(a) operate as a general deterrent to prevent other liquidators from acting in the manner that the Applicant had; and > > (b) ensure that the community of registered liquidators were acutely aware that in almost all circumstances where they provide 'safe harbour' advice, a conflict of interest would arise should they take any subsequent appointment as liquidator.

5. I acknowledge that the nature of the Applicant's infringement would ordinarily tip the scales towards such a sanction (that is, as was determined by the Committee) being the correct or preferred outcome. However I have formed the view that publication of an anonymised version of my decision, rather than the Committee's decision, would sufficiently achieve the regulator's statutory objectives without imposing unnecessary reputational hardship upon the Applicant which one might expect to flow from publication of his details.
6. Put another way, in my view and as is explained by the reasons that follow the publication of these reasons, anonymised as they are, rather than the reasons of the Committee sufficiently draw attention to the Applicant's conduct and serve as a cautionary tale, such that the regulator is able to highlight to other registered liquidators:
   1. the central importance of a liquidator's independence; and
   2. the likelihood that a conflict will arise in circumstances where a 'safe harbour' engagement has been undertaken prior to a practitioner being appointed as a liquidator.

1. The Applicant has been a chartered accountant for over 40 years, as well as a registered liquidator and trustee in bankruptcy for more than 30 of those years. He is a member of both Chartered Accountants Australia and New Zealand (CAANZ) and the Australian Restructuring Insolvency & Turnaround Association (ARITA).
2. The Applicant's early career saw him working for renowned multinational accounting firms providing "restructuring and insolvency services" to clients. In the late 1980s the Applicant established his own accounting and insolvency firm specialising in "business recovery services, including restructuring, insolvency and business consultancy services and advisory". That firm has operated continually since and has employed up to 6 staff at any one time (although I understand the firm no longer employs any staff as at the time this matter was heard).
3. In all his years of professional practice, outside of the conduct identified in the decision presently under review, the Applicant conducted his practice in a fashion that has never led to any sanction, reprimand or disciplinary action from any regulator or governing body.
4. In late November 2021, the Applicant's firm, which for the purpose of these reasons will be referred to as 'Insolvency & Co', were retained by a company suffering financial distress (which I shall call 'ABC Pty Ltd') to:

Assist [it] with the tasks required for it to be in a better position than it would be should [ABC Pty Ltd] appoint an external administrator immediately. It is intended that this engagement will afford the Directors of [the company] protection pursuant to section 588GA of the Corporations Act should [ABC Pty Ltd) be placed into external administration. These are known as the Safe Harbour provisions.

5. From 22 or 23 November 2021 until late January 2022, the Applicant (through his firm Insolvency & Co) provided advice to the directors of ABC Pty Ltd that would "assist the directors to obtain the benefit of 'safe harbour' protection from insolvent trading pursuant to section 588GA(1) of the [Corporations] Act" (the Safe Harbour engagement). The period of this Safe Harbour engagement straddled the festive season however, according to the Applicant, it became apparent soon after he had undertaken some 'cursory analysis' that the company had been insolvent since much earlier in 2021.
6. On 1 February 2022 ABC Pty Ltd entered into a creditor's voluntary liquidation and the Applicant was appointed liquidator.
7. On 15 February 2022 the Applicant lodged with ASIC a Form 531 which is titled "Copy of declaration of relevant relationships and/or declaration of indemnities", and which attached a "Declaration of Independence, Relevant Relationships and Indemnities" (a DIRRI). Amongst other matters the DIRRI required the Applicant to make declarations as to his independence and to disclose any previous relationships or engagements he may have had with the liquidated company in the preceding 2 years. The Applicant declared that he had:

undertaken a proper assessment of the risks to my independence prior to accepting the appointment as Liquidator of [ABC Pty Ltd] in accordance with the law and applicable professional standards. This assessment identified no real or potential risks to my independence. I am not aware of any reasons that would prevent me from accepting this appointment.

8. Under the DIRRI the Applicant went on to make more express disclosures about the Safe Harbour engagement which included details of the engagement's nature, remuneration and the period in which it operated. The Applicant concluded that the provision of the prior professional services to ABC Pty Ltd did not produce or "result in a conflict of interest or duty because":
   • It was readily apparent from a cursory analysis that the company had become insolvent at an earlier date in 2021.
   • [Insolvency & Co] did not provide ongoing services to the company;
   • The work undertaken during the engagement has assisted me in developing an understanding of the company and its activities.
   • The nature of the advice provided to the company is such that would not be subject to review and challenge during the course of the liquidation. The engagement will not influence my ability to fully comply with my statutory and fiduciary obligations associated with the liquidation of the company in an objective and impartial manner.
9. The Applicant's disclosures on the Form 531 and the attached DIRRI triggered ASIC's attention which sought from the Applicant, by letter of 14 March 2022, further information about his ongoing relationship with ABC Pty Ltd. As would become apparent, of concern to ASIC was that the Applicant had accepted the liquidator appointment in circumstances where, in its view, he had an "actual or apprehended bias or an actual or apprehended conflict of interest due to your pre-appointment advice to the directors of [ABC Pty Ltd] that they had safe harbour protection".
10. In his response to ASIC's enquiries, the Applicant emphasised that the appointment with ABC Pty Ltd had only been for "finite short-term period" and that the advice provided had been "limited" with the engagement being more "akin to pre-appointment planning and preparing for an insolvency appointment". He went on to state that he had not reduced his independence assessment to writing, however he had given consideration to the "APES 330 Insolvency Services and to the ARITA Code of Professional Practice, section 3 and PS1" when formulating his views.
11. ASIC remained concerned with the Applicant's responses, particularly given that (as pointed out in ASIC's letter to the Applicant of 2 May 2022) section 1.68 of the ARITA Practice Statement: Insolvency 1 - Independence expressly provided that:

... if a Member has provided advice to a company or the directors of a company which they intend to, or do rely upon, to avail themselves of the safe harbour provisions of the Corporations Act, the member cannot take a subsequent Appointment" [emphasis added].

