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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Bankruptcy
Legislation Amendment Bill 2001
No. ,
2001
(Attorney-General)
A
Bill for an Act to amend the law relating to bankruptcy, and for related
purposes
ISBN: 0642 458944
Contents
Bankruptcy Act
1966 3
Part 2—Transitional
provisions 53
A Bill for an Act to amend the law relating to
bankruptcy, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Bankruptcy Legislation Amendment Act
2001.
(1) Subject to this section, this Act commences on a day to be fixed by
Proclamation.
(2) Subject to subsection (3), if this Act does not commence under
subsection (1) within the period of 6 months beginning on the day on which
this Act receives the Royal Assent, it commences on the first day after the end
of that period.
(3) Items 41, 61, 125 and 153 (the deferred items) of
Schedule 1 commence as follows:
(a) if Parts 4 and 10 of the Administrative Review Tribunal Act
2001 have not commenced before the day that applies under
subsections (1) and (2) of this section—the deferred items commence
immediately after the commencement of Parts 4 and 10 of the
Administrative Review Tribunal Act 2001;
(b) otherwise—the deferred items commence immediately after the
commencement of the remaining items of Schedule 1.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
1 Subsection 5(1)
Insert:
administrator, in relation to a debt agreement, means the
person authorised under paragraph 185C(2)(c) to deal with property under the
agreement.
2 Subsection 5(1)
Insert:
cooling-off period, in relation to a debtor’s petition,
means the period of 30 days referred to in subsection 55(4B) or 57(5A), as the
case requires.
3 Subsection 5(1) (definition of
debtor’s petition)
Omit “section 56”, substitute
“section 56A”.
4 Subsection 5(1) (definition of declaration
of intention)
Repeal the definition.
5 Subsection 5(1) (definition of declared
debtor)
Repeal the definition.
6 Subsection 5(1) (definition of enforcement
process)
Repeal the definition.
7 Subsection 5(1) (definition of frozen
debt)
Repeal the definition.
8 Subsection 5(1)
Insert:
ITSA means the Insolvency and Trustee Service Australia,
which is established as an Executive Agency under section 65 of the
Public Service Act 1999.
9 Subsection 5(1)
Insert:
offence against this Act includes an offence against
section 137.1 or 137.2 of the Criminal Code, being an offence that
relates to this Act.
10 Subsection 5(1)
Insert:
officer of ITSA means an APS employee in ITSA, and includes
the Inspector-General.
11 Subsection 5(1) (definition of stay
period)
Repeal the definition.
12 Subsection 5AA(1) (table
item 3)
After “section 50”, insert “, 55B or
57AB”.
13 Subsection 11(4)
Omit “officer of the Department”, substitute “officer of
ITSA”.
14 Paragraph 12(1)(b)
After “conduct of a trustee”, insert “(including a
controlling trustee)”.
15 Subparagraph 12(1)(b)(v)
After “subsection 50(1)”, insert “or section 55B or
57AB”.
16 After paragraph
12(1)(ba)
Insert:
(bb) may make such inquiries and investigations as the Inspector-General
thinks fit with respect to any conduct of an administrator that relates to a
debt agreement; and
17 Subsection 15(4)
Omit “officer of the Department”, substitute “officer of
ITSA”.
18 Section 16
Omit “Secretary to the Department”, substitute
“Minister”.
19 Subsections 17(1) to (6)
Repeal the subsections, substitute:
(1) The Minister may appoint a person to act as
Inspector-General:
(a) during a vacancy in the office of Inspector-General; or
(b) during any period, or during all periods, when the Inspector-General
is absent from duty or from Australia or is, for any other reason, unable to
perform the functions of his or her office.
(2) The Inspector-General may appoint a person to act as Official
Receiver:
(a) during a vacancy in the office of Official Receiver; or
(b) during any period, or during all periods, when the Official Receiver
is absent from duty or from Australia or is, for any other reason, unable to
perform the functions of his or her office.
20 Subsection 17(7)
Omit “subsection (1)”, substitute “this
section”.
21 Paragraph 18A(2)(b)
After “section 50”, insert “, 55B or
57AB”.
22 Paragraph 19(1)(i)
After “referring to”, insert “the Inspector-General or
to”.
23 Subsection 19AA(1)
Omit “A registered trustee who is the trustee”, substitute
“The trustee”.
24 Subsection 19AA(2)
Repeal the subsection.
25 Paragraph 20B(8)(a)
After “section 50”, insert “, 55B or
57AB”.
26 After section 33
Insert:
(1) This section applies to a statement of affairs that was filed for the
purposes of section 54, 55, 56B, 56F or 57 by a bankrupt, or by a person
who later became a bankrupt.
(2) If the Court is satisfied that the person believed, on reasonable
grounds, that the statement had already been filed at a time before it was
actually filed, the Court may order that the statement is to be treated as
having been filed at a time before it was actually filed.
(3) The Court cannot make an order that would result in the person being
discharged from bankruptcy earlier than 30 days after the order is
made.
(4) In this section:
filed includes presented, lodged or given.
27 Paragraph 40(1)(da)
Repeal the paragraph.
28 After paragraph 40(1)(d)
Insert:
(daa) if the debtor presents a debtor’s petition under this
Act;
29 Subsection 41(1)
Repeal the subsection, substitute:
(1) An Official Receiver may issue a bankruptcy notice on the application
of a creditor who has obtained against a debtor:
(a) a final judgment or final order that:
(i) is of the kind described in paragraph 40(1)(g); and
(ii) is for an amount of at least $2,000; or
(b) 2 or more final judgments or final orders that:
(i) are of the kind described in paragraph 40(1)(g); and
(ii) taken together are for an amount of at least $2,000.
30 Paragraph 41(3)(b)
Omit “its issue, execution of the judgment”, substitute
“the issue of the bankruptcy notice, execution of a
judgment”.
31 Paragraph 41(6A)(a)
Omit “the judgment”, substitute “a
judgment”.
32 Paragraph 41(6C)(a)
Omit “the judgment”, substitute “a
judgment”.
33 Paragraph 43(2)(a)
Omit “or in accordance with Division 3 of
Part VII”.
34 Subsection 50(1)
After “bankruptcy notice is issued”, insert “, or a
creditor’s petition is presented,”.
35 Paragraph 54(1)(a)
Omit “in the office of”, substitute
“with”.
36 Subsection 54(4)
Omit “make copies of”, substitute “obtain a copy
of”.
37 At the end of
section 54
Add:
(5) A bankrupt against whom a sequestration order has been made may,
without fee and either personally or by an agent:
(a) inspect the bankrupt’s statement of affairs; or
(b) obtain a copy of, or take extracts from, the bankrupt’s
statement of affairs.
(6) If the approved form for a statement of affairs indicates that
particular information in the statement will not be made available to the
public, then the Official Receiver must ensure that the information is not made
available under this section to any person (other than the bankrupt or an agent
of the bankrupt).
(7) The Official Receiver may refuse to allow a person access under this
section to particular information in a bankrupt’s statement of affairs on
the ground that access to that information would jeopardise, or be likely to
jeopardise, the safety of any person.
38 Division 2A of
Part IV
Repeal the Division.
39 After subsection 55(2)
Insert:
(2A) The Official Receiver must reject a debtor’s petition unless,
at the time when the petition is presented, the debtor:
(a) was personally present or ordinarily resident in Australia;
or
(b) had a dwelling-house or place of business in Australia; or
(c) was carrying on business in Australia, either personally or by means
of an agent or manager; or
(d) was a member of a firm or partnership carrying on business in
Australia by means of a partner or partners or of an agent or manager.
40 After subsection 55(3)
Insert:
(3AA) The Official Receiver may reject a debtor’s petition (the
current petition) if:
(a) it appears from the information in the statement of affairs (and any
additional information supplied by the debtor) that, if the debtor did not
become a bankrupt, the debtor would be likely (either immediately or within a
reasonable time) to be able to pay all the debts specified in the statement of
affairs; and
(b) at least one of the following applies:
(i) it appears from the information in the statement of affairs (and any
additional information supplied by the debtor) that the debtor is unwilling to
pay one or more debts to a particular creditor or creditors, or is unwilling to
pay creditors in general;
(ii) before the current petition was presented, the debtor previously
became a bankrupt on a debtor’s petition at least 3 times, or at least
once in the period of 5 years before presentation of the current
petition.
(3AB) The Official Receiver is not required to consider in each case
whether there is a discretion to reject under subsection (3AA).
(3AC) The debtor may apply to the Administrative Appeals Tribunal for the
review of a decision by the Official Receiver to reject a petition under
subsection (3AA).
41 Subsection 55(3AC)
Omit “Administrative Appeals Tribunal”, substitute
“Administrative Review Tribunal”.
42 Subsection 55(4)
Omit “subsection (3)”, substitute “this
section”.
43 Subsection 55(4A)
Repeal the subsection, substitute:
(4A) Where the Official Receiver accepts a debtor’s petition
presented under this section, the Official Receiver must endorse the petition
accordingly.
