Bankruptcy Amendment Act 1991
No. 9 of 1992
An Act to amend the Bankruptcy Act 1966, and for related purposes
[Assented to 17 January 1992]
The Parliament of Australia enacts:
PART 1—PRELIMINARY
Short title etc.
1.(1) This Act may be cited as the Bankruptcy Amendment Act 1991.
(2) In this Act, "Principal Act" means the Bankruptcy Act 19661.
Commencement
2.(1) Parts 1 and 3 commence on the day on which this Act receives the Royal Assent.
(2) Subject to subsection (3), the provisions of Part 2 commence on a day or days to be fixed by Proclamation.
(3) If a provision referred to in subsection (2) does not commence within the period of 6 months commencing on the day on which this Act receives the Royal Assent, it commences at the end of that period.
PART 2—AMENDMENTS OF THE PRINCIPAL ACT
Interpretation
3. Section 5 of the Principal Act is amended:
(a) by adding "or the annulment of the bankruptcy" at the end of paragraph (a) of the definition of "end" in subsection (1);
(b) by omitting "Securities Industries Act 1980 or a law of a State or the Northern Territory corresponding to that Act" from paragraph (a) of the definition of "private company" in subsection (1) and substituting "Corporations Law".
4. Section 6A of the Principal Act is repealed and the following sections are substituted:
Provision of statement of affairs otherwise than under Part X or XI
"6A.(1) This section has effect for the purposes of the following provisions of this Act, namely, subsections 54(1) and (2) and paragraphs 55(2)(b), 56(2)(a) and (b), 56(13)(a) and (b) and 57(2)(a) and (b).
"(2) A reference in a provision of this Act referred to in subsection (1) to a statement of affairs is a reference to a statement that:
(a) is in a form approved by the Inspector-General and published in the Gazette; and
(b) sets out particulars of:
(i) the bankrupt's or debtor's name, the address of the bankrupt's or debtor's principal place of residence, another address (if any) at which documents can be sent by post to the bankrupt or debtor and a telephone number (if any) at which the bankrupt or debtor can be contacted during ordinary working or business hours; and
(ii) all the property of the debtor or bankrupt as at the time of the making of the declaration referred to in paragraph (c); and
(iii) all the liabilities (whether secured or unsecured, actual or contingent, liquidated or unascertained) of the debtor or bankrupt as at the time of the making of the declaration referred to in paragraph (c); and
(iv) all the income that the debtor or bankrupt expects to derive in the 12 months following the filing of the statement; and
(c) contains a declaration, signed by the debtor or bankrupt, that, so far as the debtor or bankrupt is aware, the particulars set out in the statement are correct.
"(3) If the trustee has reasonable grounds to suspect that:
(a) any particulars set out in a statement of affairs that was filed by a person who was a bankrupt when the statement was filed, or has since become a bankrupt, are false or misleading in a material respect; or
(b) any material particulars have been omitted from that statement;
the trustee may, by written notice given to the bankrupt, require the bankrupt, within a specified period of not less than 14 days, to provide such information or to produce such books as are specified in the notice for the purpose of enabling the trustee to decide whether the particulars set out in the statement are correct.
"(4) In approving a form for the purposes of paragraph (2)(a), the Inspector-General must ensure that the form:
(a) contains provisions to bring to the attention of the debtor or bankrupt the obligation to set out all the particulars of his or her property, liabilities and income as mentioned in paragraph (2)(b); and
(b) provides for a form of declaration by the debtor or bankrupt as mentioned in paragraph (2)(c).
Provision of statement of affairs under Part X or XI and statement of administration of estate of deceased person
"6B.(1) This section has effect for the purposes of the following provisions of this Act, namely, subparagraph 188(2)(c)(i), paragraph 246(1)(a) and subsection 247(1).
"(2) A reference in a provision of this Act referred to in subsection (1) to a statement of affairs or to a statement of a person's administration of a deceased person's estate is a reference to a statement of those affairs and of that administration that:
(a) contains such information as is prescribed for the purposes of that provision; and
(b) is verified by affidavit.".