12. Central to ASIC's concern was that in discharging his duties as liquidator of ABC Pty Ltd the Applicant would need to form views, on behalf of creditors, as to whether the directors of the company had exposed themselves to any liability under section 588G of the Corporations Act 2001 (Cth) or whether other remedies might be available to creditors. This appraisal would necessarily have included the period in which the Applicant was appointed to provide safe harbour advice and could well go to the sufficiency of that advice itself.
13. On 3 May 2022, the Applicant issued a Report to Creditors of ABC Pty Ltd which attached 3 letters received by him from ASIC (including the letter dated 2 May 2022) raising concerns about his independence. The Applicant invited creditors concerned by the matters raised by ASIC to contact his office in which case he would ensure another liquidator be appointed. Somewhat regrettably this invitation was tempered by an assertion from the Applicant that despite ASIC's concerns, he "contend(s) and maintain(s) that there is no conflict of interest and that [he] has discharged his duties and obligations as required by law", and a warning that any appointment of an alternative liquidator would:
    • further delay the payment of a creditor's dividend which he had previously reported as being available; and
    • would simply duplicate work already done thus exhausting the amount likely to be available to creditors.
14. Somewhat unsurprisingly having regard to the Applicant's views as expressed in the Report to Creditors, no concerns were raised by any creditors of ABC Pty Ltd in response to the invitation and the Applicant continued as liquidator of ABC Pty Ltd until 30 June 2022 when the liquidation concluded.
15. On 23 May 2022 the Applicant wrote to ASIC advising that, amongst other matters, Insolvency & Co had commenced a review of its pre-appointment independence assessment processes, that it intended to attend the next available ARITA course dealing with independence, and that the firm was considering avoiding any Safe Harbour engagement work in the future. The Applicant went on to explain that he was concerned about the matters raised by ASIC and intended to meet with senior staff of ARITA for discussions about those matters.
16. On 2 June 2022 ASIC wrote to Applicant indicating that before they finalised the Applicant's matter they wished to be advised of the outcome of discussions with ARITA and, in particular, how ARITA understood the "COPP guidance in PSI 1: Independence on accepting appointments following a safe harbour engagement" applied to the Applicant's circumstances. When no response was received ASIC pressed the Applicant with further email requests on 23 June 2022 and 26 July 2022.
17. The Applicant, after enduring a period of illness, substantively responded in mid-August 2022 explaining that after some months of pursuing meetings with ARITA he had finally spoken to the CEO and a technical officer of ARITA to whom he had "outlined ASIC's concerns and how we addressed them". The Applicant further explained that, having not heard back from ARITA as yet, "the ball is in ARITA's court. However, I am closing my file."
18. By 24 November 2022 ASIC had received no further update from the Applicant and proceeded to issue him with a 'Notice to Explain why Liquidator Registration Should Continue' pursuant to section 40-40(1) of the IPS explaining that they may refer him to a committee convened under section 40-45 of the IPS if a satisfactory response was not received. ASIC was concerned that the Applicant had:

failed to carry out adequately and properly any other duties or functions that a registered liquidator is required to carry out under a law of the Commonwealth or of a State or Territory, or the general law [section 40-40(1)(l)(ii) of Schedule 2 of the Act] by accepting an appointment as the liquidator of [ABC Pty Ltd] when you had an actual or apprehended bias or an actual or apprehended conflict of interest due to your pre-appointment advice to the directors of [ABC Pty Ltd] that they had safe harbour protection.

19. In a response dated 22 December 2022, the Applicant, who had by then instructed Ashurst to represent him, conceded (through his lawyers) that after revisiting the relevant professional standards he now accepted that he had "failed to carry out adequately and properly" his duties as a registered liquidator because he had taken a liquidator's appointment in circumstances where he had an actual or apprehended conflict of interest arising from his pre-liquidation appointment as a safe harbour adviser to ABC Pty Ltd. This had occurred because he had not "adequately assess[ed] his independence during the consideration of whether or not he should accept the appointment as a liquidator" of [ABC Pty Ltd]" nor "properly assess[ed] his independence and [had] regard to section 3.6(c) of the ...ARITA Code of Professional Practice (COPP): Insolvency Services and also section 1.6.8 of the ARITA Practice Statement: Insolvency 1 - Independence".
20. The Applicant went on to state that he was regretful and that his misstep arose from a genuine misunderstanding of his obligations however he need not be referred to a committee given his:
    • long unblemished record as a registered liquidator and bankruptcy trustee;
    • commitment to complete both the online ARITA Professional Standards Independence course and the CAANZ course on Ethics and Professional Standards when it became available; and
    • commitment to completing formalised independence checklists prior to taking on future appointments.
21. ASIC responded on 28 March 2023 acknowledging the admissions of the Applicant and explaining that they would consider resolving the matter without referral if the Applicant were agreeable to providing Court Enforceable Undertakings (CEU) under ASIC's Regulatory Guide 100 - Court enforceable undertakings. As is ASIC's practice those undertakings would "be publicly disclosed by way of a media release (on execution and completion) and available via ASIC's CEU register".
22. In response to ASIC's 28 March 2023 letter, the Applicant sought to re-emphasise the corrective steps he had taken and confirmed his continuing commitment to professional education. At the same time the Applicant expressed his unwillingness to offer CEUs that would be subject to ASIC's publication practice, however he confirmed his preparedness to offer private undertakings in similar terms to those sought by ASIC.
23. The parties exchanged further correspondence in the months following with each party's position about published undertakings becoming more entrenched rather than less.
24. On 19 June 2023, ASIC sent the Applicant a letter referring him to a disciplinary committee in accordance with section 40-45 of the IPS. The Committee was to be tasked with making a decision under section 40-55 which provides as follows:

40‑55 Decision of the committee > > (1) If a registered liquidator is referred to a committee under section 40‑50, the committee must decide one or more of the following:

(a) that the liquidator should continue to be registered;

(b) that the liquidator's registration should be suspended for a period, or until the occurrence of an event, specified in the decision;

(c) that the liquidator's registration should be cancelled;

(d) that ASIC should direct the liquidator not to accept any further appointments as liquidator, or not to accept any further appointments as liquidator during the period specified in the decision;

(e) that the liquidator should be publicly admonished or reprimanded;

(f) that a condition specified in the decision should be imposed on the liquidator;

(g) that a condition should be imposed on all other registered liquidators that they must not allow the liquidator to carry out any of the functions or duties, or exercise any of the powers, of a registered liquidator on their behalf (whether as employee, agent, consultant or otherwise) for a period specified in the decision of no more than 10 years;

(h) that ASIC should publish specified information in relation to the committee's decision and the reasons for that decision.

(2) Without limiting paragraph (1)(f), conditions imposed under that paragraph may include one or more of the following:

(a) a condition that the liquidator engage in, or refrain from engaging in, specified conduct;

(b) a condition that the liquidator engage in, or refrain from engaging in, specified conduct except in specified circumstances;

(c) a condition that the liquidator publish specified information;

(d) a condition that the liquidator notify a specified person or class of persons of specified information;

(e) a condition that the liquidator publish a specified statement;

(f) a condition that the liquidator make a specified statement to a specified person or class of persons.

(3) In making its decision, the committee may have regard to:

(a) any information provided to the committee by ASIC; and

(b) any explanation given by the liquidator; and

(c) any other information given by the liquidator to the committee; and

(d) if the liquidator is or was also a registered trustee under the Bankruptcy Act 1966 - any information in relation to the liquidator given to the committee by the Inspector‑General in Bankruptcy or a committee convened under the Insolvency Practice Schedule (Bankruptcy); and

(e) any other matter that the committee considers relevant.

1. Pursuant to Rule 50-85 of the Insolvency Practice Rules (Corporations) 2016 (Cth) the Committee notified the Applicant to attend an interview which was duly conducted on 3 August 2023.
2. At the interview the Applicant appeared together with counsel and his lawyer, and advanced submissions broadly explaining that he had made an honest mistake that would unlikely be repeated. He was however, on the advice of his counsel, unwilling to answer questions seeking to test his understanding of independence requirements in the context of pre-insolvency advice. His counsel argued that it was fairer for the committee to simply rely on the fact that the Applicant had completed further professional education rather than re-testing his understanding.
3. After hearing initial submissions from the Applicant's counsel about the Applicant's fitness to remain registered, the Committee explained that they were not considering cancelling the Applicant's registration and the interview thereafter focused upon the likelihood of whether such an error would be repeated and the question of publication.
4. In substance the publication question revolved around ASIC's underlying expectation that its investigation of the Applicant ought to have a published result. It was clear, as the Applicant's counsel understood, that ASIC would have been content for the matter to conclude prior to the Committee referral, if the Applicant had simply provided CEUs rather than his proposed private undertakings on equivalent terms as the Applicant's lawyers had offered. A key point of agitation to the Applicant was that ASIC's proposed CEUs would, in accordance with Regulatory Guide 100, need to be publicised. During the interview the Applicant expressed his concern that any such publication would be "a black mark against my name for the rest of my life". His counsel went on to argue that in the context of the Applicant's previously unblemished record when one weighed the "prejudice to the individual compared to the benefit to the public", this was not a case that warranted publication of the Applicant's name and the consequent damage to his reputation that would follow.
5. The Committee made its decision on 19 October 2023 in the following terms:
   1. That [the Applicant] should continue to be registered under IPS s40-55(1)(a).
   2. That [the Applicant] should be publicly admonished or reprimanded under s40-55(1)(e); and
   3. That ASIC should publish the fact of the decision, and this report, pursuant to s40-55(1)(h).
6. In its reasons the Committee identified the relevant professional standards that applied to registered liquidators and accepted that the Applicant had acted honestly albeit mistakenly when accepting the liquidation appointment "because he did not understand his obligations...[under the relevant professional standards] and therefore did not recognise the conflict that his pre-appointment advice raised."
7. When considering the likelihood of recurrence, the Committee concluded that owing to the unwillingness of the Applicant to explain "in his own words the evolution in his understanding of the relevant professional standards" and the limited weight it was prepared to give the Applicant's completion of online courses, it could not be satisfied that the Applicant would not make "such an error again". Despite these findings the Committee ultimately felt it unnecessary to either cancel the Applicant's registration or place any limitations upon it.
8. In relation to the applicability of the penalty of publication and public admonishment, the Committee explained that publication of its decisions and reasons was appropriate as it "reflects the central importance of independence to the role of a registered liquidator and would serve as a personal deterrent to [the applicant], as well as to the broader profession". The Committee went on to conclude that it:

considers that making this report public is consistent with the fundamental nature that independence has to the role of a registered liquidator and the importance of avoiding both perceived and actual conflicts of interest. Making this report public ensures that the reasons for this decision are not the subject of inaccurate speculation and will serve the dual purposes of educating the profession in general on the topic, as well acting as a personal deterrent to ensure that to the extent [the Applicant] may not understand his obligations under the relevant professional standards, he will educate himself further and will ensure that such a mistake is not repeated ever again.