(4B) The petition is subject to a cooling-off period of 30
days starting on the day after the day on which the petition is endorsed,
unless:
(a) any of the following things happened to the debtor (or persons
including the debtor) in the 12 months before the petition was
presented:
(i) a debtor’s petition under this section or section 57 was
withdrawn;
(ii) a composition or scheme was annulled under subsection
75(4);
(iii) a debt agreement proposal was rejected by creditors;
(iv) a debt agreement was terminated under section 185P or
185Q;
(v) creditors passed a resolution as mentioned in paragraph 204(1)(a) or
(d);
(vi) a deed or composition was declared void under paragraph
222(2)(a);
(vii) a deed was terminated under section 234B, 235 or 236;
(viii) a composition was set aside under section 239;
(ix) a composition was terminated under section 240B, 241 or 242;
or
(b) a creditor’s petition is pending against the debtor (whether or
not the creditor’s petition also relates to other persons); or
(c) the following conditions are satisfied:
(i) the substantive hearing of a legal proceeding against the debtor is
scheduled for a day that is less than 60 days after the day on which the
debtor’s petition is presented;
(ii) the legal proceeding is for recovery of an amount that would be a
provable debt if the debtor becomes bankrupt as a result of presenting the
petition;
(iii) the proceeding involves a claim against the debtor for a debt of at
least $2,000 or a claim against the debtor for unliquidated damages;
or
(d) the debtor’s statement of affairs indicates that the debtor
carried on a business (either alone or together with other persons) at any time
during the period of 30 days before the petition was presented; or
(e) the Official Receiver, at the time of endorsing the petition,
determined under subsection (4C) that the cooling-off period does not
apply.
(4C) If the Official Receiver believes on reasonable grounds that having
the cooling-off period would be likely to result in a reduction in the dividend
to creditors, then the Official Receiver may, at the time of accepting the
petition, determine that the cooling-off period does not apply.
(4D) If the cooling-off period does not apply, then the debtor becomes a
bankrupt (by force of this section and by virtue of presenting the petition) at
the beginning of the day on which the petition is endorsed.
(4E) If the cooling-off period applies, then the debtor may, by notice in
the approved form given to the Official Receiver, withdraw the petition at any
time during the cooling-off period. However, the debtor cannot withdraw the
petition, without the leave of the Court, after a creditor has made an
application under section 55B.
(4F) If the debtor withdraws the petition, then the debtor does not become
a bankrupt by virtue of presenting the petition.
(4G) If the cooling-off period applies but the debtor does not withdraw
the petition, then the debtor becomes a bankrupt (by force of this section and
by virtue of presenting the petition) at the beginning of the day after the end
of the cooling-off period.
44 After subsection 55(6A)
Insert:
(6B) A debtor is not entitled, except with the leave of the Court, to
present a debtor’s petition under this section:
(a) during a cooling-off period that applies to a previous petition that
was presented by the debtor under this section; or
(b) during a cooling-off period that applies to a petition that was
presented by the debtor under section 57.
45 Subsection 55(7)
Omit “or (6A)”, substitute “, (6A) or
(6B)”.
46 Paragraph 55(8)(a)
Omit “or in accordance with Division 3 of
Part VII”.
47 Subsection 55(9)
Omit “make copies of”, substitute “obtain a copy
of”.
48 At the end of
section 55
Add:
(10) A bankrupt who has become a bankrupt by force of this section may,
without fee and either personally or by an agent:
(a) inspect the bankrupt’s statement of affairs; and
(b) obtain a copy of, or make extracts from, the bankrupt’s
statement of affairs.
(11) If the approved form for a statement of affairs indicates that
particular information in the statement will not be made available to the
public, then the Official Receiver must ensure that the information is not made
available under this section to any person other than the bankrupt (or an agent
of the bankrupt).
(12) The Official Receiver may refuse to allow a person access under this
section to particular information in a bankrupt’s statement of affairs on
the ground that access to that information would jeopardise, or be likely to
jeopardise, the safety of any person.
49 After section 55
Insert:
(1) If a cooling-off period applies to a debtor’s petition that is
accepted under section 55, then the following provisions have effect until
the end of the cooling-off period or until the debtor withdraws the petition
(whichever first happens):
(a) a creditor cannot apply for enforcement of, or enforce, a remedy
against the debtor’s person or property in respect of a frozen
debt;
(b) a sheriff must not take action, or further action, to execute, or sell
property under, any process issued by a court to enforce payment of a frozen
debt owed by the debtor;
(c) a person who is entitled under a law of the Commonwealth, or of a
State or Territory of the Commonwealth, to retain or deduct money from money
that is or will be owing or payable to the debtor must not retain or deduct
money.
(2) This section does not prevent a creditor from:
(a) starting a legal proceeding in respect of a frozen debt; or
(b) taking a fresh step in such a proceeding (except to enforce a
judgment).
(3) This section does not affect the right of a secured creditor to
realise or otherwise deal with his or her security.
(4) In this section:
frozen debt means a debt that will be a provable debt if the
debtor becomes a bankrupt as a result of presenting the petition.
(1) At any time after a debtor’s petition is accepted under
section 55, but before the debtor becomes a bankrupt or withdraws the
petition, the Court may:
(a) direct the Official Trustee or a specified registered trustee to take
control of the debtor’s property; and
(b) make any other orders in relation to the property.
(2) The Court may give a direction or make an order only if:
(a) a creditor has applied for the Court to make a direction;
and
(b) the Court is satisfied that it is in the interests of the creditors to
do so.
(3) If the Court directs a trustee to take control of the debtor’s
property, the Court must specify when the control is to end.
(4) Without limiting the generality of subsection (1), the Court may,
at any time after giving a direction under subsection (1), summon the
debtor, or an examinable person in relation to the debtor, for examination under
this section in relation to the debtor.
(5) A summons to a person under subsection (4) must require the
person to attend:
(a) at a specified place and at a specified time on a specified day;
and
(b) before the Court, the Registrar or a magistrate, as specified in the
summons;
to be examined on oath under this section about the debtor and the
debtor’s examinable affairs.
(6) A summons to a person under subsection (4) may require the person
to produce, at the examination, books (including books of an associated entity
of the debtor) that:
(a) are in the possession of the first-mentioned person; and
(b) relate to the debtor or to any of the debtor’s examinable
affairs.
(7) For the purpose of the examination under this section of a person
summoned under subsection (4), subsections 81(2) to (17) apply, with any
modifications prescribed by the regulations, as if:
(a) a sequestration order had been made against the debtor when the Court
gave the direction under subsection (1) of this section; and
(b) the examination were being held under section 81; and
(c) a reference in those subsections to a creditor were a reference to a
person who has a debt that would be provable in the debtor’s bankruptcy if
a sequestration order had been made as mentioned in paragraph (a) of this
subsection.
50 At the end of subsection
56E(1)
Add “at the beginning of the day on which the petition was accepted
by the Official Receiver”.
51 At the end of subsection
56E(2)
Add “at the beginning of the day on which the petition was accepted
by the Official Receiver”.
52 Paragraph 56E(3)(a)
Omit “or in accordance with Division 3 of
Part VII”.
53 Subsection 56F(3)
Omit “if the trustee is a registered trustee”.
54 Subsection 56G(1)
Omit “copy”, substitute “obtain a copy
of”.
55 Subsection 56G(2)
Omit “copying”, substitute “obtaining a copy
of”.
56 After paragraph
56G(2)(a)
Insert:
(aa) the person is a member of the partnership who became a bankrupt as a
result of the petition; or
57 Paragraph 56G(2)(b)
After “paragraph (a)”, insert “or
(aa)”.
58 At the end of
section 56G
Add:
(3) A person who has become a bankrupt by force of section 56E may,
without fee and either personally or by an agent:
(a) inspect any statement of affairs that accompanied the petition;
and
(b) obtain a copy of, or make extracts from, any statement of affairs that
accompanied the petition.
(4) If the approved form for a statement of affairs indicates that
particular information in the statement will not be made available to the
public, then the Official Receiver must ensure that the information is not made
available under this section to any person (other than a member of the
partnership who became a bankrupt as a result of the petition or an agent of
such a member).
(5) The Official Receiver may refuse to allow a person access under this
section to particular information in a statement of affairs on the ground that
access to that information would jeopardise, or be likely to jeopardise, the
safety of any person.
59 After subsection 57(2)
Insert:
(2A) The Official Receiver must reject a debtor’s petition unless,
at the time when the petition is presented, each petitioning debtor:
(a) was personally present or ordinarily resident in Australia;
or
(b) had a dwelling-house or place of business in Australia; or
(c) was carrying on business in Australia, either personally or by means
of an agent or manager; or
(d) was a member of a firm or partnership carrying on business in
Australia by means of a partner or partners or of an agent or manager.
