Melbourne Law School - Research Publications
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ItemWho Should be the Super Police? Detection and Recovery of Unremitted Superannuation(University of New South Wales Law School, 2014)This article describes the range of issues surrounding unremitted superannuation contributions in insolvency and also more generally. We argue that more should be done to improve the detection and recovery of non-payments because of the importance of superannuation to both employees and the government. We contend that any model of enforcement that shifts the policing of unpaid superannuation to employees is flawed. This is true whether their employer is insolvent or not. Unfortunately, it seems to be the model that the government is increasingly embracing.
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ItemSuperannuation Guarantee Contributions as a Tax: The Case for Reincarnation Over Reform(Taxation Institute of Australia, 2018)The superannuation guarantee charge, which aims to ensure that employers pay compulsory superannuation for their employees, is collected as a tax. This method of collection has advantages because it covers a range of workplaces and types of businesses, including where the workers are outside of the conventional notion of employment. However, despite this, unpaid superannuation guarantee obligations remain a significant concern for government, superannuation funds, trade unions and workers themselves. Attempts to improve recovery — both legislative and procedural — have arguably been tinkering around the edges of a fundamentally misconceptualised scheme. This article suggests an alternative approach which utilises the collection mechanisms of the Fair Work Act 2009 (Cth) and the worker-focused Fair Work Ombudsman as the primary agency overseeing superannuation collection. This would see superannuation recast as “deferred wages”, recoverable in the same way as other employee entitlements. While a further referral of powers from the states to the federal government would be required — or perhaps a constitutional amendment — the article argues that reincarnating the superannuation guarantee in this way could significantly improve recovery for the benefit of workers.
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ItemTiming is Everything: Security of Payment, Set-off and (In)solvency(Thomson Reuters, 2020)Security of payment laws are meant to ensure cash keeps flowing down the chain of contractors within the building and construction industry to avoid unnecessary insolvency. However, the enforceability of security of payment obligations by companies in liquidation is currently in a state of flux because of differing judicial approaches. Recent NSW legislation and a Victorian Court of Appeal decision favour denying the payment claims of claimants in liquidation based on the possibility of an insolvency set-off in the hands of the respondent. This article argues against that approach. The policy drivers in favour of protecting set-off can be countered by equally strong arguments to support the claimant’s right to be paid regardless of its liquidation. Allowing respondents to avoid their security of payment obligations where the claimant is in liquidation provides a perverse incentive to respondents to precipitate that liquidation. We further argue that courts should not be party to this behaviour by staying payment of the respondent’s obligation while they establish their set-off or wait for the claimant’s liquidation to eventuate.
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ItemA New Approach to Corporate Structures Involved in Labour Law Breaches(LexisNexis Australia, 2019)Employers may sometimes deliberately choose to structure their business operations in a way that puts their assets beyond the reach of employee claims. The legally liable company may use liquidation to frustrate recovery action by the Fair Work Ombudsman. This article urges those engaged in law reform to look beyond the form of these arrangements and instead to focus on their substance.
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ItemDetermining Secondary Liability: In Search of Legislative Coherence(Melbourne University, Law Review Association, 2019)Australia is arguably in the midst of a legislative boom to improve recovery for creditors through the imposition of secondary liability. The aim is to overcome ‘sharp corporate practice’ by imposing liability on an outside party for the default of a primary debtor. However, recent reforms are noticeably dissimilar without apparent reason, and contribute to an incoherent approach to the law in this area. This paper makes the case for secondary liability laws which are consistent (as far as circumstances allow), intelligible, and informed by principle based on articulated policy objectives. This approach will produce benefits for both drafters and enforcers of the law.
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ItemIllegal Phoenix Activity: Practical Ways to Improve the Recovery of Tax(Sydney Law School, 2018)Illegal phoenix activity generally involves closing one debt-laden company and continuing its business through another company minus those debts. Its propensity to cause losses of federal revenue has recently been highlighted by the Australian Government Treasury announcement of a suite of measures to combat it. However, there is already an extensive array of legislative and administrative tools that are available against illegal phoenixing. This article considers both the existing and proposed measures and makes some practical suggestions to improve the recovery of tax. However, solutions are not found exclusively in tax law and its administration. Since illegal phoenix activity is facilitated by the creation and demise of companies and their controllers are regulated by the Corporations Act 2001 (Cth), suggestions are made regarding corporate law and its administration by the Australian Securities and Investments Commission.
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ItemInsolvency: It's All About the Money(Australian National University - Faculty of Law, 2018)The most desirable outcome from corporate insolvency is one that achieves the greatest return for all creditors including revenue authorities; minimises the cost of administering the system so that money is not pointlessly consumed; lessens reliance on government safety nets; and deters and punishes those who would use insolvency to their own advantage. This paper explores these intersecting priorities and argues for a new approach to insolvency administration that achieves these objectives.
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ItemIllegal Phoenix Activity: Is a "Phoenix Prohibition" the Solution?(LAWBOOK CO LTD, 2017-05)
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ItemIllegal Phoenix Activity from the Insolvency Practitioner's Perspective(Australian Restructuring Insolvency and Turnaround Association, 2016)
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ItemAT THE COALFACE OF CORPORATE INSOLVENCY AND PHOENIX ACTIVITY: A SURVEY OF ARITA AND AICM MEMBERS(LAWBOOK CO LTD, 2016-10)