9. The Committee's decision was provided to the Applicant in the days that followed. The Applicant was informed that the Committee and ASIC would refrain from publishing it for a short period to allow an opportunity for the Applicant to seek review of the decision with the Tribunal.

Application to this Tribunal and the Role of the Tribunal on Review

1. On 27 October 2023 the Applicant lodged an application with the Tribunal seeking review of the Committee's decision together with a request that the decision be stayed pending the outcome of these proceedings, which in effect, sought to prevent the publication of the Committee's decision.
2. The stay application was not opposed by ASIC and the Tribunal made an order in accordance with section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), staying the "implementation and operation of the of the Respondent's decision of 19 October 2023 to publicly admonish or reprimand the applicant" and restraining ASIC from "publishing the fact of the decision and the report of the decision" until further order or determination of this matter.
3. The substantive application took issue with some factual matters contained in the Committee's decision but broadly sought reconsideration of his circumstances in the hope that the Tribunal would exercise its powers under section 43(1) of the Administrative Appeals Act 1975 (Cth) and determine that the decision of the Committee ought not be published.
4. A Statement of Facts, Issues and Contentions lodged by the Applicant on 12 February 2024 similarly contended that the Committee's decision was plainly incorrect because, amongst a range of procedural complaints which are no longer pressed in these proceedings, it relied on an incorrect finding that the Committee had made about some of the educative coursework that the Applicant had undertaken with ARITA. It argued that once the correct position was understood and it be given appropriate weight, the Tribunal ought set aside the Decision of the Committee and make a decision in substitution that:

(i) The Applicant should not be publicly admonished or reprimanded under section 40-55(1)(e) of the IPS; and

(ii) ASIC should not publish the fact of the decision, or the Report, pursuant to section 40-55(1)(h) of the IPS.

1. The Tribunal is now required to consider the Applicant's application for review and make a decision pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) ('ART Act') affirming, varying or setting aside (and thereafter substituting or remitting) the decision of the Committee. The Tribunal, in doing so, under section 54 of the ART Act, is entitled to "exercise all the powers and discretions" that were conferred on the Committee.
2. The principles governing the scope of the Tribunal's general task on review are well settled and include (as compiled and confirmed by the High Court in Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; 266 CLR 250 at [14]- [15])[1]:
   • that the Tribunal's jurisdiction requires it to re-exercise the functions of the original decision maker subject to the same general constraints as the relevant statutory regime imposes upon the original decision-maker;[2]
   • that the question for determination by the Tribunal is whether the decision is the correct or preferable decision;[3] and
   • that the Tribunal is to consider the material before it rather than simply what was before the original decision-maker[4] and, depending on the nature of the review, this can include evidence of events which have occurred after the date of the original review.[5]
3. As is apparent from the above, the Tribunal's task in this case is to stand in the shoes of the Committee and determine, in the context of the regulatory regime, which of the outcomes identified under section 40-55 of the IPS would constitute the correct or preferable decision in respect of the applicant having regard to his conduct.

1. It is well established that a civil regulator, in considering whether a particular penalty or sanction might be meted out, is to be informed by the regulatory scheme and the particular regulator's objects (see Townshend v Australian Securities and Investments Commission [2023] AATA 3810 at [29] ('Townshend').
2. Sanctions that might be available to a regulator are generally not intended to inflict punishment but rather are to focus on the protection of the public and have deterrence, both specific and general, as its central concerns (see Townshend at [30]; ASIC v Adler & Ors [2002] NSWSC 483 ('Adler'); Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [15]- [19]).
3. Any regulatory response, however, does require something of a balancing exercise to be conducted when considering what may be sufficient to achieve the regulator's statutory objectives (see Townshend at [43] citing with approval Olive Financial Markets Pty Ltd v ASIC [2022] AATA 5229 ('Olive Financial')). As Santow J explained in Adler, when considering the appropriateness of a disqualification order, "It is necessary to balance the personal hardship to the defendant against the public interest and the need for protection of the public against any repeat".

ASIC's statutory objectives in the context of liquidators

1. The broad objectives of ASIC are to be found under section 1 of the Australian Securities and Investment Commission Act 2001 (Cth). Section 1(2) of that Act relevantly provides that ASIC must strive to:

(a) maintain, facilitate and improve the performance of the financial system and the entities within that system....; and

(b) promote the confident and informed participation of investors and consumers in the financial system.

1. In the context of the regulation of liquidators the Insolvency Practice Schedule (Corporations), Schedule 2 of the Corporations Act 2001 (Cth), which was inserted into the Corporations Act in 2017, provides mechanisms for ASIC, the relevant regulator, to:

(a) oversee and administer a scheme of liquidator registration; and > > (b) where necessary to administer disciplinary responses in respect of liquidators' conduct.

2. The IPS' objects are provided for at section 1-1 as being to "ensure that any person registered as a liquidator:"

(a) has an appropriate level of expertise; and

(b) behaves ethically; and

(c) maintains sufficient insurance to cover his or her liabilities in practising as a registered liquidator.

1. To promote its statutory objectives ASIC publishes a guide for Insolvency professionals which sets out its expectations of registered liquidators. ASIC Regulatory Guide 258 (RG-258) titled Registered liquidators: Registration, ongoing obligations, disciplinary actions and insurance requirements.
2. RG-258 is not simply intended to be helpful - ASIC's expectation (as the relevant regulator) is that Insolvency professionals will be aware of and adhere to guidance contained within it (see in particular RG 258.161). Additionally, RG-258 makes clear that in addition to the guide itself, ASIC expects that liquidators in performance of their duties will be aware of and adhere to any industry codes of practice or guides that might be published by relevant professional bodies (including accounting bodies) and any accepted industry standards to the extent they apply. Two such relevant examples in the context of these proceedings are ARITA's Practice Statement: Insolvency 1 - Independence and ARITA's Code of Professional Practice (COPP): Insolvency Services.

