ITSA's Enforcement branch and Bankruptcy Regulation Branch both have vastly different functions.
ITSA Regulation are responsible for monitoring the conduct of the Official Trustee andalso Private Trustee's. They consider complaints against practitioners and conduct inquiries or investigations as appropriate. As they have no investigation policy or standards the staff at this branch fuckover any complaints.
The staff at Enforcement are responsible for investigating breaches of the bankruptcy legislation and in appropriate cases prepare briefs of evidence for prosecution.
These branches do not do the same work and therefore cannot use the same policy.
Senior Management at ITSA must have their cocks up the arse of Dave Maher who has attempted to to fuck me over and tell me that both these branches use the same policy. The following document only refers to the investigation policy of ENFORCEMENT. The only instance where Regulation is mentioned is the following...........................
When alleged non bankruptcy-related offences are detected by REGULATION, the OR, or the OT, the following practice will be followed:
When it appears that criminal offences not covered by the Bankruptcy Act have been identified and, if not investigated, these offences could significantly impact upon ITSA‟ reputation for failing to pass them on to the most appropriate agency for investigation, the matter must be raised as soon as possible with Enforcement for consideration as to the most expedient way to proceed.
As Bankruptcy Regulation has no investigation policy this is why so many complaints as being fucked over by ITSA.
Adam Toma , the corrupt National Enforcement Manager at ITSA who is on the take is also given the discretion to develop an INVESTIGATION PLAN.
This would allow further corrupt conduct to develop at ITSA ..................
.
3.4 Investigation plans
Following the allocation of an investigation, an Enforcement Investigator may develop a plan which indicates the potential offence/s committed, the evidence required to prove that offence, the evidence already held to meet the proofs, the additional evidence required and the manner in which that additional evidence can be acquired. The plan should also include a realistic estimate of the time required to complete the case and outline the need for resources. The plan developed by the Enforcement Investigator may include the use of evidence matrices and resource spreadsheets.
The development of an Investigation Plan will be at the discretion of National Manager, Assistant National Manager or Business Manager..
Clearly, no investigation plan is workable when the serious corrupt conduct at ITSA is being protected by the Commonwealth Ombudsman and the Australian Public service Commission.
Come kiss my Ase Adam Toma!!!!!!!!!!!!!!!
Policies and Procedures Manual
(extract) ITSA Enforcement Policies and Procedures Manual ii TABLE OF CONTENTS INTRODUCTION _______________________________________________ 2 1. ITSA ENFORCEMENT ____________________________________ 2 1.1. Purpose_________________________________________________ 2 1.2. Vision___________________________________________________ 2 1.3. Values and Code of Conduct _____________________________ 2 1.4. Enforcement functions ___________________________________ 3 2. FRAUD ALLEGATIONS ___________________________________ 4 2.1. Referral of allegations ___________________________________ 4 2.2. Referral of non-Bankruptcy Act allegations ________________ 5 3. INVESTIGATIONS ________________________________________ 7 3.1 Investigation principles __________________________________ 7 3.2 Investigation policy ______________________________________ 7 3.3 Investigation practices ___________________________________ 7 3.4 Investigation plans ______________________________________ 8 4. INFRINGEMENT NOTICE REGIME _________________________ 8 4.1. Offences covered by the infringement notice scheme ______ 9 4.2. Issuing an infringement notice____________________________ 9 5. CASE MANAGEMENT ___________________________________ 10 5.1. Referrals to the Australian Federal Police ________________ 10 5.2. Referral to other agencies _______________________________ 11 6. MAINTENANCE OF PROFESSIONAL STANDARDS ________ 11 6.1. Qualifications __________________________________________ 11 ITSA Enforcement Policies and Procedures Manual 2 INTRODUCTION Following a comprehensive review of the Commonwealth‟s approach to fraud control arrangements by the Commonwealth Law Enforcement Board, in consultation with Commonwealth Departments and Agencies, a Fraud Control Policy of the Commonwealth outlining the principles of fraud control and promoting national standards was developed.
As a result of the Fraud Control Policy of the Commonwealth, the focus of the Australian Federal Police in investigating offences against the laws of the Commonwealth has altered such that the Australian Federal Police is concentrating its resources on the investigation of more serious and complex crimes, leaving Commonwealth Agencies responsible for the investigation of offences falling within their own jurisdictions.
The aim of this manual is to outline basic guidelines by which the investigation of offences by ITSA investigators will be conducted. Of importance to note however, is that the ITSA Enforcement Policies & Procedures Manual is not the sole set of guidelines to which ITSA‟s Enforcement personnel are expected to adhere.
