This project examines fraudulent phoenix activity in Australia and its regulation.
- Professor Michelle Welsh (Department of Business Law and Taxation, Monash University)
- Professor Helen Anderson (Melbourne Law School)
- Professor Ian Ramsay (Melbourne Law School)
- Professor Ann O'Connell (Melbourne Law School)
Project Background and Aims:
Fraudulent phoenix activity is of great concern to Australian policymakers. It occurs where there is the deliberate liquidation of a company to avoid paying debts but the business continues through another company, and in corporate groups through the liquidation of under-capitalised subsidiaries and transfer of business to other companies in the group.
This behaviour causes huge losses in taxation revenue and large financial losses for employees and unsecured creditors. To strengthen Australia's economic fabric, this project aims to determine the optimal method of dealing with fraudulent phoenix activity through a thorough examination of all of its aspects in Australia and by a comparative analysis of international responses.
The analysis is doctrinal and empirical.
Since the launch of the Phoenix Project, the Phoenix Research Team has been collaborating with key stakeholders and have been making submission to Government and appearing before enquiries. For example, in 2015 Professor Michelle Welsh gave evidence before the Senate Economics References Committee (SERC) inquiry into insolvency in the Australian construction industry.
Several of the Phoenix Research Team’s key recommendations made in submissions have been supported in whole or in part by the Productivity Commission and the SERC. These recommendations include the introduction of a Director Identity Number and the need for increased identity checks for directors at the time of incorporation. The team’s third and final report ‘Phoenix Activity: Recommendations on Detection, Disruption and Enforcement (February 2017)’ was released on 24 February 2017 and has been the subject of much publicity.
- Anderson, H, Ramsay, I, Welsh, M, and Hedges, J., Phoenix Activity: Recommendations on Detection, Disruption and Enforcement (February 2017)
- Anderson, H, O'Connell, A, Ramsay, I, Welsh, M, and Withers, H., Quantifying Phoenix Activity: Incidence, Cost, Enforcement (October 2015)
- Helen Anderson, Ian Ramsay, Ann O'Connell, Michelle Welsh and Hannah Withers, Defining and Profiling Phoenix Activity (December 2014)
- Helen Anderson, Jasper Hedges, Ian Ramsay, and Michelle Welsh ‘The Potential Economic Gains from Increasing Public Law Enforcement against Illegal Phoenix Activity’ (2018) 44 (1) Monash University Law Review 267 - 311.
- J Hedges, H Anderson, I Ramsay and M Welsh, ‘Harmful Phoenix Activity And Disqualification From Managing Corporations: An Unenforceable Regime?’ (2018) 36(2) Company and Securities Law Journal 169 – 174.
- Hedges, J, Anderson, H, Ramsay, I, and Welsh, M., ‘No “Silver Bullet”: A Multifaceted Approach to Curbing Harmful Phoenix Activity’ (2017) 35 Company and Securities Law Journal 277.
- M Welsh and H Anderson, “Director Restriction: An Alternative to Disqualification for Corporate Insolvency” (2019) 37(1) Company and Securities Law Journal 23.
- Anderson, H, Hedges, J, Ramsay, I, and Welsh, M., 'Illegal Phoenix Activity from the Insolvency Practitioner's Perspective' (2016) 28(4) ARITA Journal 23-25
- Anderson, H, Hedges, J, Ramsay, I, and Welsh, M., ‘At the Coalface of Corporate Insolvency and Phoenix Activity: A Survey of ARITA and AICM Members’ (2016) 24 Insolvency Law Journal 209
- Anderson, H, Ramsay, I, and Welsh, M., ‘ASIC, Phoenix Activity and the View from the Outside’ (2016) 34 Company and Securities Law Journal 625
- Anderson, H, Hedges, J, Ramsay, I, and Welsh, M., ‘Illegal Phoenix Activity – What Do AICM Members Think About It’ (2016) 24(1) Credit Management in Australia 18-19
- Welsh, M, and Anderson, H, ‘The Public Enforcement of Sanctions Against Illegal Phoenix Activity: Scope, Rationale and Reform’ (2016) 44 Federal Law Review 201
- Anderson, H, Ramsay, I, and Welsh, M, ‘Illegal Phoenix Activity – Quantifying Its Incidence and Cost’ (2016) 24 Insolvency Law Journal 95
- Anderson, H, O'Connell, A, Ramsay, I, Welsh, M, and Withers, H., ‘The Productivity Commission, Corporate Insolvency and Phoenix Companies’ (2015) 33 Company and Securities Law Journal 425
- Anderson, H, O'Connell, A, Ramsay, I, Welsh, M, and Withers, H., ‘Profiling Phoenix activity: A new taxonomy’ (2015) 33 Company and Securities Law Journal 133