60 After subsection 57(3)
Insert:
(3AA) The Official Receiver may reject a debtor’s petition (the
current petition) if the following conditions are satisfied for at
least one of the petitioning debtors:
(a) it appears from the information in the statement of affairs (and any
additional information supplied by the debtor) that, if the debtor did not
become a bankrupt, the debtor would be likely (either immediately or within a
reasonable time) to be able to pay all the debts specified in the debtor’s
statement of affairs;
(b) at least one of the following applies:
(i) it appears from the information in the statement of affairs (and any
additional information supplied by the debtor) that the debtor is unwilling to
pay one or more debts to a particular creditor or creditors, or is unwilling to
pay creditors in general;
(ii) before the current petition was presented, the debtor previously
became a bankrupt on a debtor’s petition at least 3 times, or at least
once in the period of 5 years before presentation of the current
petition.
(3AB) The Official Receiver is not required to consider in each case
whether there is a discretion to reject under subsection (3AA).
(3AC) An application may be made to the Administrative Appeals Tribunal
for the review of a decision by the Official Receiver to reject a petition under
subsection (3AA).
61 Subsection 57(3AC)
Omit “Administrative Appeals Tribunal”, substitute
“Administrative Review Tribunal”.
62 Subsection 57(5)
Repeal the subsection, substitute:
(5) Where the Official Receiver accepts a petition presented under this
section, the Official Receiver must endorse the petition accordingly.
(5A) The petition is subject to a cooling-off period of 30
days starting on the day after the day on which the petition is endorsed,
unless:
(a) any of the following things happened to any of the petitioning debtors
(or persons including any of the petitioning debtors) in the 12 months before
the petition was presented:
(i) a debtor’s petition under section 55 or this section was
withdrawn;
(ii) a composition or scheme was annulled under subsection
75(4);
(iii) a debt agreement proposal was rejected by creditors;
(iv) a debt agreement was terminated under section 185P or
185Q;
(v) creditors passed a resolution as mentioned in paragraph 204(1)(a) or
(d);
(vi) a deed or composition was declared void under paragraph
222(2)(a);
(vii) a deed was terminated under section 234B, 235 or 236;
(viii) a composition was set aside under section 239;
(ix) a composition was terminated under section 240B, 241 or 242;
or
(b) a creditor’s petition is pending against any petitioning debtor
(whether or not the creditor’s petition also relates to other persons);
or
(c) the following conditions are satisfied:
(i) the substantive hearing of a legal proceeding against any petitioning
debtor is scheduled for a day that is less than 60 days after the day on which
the debtor’s petition is presented;
(ii) the legal proceeding is for recovery of an amount that would be a
provable debt if that debtor becomes bankrupt as a result of presenting the
petition;
(iii) the proceeding involves a claim against that debtor for a debt of at
least $2,000 or a claim against that debtor for unliquidated damages;
or
(d) any of the statements of affairs indicates that any petitioning debtor
carried on a business (either alone or together with other persons) at any time
during the period of 30 days before the petition was presented; or
(e) the Official Receiver, at the time of endorsing the petition,
determined under subsection (5B) that the cooling-off period does not
apply.
(5B) If the Official Receiver believes on reasonable grounds that having
the cooling-off period would be likely to result in a reduction in the dividend
to creditors, then the Official Receiver may, at the time of accepting the
petition, determine that the cooling-off period does not apply.
(5C) If the cooling-off period does not apply, then each of the
petitioning debtors becomes a bankrupt (by force of this section and by virtue
of presenting the petition) at the beginning of the day on which the petition is
endorsed.
(5D) If the cooling-off period applies, then any petitioning debtor may,
by notice in the approved form given to the Official Receiver, withdraw from the
petition at any time during the cooling-off period. However, a debtor cannot
withdraw from the petition, without the leave of the Court, after a creditor has
made an application under section 57AB.
(5E) If a debtor withdraws from the petition, then that debtor does not
become a bankrupt by virtue of presenting the petition.
(5F) If the cooling-off period applies, then any petitioning debtor who
does not withdraw from the petition becomes a bankrupt (by force of this section
and by virtue of presenting the petition) at the beginning of the day after the
end of the cooling-off period.
63 After subsection 57(8)
Insert:
(8A) A debtor is not entitled, except with the leave of the Court, to join
in presenting a petition under this section:
(a) during a cooling-off period that applies to a previous petition that
was presented by the debtor under this section; or
(b) during a cooling-off period that applies to a petition that was
presented by the debtor under section 55.
64 Subsection 57(9)
Omit “or (8)”, substitute “, (8) or
(8A)”.
65 Paragraph 57(10)(a)
Omit “or in accordance with Division 3 of
Part VII”.
66 Subsection 57(11)
Omit “make copies of”, substitute “obtain a copy
of”.
67 At the end of
section 57
Add:
(12) A bankrupt who has become a bankrupt by force of this section may,
without fee and either personally or by an agent:
(a) inspect any statement of affairs that accompanied the petition;
and
(b) obtain a copy of, or make extracts from, any statement of affairs that
accompanied the petition.
(13) If the approved form for a statement of affairs indicates that
particular information in the statement will not be made available to the
public, then the Official Receiver must ensure that the information is not made
available under this section to any person (other than a petitioning debtor or
an agent of a petitioning debtor).
(14) The Official Receiver may refuse to allow a person access under this
section to particular information in a statement of affairs on the ground that
access to that information would jeopardise, or be likely to jeopardise, the
safety of any person.
68 After section 57
Insert:
(1) If a cooling-off period applies to a debtor’s petition that is
accepted under section 57, then the following provisions have effect in
relation to each petitioning debtor until the end of the cooling-off period or
until the debtor withdraws the petition (whichever first happens):
(a) a creditor cannot apply for enforcement of, or enforce, a remedy
against the debtor’s person or property in respect of a frozen
debt;
(b) a sheriff must not take action, or further action, to execute, or sell
property under, any process issued by a court to enforce payment of a frozen
debt owed by the debtor;
(c) a person who is entitled under a law of the Commonwealth, or of a
State or Territory of the Commonwealth, to retain or deduct money from money
that is or will be owing or payable to the debtor must not retain or deduct
money.
(2) This section does not prevent a creditor from:
(a) starting a legal proceeding in respect of a frozen debt; or
(b) taking a fresh step in such a proceeding (except to enforce a
judgment).
(3) This section does not affect the right of a secured creditor to
realise or otherwise deal with his or her security.
(4) In this section:
frozen debt means a debt that will be a provable debt if the
debtor becomes a bankrupt as a result of presenting the petition.
(1) At any time after a debtor’s petition is accepted under
section 57, but before a petitioning debtor becomes a bankrupt or withdraws
from the petition, the Court may:
(a) direct the Official Trustee or a specified registered trustee to take
control of the debtor’s property; and
(b) make any other orders in relation to the property.
(2) The Court may give a direction or make an order only if:
(a) a creditor has applied for the Court to make a direction;
and
(b) the Court is satisfied that it is in the interests of the creditors to
do so.
(3) If the Court directs a trustee to take control of the debtor’s
property, the Court must specify when the control is to end.
(4) Without limiting the generality of subsection (1), the Court may,
at any time after giving a direction under subsection (1), summon the
debtor, or an examinable person in relation to the debtor, for examination under
this section in relation to the debtor.
(5) A summons to a person under subsection (4) must require the
person to attend:
(a) at a specified place and at a specified time on a specified day;
and
(b) before the Court, the Registrar or a magistrate, as specified in the
summons;
to be examined on oath under this section about the debtor and the
debtor’s examinable affairs.
(6) A summons to a person under subsection (4) may require the person
to produce, at the examination, books (including books of an associated entity
of the debtor) that:
(a) are in the possession of the first-mentioned person; and
(b) relate to the debtor or to any of the debtor’s examinable
affairs.
(7) For the purpose of the examination under this section of a person
summoned under subsection (4), subsections 81(2) to (17), apply, with any
modifications prescribed by the regulations, as if:
(a) a sequestration order had been made against the debtor when the Court
gave the direction under subsection (1) of this section; and
(b) the examination were being held under section 81; and
(c) a reference in those subsections to a creditor were a reference to a
person who has a debt that would be provable in the debtor’s bankruptcy if
a sequestration order had been made as mentioned in paragraph (a) of this
subsection.
69 Section 57A
Repeal the section.
70 At the end of
section 64
Add:
(3) When convening a meeting, the trustee must consider whether the
proposed time and place is convenient for the creditors.
71 At the end of subsection
64M(1)
Add:
Note: Under subsection 64ZB(3), a proxy or attorney may be
allowed to vote even though the appointing instrument is lodged after the
announcement.
72 Subsection 64N(2)
Repeal the subsection, substitute:
(2) A quorum is constituted by:
(a) the presence in person of the trustee (or the trustee’s
representative); and
(b) a creditor, or a proxy or attorney of a creditor, participating in
person or by telephone.
Note: A meeting requires at least 2 persons. Therefore the
person covered by paragraph (2)(a) cannot also be the proxy or attorney of
the creditor covered by paragraph (2)(b).