1. The importance of a liquidator's independence cannot be overstated. The expectation that appointed liquidators will remain independent and impartial is clearly evident from a cursory perusal of the authorities. In Bovis Lend Lease v Wily [2003] NSWSC 467 ('Bovis Lend Lease'), Austin J at [123] observed that it was:

well established that a liquidator must be, and be perceived to be, independent of the company, its directors and shareholders, and individual creditors. The liquidator must act, and be perceived to act, impartially in the discharge of the duties and responsibilities of his or her office.

2. As explained in ASIC v Franklin (liquidator), in the matter of Walton Constructions Pty Ltd [2014] FCAFC 85 ('Franklin'), "Liquidators are officers of the Court and are, accordingly, expected to conduct themselves with independence, impartiality and integrity".
3. To reinforce the central importance of liquidator independence, ASIC included in RG-258 the following:

Registered liquidators act in a fiduciary capacity - they often have total management control of the affairs, money and other property of an externally administered company and, in some cases, they are officers of the court. They are required to maintain the utmost professionalism, independence, impartiality, honesty and ethics in the performance of their functions and duties. > > .......... > > ...as a fiduciary, you must meet a very high standard of honesty, impartiality and probity. Several fiduciary duties apply to you, including a duty: > > (a) to act in good faith and exercise powers for a proper purpose; > > (b) of independence - you must be, and be perceived to be, independent of the company, its directors and shareholders, and its creditors; > > (c) of impartiality - you must act, and be perceived to act, impartially between all the individuals or corporations involved in the administration in the discharge of your duties and responsibilities; and > > (d) to avoid possible conflict between your personal interests and your duty to creditors and members - this includes the duty not to profit from your role other than to the extent expressly permitted by law.

Conflicts of interest in the context of safe harbour engagements

1. These general statements about independence then bring us to the issues that anchor this application, namely, the likelihood of conflicts of interest arising for a liquidator in circumstances where they have already taken on a Safe Harbour engagement and provided advice therein.
2. The safe harbour provisions contained in Division 3 of Part 5.7B of the Corporations Act were inserted into the principal act by the Treasury Laws Amendment (2017 Enterprise Incentives No.2) Act 2017 and came into effect on 19 September 2017_._
3. The safe harbour provisions were designed to grant directors an "ability to protect themselves from civil liability for insolvent trading"[6] by establishing a 'safe harbour' to enable them, prior to a company entering liquidation, to "take courses of action reasonably likely to lead to a better outcome for the company[7]" (per section 588GA of the Corporations Act).
4. Under section 588GA(2) in working out whether a particular course is reasonably likely to lead to a 'better outcome' a director is entitled to obtain advice from an "appropriately qualified entity who was given sufficient information to give appropriate advice". Such advice provides directors with a level of 'safe harbour' protection from subsequent actions brought for insolvent trading should the company ultimately enter a phase of liquidation.
5. It therefore comes as no surprise that a liquidator who has provided such safe harbour advice prior to an appointment as liquidator would necessarily have to scrutinise, amongst other matters, the correctness of their own safe harbour advice as well as the level of director compliance during the relevant period.
6. A number of court decisions focus upon conflicts of interest or questions of a lack of impartiality that might arise from pre-insolvency connections between a liquidator and a soon to be liquidated company (as honest or benign as those connections may often be). As Austin J extracts with approval in Bovis Lend Lease at [128]:

Fitzgerald P, Pincus JA and Williams J state in Re Chevron Furnishers Pty Ltd (No 2) [1995] 1Qd R 125 at 130: > > "The liquidator must have had no prior or other involvement either with the company in liquidation, its directors and major shareholders, or one of its creditors so that he could not fairly and impartially carry out his duties as liquidator requiring him, in broad terms, to act in the best interests of the general body of creditors."

a perception of lack of independence may arise where the liquidator's own firm is a potential subject of investigation in the course of the winding up. That was the problem in Re National Safety Council of Australia [1990] VicRp 2; [1990] VR 29, where the liquidator's firm had prepared a report on the company's accounting procedures and controls, in respect of which it might arguably have been appropriate for the liquidator to take proceedings in negligence. > > (emphasis added)

8. In a case involving a question of whether a liquidator ought to have been removed from a liquidation owing to a prior relationship, their honours Jessup, Robertson and White JJ in Franklin explained at [57]-[58]:

57 An appearance of bias arising by association is a recognised category of disqualification: Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74. It arises when the apprehension of bias results from some direct or indirect relationship, experience or contact with a person or persons interested in a matter. > > 58 The guiding principle is that a liquidator must be independent and be seen to be independent [citations removed].

9. Given the statements in Bovis Lend Lease and Franklin above and having regard to the nature of safe harbour advice, it is difficult to conceive how such advice would not amount to a form of 'prior or other involvement' as described by the Full Court in Franklin. It surely then follows that in almost all conceivable circumstances where an insolvency practitioner has provided advice in the context of Safe Harbour engagement, they would necessarily find themselves in a conflict of interest should they go on to act as liquidator.
10. In case there is any ambiguity about such matters (and as was brought to the Applicant's attention by ASIC as early as 2 May 2022) the ARITA Practice Statement: Insolvency 1 - Independence at 1.68 expressly explains that:

... if a Member has provided advice to a company or the directors of a company which they intend to, or do rely upon, to avail themselves of the safe harbour provisions of the Corporations Act, the member cannot take a subsequent Appointment" [emphasis added].