Functions of Inspector-General
5. Section 12 of the Principal Act is amended by adding at the end the following subsection:
"(4) The Inspector-General, or a person authorised in writing by the Inspector-General to exercise the powers of the Inspector-General under this subsection:
(a) is entitled to attend any meeting of creditors held under this Act; and
(b) subject to section 64ZA, is entitled to participate in any such meeting as the Inspector-General thinks fit.".
Duties etc. of trustee
6. Section 19 of the Principal Act is amended by inserting after subsection (1) the following subsections:
"(1A) If:
(a) a bankrupt became a bankrupt before the commencement of this subsection and applies after that commencement for early discharge from the bankruptcy under section 149S; and
(b) the trustee is of the opinion, on the basis of the information in the possession of the trustee, that the bankrupt was eligible to make the application and is not disqualified from early discharge;
it is also the duty of the trustee to cause to be given to each of the bankrupt's creditors whose address is known to the trustee a notice:
(c) setting out the date on which the application was made; and
(d) setting out the kinds of matters that might render the bankrupt ineligible under Subdivision C of Division 3 of Part VII to apply for early discharge, or might disqualify the bankrupt under Subdivision D of that Division from early discharge; and
(e) telling the creditor that any matters known to the creditor that might so render the bankrupt ineligible to apply for early discharge, or might so disqualify the bankrupt from early discharge, should be given to the trustee within 6 months after the date set out as mentioned in paragraph (c).
"(1B) If a person becomes a bankrupt after the commencement of this subsection, it is also the duty of the trustee to cause to be given to each of the bankrupt's creditors whose address is known to the trustee a notice:
(a) setting out the date on which the bankrupt's statement of affairs was filed; and
(b) stating the trustee's opinion, on the basis of the information in the possession of the trustee, as to whether the bankrupt will be eligible to apply for early discharge from the bankruptcy under section 149S and whether the bankrupt is disqualified from early discharge under Subdivision D of Division 3 of Part VII; and
(c) setting out the kinds of matters that might under the bankrupt ineligible under Subdivision C of Division 3 of Part VII to apply for early discharge, or might disqualify the bankrupt under Subdivision D of that Division from early discharge; and
(d) telling the creditor that any matters known to the creditor that might so render the bankrupt ineligible to apply for early discharge, or might so disqualify the bankrupt from early discharge, should be given to the trustee within 6 months after the date set out as mentioned in paragraph (a).
"(1C) The trustee must cause the notice referred to in subsection (1A) or (IB) to be given as soon as practicable after the trustee forms the opinion mentioned in paragraph (1A)(b) or (1B)(b), as the case may be.".
Exercise of powers by certain officials
7. Section 31A of the Principal Act is amended by inserting after paragraph (1)(n) the following paragraph:
"(o) the power to make an order under section 139ZU granting permission to a bankrupt to leave Australia;".
8. Section 37 of the Principal Act is repealed and the following section is substituted:
Power of Court to rescind orders etc.
"37.(1) Subject to subsection (2), the Court may rescind, vary or discharge an order made by it under this Act or may suspend the operation of such an order.
"(2) The Court does not have power to rescind or discharge, or to suspend the operation of:
(a) a sequestration order; or
(b) an order for the administration of the estate of a deceased person under Part XL".