The ITSA Enforcement Policies & Procedures Manual is a "living document". This means the ITSA Enforcement Policies & Procedures Manual will be updated on an as-needs basis and is designed to complement other prosecution manuals, policies and guidelines such as the Australian Government Investigations Standards, Prosecution Policy of the Commonwealth, the Fraud Control Policy of the Commonwealth, the various Memoranda of Understanding between ITSA and other Commonwealth and State Agencies. 1. ITSA ENFORCEMENT
1.1. Purpose To provide a professional service to the Australian community and ensure the incidence of bankruptcy-related fraud is minimised and deterred by the effective and efficient identification, investigation and, where necessary, referral for prosecution of alleged Bankruptcy Act and other related offences.
In doing so Enforcement contributes to ITSA‟s overall purpose of providing a personal insolvency system that minimises the impact of financial failure on the community, produces equitable outcomes for debtors and creditors and enjoys public confidence through application of business laws, regulation and trustee services. 1.2. Vision To be the Australian Government‟s pre-eminent practitioners in dealing with personal insolvency-related fraud. 1.3. Values and Code of Conduct ITSA Enforcement Policies and Procedures Manual 3 In all of their activities and interactions with internal and external clients, including other members of the Enforcement unit, Enforcement personnel are expected to display the highest standards of ethical and legal behaviour and comply with the APS Values and Code of Conduct. In particular, Enforcement personnel should:
(i) treat all people with fairness, sensitivity, dignity and respect and conduct investigations having regard to the principles of natural justice, confidentiality and privacy;
(ii) ensure that investigations are conducted impartially, avoiding any bias, favouritism or patronage and exercise their powers fairly, equitably and with just cause;
(iii) ensure that conflicts of interest, both actual and perceived, are avoided - including refraining from investigating matters where they have had any prior dealings (other than in an investigative capacity) with the alleged offender;
(iv) work with skill, due care, diligence, honesty and integrity;
(v) act in accordance with the Attorney-General‟s guidelines for official conduct;
(vi) ensure they comply with all relevant laws in the conduct of their investigations; and
(vii) ensure when dealing with non-English speaking people, Aboriginal and Torres Strait Islanders and persons with disabilities, that they show sensitivity and cultural awareness and, where appropriate, use suitably trained interpreters.
(viii) In particular, the requirements of sections 23H, 23N and 23P of the Crimes Act 1914(Cwlth) and the Anunga Rules should, wherever possible, be complied with in the relevant circumstances. 1.4. Enforcement functions Enforcement is not responsible for the actual instigation of prosecution actions. This function is the responsibility of the Commonwealth Director of Public Prosecutions (CDPP). Enforcement is responsible for carrying out the investigatory work associated with potential prosecution cases and the promotion of the overall aims and objectives of ITSA in relation to the detection, investigation and prevention of bankruptcy-related offences.
Enforcement has the following functions:
(i) to develop and implement strategies that deliver Enforcement services in accordance with ITSA‟s Strategic Plan;
(ii) to identify potential cases for prosecution by the CDPP;
(iii) to gather evidence for cases identified for potential prosecution;
(iv) to prepare briefs of evidence for referral to the CDPP;
(v) to liaise with the CDPP both generally and in relation to specific prosecution actions or legal advice;
(vi) to give evidence in Court; ITSA Enforcement Policies and Procedures Manual 4 (vii) to provide advice, assistance, appropriate information and training to internal and external clients and stakeholders in relation to offence investigation matters;
(viii) to provide recommendations to ITSA‟s Legal and Executive Support unit with regard to the operation of the Bankruptcy Act 1966 and to identify other fraud prevention measures and procedures to ensure ITSA‟s actions are lawful and that they reflect ITSA‟s purpose, as well as government expectations; (ix) to liaise with the Australian Federal Police and State Police Services - both generally and in relation to specific cases, in relation to the use of investigative powers available only to police officers, and in relation to assistance with forensic evidence and intelligence gathering;
(x) to liaise with other law enforcement agencies, including State Police services, and other Government agencies in relation to alleged offences that may involve breaches of other laws, or in relation to alleged offences outside the jurisdiction of ITSA; and
(xi) to provide operating results and statistics to ITSA‟s Management and the Commonwealth Attorney-General.
2. FRAUD ALLEGATIONS
2.1. Referral of allegations 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:
(i) ITSA staff, including the Official Trustee and the Official Receiver;
(ii) Registered Trustees;
(iii) members of the public including creditors and anonymous informers;
(iv) other Commonwealth or State/Territory agencies - including police services;
(v) internal or external audit/inspection processes;
(vi) Government or Ministerial referrals;
(vii) referrals from overseas governments or agencies; and
(viii) other sources.