73 After subsection 64U(5)
Insert:
(5A) The statement under subsection (3) must also include:
(a) an estimate of the total amount of the trustee’s remuneration;
and
(b) an explanation of the likely impact of that remuneration on the
dividends (if any) to creditors.
74 Paragraph 64Z(5)(d)
Omit “officer of the Department”, substitute “officer of
ITSA”.
75 Subsection 64Z(9)
Omit “holds a security in respect of that debt”, substitute
“is a secured creditor”.
76 Subsection 64ZA(5)
Omit “holds a security in respect of a debt”, substitute
“is a secured creditor”.
77 Subsection 64ZB(3)
Repeal the subsection, substitute:
(3) A person claiming to be the proxy of a creditor is not entitled to
vote as proxy unless the instrument of appointment has been lodged with the
President (or with the trustee, before the President was elected), either before
or after the announcement is made under section 64M about the appointment
of proxies and attorneys.
(3A) If an instrument of appointment of a proxy is lodged with the
President in substitution for another instrument with an earlier date, then the
later instrument commences to have effect (from the time it is lodged with the
President) in substitution for the earlier instrument.
78 After section 64ZB
Insert:
(1) The trustee may at any time put a proposal to the creditors by giving
a notice under this section.
(2) The notice must:
(a) contain a single proposal; and
(b) include a statement of the reasons for the proposal and the likely
impact it will have on creditors (if it is passed); and
(c) be given to each creditor who would be entitled under section 64A
to receive notice of a meeting of creditors; and
(d) invite the creditor to either:
(i) vote Yes or No on the proposal; or
(ii) object to the proposal being resolved without a meeting of creditors;
and
(e) specify a time by which replies must be received by the trustee (in
order to be taken into account).
(3) If, within the time specified in the notice:
(a) at least 1 creditor votes in writing; and
(b) no other creditor objects in writing to the proposal being resolved
without a meeting of creditors;
then the following provisions have effect:
(c) if the proposal requires a special resolution and there is a Yes vote
by a majority in number, and at least 75% in value, of those who voted within
the required time—the proposal is taken to have been passed by a special
resolution of creditors at a meeting;
(d) if the proposal does not require a special resolution and there is a
Yes vote by a majority in value of those who voted within the required
time—the proposal is taken to have been passed by a resolution of
creditors at a meeting;
(e) in any other case—the proposal is taken not to have been
passed.
(4) A certificate signed by the trustee stating any matter relating to a
proposal under this section is prima facie evidence of the matter.
79 After subsection 73(2A)
Insert:
(2B) The trustee may refuse to call the meeting if the proposal does not
make adequate provision for payment to the trustee of accrued fees
that:
(a) are owing to the trustee (at the time the proposal is lodged) in
respect of the administration of the bankrupt’s estate, but are not able
to be taken out of the bankrupt’s estate; and
(b) have been approved by the creditors before the proposal is
considered.
80 At the end of subsection
73(3)
Add “, but not in a way that reduces any provision for payment to the
trustee of fees referred to in subsection (2B)”.
81 After section 73
Insert:
(1) Before calling a meeting under section 73, the trustee may
require the bankrupt to lodge with the trustee an amount that is sufficient to
cover:
(a) the estimated costs that will be incurred by the trustee in arranging
and holding the meeting; and
(b) the estimated fee that will (if approved by the creditors) be payable
to the trustee in respect of the meeting.
(2) If the amount lodged by the bankrupt is more than the actual costs and
fee, then the trustee must refund the excess to the bankrupt.
82 After section 74
Insert:
(1) This section applies to a composition or scheme of arrangement that
has been accepted in accordance with this Division.
Variation by special resolution of creditors
(2) The creditors, with the written consent of the debtor, may vary the
composition or scheme by special resolution at a meeting called for the
purpose.
Variation proposal by trustee
(3) The trustee may, in writing, propose a variation of the composition or
scheme. The trustee cannot propose a variation without the written consent of
the debtor.
(4) The trustee must give notice of the proposed variation to all the
creditors who would be entitled under section 64A (as that section applies
in accordance with section 76A) to receive notice of a meeting of
creditors.
(5) The notice must:
(a) include a statement of the reasons for the variation and the likely
impact it will have on creditors (if it takes effect); and
(b) specify a proposed date of effect for the variation (at least 14 days
after the notice is given); and
(c) state that any creditor may, by written notice to the trustee at least
2 days before the specified date, object to the variation taking effect without
there being a meeting of creditors.
(6) If no creditor lodges a written notice of objection with the trustee
at least 2 days before the specified date, then the proposed variation takes
effect on the date specified in the notice.
(7) A certificate signed by the trustee stating any matter relating to a
proposed variation under this section is prima facie evidence of the
matter.
83 At the end of subparagraph
77(a)(ii)
Add “and”.
84 At the end of paragraph
77(b)
Add “and”.
85 At the end of paragraph
77(ba)
Add “and”.
86 After paragraph 77(ba)
Insert:
(bb) as soon as practicable after becoming a bankrupt, advise the trustee
of any material change that occurred between the time the bankrupt lodged his or
her statement of affairs and the time the bankrupt became a bankrupt;
and
(bc) if a material change occurred later, advise the trustee of that
change as soon as practicable after the change occurs; and
87 At the end of
section 77
Add:
(2) In this section:
material change means a change in the particulars contained
in the bankrupt’s statement of affairs, where the change could reasonably
be expected to be relevant to the administration of the bankrupt’s
estate.
88 At the end of paragraph
77(c)
Add “and”.
89 At the end of paragraph
77(d)
Add “and”.
90 At the end of paragraph
77(e)
Add “and”.
91 Subsection 77A(1)
Omit “person (in this section called the
investigator)”, substitute “trustee”.
Note: The heading to section 77A is altered by omitting
“or Official Receiver”.
92 Subsection 77A(2)
Omit “investigator” (wherever occurring), substitute “a
trustee”.
93 Paragraph 77A(2)(e)
Omit “investigator’s”, substitute
“trustee’s”.
94 Subsection 77A(3)
Omit “investigator” (wherever occurring), substitute
“trustee”.
95 Section 77B
Repeal the section.
96 Subsection 80(1)
Omit “, or in any other particulars that the bankrupt was required to
set out in the bankrupt’s statement of affairs under subparagraph
6A(2)(b)(i),” substitute “or in the address of the bankrupt’s
principal place of residence”.
97 After subsection 82(2)
Insert:
(2A) In the case of a bankruptcy that results from the presentation of a
debtor’s petition, a debt or liability is not provable if it is incurred
after the time when the petition was accepted by the Official
Receiver.
98 At the end of subsection
82(5)
Add “not later than 28 days after the day on which the person is
notified of the estimate”.
99 Section 99
Repeal the section.
100 Section 103
Repeal the section, substitute:
If the amount of a debt includes cents, the cents must be disregarded in
admitting proof of the debt.
101 Subsection 104(1)
Repeal the subsection, substitute:
(1) A creditor, or the bankrupt, may apply to the Court for review of a
decision of the trustee under subsection 102(1), (3) or (4) in respect of a
proof of debt.
102 After subsection
109(1A)
Insert:
(1B) The reference in paragraph (1)(e) to amounts due in respect of
an employee of the bankrupt includes a reference to amounts due as contributions
to a fund for the purposes of making provision for, or obtaining, superannuation
benefits for the employee, or for dependants of the employee.
103 Subsection 109(7B)
Omit “officer of the Department”, substitute “officer of
ITSA”.
104 Subsection 115(1)
Repeal the subsection, substitute:
(1) If a person becomes a bankrupt on a creditor’s petition and
subsection (1A) does not apply, then the bankruptcy is taken to have
relation back to, and to have commenced at, the time of the commission of the
earliest act of bankruptcy committed by the person within the period of 6 months
immediately before the date on which the creditor’s petition was
presented.
(1A) If:
(a) a person becomes a bankrupt on a creditor’s petition that was
based on breach of a bankruptcy notice; and
(b) the time for compliance with the notice was extended under subsection
41(7); and
(c) the Court making the sequestration order considers that the
application under subsection 41(7) was frivolous, vexatious or otherwise without
substantial merit;
then the bankruptcy is taken to have relation back to, and to have
commenced at, the time that would have applied under subsection (1) of this
section if the time for compliance had not been extended.
(1B) If a person becomes a bankrupt because of a sequestration order made
under Division 6 of Part IV or under Part X, then the bankruptcy
is taken to have relation back to, and to have commenced at, the time of the
commission of the earliest act of bankruptcy committed by the person within the
period of 6 months immediately before the date on which the application for the
sequestration order was made.
105 After paragraph
116(2)(b)
Insert:
(ba) personal property of the bankrupt that:
(i) has sentimental value for the bankrupt; and
(ii) is of a kind prescribed by the regulations; and
(iii) is identified by a special resolution passed by the creditors before
the trustee realises the property;
106 After section 129
Insert:
(1) This section applies only to:
(a) property (other than cash) that was disclosed in the bankrupt’s
statement of affairs; and
(b) after-acquired property (other than cash) that the bankrupt discloses
in writing to the trustee within 14 days after the bankrupt becomes aware that
the property devolved on, or was acquired by, the bankrupt.
