FOI ASIC

Now let me see if ASIC has an ivestigation policy that complies with the AGIS. It will be interesting to see if ASIC attempts to argue with me as did the FOI Officer at ITSA.

From: fionabrown01@hotmail.com
To: foirequest@asic.gov.au
Subject: Investigation Policy
Date: Sun, 27 Jan 2013 14:37:08 +1100

To whom it may concern,
Under FOI I would like to be supplied with a copy of your investigation policy.
Thanking you
Fiona Brown

Complaint to the Information Commissionr RE ITSA

It is an obligation to publish any FOI on the disclosure log under S11c of the Freedom of Information Act 1982. The FOI officer is attempting to tell me it is the discretion of the department.

Here is the complaint to the Office of the Information Commissioner................

From: fionabrown01@hotmail.com
To: elizabeth.zatschler@oaic.gov.au
Subject: RE: ITSA Disclosure Log [SEC=UNCLASSIFIED]
Date: Sun, 27 Jan 2013 14:17:00 +1100

Hi Elizabeth,
I have received a letter from Dave Maher who is ITSA's FOI Officer on friday night who has informed me it is the discretion of ITSA to publish FOI on their disclosure log.
I now wish to make a formal complaint as this is an obligation under section 11c of the freedom of Information Act 1982
I also wish to raise an issue where ITSA has informed me they want me to forward $370 for them to disclose information on complaints made about a corrupt trustee which Adam Toma and Veronique Ingram were protecting. This information should be disclosed freely to me or any other member of the Australian public. This demonstrates that senior management at ITSA are attempting to coverup systemic corrupt conduct. It is also in the public interest to be informed of the failure of the Inspector General in Bankruptcy and the National Enforcement manager to comply with with their obligations.

Thank you

Fiona Brown

Australian Government Investigation Standards 2011 (AGIS)

Loke Ching Wong/Paul Pattison/ Adam Toma

Corrupt Trustee Paul Pattison was part of the Committee that made a decision to de-register Loke Ching Wong in 2008. In 2011 Pattison himself was  also de-registered for  doing the same as Wong  How long had this committee been protecting Wong??
This story sounds very familiar with Adam Toma National Enforcement Manager protecting the corrupt trusteePaul Pattison....  
This National Enforcement Manager at ITSA who is on the take needs a big cock up his arse!!!!!!!

AAT Confirms decision to cancel trustee’s registration The Administrative Appeals Tribunal in Wong v Inspector-General and others Wong v Inspector-General in Bankruptcy and others (V 200600930) Melbourne, 12 June 2008 (AAT) has affirmed the decision of the Committee formed by the Inspector-General to cancel the registration of Loke Ching Wong.

Whilst there are prior cases where the Court has cancelled a trustee’s registration this is the first time that an administrative decision to cancel a trustee’s registration, made by a Committee formed by the Inspector-General, has been the subject of review in the AAT. Senior Member Pascoe summarised the history of the matter at paragraphs 3 and 5:

3. In 2004, the Bankruptcy Regulation Branch of the Insolvency and Trustee Service Australia (ITSA) undertook an inspection of 23 files relating to bankruptcy administrations conducted by Mr Wong. By letter of 5 April 2005, Mr Wong was advised that a number of errors had been identified and he was requested to respond by 2 May 2005. After an interview and his letter of response, Mr Wong was advised by letter of 14 October 2005 that the Inspector-General had formed a belief that he had failed to exercise the powers, or carry out the duties of a registered trustee properly. He was requested to provide a written explanation of why he should continue to be registered as a trustee. The Inspector-General did not accept the written explanation and pursuant to s 155H of the Act, convened a Committee to consider his registration. After four days of hearing between June and August 2006. The Committee provided a report dated 5 September 2006 in which it decided that Mr Wong should cease to be registered as a trustee under the Act.