Referrals from within ITSA 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 ITSA, the referrer should be encouraged to provide the information on the form entitled "Alleged Offence Referral to ITSA Enforcement" available on the ITSA 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 ITSA Enforcement Policies and Procedures Manual 5 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 ITSA 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@itsa.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 ITSA Enforcement".
2.2. Referral of non-Bankruptcy Act allegations In the performance of their respective duties, ITSA Regulation (Regulation), the Official Receiver (OR), and the Official Trustee (OT) may detect instances of alleged criminality involving material offences not covered by the Bankruptcy Act 1966 (the Bankruptcy Act). Enforcement‟s jurisdiction extends only to the investigation of bankruptcy-related offences. Non-bankruptcy related offences that are identified by ITSA personnel or others should be referred to the appropriate investigative authority for attention. These investigative authorities may be the Australian Federal Police, one of the
ITSA Enforcement Policies and Procedures Manual 6 State Police Services or another government agency (Federal or State), which has a specific law enforcement jurisdiction such as: ASIC, ATO, ACCC, etc….
The term "material" offence refers to offences of a serious nature that should be reported to the investigative authority having appropriate jurisdiction to investigate. If queries arise as to whether an offence is "material" or not, or whether such an alleged offence should be reported or not, then Enforcement will decide.
When alleged non bankruptcy-related offences are detected by Regulation, the OR, or the OT, the following practice will be followed:
When it appears that criminal offences not covered by the Bankruptcy Act have been identified and, if not investigated, these offences could significantly impact upon ITSA‟ reputation for failing to pass them on to the most appropriate agency for investigation, the matter must be raised as soon as possible with Enforcement for consideration as to the most expedient way to proceed.
Once Enforcement has been briefed in writing, Enforcement will advise as to: o Whether, on the information at hand, a non Bankruptcy Act criminal offence appears to have been committed. Enforcement will assess the sufficiency of available information and, where appropriate, assist in the identification of potential offences; o any further enquiries that need to be conducted that are within ITSA‟ jurisdiction, and by whom, to obtain sufficient evidence to enable the referring of the matter to the appropriate investigative authority; o any evidence gathering and handling processes, which need to be observed so as not to render the evidence inadmissible or contaminated; o the content of the draft (written) referral; and o which investigative authority the referral should be reported. Based on this advice, Regulation, the OR, or the OT will prepare a comprehensive written referral outlining all known facts, setting out the allegations and attaching all of the evidence ITSA has in its possession that support the allegations.
Enforcement will review the referral and determine if it contains sufficient and relevant evidence to facilitate a referral to the appropriate investigative authority. Where deficiencies in the referral are identified, Enforcement will advise of those deficiencies and suggest improvements so as to enable a higher likelihood of acceptance of the referral.
Enforcement will further assist in the referral process by providing contact details for the person or section in the relevant investigative authority where the referral is to be directed.
The Business Manager of the ITSA section from where the referral was originally generated will be responsible for referring the matter to the
ITSA Enforcement Policies and Procedures Manual 7 relevant investigative authority as advised by Enforcement. This Business Manager will assume the role of the ITSA point of contact for the relevant investigative authority if further ITSA advice or assistance is required.
Subsequent to referring the matter to the relevant investigative authority, the referring Business Manager will advise the Assistant National Manager Enforcement or Enforcement Business Manager as to the date the matter was referred, whether it was accepted or rejected for investigation and, if rejected, the reason(s) given, if any, for its rejection.
If a referral is ultimately rejected by the relevant investigative authority, the matter will be remitted directly to Enforcement. Enforcement will then assume responsibility for assessing the allegation and Enforcement will determine the future course of action – such as referring the matter to an alternative investigative authority.
Once a referral, as outlined above, has been successfully referred to the relevant investigative authority, it then becomes the sole responsibility of that investigative authority and ITSA shall not be entitled to or seek any further feedback unless the next dot-point applies.
If a matter is referred to another law enforcement agency and it has some relevance to ITSA‟ jurisdiction, the referring ITSA Business Manager will remain the ITSA Point of Contact person for any feedback/queries as to progress. 3. INVESTIGATIONS
3.1 Investigation principles An investigation is a search for truth, in the interests of justice and in accordance with the specifications of the law.