In this subsection, cash includes amounts standing to the
credit of a bank account or similar account.
(2) If any such property is still vested in the trustee immediately before
the revesting time, then it becomes vested in the bankrupt at the revesting time
by force of this section.
(3) Initially, the revesting time for property is:
(a) for property disclosed in the statement of affairs—the beginning
of the day that is the sixth anniversary of the day on which the bankrupt is
discharged from the bankruptcy; and
(b) for after-acquired property that is disclosed before the bankrupt is
discharged from the bankruptcy—the beginning of the day that is the sixth
anniversary of the day on which the bankrupt is discharged; and
(c) for after-acquired property that is disclosed after the bankrupt is
discharged from the bankruptcy—the beginning of the day that is the sixth
anniversary of the day on which the bankrupt disclosed the property to the
trustee.
(4) If the trustee, before the current revesting time, gives the bankrupt
a written notice (an extension notice) stating that a later
revesting time applies to particular property, then that later time becomes the
revesting time for that property.
(5) There is no limit on the number of extension notices that the trustee
may give (either generally or in relation to particular property).
(6) The time specified in an extension notice must be either:
(a) a specified time that is not more than 3 years after the current
revesting time; or
(b) a time that is reckoned by reference to a specified event (for
example, the death of a life tenant), but is not more than 3 years after the
happening of that event.
(7) Any property that becomes vested in the bankrupt under this section
thereupon ceases to be subject to section 127.
107 After paragraph
134(1)(a)
Insert:
(aa) accept, without terms or conditions, or subject to terms and
conditions, a sum of money payable at a future time as the consideration or part
of the consideration for the sale of any property of the bankrupt;
(ab) lease any property of the bankrupt;
(ac) divide among the creditors, in its existing form and according to its
estimated value, property that, by reason of its peculiar nature or other
special circumstances, cannot readily or advantageously be sold;
108 After paragraph
134(1)(i)
Insert:
(ia) refer any dispute to arbitration;
109 After paragraph
134(1)(m)
Insert:
(ma) make such allowance out of the estate as he or she thinks just to the
bankrupt, the spouse of the bankrupt or the family of the bankrupt;
110 Section 135
Repeal the section.
111 Section 139K (definition of
dependant)
Repeal the definition, substitute:
dependant, in relation to a bankrupt in relation to a
contribution assessment period, means a person who satisfies all the following
conditions:
(a) the person resides with the bankrupt;
(b) the person is wholly or partly dependent on the bankrupt for economic
support;
(c) the income derived (or likely to be derived) by the person during the
contribution assessment period is not more than the amount prescribed by the
regulations for the purposes of this paragraph.
For the purposes of this definition, income has its ordinary
meaning.
112 Section 139K
Insert:
income tax includes Medicare levy.
113 Section 139L (subparagraph (b)(ii)
of the definition of income)
Repeal the subparagraph.
114 Subparagraph 139N(a)(i)
After “income tax”, insert “(but not including any amount
that is in respect of a provable debt)”.
115 At the end of
section 139N
Add:
(2) A refund is not taken into account under paragraph (1)(b) if it
relates to a year of income that ended before the date of the
bankruptcy.
(3) If a refund relates to a year of income that commenced before, but
ended after, the date of the bankruptcy, then it is taken into account under
paragraph (1)(b) only to the extent that the refund is attributable to the
part of the year of income after the date of bankruptcy. For this purpose, the
refund is apportioned on a time basis.
116 Section 139T
Repeal the section, substitute:
(1) If:
(a) the trustee has made an assessment of a contribution that a bankrupt
is liable to pay to the trustee for a contribution assessment period;
and
(b) the bankrupt considers that, if required to pay that contribution, he
or she will suffer hardship for a reason or reasons set out in
subsection (2);
the bankrupt may apply in writing to the trustee for the making of a
determination under this section for that period.
(2) The reasons are as follows:
(a) the bankrupt or a dependant of the bankrupt suffers from an illness or
disability that requires on-going medical attention and the supply of medicines,
and the bankrupt is required to meet a substantial proportion of the costs of
that medical attention or those medicines from his or her income;
(b) the bankrupt is required to make payments from his or her income to
meet the cost of child day-care to enable the bankrupt to continue in employment
or other work;
(c) the bankrupt is living in rented accommodation that is not provided
by:
(i) the Commonwealth, a State or a Territory; or
(ii) an authority of the Commonwealth, a State or a Territory;
or
(iii) a local government authority;
and the bankrupt is required to pay the cost of that accommodation wholly
or mainly from his or her income;
(d) the bankrupt incurs substantial expense in travelling to and from the
bankrupt’s place of employment or other work, whether by public transport
or otherwise;
(e) the spouse of the bankrupt, or another person residing with the
bankrupt, who ordinarily contributes to the costs of maintaining the
bankrupt’s household has become unable to contribute to those costs
because of unemployment, illness or injury;
(f) any other reason prescribed by the regulations.
(3) The trustee must not make a determination under this section unless
the bankrupt provides satisfactory evidence of the bankrupt’s income and
expenses, and any other matters on which the bankrupt relies to establish the
reasons for the application.
(4) The trustee must decide the application as soon as practicable, and in
any event not later than 30 days, after the day on which the application is
received.
(5) If the trustee does not make a decision on the application within that
period of 30 days, the trustee is taken to have made a decision at the end of
that period refusing the application.
(6) If the trustee is satisfied that the bankrupt will suffer hardship if
required to pay the contribution, the trustee may determine that, for the
purposes of the application of section 139S in relation to the bankrupt in
respect of the contribution assessment period, the actual income threshold
amount that was applicable in relation to the bankrupt when the assessment was
made is taken to have been increased to such amount as the trustee
determines.
(7) If the trustee is not satisfied that the bankrupt will suffer hardship
if required to pay the contribution, the trustee must refuse the
application.
(8) If the trustee makes a determination under subsection (6), the
trustee must make such assessment under section 139W as is necessary to
give effect to the determination.
(9) The trustee must give written notice to the bankrupt:
(a) setting out the trustee’s decision on the application;
and
(b) referring to the evidence or other material on which the decision was
based; and
(c) giving the reasons for the decision.
(10) The notice must include a statement to the effect that the bankrupt
may request the Inspector-General to review the decision.
(11) A contravention of subsection (10) in relation to a decision
does not affect the validity of the decision.
(12) The trustee’s decision under this section is reviewable under
Subdivision G in the same way as an assessment made by the trustee.
117 After subparagraph
139U(1)(a)(i)
Insert:
(ia) setting out particulars of all the income that was derived by each
dependant of the bankrupt during that contribution assessment period;
and
118 At the end of paragraph
139U(1)(a)
Add:
(iii) indicating what income (if any) the bankrupt expects each dependant
of the bankrupt to derive during the next contribution assessment period;
and
119 Subsection 139U(2)
Omit “subparagraph (1)(a)(i)”, substitute
“subparagraphs (1)(a)(i) and (ia)”.
120 At the end of subsection
139W(4)
Add “and informing the bankrupt about the possibility of a variation
under section 139T”.
121 After section 139W
Insert:
(1) An assessment under section 139W (including a fresh assessment
referred to in subsection 139W(2)) for a contribution assessment period may be
made at any time, including:
(a) a time after the end of the contribution assessment period;
or
(b) a time after the bankrupt is discharged.
(2) For the purpose of applying subsection (1), a reference in this
Division to a bankrupt includes a reference to a former bankrupt.
122 At the end of paragraph
139ZA(3)(a)
Add “not later than 60 days after the day on which the bankrupt is
notified of the trustee’s assessment”.
123 Subsection 139ZE(1)
Omit “, and, if the trustee is a registered trustee,”,
substitute “and”.
124 Section 139ZF
Repeal the section, substitute:
An application may be made to the Administrative Appeals Tribunal for the
review of:
(a) a decision of the Inspector-General on the review of a decision by a
trustee to make an assessment; or
(b) a decision by the Inspector-General refusing a request to review a
decision by a trustee to make an assessment.
125 Section 139ZF
Omit “Administrative Appeals Tribunal”, substitute
“Administrative Review Tribunal”.
126 Paragraph 139ZG(2)(c)
Omit “or of the decision of the trustee”.
127 Division 4C of
Part VI
Repeal the Division.
128 Subsection 145(3)
Omit “in the prescribed manner”, substitute “in the
manner prescribed by the regulations”.
129 Subsection 149(1)
Omit “unless sooner discharged in accordance with
Division 3,”.
130 Subparagraph
149A(2)(a)(i)
Omit “paragraph 149D(1)(a), (b), (c), (d), (e), (f), (g) or
(h)”, substitute “paragraph 149D(1)(ab), (d), (da), (e), (f), (g),
(h), (ha), (k) or (ma)”.