11. In fairness to the Applicant, the ARITA statement extracted above is followed by a notation that suggests there may be limited circumstances where such engagements may be capable of co-existence. However, the notation limits those circumstances to applying only when the relevant Safe Harbour engagement effectively did not proceed.
12. In considering the engagement described by the Applicant (see for example at paragraph ‎16 above) it is hard to imagine how someone of the Applicant's extensive experience could fail to identify what appears to be an obvious conflict of interest. The fact that he did only serves to reinforce the need for registered liquidators to be reminded that they must carefully consider their circumstances when accepting liquidation appointments generally, and particularly so when they have already provided pre-insolvency advice of one form or another.

1. I do not understand the following to be in contest between the parties:

(a) The Applicant in these proceedings is an experienced chartered accountant and insolvency practitioner who has practiced for over 4 decades without ever coming to the attention of any regulator. > > (b) The Applicant has been a longstanding member of both CAANZ and ARITA and accordingly ought be aware of the operation and effect of a range of regulatory guides that govern the areas in which the Applicant provides professional services. > > (c) From 22 or 23 November 2021 until late January 2022, the Applicant was engaged by ABC Pty Ltd to provide pre-insolvency advice which would afford its directors 'safe harbour' protection pursuant to section 588GA of the Corporations Act and thereafter provided pre-insolvency advice. > > (d) On 1 February 2022, ABC Pty Ltd entered into a creditor's voluntary liquidation and soon after the Applicant accepted an appointment as liquidator, despite having previously provided the company with Safe Harbour advice. > > (e) In accepting the liquidator's appointment, having already provided Safe Harbour advice, the Applicant had (as identified in the Committee's decision and as conceded by the Applicant): > > * failed to properly assess his independence with "reference to regard to the Australian Restructuring Insolvency & Turnaround Association (ARITA) Code of Professional Practice (COPP) and including ARITA's Practice Statement: Insolvency 1 - Independence (PSI1)"; and > * taken the appointment in circumstances where he had an actual or apprehended bias or an actual or apprehended conflict of interest.

The appropriate regulatory response and matters of deterrence

1. I now turn to the question of what the appropriate regulatory response should be in the circumstances of this case.
2. Whilst the parties may agree on the matters contained in paragraph ‎70 above, they do not agree upon the appropriate regulatory response required. The parties are separated in their views by the degree to which there remains a need for specific deterrence in respect of the Applicant, as well as the extent there remains a need (as a matter of general deterrence) for the Respondent regulator to admonish the Applicant publicly.
3. In his submissions (both in writing and at the hearing) the Applicant broadly argued that the Committee's decision under section 40-55 of the IPS to publicly admonish and reprimand him and for ASIC to publish the Committee's reasons should be set aside. In its place, he argued, the Tribunal should make orders allowing his continued registration as a liquidator but make no further order directing ASIC to publish the Committee's reasons.
4. ASIC, for its part, mounted no significant argument that there needed to be orders which acted to specifically deter the Applicant. In this regard, they appeared to gain some comfort from the undertaking given by the Applicant in the course of the hearing before me, that he would no longer engage in the type of pre-insolvency work that had brought him difficulties here. However, ASIC broadly argued that there remained a need to publish the Committee's decision so that its regulated community of registered liquidators could be made aware that:
   • they needed to remain vigilant in assessing their independence prior to taking liquidator appointments; and
   • they can expect to find themselves in a conflicted position in almost all circumstances where they have been appointed liquidator after having provided a company with 'safe harbour advice'.
5. As can be seen the 'real sticking point' (to borrow the language of the Applicant's counsel) between the positions of the parties was whether any regulatory action ought to include the publication of the Committee's decision inclusive of the Applicant's name.

Is there a concern the Applicant might repeat his mistake (Specific Deterrence)

1. An important question for me to consider is whether there is a need for any of the possible orders available under section 40-55 of the IPS to be imposed upon the Applicant to ensure he is sufficiently deterred from making a similar error.
2. The Applicant submitted that he accepts the seriousness of his conduct and admits that he did not adequately assess his independence prior to being appointed to act as liquidator of ABC Pty Ltd. He acknowledges that he breached his professional standards but he emphasises that his mistake arose from "a lack of understanding, rather than a wilful decision". The Applicant argues that the Tribunal (on review) need not make any orders which might be designed to deter him from engaging in similar conduct because:

(a) this wasn't a situation where he had acted dishonestly; > > (b) there is no issue between the parties about his fitness to continue to be registered; and > > (c) since being put on notice of the issue by ASIC he had: > > * voluntarily undertaken further professional education to ensure that he would not fall into similar difficulties in the future; > * put in place controls and procedures to ensure conflicts would be properly identified in the future; and > * decided that he would no longer engage in any 'safe harbour' advice work.