5. In its report, the Committee made a number of specific findings detailing breaches under various sections of the Act including sections 19, 109, 139W, 140,162, 165, 168, 169 and 189A. The report was lengthy but the breaches found can be summarised as follows:

• Eight matters in which estimated remuneration and costs of Mr Wong in his report to creditors was lower than the amount in his work in progress at the time and lower than his actual final fees. The final fees varied from 11 percent to 244 percent in excess of the estimate.
• Taking remuneration in excess of that fixed by creditors in five administrations.
• Banking estate monies in Mr Wong’s firm’s bank account instead of a required special interest-bearing account on six occasions.
• Use of proxies to pass a creditors’ resolution relating to Mr Wong’s remuneration in wording different to that previously sent to creditors.
• Systematic and unnecessary registration of estates for GST involving unnecessary work and incorrect banking of GST refunds.
• Failure to disclose a second and higher valuation of a property in a report to creditors.
• Failure to disclose to creditors a possible valid claim of a creditor and likely invalid claims of three creditors.
• Failure to investigate validity of claim for lien.
• Representing that a petitioning creditor’s taxed costs had been paid at the date of the report when they had not been so paid.
• Failure to properly calculate the income contribution by a bankrupt.
• Incorrect classification of interest earned as a charge.
• Failure to put resolution to appoint a committee of inspection notwithstanding a clear majority of creditors seeking to have such a committee appointed.

---

1 Wong v Inspector-General in Bankruptcy and others (V 200600930) Melbourne, 12 June 2008

---

As both parties agreed with the evidence on which the decision was based the AAT needed to consider whether this evidence warranted a cancellation of registration or a lesser penalty such as suspension.
The primary argument submitted by counsel on Mr Wong’s behalf was that the effective penalty of de-registration for ten years was too severe. It was accepted that some penalty was appropriate. An effective suspension of twelve months was proposed by varying the decision to allow Mr Wong to remain registered on condition that he hand over any existing appointments to another trustee and not undertake any new appointments for the suspension period.

It was further submitted that the matters identified by the Committee were either errors of judgement or simple mistakes. It was argued that, as trustee under Part X arrangements, there was limited time and ability to make full enquiries. It was suggested that the legislation in relation to these arrangements contemplated the need to make a judgement call within a limited time frame. Counsel for Mr Wong submitted that there was no evidence of dishonesty or personal gain, only possible negligence. The Tribunal was urged to accept that Mr Wong had learned by his mistakes and the possibility of any further lapses is most unlikely.
The Inspector-General submitted that:

• an effective 10 year de-registration period was that chosen by Parliament in enacting section 155A;
• the breaches by Mr Wong were while acting in a capacity of trustee and involved regular, culpable and negligent conduct in that capacity over several years;
• Mr Wong’s errors of judgement or mistakes favoured him in taking remuneration in excess of that estimated or capped and no mistakes favoured creditors;
• the retention of public confidence required the cancellation of registration; and
• conditions contemplated in s 155I(2)(b) and 3(b) were matters such as undertaking a course of study but not an effective period of suspension of less than ten years.

The AAT made the observation that it was tempted in a form of suspension of less than the statutory period of ten years and could in its view achieve this pursuant to sub-section 155I(3) if it were to decide that Mr Wong’s should cease to be registered if he failed to meet certain conditions, suggesting the conditions that could be imposed might include:

“that he does not continue with or accept any appointment as trustee for two years and, for those appointments accepted in the third year, provide to the Inspector-General full details of remuneration including creditors resolutions, his reports to creditors showing estimated remuneration, work in progress records and invoice for payment.”

This would have the effect of leaving Mr Wong registered as a trustee. Senior Member Pascoe referred to Muir v Bradley (1984) 57 ALR 155:

“It is accepted that a trustee under the Act has an onerous duty. At times the estate will not have sufficient funds to provide an adequate remuneration. Particularly in Part X arrangements, the trustee has limited time and limited coercive powers. However, as stated in Muir v Bradley (1984) 57 ALR 155:
“a trustee in bankruptcy is a person who must command and retain the confidence of the Court, of the creditors and debtors in bankruptcy proceedings and of the general community. His competence must be, and remain, of a high order.”…”

In affirming the Committee’s decision he went on to conclude:

“….having fully considered the report of the Committee, the acceptance of the factual findings of that Committee and the number of breaches relative to the number of files inspected it would be inappropriate to allow Mr Wong to retain his registration. The only alternative is an effective suspension for a period of less than that provided in s 155A(4). Parliament has specifically provided for a 10 year period in that section and, unlike many other Acts of Parliament which have registration provisions, does not otherwise specifically provide the Committee with power to suspend.”