131 Subparagraph
149A(2)(b)(ii)
Omit “date from which”, substitute “date on
which”.
132 Subparagraphs 149A(3)(b)(ii) and
(iii)
Repeal the subparagraphs, substitute:
(ii) no other objection against the discharge of the bankrupt is in
effect;
133 Subsection 149B(1)
Omit “, or the Official Receiver may file such a notice on the
Official Receiver’s own initiative”.
134 Subsection 149C(1)
Omit “or Official Receiver” (wherever occurring).
135 After subsection
149C(1)
Insert:
(1A) Paragraph (1)(c) does not apply to a ground specified in
paragraph 149D(1)(ab), (d), (da), (e), (f), (g), (h), (ha), (k) or
(ma).
136 After paragraph
149D(1)(a)
Insert:
(aa) any transfer is void against the trustee in the bankruptcy because of
section 120 or 122;
(ab) any transfer is void against the trustee in the bankruptcy because of
section 121;
137 After paragraph
149D(1)(d)
Insert:
(da) after the date of the bankruptcy, the bankrupt intentionally provided
false or misleading information to the trustee;
138 After paragraph
149D(1)(h)
Insert:
(ha) the bankrupt intentionally failed to disclose to the trustee a
liability of the bankrupt that existed at the date of the bankruptcy;
139 Paragraph 149D(1)(j)
Before “subsection 80(1)”, insert “paragraph 77(1)(bb) or
(bc) or”.
140 After paragraph
149D(1)(m)
Insert:
(ma) the bankrupt intentionally failed to disclose to the trustee the
bankrupt’s beneficial interest in any property;
141 Subsection 149F(1)
Repeal the subsection, substitute:
(1) As soon as practicable after a notice of objection is filed by the
trustee, the trustee must give a copy of the notice to the bankrupt together
with a notice to the effect that the bankrupt may request the Inspector-General
to review the decision of the trustee to file the notice of objection.
142 Subsection 149H(2)
Repeal the subsection.
Note: The heading to section 149H is altered by
omitting “or Official Receiver”.
143 Subsection 149H(3)
Omit “or (2)”.
144 Subsection 149J(2)
Repeal the subsection.
145 Subsection 149J(3)
Omit “or (2)”.
146 Subsection 149K(1)
Omit “or Official Receiver”.
147 At the end of paragraph
149K(3)(a)
Add “not later than 60 days after the day on which the bankrupt is
notified of the trustee’s objection”.
148 Paragraph 149M(1)(b)
Omit “or Official Receiver”.
149 After subsection
149N(1)
Insert:
(1A) An objection must not be cancelled under subsection (1)
if:
(a) the objection specifies at least one special ground; and
(b) there is sufficient evidence to support the existence of at least one
special ground specified in the objection; and
(c) except in the case of the ground specified in paragraph 149D(1)(h),
the bankrupt fails to establish that the bankrupt had a reasonable excuse for
the conduct or failure that constituted the special ground.
For this purpose, special ground means a ground specified in
paragraph 149D(1)(ab), (d), (da), (e), (f), (g), (h), (ha), (k) or
(ma).
(1B) In applying subsection (1A), no notice is to be taken of any
conduct of the bankrupt after the time when the ground concerned first commenced
to exist.
150 Subsection 149P(1)
Omit “, and, if the trustee is a registered trustee,”,
substitute “and”.
151 Subsection 149P(3)
Omit “or Official Receiver”.
152 Section 149Q
Repeal the section, substitute:
An application may be made to the Administrative Appeals Tribunal for the
review of:
(a) a decision of the Inspector-General on the review of a decision of the
trustee to file a notice of objection; or
(b) a decision of the Inspector-General refusing a request to review a
decision of the trustee to file a notice of objection.
153 Section 149Q
Omit “Administrative Appeals Tribunal”, substitute
“Administrative Review Tribunal”.
154 Division 3 of
Part VII
Repeal the Division.
155 After subsection
153A(1)
Insert:
(1A) In determining whether there has been full payment of a debt that
bears interest, the interest must be reckoned up to and including the date on
which the debt (including interest) is paid.
156 At the end of
section 153B
Add:
(2) In the case of a debtor’s petition, the order may be made
whether or not the bankrupt was insolvent when the petition was
presented.
157 Paragraph 155(2)(b)
Omit “officer of the Department”, substitute “APS
employee”.
158 After subsection
155A(1)
Insert:
Exam to assess suitability
(1A) For the purpose of deciding whether the applicant should be
registered, the Committee may require the applicant to sit for an
exam.
159 After subsection
155A(4)
Insert:
(4A) The Committee must decide that the applicant should not be registered
if the Committee is not satisfied that the applicant has the ability (including
knowledge) to perform satisfactorily the duties of a registered
trustee.
160 At the end of paragraph
155D(b)
Add “(and any late payment penalty under subsection (3) of this
section)”.
161 At the end of
section 155D
Add:
(2) The Inspector-General must not extend the registration of a person
if:
(a) the person owes a total of more than $50 for the following:
(i) charge under the Bankruptcy (Estate Charges) Act 1997 (the
estate charge);
(ii) penalty under section 281 of this Act in respect of that charge;
and
(b) the Inspector-General notified the person of the unpaid estate charge
at least 14 days before the due date for payment of the charge under
subsection (3) on the extension of the registration.
(3) The charge on an extension of registration is due for payment one
month before the expiry of the registration. If the charge is not paid by then,
an additional amount equal to 20% of the charge is payable by the trustee by way
of penalty.
162 Paragraph 155E(5)(b)
Omit “officer of the Department”, substitute “APS
employee”.
163 After paragraph
155H(1)(a)
Insert:
(aa) the trustee no longer has the ability (including knowledge) to
perform satisfactorily the duties of a registered trustee; or
164 Paragraph 155H(3)(b)
Omit “officer of the Department”, substitute “APS
employee”.
165 Subsection 161B(1)
After “$1,109”, insert “(the statutory
minimum)”.
166 After subsection
161B(1)
Insert:
(1A) The statutory minimum (as affected by section 304A) is increased
by 8.4% if the trustee’s remuneration is consideration for a taxable
supply (within the meaning of the A New Tax System (Goods and Services Tax)
Act 1999).
167 After subsection 162(6)
Insert:
(6A) The trustee must, in relation to the trustee’s remuneration,
give such notices to the bankrupt and creditors as are required by the
regulations.
168 Subsection 164(3)
Omit “officer of the Department”, substitute “officer of
ITSA”.
169 At the end of
section 178
Add:
(2) The application must be made not later than 60 days after the day on
which the person became aware of the trustee’s act, omission or
decision.
170 After section 181
Insert:
(1) The current trustee of a bankrupt’s estate may, with the written
consent of another trustee (either a registered trustee or the Official
Trustee), nominate the other trustee as the new trustee of the estate.
(2) The current trustee must give notice of the nomination to all the
creditors who would be entitled under section 64A to receive notice of a
meeting of creditors.
(3) The notice must:
(a) specify a date (at least 10 days after the notice is given) from which
it is proposed that the new trustee will become the trustee of the estate;
and
(b) state that any creditor may, by written notice to the trustee at least
2 days before the specified date, object to the nomination taking effect without
there being a meeting of creditors.
(4) If no creditor lodges a written notice of objection with the current
trustee at least 2 days before the specified date, then the new trustee replaces
the current trustee as trustee of the estate, on the date specified in the
notice.
(5) For the purposes of this Act, the new trustee is treated as having
been appointed by the creditors.
(6) A certificate signed by the new trustee stating any matter relating to
the replacement of the former trustee under this section is prima facie evidence
of the matter.
171 Subsection 185(1) (definition of frozen
debt)
Omit “Official Trustee” (wherever occurring), substitute
“Official Receiver”.
172 Subsection 185(2)
Omit “Official Trustee” (wherever occurring), substitute
“Official Receiver”.
173 Section 185A
Omit “Official Trustee” (wherever occurring), substitute
“Official Receiver”.
Note: The heading to subsection 185(1) is altered by
omitting “Official Trustee” and substituting
“Official Receiver”.
174 Paragraph 185B(3)(a)
Omit “Official Trustee”, substitute “Official
Receiver”.
175 Subsection 185C(1)
Omit “Official Trustee”, substitute “Official
Receiver”.
Note: The heading to section 185C is altered by
omitting “Official Trustee” and substituting
“Official Receiver”.
176 Subsection 185C(4)
Omit “Official Trustee”, substitute “Official
Receiver”.
177 Paragraph 185C(4)(d)
Omit “half”.
178 Section 185D
Omit “Official Trustee” (wherever occurring), substitute
“Official Receiver”.
179 At the end of
section 185D
Add:
(2) The debtor may, without fee and either personally or by an
agent:
(a) inspect the statement of affairs; and
(b) obtain a copy of, or make extracts from, the statement of
affairs.
