Submission Update: ALRC paper on Corporate Criminal Responsibility includes illegal phoenixing

The Australian Law Reform Commission (ALRC) has released recently released its Discussion Paper on Corporate Criminal Responsibility which has included references to ARITA's submission concerning illegal phoenix activity.

The Discussion Paper addresses a number of aspects of corporate criminal liability, but from our profession’s perspective, we are pleased that the Discussion Paper has raised the issue of illegal phoenix activity and has highlighted a range of concerns that ARITA raised in our submission and in further discussions with the ALRC. Further information on the ALRC review in this area, and access to the Discussion Paper is available here

ARITA prepared a submission to the ALRC in May 2019 which highlighted the challenges of illegal phoenixing. A summary of the ARITA submission was previously provided to members here

The ALRC Discussion Paper specifically references a number of concerns which were raised in the ARITA submission including acknowledging that :

  • “There is some scepticism in industry and academic commentary as to whether a specific prohibition of illegal phoenix activity is required or whether enforcement reform would be more effective.” (at [11.21])
  • “The additional issue of how to regulate individuals offering pre-insolvency advice who are not admitted lawyers or registered insolvency practitioners was identified in consultations.” (at [11.40])

The Discussion Paper includes a range of proposals and questions and submissions are invited by 31 January 2020.