Heading
9. The heading to Division 5 of Part IV is repealed and the following heading and Subdivision are inserted:
"Division 5—Meetings of creditors
"Subdivision A—Preliminary
Definitions
"63A.(1) In this Division, unless the contrary intention appears:
'bankrupt', in relation to a meeting of the creditors of 2 or more bankrupts, means each bankrupt;
'creditors and their representatives', in relation to a meeting, means:
(a) the creditors who are entitled to vote at the meeting and are participating in person or by telephone in the meeting; and
(b) the persons participating in person or by telephone in the meeting as proxies or attorneys of any other creditors who are entitled to vote at the meeting;
'joint bankruptcy' means:
(a) a bankruptcy that occurs as the result of a sequestration order made under section 52, being an order made on a petition presented under section 46; or
(b) a bankruptcy that occurs by force of section 56 or 57; or
(c) bankruptcies in respect of which an order under section 53 has been made; or
(d) bankruptcies that occur under section 55 where:
(i) the date of each bankruptcy is the same; and
(ii) immediately before the bankruptcies occurred, the bankrupts were joint debtors or partners who owned property jointly;
'meeting' means a meeting of the creditors of a bankrupt or a meeting of the creditors of any one or more of the bankrupts who were made bankrupt in a joint bankruptcy;
'minutes secretary', in relation to a meeting, means a person appointed under section 64L to record the minutes of the meeting;
'President', in relation to a meeting, means the person elected under section 64P to preside at the meeting;
'working day', in relation to a proposed meeting, means a day other than a Saturday, a Sunday or a public holiday in the place where the meeting is proposed to be held.
"(2) A reference in this Division to a person participating in person in a meeting is a reference to a person being physically present at the meeting.
Trustee's representative
"63B.(1) The trustee of a bankrupt may, by signed writing, appoint a person to represent the trustee at a meeting.
"(2) If the trustee is not personally present at a meeting, then, unless the contrary intention appears, a reference in this Division to the trustee, in respect of matters occurring at that meeting, is a reference to a person so appointed to represent the trustee at that meeting.".
Heading
10. Before section 64 of the Principal Act the following heading is inserted:
"Subdivision B—Convening of meetings".
Trustee to convene meetings
11. Section 64 of the Principal Act is amended:
(a) by omitting from subsection (1) "shall" and substituting "must";
(b) by adding at the end of paragraph (1)(a) "and".
12. Sections 65 to 68, inclusive, of the Principal Act are repealed and the following sections are substituted:
Persons to whom notice of meeting to be given
"64A.(1) If:
(a) the bankrupt has told the trustee, or the trustee has otherwise found out, that a person is a creditor of the bankrupt; and
(b) the trustee is aware of one or more of the following:
(i) the address of a place of business of the person;
(ii) the address of a place of residence of the person or, in the case of a company, the address of its registered office;
(iii) an address to which notices may be sent to the person;
(iv) a document exchange number to which notices may be sent to the person;
(v) a facsimile transmission number to which notices may be sent to the person;
the trustee must give notice to the person of any meeting of the bankrupt's creditors.
"(2) Notice of a meeting must be in writing and:
(a) delivered, or sent by post, to the person at an address referred to in subparagraph (1)(b)(i), (ii) or (iii); or
(b) lodged with a document exchange at, or for delivery to, the person's receiving facilities in the document exchange that are identified by the document exchange number referred to in subparagraph (1)(b)(iv); or
(c) sent to the person by facsimile transmission to the number referred to in subparagraph (1)(b)(v).
Certain matters to be included in notice of meeting
"64B.(1) The notice must set out the full name and the address of a place of residence of the bankrupt.
"(2) If the meeting is the first meeting of the bankrupt's creditors, the notice must set out any trade or business name under which the bankrupt carried on business.
"(3) The notice must set out the time, date and place at which the meeting is to be held.
"(4) The notice must set out the agenda for the meeting and must state that additional matters may be added to the agenda with the leave of the meeting.
"(5) The notice must state that a creditor, or a proxy or attorney of a creditor, may make a statement at the meeting at the appropriate time during the proceedings.
If telephone conference facilities are available
"64C. If telephone conference facilities are expected to be available at the place where the meeting is to be held and the trustee considers that, having regard to all the circumstances, it will be appropriate to use those facilities, the notice must:
(a) set out the relevant telephone number; and
(b) tell the creditors that a creditor, or the proxy or attorney of a creditor, who wishes to participate in the meeting by telephone must give to the trustee, not later than the second-last working day before the day on which the meeting is to be held, a written statement setting out:
(i) the name of the creditor and of the proxy or attorney (if any); and
(ii) an address to which notices to the creditor, proxy or attorney may be sent; and
(iii) a telephone number at which the creditor, proxy or attorney may be contacted; and
(iv) any facsimile transmission number to which notices to the creditor, proxy or attorney may be sent; and
(c) also tell the creditors that a creditor, or the proxy or attorney of a creditor, who participates in the meeting by telephone must pay any costs incurred by the creditor, proxy or attorney in so participating and is not entitled to be reimbursed those costs out of the bankrupt's estate.
