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Improving Schemes of Arrangement

22 September 2021

The ABA suggests that in finalising the proposal an updated analysis of the existing Scheme regime would be of benefit to consider current market practices which may have evolved since the Productivity Commission’s 2015 report ‘Business Set-up, Transfer and Closure’.

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Modernising Document Execution
8 October 2021

Currently, significant delay, financial costs and opportunity costs result from the need to sign and witness deeds and statutory declarations on paper; these costs also result from inconsistent and
uncertain regulations under Commonwealth, State and Territory laws.

The ABA strongly advocates for the reforms to remain technology neutral and provide a single, consistent approach to executing deeds and statutory declarations. Otherwise the reforms may make it
harder to use, and therefore disincentivise the use of, electronic execution.

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Insolvent Trading Safe Harbour
1 October 2021

Key points:
• The eligibility requirements to trigger the safe harbour protections are too onerous and should be amended
• Use of the safe harbour should be made more cost effective
• The safe harbour regime would be improved by reducing complexity and providing more certainty in interpretation
• The safe harbour regime should provide for better incentives for the involvement of professional advisers
• Provide for advice to be obtained from a registered liquidator to ensure that it is appropriate
• Increase awareness of the safe harbour regime
• Any changes to the disclosure requirements for safe harbour should recognise that disclosure of the safe harbour restructuring plan is not appropriate in all circumstances
• Consider shifting the burden of proof to establish safe harbour defences to insolvent trading

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Unfair Contract Terms – FICA Submission
1 October 2021

While individual FICA members have provided their own detailed submissions, and these highlight several specific issues relevant to their membership, the purpose of this submission is to outline the key areas of common agreement between FICA members and suggested next steps.
Topics covered include:
– Introduction of civil penalties
– Flexible remedies – Rebuttable presumption
– Flexible remedies – Injunctions
– Existing remedies available under the UCT regime
– Definition of Small Business and Monetary Value of Contracts
– Transitional provisions

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