Every investigation decision made by Enforcement will be in accord with the laws and rules of evidence, including the rules governing the admissibility of evidence. Enforcement personnel will demonstrate professionalism by displaying:
(i) integrity in all actions and decisions;
(ii) fairness and impartiality without fear, favour, affection and without undue influence or ill will;
(iii) respect for the dignity of all people including their need for confidentiality, discreetness and preservation of their privacy; and
(iv) the application of skill, care and diligence in all undertakings. 3.2 Investigation policy The policies and procedures that Enforcement utilise as best practice are primarily adopted from the Fraud Control Policy of the Commonwealth. 3.3 Investigation practices Investigation practices of Enforcement are to be in accordance with the requirements of: ITSA Enforcement Policies and Procedures Manual 8 The Commonwealth Evidence Act 1995;
Relevant State and Territory Evidence Acts; Part 1C of the
Crimes Act 1914; Relevant State and Territory Crimes Acts;
The ITSA Enforcement Policies and Procedure Manual; and
The Commonwealth Fraud Control Guidelines.
3.4 Investigation plans Following the allocation of an investigation, an Enforcement Investigator may develop a plan which indicates the potential offence/s committed, the evidence required to prove that offence, the evidence already held to meet the proofs, the additional evidence required and the manner in which that additional evidence can be acquired. The plan should also include a realistic estimate of the time required to complete the case and outline the need for resources. The plan developed by the Enforcement Investigator may include the use of evidence matrices and resource spreadsheets.
The development of an Investigation Plan will be at the discretion of National Manager, Assistant National Manager or Business Manager.
It is expected that Investigation Plans will be created for large-scale, complex and resource intensive investigations. Investigation Plans should be reviewed on a regular basis to ensure continuity, compliance with the plan or provide the opportunity for review and alteration. 4. INFRINGEMENT NOTICE REGIME The Bankruptcy Act 1966 contains a range of offences provisions, some of which are specifically described as „trict liability‟1 offences. 1 See section 6.1 of the Criminal Code Act 1995 2 Bankruptcy Legislation Amendment Bill 2009, Explanatory Memorandum, The Parliament of the Commonwealth of Australia, House of Representatives, page 18.
3 Bankruptcy Amendment Regulations 2010, Explanatory Memorandum, Attorney-General’s Department, page 7. Effective 1 October 2010, Division 2 of Part 14 of the Bankruptcy Regulations 1996 will provide an infringement notice scheme which applies to the strict liability offences that appear in the table in subsection 277B(2) of the Bankruptcy Act. This Inspector-General Practice Statement relates only to those offences.
Under the infringement notice regime, the Inspector-General in Bankruptcy is empowered to issue an infringement notice to an alleged offender for the payment of a specified penalty in lieu of criminal prosecution action being instigated. This regime will provide an efficient means of "penalising behaviour which, while relatively minor in criminality, can have significant repercussions for the effective administration of bankrupt estates, integrity of the [National Personal Insolvency Index] or regulation of insolvency practitioners."2 The infringement notice regime will not replace the current penalties within the Bankruptcy Act, but will serve as an alternative to prosecution action.3 ITSA Enforcement Policies and Procedures Manual 9 Importantly, these offences will assist to preserve the integrity of the National Personal Insolvency Index. This index is the public record of bankruptcy and personal insolvency events and is an important tool for business and lenders.4 4 The Hon Robert McClelland MP, Second Reading Speech Bankruptcy Legislation Amendment Bill 2009, Parliament House, Canberra, 28 October 2009.
5 Reasonable grounds to believe requires a higher standard of knowledge than reasonable grounds to suspect.
6 See regulation 14.03(2)
7 Of Australian Public Service (APS) Executive Level 1 classification or above 4.1. Offences covered by the infringement notice scheme Those offences that are subject to the infringement notice regime are detailed in the table listed at section 277B of the Bankruptcy Act. The amount payable by way of penalty under the infringement notice regime varies depending on the alleged offence. The amounts depicted in subsection 277B(2) of the Bankruptcy Act are linked to section 4AA of the Crimes Act 1914 (Cth), which stipulates that 1 penalty unit equates to $110.
The maximum amount payable pursuant to an infringement notice is one fifth of the maximum penalty that can be imposed by a Magistrate should the matter be determined by a Court of Law. 4.2. Issuing an infringement notice The Enforcement business line will have sole carriage and responsibility for the issuing of infringement notices on behalf of the Inspector-General in Bankruptcy.
Enforcement‟ Compliance Team will have primary responsibility for investigating relevant allegations contrary to the Act, issuing infringement notices and preparing prosecution briefs for those who do not pay the fine or opt for the matter to be determined by a court of law.