Statement by creditor as to amount of debt
"64D. The notice must state that each creditor must give to the trustee at or before the meeting a written statement setting out:
(a) the amount in respect of which the creditor claims that the bankrupt is indebted to the creditor; and
(b) if the meeting is the first meeting of the bankrupt's creditors:
(i) whether the creditor holds a security in respect of the debt and, if so, the value of the security as estimated by the creditor and the amount of the creditor's debt after deducting that value; and
(ii) brief particulars of the transaction and circumstances that gave rise to the debt.
Notice about voting by proxy
"64E.(1) The notice must have attached to it a form for use in appointing a proxy.
"(2) The notice must tell the creditors that, where a creditor wishes to appoint a person to represent the creditor at the meeting as the creditor's proxy, the creditor must complete the form of appointment of proxy and either:
(a) arrange for the proxy to give the completed form to the trustee at the meeting; or
(b) send the completed form with the statement given by the creditor to the trustee in accordance with section 64D.
Notice about appointment of attorney
"64F. The notice must tell the creditors that, where a creditor wishes to be represented at the meeting by an attorney, the creditor must arrange for the power of attorney to be produced to the trustee at or before the meeting.
Agenda to be set out in notice of meeting
"64G. The agenda to be set out in a notice of meeting in accordance with subsection 64B(4) is to comprise the following items:
(a) opening of the meeting and introduction of the trustee and the bankrupt;
(b) appointment of a minutes secretary;
(c) announcement of appointment of proxies and attorneys and circulation of instruments appointing proxies and copies of powers of attorney for inspection by the persons present;
(d) determination whether a quorum exists;
(e) election of a person to preside at the remainder of the meeting;
(f) proposal of a motion 'that the meeting is being held at a time, date and place that are convenient to the majority of creditors';
(g) if the meeting is the first meeting—tabling of the bankrupt's statement of affairs;
(h) statements by the trustee and by creditors and their representatives;
(i) questions to the trustee and to the bankrupt;
(j) President's summary of matters raised in statements and questions;
(k) proposal of other motions (if any);
(l) if the trustee is a registered trustee who does not wish his or her remuneration to be fixed by the Registrar—if the meeting is the first meeting, approval of the remuneration proposed by the trustee, or, if the meeting is a subsequent meeting, a statement by the trustee of the amount of remuneration drawn before the meeting was held;
(m) appointment of committee of inspection (if required);
(n) any other business;
(o) fixing of time, date and place for another meeting;
(p) closure of meeting.
"Subdivision C—Procedure before opening of meeting
Creditors, or proxies or attorneys, participating by telephone
"64H.(1) If a trustee has considered it appropriate that telephone conference facilities may be used for a meeting of creditors pursuant to section 64C and if a creditor, or the proxy or attorney of the creditor, who wishes to participate by telephone in the meeting has satisfied the requirements of paragraph 64C(b), in so far as they are applicable, the trustee must take all reasonable steps to ensure that the creditor, or the proxy or attorney of the creditor, is contacted on the telephone number provided by that person before the start of the meeting, and if such a person is so contacted the trustee must take all reasonable steps to ensure that that person can hear the proceedings, and can be heard, by means of those facilities, so that that person can participate in the meeting.
"(2) A creditor who, or whose proxy or attorney, so participates in the meeting by telephone is taken, for all purposes of this Act, to be present personally at the meeting.
Preparation of attendance record
"64J.(1) The trustee must prepare an attendance record in accordance with subsection (2) for the purposes of the meeting and must keep the record in his or her possession after the conclusion of the meeting.