How long did Veronique Ingram ITSA protect corrupt Paul Pattison/ Senator Williams/ Senate Standing Committee

How long did Veronique Ingram, Inspector General in Bankruptcy , who needs a big cock up her arse  protect corrupt  trustee Paul Pattison.

ITSA received 9 complaints about Pattison in the 12 month before he was de- registered.

Under FOI it has been requested ITSA disclose how many complaints they received about Pattison in the 5 years prior to his de-registration

Clearly ITSA and the fuckers at Bankruptcy Regulations did not want anyone to be aware of this.

Senior Management at ITSA need a good hard  fucking up their ARSE!!

SENATE STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

INSOLVENCY TRUSTEE SERVICE AUSTRALIA

Question No. 23

Senator Williams asked the following question at the hearing on 25 May 2011:

Senator WILLIAMS:

I want to bring something to your attention. On 9 February 2011 we saw the

headlines 'ASIC launches action to sink liquidator'. The article says:

THE corporate regulator has launched Victorian Supreme Court action to bar Melbourne-based

liquidator Paul Pattison from practising after his own firm sank into liquidation last year.

Mr Pattison owes a heap of money to Bankwest and the Australian Taxation Office. The article

continues:

Mr Pattison still operates as a bankruptcy trustee and liquidator through his new practice, Pattison

Business Reconstruction and Insolvency Services, and he controls at least 100 files on company

insolvencies and hundreds more on personal bankruptcies But the Australian Securities and

Investments Commission's court move precipitated an urgent meeting yesterday of the board of the

professional body governing liquidators, the Insolvency Practitioners Association of Australia

(IPA), which immediately suspended Mr Pattison's membership and began its own disciplinary

proceedings against him.

I will just add another story, dated Tuesday, 1 March:

Melbourne-based liquidator, Paul Pattison, has voluntarily resigned from his company

appointments following concerns by ASIC about his capacity to adequately and properly carry out

his duties.

Mr Pattison resigned as liquidator or deed administrator of those companies and gave an

undertaking that he would cease to carry out, consent to, or otherwise accept appointment as a

liquidator ...

One experienced practitioner said that it 'beggars belief'' that a liquidator could go broke and yet

continue to practice. Are you people familiar with this Mr Pattison?

Senator Ludwig:

Before we go too much further, Chair: I wonder if we could have that made

available to Ms Ingram and Mr McCosker. I am sure Senator Williams is familiar with my usual

request.

Senator WILLIAMS:

No worries at all, Minister.

Ms Ingram:

Thank you, Senator. I am not sure it is appropriate that I go into detail in relation to an

operational matter, but I can say that Mr Pattison, in his capacity as a trustee, is under review by us.

I would not like to go into any more detail. We have been liaising with ASIC.

Senator WILLIAMS:

The reason I bring this to your attention is that a chap contacted me from

Melbourne after I did some media on the Senate inquiry into the insolvency practitioners industry,

if we can call it that. I am not going to go into detail; perhaps I might be able to talk to you off the

record. I would like to discuss something at a later date with you. Can I ask: did Mr Pattison have

any role with ITSA, or was he a member of any committee of ITSA at any stage?

Ms Ingram:

I am sorry; I would have to take that on notice. I am not aware that he has been. It is

possible, in his capacity, if he is a member of the Insolvency Practitioners Association. They might

have nominated him to a government body, or we have a bankruptcy forum. But I am not aware of

that.

The answer to the honourable senator’s question is as follows:

Mr Pattison was the Insolvency Practitioners Association nominee for a committee formed under

the Bankruptcy Act in 2006 to consider the deregistration of Mr Loke Ching Wong.

That Committee discharged its functions and was dissolved on 5 September 2006. Such

Committees are composed of a Registered Trustee nominated by the Insolvency Practitioners

Association, an APS employee and a delegate of the Inspector-General. This process is mandated in

the Bankruptcy Act at section 155H.