180 Section 185E
Omit “Official Trustee” (wherever occurring), substitute
“Official Receiver”.
181 After subsection
185E(2)
Insert:
(2A) The Official Receiver must refuse to accept a debt agreement proposal
for processing if the person nominated as administrator is ineligible, in
accordance with the regulations, to act as an administrator.
182 Subsection 185E(4)
Omit “Official Trustee’s”, substitute “Official
Receiver’s”.
183 Section 185G
Omit “Official Trustee” (wherever occurring), substitute
“Official Receiver”.
184 Section 185M
Omit “Official Trustee” (wherever occurring), substitute
“Official Receiver”.
185 Subsection 185N(3)
Omit “Official Trustee”, substitute “Official
Receiver”.
186 Section 185P
Omit “Official Trustee” (wherever occurring), substitute
“Official Receiver”.
187 Paragraph 185Q(1)(c)
Omit “Official Trustee”, substitute “Official
Receiver”.
188 Subsection 185T(1)
Omit “Official Trustee”, substitute “Official
Receiver”.
189 Section 185W
Omit “Official Trustee” (wherever occurring), substitute
“Official Receiver”.
Note: The heading to section 185W is altered by
omitting “Official Trustee” and substituting
“Official Receiver”.
190 Section 185W
Omit “Official Trustee’s” (wherever occurring),
substitute “Official Receiver’s”.
191 Section 185W
(note)
Repeal the note, substitute:
Note: Under section 185Y, the Official Receiver may
delegate powers and functions to a registered trustee.
192 Section 185Y
Omit “Official Trustee” (wherever occurring), substitute
“Official Receiver”.
193 Section 185Y
Omit “Official Trustee’s” (wherever occurring),
substitute “Official Receiver’s”.
194 Section 185Y
(note)
Repeal the note.
195 After subsection 188(2)
Insert:
(2A) The regulations may prescribe the circumstances in which a person
(other than the Official Trustee or a registered trustee) is ineligible to act
as a controlling trustee under this Part.
(2B) An authority signed by a debtor under this section is not effective
for the purposes of this Part if, at the time the authority is signed, the
person authorised:
(a) is not the Official Trustee or a registered trustee; and
(b) is ineligible, under the regulations, to act as a controlling trustee
under this Part.
196 After subsection
189(1A)
Insert:
(1B) The trustee must notify the Official Receiver in writing within 7
days after the trustee becomes aware that the control has ended because of an
event specified in subsection (1A).
197 Subsection 207(1)
Omit “under section 198”.
198 Subsection 207(3)
Omit “as required by section 198”.
199 Paragraph 222(4)(b)
Omit “subsection 188(2)”, substitute
“section 188A”.
200 Paragraph 224(c)
Omit “is terminated by the Court under section 236 or
242”, substitute “is terminated under section 234B, 236 or
242”.
201 Paragraph 224(d)
Omit “is terminated by the creditors under section 241”,
substitute “is terminated under section 240B or 241”.
202 Subsections 226(1) and
(2)
Omit “subsection 188(2)”, substitute
“section 188A”.
203 After section 234
Insert:
Variation by special resolution of creditors
(1) The creditors, with the written consent of the debtor, may vary a deed
of arrangement by special resolution at a meeting called for the
purpose.
Variation by trustee
(2) The trustee, with the written consent of the debtor, may, in writing,
propose a variation of a deed of arrangement.
(3) The trustee must give notice of the proposed variation to all the
creditors who would be entitled under section 64A (as that section applies
in accordance with section 223A) to receive notice of a meeting of
creditors.
(4) The notice must:
(a) include a statement of the reasons for the variation and the likely
impact it will have on creditors (if it takes effect); and
(b) specify a date (at least 14 days after the notice is given) from which
it is proposed that the variation will take effect; and
(c) state that any creditor may, by written notice to the trustee at least
2 days before the specified date, object to the variation taking effect without
there being a meeting of creditors.
(5) If no creditor lodges a written notice of objection with the trustee
at least 2 days before the specified date, then the proposed variation takes
effect on the date specified in the notice.
(6) A certificate signed by the trustee stating any matter relating to a
proposed variation under subsection (3) is prima facie evidence of the
matter.
(1) The trustee may, in writing, propose the termination of a deed of
arrangement if the trustee is satisfied that the debtor is in default.
(2) The trustee must give notice of the proposed termination to all the
creditors who would be entitled under section 64A (as that section applies
in accordance with section 223A) to receive notice of a meeting of
creditors.
(3) The notice must:
(a) include a statement of the reasons for the termination and the likely
impact it will have on creditors (if it takes effect); and
(b) specify a date (at least 14 days after the notice is given) from which
it is proposed that the termination will take effect; and
(c) state that any creditor may, by written notice to the trustee at least
2 days before the specified date, object to the termination taking effect
without there being a meeting of creditors.
(4) If:
(a) the debtor is in default; and
(b) no creditor lodges a written notice of objection with the trustee at
least 2 days before the specified date;
then the proposed termination takes effect on the date specified in the
notice.
(5) For the purposes of this section, the debtor is in
default if, and only if:
(a) the debtor has failed to carry out or comply with a provision of the
deed; or
(b) if the debtor has died, the debtor or the person administering the
estate of the debtor has failed to carry out or comply with a provision of the
deed.
(6) A certificate signed by the trustee stating any matter relating to a
proposed termination under this section is prima facie evidence of the
matter.
204 After section 240
Insert:
Variation by special resolution of creditors
(1) The creditors, with the written consent of the debtor, may vary a
composition by special resolution at a meeting called for the purpose.
Variation by trustee
(2) The trustee, with the written consent of the debtor, may, in writing,
propose a variation of a composition.
(3) The trustee must give notice of the proposed variation to all the
creditors who would be entitled under section 64A (as that section applies
in accordance with section 223A) to receive notice of a meeting of
creditors.
(4) The notice must:
(a) include a statement of the reasons for the variation and the likely
impact it will have on creditors (if it takes effect); and
(b) specify a date (at least 14 days after the notice is given) from which
it is proposed that the variation will take effect; and
(c) state that any creditor may, by written notice to the trustee at least
2 days before the specified date, object to the variation taking effect without
there being a meeting of creditors.
(5) If no creditor lodges a written notice of objection with the trustee
at least 2 days before the specified date, then the proposed variation takes
effect on the date specified in the notice.
(6) A certificate signed by the trustee stating any matter relating to a
proposed variation under subsection(3) is prima facie evidence of the
matter.
(1) The trustee may, in writing, propose the termination of a composition
if the trustee is satisfied that the debtor is in default.
(2) The trustee must give notice of the proposed termination to all the
creditors who would be entitled under section 64A (as that section applies
in accordance with section 223A) to receive notice of a meeting of
creditors.
(3) The notice must:
(a) include a statement of the reasons for the termination and the likely
impact it will have on creditors (if it takes effect); and
(b) specify a date (at least 14 days after the notice is given) from which
it is proposed that the termination will take effect; and
(c) state that any creditor may, by written notice to the trustee at least
2 days before the specified date, object to the termination taking effect
without there being a meeting of creditors.
(4) If:
(a) the debtor is in default; and
(b) no creditor lodges a written notice of objection with the trustee at
least 2 days before the specified date;
then the proposed termination takes effect on the date specified in the
notice.
(5) For the purposes of this section, the debtor is in
default if, and only if:
(a) the debtor has failed to carry out or comply with a term of the
composition; or
(b) if the debtor has died, the debtor or the person administering the
estate of the debtor has failed to carry out or comply with a term of the
composition.
(6) A certificate signed by the trustee stating any matter relating to a
proposed termination under this section is prima facie evidence of the
matter.
205 Subsection 265(8)
Omit “of an amount of $500 or upwards”.
206 Subsection 265A(1)
Omit “, 77B”.
Note: The heading to section 265A is altered by
omitting “, 77B”.
207 Subsection 265A(2)
Omit “, 77B”.
208 Paragraph 265A(3)(a)
Omit “or 77B”.
209 After paragraph 272(b)
Insert:
(baa) being a debtor to whom a cooling-off period applies under
section 55 or 57, leaves Australia, or does an act preparatory to leaving
Australia, without the permission of the Court; or
210 Paragraph 272(ba)
Repeal the paragraph.
211 Paragraph 272(c)
Omit “not being a person to whom paragraph (ba)
applies,”.
212 At the end of
section 272
Add:
(2) The trustee may impose written conditions on a consent given for the
purposes of paragraph (1)(c). If the bankrupt is liable to make a
contribution to the trustee under section 139P or 139Q, the conditions may
include conditions regarding the payment of that contribution.
(3) If the bankrupt contravenes any condition imposed by the trustee, the
bankrupt is guilty of an offence and is punishable, on conviction, by
imprisonment for a period not exceeding 1 year.
213 At the end of paragraph
282(2)(b)
Add “before the original time for payment”.
214 Paragraph 283(1)(a)
Omit “hardship”, substitute “undue
hardship”.
