• 8. Intelligence sharing




    • What are we seeing?
    • What are we doing about it?
    • What outcomes have been achieved?


    • Information can be shared with nominated agencies orally, however if it's to be disseminated, a formal process is required to be followed.
    • Most information that is shared is within formal 'determinations' that is, staff from other agencies become ACC 'staff' which permits information to be shared openly.
    • It was suggested AUSTRAC and Department of Immigration and Citizenship should be invited to become taskforce members.


    • The ACCC has the ability to share information which assists another agency with their activities. However, where information is considered 'confidential', the approval of the ACCC Chairman is required.


    • ASIC raised concerns about the forum's 'whole of government' approach to 'phoenix' and the need for the forum to be more 'overt'. Publication of the forum's charter on the ATO's website does assist, however the forum needs to identify other ways of demonstrating and promoting its effectiveness.
    • ASIC is planning to conduct national presentations to insolvency practitioners towards the end of 2012, concerning reporting requirements (as discussed at agenda 3 above - action item 6.2). There may be an opportunity for other agencies to participate in these presentations, which could help promote awareness of the fact agencies are starting to work together to address fraudulent phoenix behaviour.
    • The establishment of a 'task force' (as discussed at agenda 5 above) is another way of delivering a strong message to the community.


    • CER's legislation provides for the sharing of information for 'law enforcement activities'. Their legislation provides for protected information through established MOU's including those with the ACCC, ASIC and the ATO. There are also new ones being considered with other agencies (e.g. ACC).
    • CER's key areas of management include:
      • the registering of entities as offset entities under the carbon farming initiative
      • entities having the ability to remit their liability or be given free carbon units.


    • Given that it appears ASIC and the ATO are planning on conducting presentations to insolvency practitioners later this year, DEEWR would also like to be involved. DEEWR are expecting new legislation on 'fair entitlement guarantee' to be introduced into Parliament in September with the intention of it passing soon after. There will therefore be a need to raise awareness of this change with key audiences such as insolvency practitioners.


    • There has not been any research into the building and construction industry on the incidents of phoenix activity since the Royal Commission into the Building and Construction Industry of 2003.
    • FWBC will shortly commission research into the building and construction industry on:
      • what is currently available to help and inform this group
      • what legal remedies are available to avoid FWBC having to seek legislative reform
    • The ability to exchange information with other agencies has improved since the establishment of the FWBC. Their provisions are now very similar to those of the FWO.


    • A PricewaterhouseCoopers research paper Phoenix activity Sizing the problem and matching solutions commissioned by FWO issued on 4 July 2012. The Fair Work Ombudsman participated in several media interviews and the report received very favourable media coverage. Overall, the report was well received by both employer and employee associations.
    • An MOU is nearing completion between FWO and the ATO. This will assist in the sharing of information between both agencies. The disclosure provisions under the Fair Work Act are very broad, hence information can be shared more easily than perhaps some other agencies might be able to.


    • SEWPaC has 16 pieces of legislation which they administer. Compliance is divested down to line areas, thus there is no single central point of control. Larger networks of regulatory compliance managers are beginning to form within the agency and information sessions about the Inter-Agency Phoenix Forum have been delivered to them.
    • The PricewaterhouseCoopers research paper assisted in creating awareness of the phoenix issue within the agency.
    • Recently SEWPaC took legal action against a client however the actual impact was minimal. An injunction was obtained to stop the client from supplying non-compliant fuel under the Fuel Quality Standards Act. The directors however responded by closing the company and then commenced a 'new' business in the same industry, at the same business premises, free of all regulatory burden and avoiding possible legal action from other agencies.
    • As SEWPaC is a small agency, they are keen to learn from other agencies who have been addressing 'phoenix' issues for a longer period of time.

    Action item no.




    What phoenix related, publicly available information does each agency have that may be of interest to forum members? This information should be circulated prior to the next meeting, for agencies to consider.


      Last modified: 14 Dec 2012QC 26757