The year that was! Veronique Ingram ITSA/APS Commission/ Commonwealth Ombudsman

2012 started off  with a charge as  Veronique Ingram, Inspector General in Bankruptcy and the fat mong Alison Larkins , acting Commonwealth Ombudsman  were referred to the  Australian Public Service Commission under S 41(f).
Regardless  that there was considerable  evidence of the failure of both Commonwealth Government Agencies  to comply with their obligations the  Commissioner Steve Sedgwick and the skanky Ethics Manager fucked over the matter.
It was  then discovered that all the complaints made under S41(f) and also by Whistleblower for the past 3 financial years had also been fucked over.
Under FOI I asked  the APS Commission for their Investigation policy. They then told me that the Australian Public Service Commission  did not have one. Karin Fisher emailed me and told me to take down all my blogs as they were highly OFFENSIVE.
I  emailed Ms Fisher back and told her to SUCK IT UP  and she could "COME KISS MY ARSE"

There was one complaint that the APS  Commission  had received that was Investigated by Robert Cornall OA. Cornall was Attorney General's secretary for 8 years. This makes this old fucker ineligible to carry out any investigations for the Government because of conflict of interest. It also appears this fucker also received an order  of  Australia for LICKING AUSTRALIAN GOVERNMENT  ARSES!!!!!!!!

I then requested the Commonwealth Ombudsman's investigation policy under FOI

George Masri( Senior Assistant Commonwealth Ombudsman ) emailed me back and told me the Commonwealth Ombudsman does not have an investigation policy because the Commonwealth Ombudsman does not do investigations. Clearly I might not be the brightest star , but for  George Masri to tell me this he must  be wanking his cock and needs a good fuck up his arse.

An independent report from KPMG also slammed Fairwork Australia for lack of standards in investigations  and failure to investigate in  key areas in the Craig Thomson matter.

This clearly indicates that the Government has no control of Government Agencies.

It was also  revealed that the NSW Crime commission had been splitting the proceeds of   crime between lawyers  instead of it being returned to the Government  This had been occurring for  TWENTY YEARS before the Fuckers at the NSW  Government finally put a stop to it.

The chief Legal Officer said he had simply misread the ACT. This sound very familiar with Matthew Osborne  doing the same. Osborne also needs   more than a cock up his arse.!

Australia got a new Commonwealth Ombudsman who is being paid $380,000 a year to  fuck over complaints . If anyone is  also wondering why the Banking system is so fucked, look back and you will see that this fucker , Colin Neave was also the Banking Industry Ombudsman and until recently the Financial Services Ombudsman. Mr Neave would have shit up his fingernails for sticking his fingers up all Government department's bum.

I also asked the Commonwealth Ombudsman under FOI to give me a copy of the 578 complaints made about the Commonwealth Ombudsman in 2010-2011. They emailed be back and said they didn't know what I was talking about. Funny how the fuckers suddenly go blank when asked a question they do not want to answer.

It was also discovered that Adam Toma , the National Enforcement Mnanager is on the take. It is particularly fortunate also that this fucker is on ITSA's Audit Committee so he can cover this up. Cheryl Cullen another fat skank at ITSA is also on the ITSA's Audit Committee. She needs a big fuck up the arse also for telling me ITSA has the DISCRETION to mislead me.

Veronique Ingram was question by Senator Williams and Senator Brandis.

Ingram said she was unaware of any intimidation by ITSA and generally said she was fucking unaware of anything.

I requested under FOI a copy of ITSA's investigation policy on the 22^nd July 2012. ITSA refused to reply to me. Eventually I contacted the Information Commissioner who informed the fuckers at ITSA of their obligation.

Adam Toma ripped his skirt off when he was told this.

As I already had an FOI with ITSA Mr Mircevski asked me to ask them how many complaints ITSA had received about the corrupt Trustee Paul Pattison .

On the 7^th December 2012 I was to have received my FOI however I had to contact again the Information Commissioner to get a reply from ITSA.

Dave Maher from FOI attempted to tell me that my FOI had been sent to the wrong address. So……… he can kiss my fucking ARSE!!!!!!!!!

As if it was a Christmas present from ITSA the FOI arrived in my letter box on Christmas eve.

Clearly it would have killed the fuckers at ITSA to give me the information I requested. Who would know that someone in Bankruptcy Regulations was protecting the fucker Paul Pattison who Veronique Ingram was very vague about. These fuckers at ITSA had received 9 complaints on Pattison in the 12 months before he resigned as a trustee. 5 of these warranted investigation. It is extremely unclear whether these were actually investigated. It was also found that Bankruptcy Regulation has no investigation policy or standards. However the fuckers at ITSA attempted to tell me that Enforcement and Regulation use the same policy. Adam Toma and Dave Maher can come his my fucking arse as their functions are vastly different. Obviously they are wanking their cocks to try and tell me this.