Regulation 14.05 provides that once the Inspector-General has reasonable grounds to believe5 that a person has committed an offence that is subject to the scheme, the Inspector-General may, within 12 months after the alleged commission of the offence, issue the person with an infringement notice. The decision on whether or not to issue an infringement notice is a matter of discretion for the Inspector-General.6 In accordance with subsection 11(4) of the Bankruptcy Act the Inspector-General has delegated the authority to issue infringement notices to all managers7 within the Enforcement business line. Subsequent references to the „nspector-General‟in this Practice Statement also therefore include reference to a delegate of the Inspector-General for these purposes. Areas for consideration before issuing an infringement notice may include:
The nature of the alleged breach;
The likelihood of an infringement notice being a successful deterrent;
Practical considerations, including whether or not there is a history of non-compliance by the alleged offender;
Previous warnings;
ITSA Enforcement Policies and Procedures Manual 10 Whether the alleged breach should best be dealt with by a Court of Law on public interest or other grounds; or Is there a more appropriate resolution / sanction that ought to be applied.
The above factors are not weighted, nor are they an exhaustive list of considerations to be taken into account before deciding whether or not to issue an infringement notice.
When considering whether or not to issue an infringement notice the possible defence of mistake of fact should be considered.8
8 See section 9.2 of the Criminal Code Act 1995 Section 6.1 of the Criminal Code Act 1995 states: (1) If a law that creates an offence provides that the offence is an offence of strict liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is available. An infringement notice may be issued to a person more than once for the same offence if a person continuously fails to comply with their obligations under the Bankruptcy Act. The issuing of subsequent infringement notices for continued non-compliance remains discretionary as the Inspector-General may decide to refer the matter to the Commonwealth Director of Public Prosecutions for prosecution action.
All factors considered in the issuance, or non-issuance of an infringement notice, must be documented in accordance with the Australian Government Investigation Standards and the APS Code of Conduct & Values. 5. CASE MANAGEMENT
5.1. Referrals to the Australian Federal Police When assessing more serious and complex referrals, consideration should be given as to whether it is appropriate for the case to be referred to the Australian Federal Police for investigation. The AFP‟ Case Categorisation and Prioritisation Model (CCPM) provides a framework from which referrals are assessed and selected for investigation by the AFP. Some of the elements of the CCPM include:
(i) A significant monetary or property loss;
(ii) Exploitation or attempted exploitation of a Government program, project, scheme, plan or allocation;
(iii) The matter involves a Commonwealth Officer, employee, or a person engaged on contract to the Commonwealth or a Commonwealth agency, either acting alone or in concert with others;
(iv) Organised or conspiratorial criminal activity; ITSA Enforcement Policies and Procedures Manual 11 (v) Bribery, corruption or attempted bribery or corruption of public officials or persons performing a duty on behalf of the Commonwealth or a Commonwealth agency;
(vi) The security, standing or integrity of the Commonwealth or a Commonwealth agency, its resources and interests;
(vii) Relations between the Commonwealth, State or Local governments, or the national or international interests of the Commonwealth;
(viii) A sustained course of conduct or activity over a protracted period of time;
(ix) A matter which is known or suspected to involve criminal activity committed on more than one agency of the Commonwealth;
(x) The existence or generation of criminal intelligence likely to be of value to the Australian Federal Police in its role as the Commonwealth‟ primary law enforcement agency;
(xi) Where the complexity of the case or the time required to fully investigate the case indicates that Enforcement‟ resources would be overwhelmed;
(xii) Where there is a conflict of interest, either actual or perceived, such that Enforcement should not conduct the investigation; or
(xiii) Where it is considered that particular types of offences should be targeted due to their frequent occurrence and a joint Enforcement /AFP initiative may be the most appropriate manner in which to deter further illegal activity. 5.2. Referral to other agencies Where it is apparent that the alleged offence is not within ITSA‟ jurisdiction, but may be an offence against other laws, the referrer should be advised to refer the matter to the appropriate agency. Should the referrer be from ITSA, the provisions contained within paragraph 2.2 (Referral of Non-Bankruptcy Act allegations) will apply. 6. MAINTENANCE OF PROFESSIONAL STANDARDS
6.1. Qualifications All Enforcement Investigators who are primarily engaged in preventing, detecting or investigating fraud are to possess, as a minimum, a Certificate IV accreditation in Government (Investigation) or equivalent in accordance with the Commonwealth Fraud Control Guidelines.
All Enforcement Managers whose duties include the management of investigators who are primarily engaged in preventing, detecting or investigating fraud are to possess, as a minimum, a Diploma of Government (Investigation) or equivalent in accordance with the Commonwealth Fraud Control Guidelines.
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