"(2) The attendance record must include 5 columns and must indicate that particulars of creditors are to be entered as follows:
(a) the name of each creditor participating in person or by telephone, or represented by a proxy or attorney participating in person or by telephone, is to be entered in the first column;
(b) if a creditor is so represented by a proxy or attorney, the name of the proxy or attorney is to be entered in the second column opposite to the name of the creditor in the first column;
(c) in respect of each creditor whose name is entered in the first column:
(i) the value of the creditor's debt is to be entered in the third column; and
(ii) if the debt is secured in whole or in part:
(A) the nature, and the value as estimated by the creditor, of the security is to be entered in the fourth column; and
(B) the balance of the creditor's debt after deducting that value is to be entered in the fifth column.
"(3) The attendance record must also include provision for recording whether the bankrupt is present and the names of any other persons present who are not creditors or proxies or attorneys of creditors, including provision for recording the capacity in which those other persons are present.
"Subdivision D—Procedure at meetings
Opening of meeting
"64K.(1) The trustee is to preside at the meeting until a person is appointed to preside under section 64P.
"(2) The trustee must open the meeting and introduce himself or herself and, if the bankrupt is present, introduce the bankrupt.
"(3) If the bankrupt is not present, the trustee must announce that fact and, if the trustee is aware of any reason why the bankrupt is not present, must state that reason.
"(4) The trustee must circulate the attendance record prepared in accordance with section 64J among the creditors, and creditors' proxies and attorneys, participating in person and must ask them to enter in that record the relevant particulars, as required by the attendance record, of:
(a) the creditors who, or whose proxies and attorneys, are so participating in person; and
(b) those proxies and attorneys; and
(c) the debts of those creditors.
"(5) The trustee must enter in the attendance record the relevant particulars, as required by the attendance record, of:
(a) creditors who, or whose proxies or attorneys, are participating in the meeting by telephone; and
(b) those proxies and attorneys; and
(c) the debts of those creditors.
"(6) The trustee must state in the attendance record whether or not the bankrupt is present and, if the bankrupt is not present and the trustee is aware of any reason why the bankrupt is not present, must set out that reason.
Appointment of minutes secretary
"64L.(1) The trustee must then:
(a) invite the creditors and their representatives to propose a motion appointing a person to record the minutes of the meeting; or
(b) if no such motion is passed—appoint a person to record those minutes.
"(2) Anyone participating in person in the meeting, whether or not a creditor or a proxy or attorney of a creditor, and including the trustee but not including the bankrupt, is eligible for appointment as the minutes secretary.
"(3) If a person appointed to record the minutes of a meeting subsequently refuses, or is unable, to record, or to continue to record,
those minutes, subsections (1) and (2) apply for the purpose of appointing another person to record the minutes.
Announcement of proxies and attorneys
"64M.(1) The trustee must then announce:
(a) the names of the creditors who are not participating in person or by telephone but whose proxies or attorneys are participating in person or by telephone; and
(b) the names of the proxies and attorneys.
"(2) The trustee must then circulate the instruments appointing proxies, and the powers of attorney or copies of the powers of attorney, for inspection by persons present at the meeting.
Quorum
"64N.(1) The trustee must then determine whether a quorum is present.
"(2) A quorum is constituted:
(a) if there is only one creditor who is entitled to vote:
(i) by that creditor, or a proxy or attorney of that creditor, participating in person or by telephone; and
(ii) by the presence in person of the trustee; or
(b) otherwise—by 2 persons participating in person or by telephone each of whom is either a creditor who is entitled to vote or the proxy or attorney of such a creditor.
"(3) If a quorum is not present within 30 minutes after the time fixed for the meeting, the meeting is adjourned to a time, date and place fixed by the trustee.
"(4) The date of the adjourned meeting must be not earlier than 7 days nor later than 14 days from the date of the original meeting.
"(5) The time and place of the adjourned meeting need not be the same as the time and place of the original meeting.
"(6) The following provisions of this Division apply to any meeting at which a quorum is present within 30 minutes after the time fixed for that meeting.