So I put another FOI into ITSA and requested who handled all the complaints about Pattison and to give me the names of all the names of all the ITSA staff that handled complaints about ITSA in the past 3 years and how complaints that warranted investigation was investigated, taking into consideration that Bankruptcy Regulation has no investigation policy.

So........... was Paul Pattison being protected by ITSA because he had cut a deal with Adam Toma????????????????

So how very fucking funny when the cock in the legal Department Mathew Osborne is advising that section 134 gives ITSA and the trustee's discretion to fuck everyone over!!!!!

So everyone at ITSA, Commonwealth

Ombudsman and the Australian Public

Service Commission..............................

KISS MY ARSE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Reply to ITSA's FOI

Dave Maher

FOI Officer ITSA

GPO 821

Canberra

2601

7^th January 2013

Dear Mr Maher,

I refer to the FOI response I received from ITSA on the 24^th December 2012 which was three weeks late.. I note that ITSA attempted to apologize claiming it was sent to the wrong address. Considering ITSA would not have wanted me to have access to any of the information I requested I quite rightly would consider this to be deliberate..

It also appears ITSA or you, are also attempting to have me believe that Enforcement and Regulation use the same investigation policy. This is highly peculiar as both Enforcement and Regulation have vastly differing roles.

Thank you for you verification of the qualifications of staff at both Regulation and Enforcement. Therefore any failure to investigate fraud ,corruption and serious corrupt conduct at ITSA could be seen as deliberate.

It is now abundantly obvious to me that ITSA was attempting to protect the corrupt trustee Paul Pattison.

Therefore please supply me with the following information under FOI.

In the period 2010-2011 there were 9 complaints made about Paul Pattison.

5 of these warranted investigation.

What was the names of ITSA staff that dealt with these complaints?

If any of these complaints were investigated please supply me with the names of the person who did the investigation.

In the 12 month (2009-2010) period prior to these complaints being made how many complaints did ITSA receive about Paul Pattison? Please supply me with the dates that these were received by ITSA. How many of these warranted investigation and if any were investigated and by whom?

In the next 12 month period(2008-2009) how many complaints did ITSA receive about Paul Pattison? How many of these warranted investigation and was any investigated and by whom?

In the 12 months(2007-2008) prior to this how many complaints did ITSA receive about Paul Pattison. What were the dates these were received ? Did any of these warrant investigation and if so were these investigated and by whom?

In the 12 months prior to this(2006-2007) how many complaints were received about Paul Pattison? Again how many warranted investigation and were these investigated and by whom?

In 2009-20010 ITSA received 44 complaints about the Official Trustee. Please advise me who handled each of these complaints. 4 of these complaints were found to be justified. Were these investigated and by whom?

In 2010-2011 ITSA received 47 complaints about the Official Trustee. 9 were found to be justified and required investigation. Were these complaints correctly investigated as required by the AGIS and by whom?

In the period 2011-2012 ITSA received 31complaints about the Official Trustee. 6 warranted investigation . Who investigated these and did it comply with the AGIS standards?

Under Freedom of Information please supply me with the names of all trustee's that have either resigned from ITSA or have been de-registered in the past 7 years Alongside each name please supply me with the number of complaints ITSA had received about them. Please also supply me with the dates they were received and if they were investigated.

This should include the Trustee's that resigned as mentioned in ITSA's 2011-2912 Annual Report and particularly the Trustee ITSA de-registered.

Under FOI please supply me with the member of ITSA's staff who authorized George Adler for overseas travel .

Further to this ITSA has failed to publish my request for information on complaints on the corrupt Trustee Paul Anthony Pattison on the disclosure log. ITSA would be aware that this contains no personal information nor does it reveal any information about any business, commercial , financial or any professional affairs. Clearly this would be another attempt by ITSA to cover up atrocious corrupt conduct at ITSA, also corruption and fraud by private trustees .

Thank you

Fiona Brown

ITSA's Enforcement policy/No Regulation Investigation policy

This is the Investigation policy that Dave Maher is  attempting to pass off as ITSA's Regulation investigation policy as well as the ITSA's  Enforcement Investigation policy.
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!!!!!!!!!!!!!!!

ITSA Enforcement
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.