215 Paragraph 304A(1)(h)
Repeal the paragraph.
216 Subsection 304A(3)
Omit “or 149ZC”.
217 Subsection 305(1)
Omit “the Official Receiver, the trustee of the estate of a
bankrupt”, substitute “the trustee of the estate of a bankrupt, the
trustee under Part X in relation to a debtor”.
218 Subparagraph
305(1)(a)(i)
After “the bankrupt”, insert “, the
debtor”.
219 Subparagraph
305(1)(a)(ii)
After “the bankrupt”, insert “, the
debtor”.
220 Subparagraph
305(1)(b)(i)
After “the bankrupt”, insert “, the
debtor”.
221 Subparagraph
305(1)(b)(ii)
After “the bankrupt”, insert “, the
debtor”.
222 Subsection 305(1)
Omit “in the estate of the bankrupt”, substitute “in the
estate of the bankrupt, the debtor”.
223 Subsection 305(2)
After “the bankrupt”, insert “, the
debtor”.
224 At the end of
section 305
Add:
(4) In this section:
estate:
(a) in relation to a deed of assignment under Part X—means the
property that is vested in the trustee under the deed; and
(b) in relation to a deed of arrangement under Part X—means the
property that is vested in the trustee under the deed or is available, or may
become available, to the trustee under the deed; and
(c) in relation to a composition under Part X—means the
property that is available, or may become available, to the trustee under the
composition.
Part 2—Transitional
provisions
225 Definitions
In this Part:
Bankruptcy Act means the Bankruptcy Act
1966.
commencing date means the date on which section 1
commenced.
commencing time means the time when section 1
commenced.
226 Items 4, 5, 6,7, 11, 27 and
38
The amendments made by items 4, 5, 6, 7, 11, 27 and 38 do not apply to
declarations of intention that were lodged before the commencing time.
227 Items 9 and 22
The amendments made by items 9 and 22 apply to offences committed at
any time, whether before or after the commencing time.
228 Item 16
The amendment made by item 16 applies to conduct occurring after the
commencing time.
229 Item 18
An appointment in force under section 16 of the Bankruptcy Act
immediately before the commencing time continues in effect after the commencing
time as if it had been made under that section as amended by this Act.
230 Items 19 and 20
An appointment in force under section 17 of the Bankruptcy Act
immediately before the commencing time continues in effect after the commencing
time as if it had been made under that section as amended by this Act. However,
nothing in this item is taken to alter the time when the appointment was
made.
231 Items 23, 24, 91, 92, 93, 94, 95, 206,
207 and 208
The amendments made by items 23, 24, 91, 92, 93, 94, 95, 206, 207 and
208 apply to bankruptcies for which the date of the bankruptcy is after the
commencing date.
232 Item 26
The amendment made by item 26 applies to statements of affairs that
are filed at any time, whether before or after the commencing time.
233 Items 29, 30, 31 and
32
The amendments made by items 29, 30, 31 and 32 apply to the issue of
bankruptcy notices on applications that are made after the commencing
time.
234 Items 33, 46, 52, 65, 129, 132, 154,
215 and 216
The amendments made by items 33, 46, 52, 65, 129, 132, 154, 215 and
216 apply to bankruptcies for which the date of the bankruptcy is after the
commencing date.
235 Item 34
The amendment made by item 34 applies to any creditor’s petition
that is presented after the commencing time.
236 Items 39, 40, 44, 45, 59, 60, 63 and
64
The amendments made by items 39, 40, 44, 45, 59, 60, 63 and 64 apply
to petitions presented after the commencing time.
237 Items 12, 15, 21, 139, 28, 43, 49, 50,
51, 62, 68, 69 and 97
The amendments made by items 12, 15, 21, 139, 28, 43, 49, 50, 51, 62,
68, 69 and 97 apply to petitions presented after the commencing time.
238 Items 70, 71, 72, 75, 76 and
77
The amendments made by items 70, 71, 72, 75, 76 and 77 apply to
meetings of which notice is given after the commencing time.
239 Item 73
The amendment made by item 73 applies to meetings held after the
commencing time.
240 Items 79, 80 and
81
The amendments made by items 79, 80 and 81 apply to proposals lodged
after the commencing time under subsection 73(1) of the Bankruptcy
Act.
241 Items 82, 200, 201, 203 and
204
(1) The amendments made by items 82, 200, 201, 203 and 204 apply to
compositions, schemes of arrangement and deeds of arrangement that are made
after the commencing time.
(2) For the purposes of this item:
(a) a composition or scheme of arrangement is made when it is accepted by
the creditors; and
(b) a deed of arrangement is made when it is executed.
242 Items 83, 84, 85, 86, 87, 88, 89, 90,
96 and 139
The amendments made by items 83, 84, 85, 86, 87, 88, 89, 90, 96 and
139 apply to changes that occur after the commencing time.
243 Items 98, 122, 147 and
169
The amendments made by items 98, 122, 147 and 169 apply in relation to
the review of decisions that are made after the commencing time.
244 Items 99 and 101
The amendments made by items 99 and 101 apply to trustee decisions
that are made after the commencing time.
245 Item 100
The amendment made by item 100 applies to proofs admitted after the
commencing time.
246 Items 102 and 105
The amendments made by items 102 and 105 apply to bankruptcies for
which the date of the bankruptcy is after the commencing date.
247 Item 104
The amendment made by item 104 applies to bankruptcy notices issued
after the commencing time.
248 Item 106
The amendment made by item 106 applies to all bankruptcies, including
those that ended before the commencing time. However, for a bankruptcy that
ended before the commencing time, the initial revesting time is the beginning of
the day that is the sixth anniversary of the commencing day (instead of the
sixth anniversary of the day on which the bankrupt was discharged).
249 Items 111, 112, 113, 114, 115, 116,
117, 118, 119, 120 and 121
The amendments made by items 111, 112, 113, 114, 115, 116, 117, 118,
119, 120 and 121 apply to contribution assessment periods that begin after the
commencing date.
250 Items 124, 126 and
152
The amendments made by items 124, 126 and 152 apply in relation to the
review of decisions that are made after the commencing time.
251 Items 127, 210, 211 and
212
Despite the amendments made by items 127, 210, 211 and 212:
(a) Division 4C of Part VI of the Bankruptcy Act continues to
have effect:
(i) in relation to permissions granted under that Division before the
commencing time; and
(ii) in relation to applications that were made to the Court under that
Division before the commencing time; and
(iii) in relation to permissions granted after the commencing time on
applications referred to in subparagraph (ii); and
(b) paragraph 272(c) of the Bankruptcy Act does not apply to anything done
by a bankrupt in accordance with a permission referred to in paragraph (a)
of this item.
252 Items 133, 134, 135, 136, 137, 138,
140, 141, 142, 143, 144, 145, 146, 148, 149 and 151
The amendments made by items 133, 134, 135, 136, 137, 138, 140, 141,
142, 143, 144, 145, 146, 148, 149 and 151 apply to objections filed after the
commencing time.
253 Item 155
The amendment made by item 155 applies to annulments after the
commencing time, including annulments of bankruptcies for which the date of
bankruptcy is before the commencing time.
254 Item 156
The amendment made by item 156 applies to petitions presented after
the commencing time.
255 Items 158, 159 and
163
The amendments made by items 158, 159 and 163 apply to registration
applications made after the commencing time.
256 Items 160 and 161
The amendments made by items 160 and 161 apply to extensions of
registration with an expiry date that is at least 3 months after the commencing
date.
257 Items 165 and 166
The amendments made by items 165 and 166 apply where the trustee is
appointed after the commencing time.
258 Item 170
The amendment made by item 170 applies to all bankruptcies (including
those for which the date of the bankruptcy is before the commencing
date).
259 Items 171, 172, 173, 174, 175, 176,
178, 180, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193 and
194
(1) The amendments made by items 171, 172, 173, 174, 175, 176, 178,
180, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193 and 194 apply to
debt agreements that are in force at the commencing time and to debt agreements
made after the commencing time.
(2) Things that were done before the commencing time by, or in relation to,
the Official Trustee under Part IX of the Bankruptcy Act are to be treated
as if they had been done by, or in relation to, the Official Receiver.
260 Item 177
The amendment made by item 177 applies to debt agreement proposals
that are given after the commencing time under subsection 185C(1) of the
Bankruptcy Act.
261 Item 181
The amendment made by item 181 applies to debt agreement proposals
that are given after the commencing time under subsection 185C(1) of the
Bankruptcy Act.
262 Item 195
The amendment made by item 195 applies to authorities that are signed
after the commencing time.
263 Item 196
The amendment made by item 196 applies in cases where the control ends
after the commencing time.
264 Item 205
The amendment made by item 205 applies to debts contracted after the
commencing time.
265 Item 213
The amendment made by item 213 applies to applications made after the
commencing time.
266 Item 214
The amendment made by item 214 applies in cases where the application
for remission is made to the Inspector-General after the commencing
time.