"(7) To remove any doubt, but without limiting by implication the application of subsection 63B(2) to other references in this Division to the trustee, the reference in subparagraph (2)(a)(ii) of this section to the presence in person of the trustee includes a reference to the presence in person of a person appointed under subsection 63B(1) to represent the trustee.
Election of person to preside at meeting
"64P.(1) The trustee must:
(a) invite the creditors and their representatives to nominate a person for election to preside at the meeting; or
(b) if no person is so nominated—nominate a person for election to preside at the meeting.
"(2) Anyone participating in person in the meeting, whether or not a creditor or a proxy or attorney of a creditor, and including the trustee but not including the bankrupt, is eligible to be nominated for appointment, and may be elected, to preside at the meeting.
"(3) If only one person is nominated, that person is taken to be elected to preside at the meeting.
"(4) If 2 or more persons are nominated, an election is to be held to determine which of the persons nominated is to preside at the meeting and the person who receives the greatest number of votes (whether or not a majority of the votes cast) is taken to be elected to preside at the meeting.
"(5) Subject to subsection (6), voting at the election is to be on the voices.
"(6) If the trustee is unable to determine which of the persons nominated received the greatest number of the votes on the voices, the trustee must ask each creditor, and each proxy or attorney, participating in person or by telephone to state for which nominee the creditor, proxy or attorney is casting a vote or whether the creditor, proxy or attorney is abstaining from casting a vote.
"(7) If 2 or more persons each receive the greatest number of votes, the trustee must decide by lot which of those persons is to be chosen to preside at the meeting, and the person so chosen is taken to be elected to preside at the meeting.
"(8) A person elected under this section to preside at the meeting is to preside at all times after he or she is elected.
"(9) If a person so elected subsequently refuses, or is unable, to preside, or to continue to preside, at the meeting, the preceding provisions of this section apply for the purpose of electing another person to preside at the meeting.
Whether holding of meeting is convenient to majority of creditors
"64Q.(1) As soon as the President is elected, he or she must invite the creditors and their representatives to propose a motion that the meeting is being held at a time, date and place that are convenient to' a majority of creditors.
"(2) If no such motion is proposed, or such a motion is proposed but is not passed, the meeting is adjourned to such time, date and place as the meeting resolves.
Tabling of bankrupt's statement of affairs
"64R.(1) If the meeting is the first meeting, the President must then request the trustee to lay the bankrupt's statement of affairs before the meeting and the trustee must comply with the request.
"(2) If any of the creditors and their representatives requests that a creditor be given a copy of the statement of affairs, the trustee must comply with the request as soon as reasonably practicable.
Statements and questions
"64S.(1) The President must then invite the trustee and the creditors and their representatives to make statements to the meeting.
"(2) After the statements (if any) have been made, the President must invite the creditors and their representatives to ask questions of the trustee and, if the bankrupt is present, of the bankrupt.
"(3) After the statements (if any) have been made and the questions (if any) have been asked, the President may, if he or she wishes to do so, summarise the matters raised in any such statements and in any questions asked of, and answers given by, the trustee and the bankrupt.
Motions
"64T. The President must then invite the creditors and their representatives to propose any relevant motions.
Remuneration of registered trustee
"64U.(1) If the meeting is the first meeting of the bankrupt's creditors and the trustee is a registered trustee, the President must then ask the trustee to state the basis on which the trustee wishes to be remunerated.
"(2) If the trustee states that he or she wishes his or her remuneration to be fixed by the Registrar under subsection 162(4), the minutes secretary is to record that statement in the minutes of the meeting.
"(3) If the trustee states a different basis for the fixing of his or her remuneration, the following provisions of this section have effect.
"(4) The President must invite the creditors and their representatives to propose a motion that the trustee be remunerated in accordance with the statement and, if no such motion is proposed, the trustee may propose such a motion.
