subject to the filing and serving of any affidavit material on behalf of Mr Dunner by 21 November 2012.

ITSA SCAM

Monday, 19 August 2013

BANKRUPTCY REGULATIONS 1996 - SCHEDULE 4A/Performance standards for trustees (including controlling trustees)

Australian Honors system/Robert Cornall AO/ Skanky Helen Daniels

What is the citeria for Australian Honors system?

Part of the criteria must be how many Government Minister's arses they have licked and kissed!!!

Well, we in Australian have all kinds of fuckers who have letters after their names because they believe they are distinguished people.

Clearly the Fucker Robert Cornall who was secretary in the Attorney Generals Department is one of them...... and just how does the Governor General hand out these awards and what is the critria?

Open and Shut‏

Open and Shut

Saturday, 17 August 2013

Friday, 16 August 2013

BANKRUPTCY ACT 1966 - SECT 19

2.1 Referral of allegations

Veronique Ingram/ Australian Financial Security Commission/ Adam Toma/ ITSA

The following is all shit from Veronique Ingram and Adam Toma.

Bankruptcy Regulations protects corrupt trustees. Veronique Ingram and Adam Toma are both corrupt and protect fraud

Veronique Ingram – ITSA oversees practitioner de-registrations

Thursday, 15 August 2013

IPA Member suspended

Background