3. I am satisfied, and I do not understand it to be in contest, that since the Committee's decision was handed down the Applicant has:
   • undertaken and completed an even further range of professional development courses focusing on issues of conflicts of interest and independence;
   • together with his lawyers' assistance developed a range of practice tools which are expected to focus his mind when assessing independence; and
   • before me (through his counsel) undertaken to no longer engage in safe harbour advice appointments.
4. It is regretful that the Applicant initially took some time to accept the conflict identified by ASIC however, I am confident that (based on the submissions advanced on his behalf) he is now aware of the nature and seriousness of that conduct. It is also regretful that, as part of his case today, the Applicant pressed the fact that there was ultimately no one harmed, or any loss caused, by his taking of the liquidator appointment in circumstances where he had a conflict of interest. As ASIC's counsel correctly pointed out, such matters are beside the point.
5. Whilst there may be limited evidence before me of such matters I can infer that the Applicant would have undoubtably expended significant time, energy and funds in addressing the concerns of ASIC. The steps he appears to have taken in correcting his mistake, seeking legal advice about implementing practical preventative measures and undertaking extensive remedial professional education courses is illustrative of the seriousness with which he takes his previous failings.
6. In my view the Applicant's error, whilst undoubtably serious, appears to have been unintentional, innocent in nature and unlikely to be repeated. Further, it is worth acknowledging that when the matter was before the Committee it felt inclined to make a direction that the Applicant "should continue to be registered under IPS section 40-55(1)(a)" but took no steps to impose any supervisory conditions upon that registration. The Committee made those orders notwithstanding its non-satisfaction as to the Applicant's then "understanding of the professional standards as they relate to conflict and independence in the circumstance of pre-appointment advice" or "that such an error will not occur again". I can only infer that whatever concerns the Committee might have entertained were overcome by placing a significant and appropriate amount of weight upon the Applicant's extensive experience and clean regulatory history.
7. I am comfortably satisfied that the Applicant is unlikely to commit the same error in the future and see no regulatory reason to make additional orders seeking to ensure as much.

1. I turn now to the more contested question of whether matters of general deterrence require a direction that the Committee's decision be published.
2. As explained above, regulatory responses are to be driven by a focus on protection of the public and are not intended to be punitive. They should not seek to go beyond what is required to achieve the regulator's statutory objectives thus lurching towards what might amount to punishment (See Adler generally and ASC v Donovan & Anor [1998] FCA 986; (1998) 28 ACSR 583 at 608).
3. In Sovereign Capital Ltd v Australian Securities and Investments Commission [2008] AATA 901 at [84], the Tribunal explained that where the lesser of two regulatory responses would "accomplish the objects of the legislative scheme" then that lesser response is "ordinarily preferable" (see also Olive Financial).
4. Deciding how far to 'turn the dial' in terms of regulatory response is not a decision to be made myopically or in a vacuum. His Honour Santow J in Adler at [56], when evaluating a range of authorities that considered whether a practitioner should suffer disqualification, suggested that in choosing the correct regulatory response it "is necessary to balance the personal hardship to the defendant against the public interest and the need for protection of the public from any repeat of the conduct".
5. That being said, the scales will generally fall toward the need to satisfy the regulatory objectives and do not prioritise hardship suffered by individual. As Deputy President McCabe (as he then was) explained in Olive Financial "achieving the objectives of the legislative regime might require the decision-maker to give significant weight to the deterrent value of regulatory action". Such regulatory bias may be especially pronounced when the harm to be weighed is reputational in nature or unparticularised financial detriment (see for example the observations of Downes and Jagot JJ in Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 at [76] albeit made in a slightly different context).
6. Turning to the submissions, the Applicant argued that it was unnecessary for ASIC to publish the Committee's decision as it would serve no additional or particular purpose other than to damage his reputation. Publication of the Committee's decision with his name on it would, in his view significantly and adversely impact his business in a way that far outweighed any general deterrent benefit. The Applicant wished to stress that, weighing against any need to publish the decision, the Committee (and the Tribunal in its stead) needed to balance the "hardship on [the Applicant] against the need for protection of the public". It followed, he argued, that any decision to compel ASIC to publish the Committee's decision would simply 'name and shame' and ruin his reputation as a liquidator for no overall deterrent benefit.
7. In response, ASIC accepted the matters identified at paragraph [‎70] & [‎77] above. ASIC also acknowledged that there was no question that the Applicant was aware of the seriousness of his conduct, had undertaken extensive remedial professional education, and was unlikely to transgress in the same fashion in the future.
8. However, in ASIC's view publishing the Committee's decision and, in doing so publicly admonishing the Applicant, would broadcast to the community of professional liquidators:
   • That the independence of a liquidator is of primary importance and there is need to ensure that conflicts of interest are identified and avoided where they arise from pre-liquidation advice engagements.
   • That it is likely that any safe harbour advice a liquidator might provide would, in almost all circumstances, preclude them from acting in any consequent liquidation (as is clearly explained in the ARITA Practice Statement: Insolvency 1 - Independence at 1.68); and
   • Even the most experienced of practitioners need to always remain vigilant and carefully scrutinise the nature of their appointments to ensure they can certify their independence.
9. In response to the Applicant's submissions, ASIC argued that the Applicant's focus (in these proceedings) on his rehabilitative steps "fail(ed) to give appropriate weight to the importance of independence and the role that decisions such as this play in deterring other members of the profession from making decisions which compromise their independence". ASIC stressed that the Safe Harbour protection provisions were relatively new additions to the Corporations Act having only been introduced in late 2017 and this alone increased the educative need that would be served by publication.
10. ASIC further submitted that the Applicant's responses to its initial enquiries prior to receiving the 'show cause notice' were less than stellar. In their view, whilst the Applicant had come around to understanding the error of his ways, he ought to have been much more responsive to ASIC's concerns in the first instance rather than 'parking' the matters until after ABC Pty Ltd's liquidation concluded.
11. In terms of any hardship that the applicant may suffer due to publication, ASIC argued there was no demonstrable or reliable evidence before the Tribunal that the mere publication of one's name in itself would cause hardship and it ought not be inferred. ASIC went further to say that publication of this decision together with the Applicant's name attached may, in fact, be a good news story for the Applicant. In that sense it showed that the Applicant was able to acknowledge his mistake, adjust his course and be contrite. It would, with ASIC noting that its register already disclosed that the Applicant had been referred to a committee, 'close the circle' and avoid untrue speculation about how his referral resolved.
12. I accept the submission of ASIC that there is an educative need and regulatory utility in ASIC being able to disseminate amongst its registered liquidator cohort a decision illustrating both the underlying importance of a liquidator's independence and the need for vigilance, in ensuring that conflicts of interest are identified and avoided, particularly following safe harbour engagements. Having a decision illustrating such matters assists in in fulfilling its regulatory objectives and I accept this need is more pronounced given the relative newness of the 'safe harbour' provisions.
13. I also accept ASIC's submission that there is no direct and formal evidence of the hardship that the applicant has suffered since first being contacted by ASIC and or evidence of hardship that he would go on to suffer should the Committee's decision be published. However, as I explained above, to some extent these matters may be inferred. That the applicant will have endured a difficult period since being contacted by ASIC and that publication of the Committee's decision will cause the Applicant a level of professional and reputational detriment ought be uncontroversial and, at least, inferentially available. Whilst the extent of such hardship may be unparticularised before me, there is some evidence (as illustrated by the responses provided by the Applicant to the Committee) of the mental anguish that publication will cause the Applicant. As the point was made in Franklin at [61] "the success or otherwise of liquidators will depend in part on their maintaining good professional reputations".
14. Whilst the weight I can afford the Applicant's hardship in the face of regulatory objectives is moderate, when considered alongside the Applicant's extensive unblemished practice experience, his contrition as disclosed in his later correspondence with ASIC and his willingness to have voluntarily undertaken such extensive remedial professional education, I find that on balance the dial moves ever so slightly in his favour.
15. The only question that then remains is whether the undoubted regulatory objectives of ASIC might be satisfied by some lesser response than publishing the committee's decision in full which would, in effect, identify the Applicant.
16. In the course of these reasons and as part of considering what orders under section 40-55 of the IPS would constitute 'the correct or preferable decision' I have sought to focus upon:
    • the abundance of case law and regulatory guidance that highlights the central importance of a liquidators' independence;
    • the critical need for a liquidator to properly appraise and avoid both perceived and actual conflicts of interest;
    • The likelihood that conflicts will arise in circumstances where a liquidator, having provided advice to a company which purports to provide safe harbour protections under section 588GA, subsequently accepts an appointment as liquidator;
    • the clear and unambiguous published guidance of ASIC and ARITA in respect of liquidation appointments following the provision of safe harbour advice;
    • the need for even the most honest and experienced of registered liquidators to carefully assess their independence prior to taking on appointments; and
    • the potentially serious regulatory consequences that may flow should a registered liquidator fail to appropriately identify such a conflict.
17. I have focused on such matters because in considering whether general deterrence mandates that the Committee's decision (together with the inclusion of the Applicant's details) needs to be published I have drawn the following conclusions:

(a) the Applicant's extensive unblemished record and lengthy experience should operate as a reminder and a cautionary tale that even the most experienced of practitioners must remain vigilant to conflicts when taking liquidation appointments; > > (b) there is a regulatory need for ASIC to educate its community of registered liquidators about independence in the context of Safe Harbour engagements; > > (c) such regulatory need would be equally satisfied by publication of an anonymised version of my reasons as they would be by full publication of the Committee's decision; and > > (d) lastly, in my view with the regulator's statutory objectives being adequately met the imposition of an additional hardship upon the Applicant (by way of reputational damage) would be unnecessary and beyond the requisite response.

18. The reputational damage that the Applicant would suffer, as slight a hardship as that may ultimately be, is no doubt slightly more pronounced having regard to the Applicant's long unblemished professional record, his contrition, the remedial measures he has since undertaken and the relatively recent introduction of the Safe Harbour provisions. The needle may have fallen differently should any of these elements have been absent.
19. Lastly, to the extent ASIC expressed some concerns about 'closing the circle' and ensuring that there was no undue speculation about the outcome of the Applicant's referral to the Committee, I accept the point raised by the Applicant's counsel in response. That point being that there have been referrals to the Committee in the past which have been resolved by the making of a single order pursuant to section 40-55(1)(a) of the IPS, that the relevant liquidator continue to be registered and that no other order be made. I see no reason why the circle can't be similarly closed in the Applicant's case.

1. For the reasons above I have decided that under section 105(b) of the Administrative Review Tribunal Act 2024 (Cth) the reviewable decision is to be varied so that the Committee's decision under section 40-55 of the IPS be limited to:
   1. [the Applicant] should continue to be registered under IPS section 40-55(1)(a).
2. At the time of the hearing, on 19 November 2024, I made an order that the hearing was to be conducted in private pursuant to section 69(3) of the ART Act after developing a concern that a person not related to the parties may seek to enter the hearing. At the time I was of the view that whilst it is desirable that the Tribunal's hearings be generally held in public such an order was clearly required to preserve the substance of this dispute. Neither party opposed the making of such an order.
3. Now having determined the application in the manner described by these reasons, further orders under section 70 of the ART Act are warranted to give efficacy to this determination. I propose (having considered the matters identified in section 71) making an order under section 70 which will prohibit or restrict the publication or other disclosure of information tending to reveal the identity of the applicant.

Mr R. Chiarella, Australian Securities and Investments Commission

[1] See also Senior Member Lazanas (as she then was) in Rogers v Australian Securities and Investments Commission [2024] AATA 3161 at [15]).

[2] Citing Liedig v Commissioner of Taxation [1994] FCA 1058; (1994) 50 FCR 461).

[3] Citing Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286).

[5] Citing Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.

[6] ASIC Regulatory Guide 217: Duty to prevent insolvent trading: Guide for directors.

[7] Corporations Act 2001 (Cth) section 588GA.