Commonwealth of Australia Explanatory Memoranda

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BANKRUPTCY (ESTATE CHARGES) AMENDMENT BILL 2004

2002-2003-2004



THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA





HOUSE OF REPRESENTATIVES





BANKRUPTCY (ESTATE CHARGES) AMENDMENT BILL 2004





EXPLANATORY MEMORANDUM






(Circulated by authority of the Attorney-General,
the Honourable Philip Ruddock MP)

Readers’ Guide

This Explanatory Memorandum is divided into three main sections: a general outline of the main provisions of the Bankruptcy (Estate Charges) Amendment Bill 2004 (the Bill) (Section 1); a discussion of the main policy objectives underlying each of the provisions (Section 2); and a detailed discussion of each provision, item by item (Section 3).

Section 1 - General Outline

2 The Bankruptcy (Estate Charges) Amendment Bill 2004 (the Bill) will make a number of minor changes to the Bankruptcy (Estate Charges) Act 1997. These changes are necessary only to reflect the repeal of the three types of Part X administrations and the proposed introduction of personal insolvency agreements (proposed by the Bankruptcy Legislation Amendment Bill 2004).

3 The amendments proposed by this Bill will have no financial impact.

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Section 2 - Policy objectives

4 The amendments proposed in this Bill are consequential to the amendments to the Bankruptcy Act 1966 proposed to be made by the Bankruptcy Legislation Amendment Bill 2004. The proposed amendments are technical and represent no change in policy.

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Section 3 - Notes on sections and Schedule items

Section 1 - Short Title

5 Proposed section 1 provides that the Bill when enacted may be cited as the Bankruptcy (Estate Charges) Amendment Act 2004 (the Act).

Section 2 - Commencement

6 Proposed section 2 provides that, when enacted, sections 1 to 3 and anything in the Act not elsewhere covered by the table will commence on the day on which the Act receives Royal Assent. The amendments contained in Schedule 1 (the substantive amendments to the Act) will commence at the same time as Schedule 1 to the Bankruptcy Legislation Amendment Bill 2004

Section 3 - Schedules

7 Proposed section 3 is a drafting device to allow all the amendments proposed to be made to the Bankruptcy (Estate Charges) Act 1997 to be set out in Schedules. The items in the Schedule will amend the Act and will have effect according to their terms. Notes on the Schedule items follow.

Schedule 1—Amendments to the Bankruptcy (Estate Charges) Act 1997

Part 1—Amendments

8 The amendments proposed by this Bill are purely technical and are necessary only to reflect the repeal of the three types of Part X administrations and the introduction of personal insolvency agreements.

9 Item 1 proposes to repeal paragraphs 5(2)(b), (c) and (d) of the Act which refer to provisions of the Bankruptcy Act 1966 that are proposed to be omitted by the Bankruptcy Legislation Amendment Bill 2004. New paragraph 5(2)(b) will be substituted. That provision will refer to new subsection 231(4) in the Bankruptcy Act 1996 which is proposed to be amended by the Bankruptcy Legislation Amendment Bill 2004.

10 Item 2 repeals paragraph 6(1)(c) of the Act which currently refers to the trustee of a deed or composition under Part X of the Bankruptcy Act 1966. This item proposes to insert a new paragraph referring to the trustee of a personal insolvency agreement.

11 Item 3 omits the reference to ‘deed’ at subsection 6(1A) of the Act to substitute the new terminology of ‘personal insolvency agreement’ in the Bankruptcy Act 1966 which is proposed to be introduced by the Bankruptcy Legislation Amendment Bill 2004.

Part 2—Transitional provisions

12 Under subsection 2(1) of this Bill, the proposed amendments contained in Schedule 1 will commence on a single day to be fixed by Proclamation. The effect of this will be that the new provisions concerning application of the realisations charge will apply in relation to amounts received by trustees of personal insolvency agreements executed after commencement of the new provisions. It is intended that, in relation to deeds and compositions which are executed or accepted prior to commencement, the existing provisions of the Act will continue to apply. Therefore, it is necessary to ensure that the existing provisions can continue to apply in relation to Part X arrangements in force prior to commencement.

13 Item 4(1) contains definitions to distinguish between post-commencement and pre-commencement deeds and compositions and incorporates definitions from the transitional provisions contained in the Bankruptcy Legislation Amendment Bill 2004.

14 Items 4(2) and (3) are intended to ensure that, notwithstanding the changes to Act made by this Bill, the Act as it stood prior to commencement of the amendments continues to apply in relation to deeds and compositions executed prior to commencement.

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