Regulator enforcement action a reality

As part of the September issue of “The Personal Insolvency Regulator” newsletter, the Australian Financial Security Authority (AFSA) released an enforcement snap-shot for the April to June 2018 quarter (Quarter) (Snapshot).¹

The indication given by this Snapshot, together with recent media releases about specific cases of enforcement activity,² is that AFSA has both the tools and power to investigate and refer potential offences in appropriate circumstances.

Indeed, the most recent statistics disclose a total of 37 persons were prosecuted on referral from AFSA and 51 charges were proven with conviction, carrying a total dollar value of $3,924,179.00, ranging across 18 different offences under the Bankruptcy Act.³

Separately, AFSA issued three infringement notices to registered trustees.

Some of the major repeat offences which AFSA has observed related to:

• making a false declaration in contravention of section 267(2) of the Act;
• failing to file a statement of affairs under section 54(1) of the Act; and
• offences under section 265(4)(a) of the Act in relation to concealing, removing, or dealing with property within 12 months of bankruptcy.

• one charge under section 265(4) of the Act for concealing a boat he had an interest in from his trustee; and
• two charges under section 269(1)(ac) of the Act for obtaining goods and services without disclosing his bankruptcy to the provider of those goods and services.⁴

Further a case decided only last month in the Downing Street District Court in New South Wales has led to the sentencing of bankrupt to 12 months imprisonment for breaches (referred by AFSA to the Commonwealth DPP) which included disposing of property with intent to defeat creditors, and attempting to leave Australia without consent of a trustee.⁵

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