"(5) A statement to be made by the trustee as mentioned in subsection (3) must:
(a) if the trustee proposes to charge on a time-cost basis:
(i) if there is only one rate at which the remuneration is to be calculated—state that rate; or
(ii) otherwise—state the respective rates at which the remuneration of the trustee and the other persons who will be assisting, or will be likely to assist, the trustee in the performance of his or her duties are to be calculated; or
(b) if the trustee proposes to charge on the basis of a commission upon money received by the trustee—state the rate of that commission;
and must also state the periods at which the trustee proposes to withdraw funds from the bankrupt's estate in respect of the trustee's remuneration.
"(6) Any of the creditors and their representatives may ask the trustee questions about the proposed remuneration of the trustee and, if such a question is asked, the trustee must answer it.
"(7) Any of the creditors and their representatives may move an amendment to a motion proposed in accordance with subsection (4) so as to change in any way the basis on which the trustee is to charge or the periods at which the trustee may withdraw funds in respect of his or her remuneration or to refer the fixing of the trustee's remuneration to a committee of inspection.
"(8) If the meeting is not the first meeting of the bankrupt's creditors and the trustee is a registered trustee, the President must request the trustee to lay before the meeting a statement of the amount of remuneration drawn by the trustee from the funds of the bankrupt's estate before the meeting was held and the trustee must comply with the request.
Appointment of committee of inspection
"64V. The President must then tell the creditors and their representatives that, if they wish to appoint a committee of inspection, a motion for the appointment of such a committee may be proposed and must explain to them the effect of section 70.
Other business
"64W. If no motion is proposed for the appointment of a committee of inspection, or a motion for the appointment of such a committee has been passed or defeated, the President must then invite the creditors and their representatives to raise any other matters relevant to the bankruptcy.
Next meeting
"64X.(1) The President must then invite the creditors and their representatives to propose a motion fixing a time, date and place for another meeting.
"(2) The passing of a resolution fixing a time, date and place for another meeting does not prevent the trustee from convening any other meeting before or after the date so fixed.
"Subdivision E—Miscellaneous
Adjournment of meeting
"64Y.(1) If, at any time during a meeting, the meeting is adjourned, or a resolution is passed for the adjournment of the meeting:
(a) the adjourned meeting is taken to be a continuation of the original meeting; and
(b) without limiting the application of paragraph (a):
(i) the persons who carried out the duties of President and minutes secretary at the original meeting are to continue to do so at the adjourned meeting; and
(ii) any matters required to be dealt with at the original meeting that were not so dealt with are to be dealt with at the adjourned meeting.
"(2) The trustee must give notice of the time, date and place of the adjourned meeting to each creditor in accordance with subsection 64A(2).
Duties of minutes secretary
"64Z.(1) It is the duty of the minutes secretary of a meeting to take minutes in accordance with this section recording the business transacted at the meeting.
"(2) The minutes may, but need not, record full particulars of statements made, questions asked and answers given at the meeting but must contain sufficient particulars to show that the meeting dealt with all matters that are required by this Division to be dealt with.
"(3) Without limiting the generality of subsection (2), the minutes must record:
(a) the name, and the address of a place of residence or business, of the minutes secretary or, if there were different minutes secretaries at different times during the meeting, of each minutes secretary; and
(b) the votes cast for each nominee at an election of a person to preside at the meeting (other than an election at which voting took place on the voices); and
(c) the name, and the address of a place of residence or business,
of the President or, if there were different Presidents at different times during the meeting, of each President.
"(4) The minutes must record the precise words of each motion proposed at the meeting and of any amendment proposed to such a motion.
"(5) If a resolution or a special resolution is passed at the meeting:
(a) the minutes secretary must prepare a certificate recording the precise words of the resolution or special resolution; and
(b) the President and the minutes secretary must each sign the certificate; and
(c) the minutes secretary must give the certificate:
(i) to the trustee; or
(ii) in the case of a resolution passed under section 181 removing the trustee—to the trustee appointed in place of the trustee removed and to the Official Receiver; and
(d) the trustee to whom the certificate is given must file the certificate with the Registrar.
"(6) If a motion is passed or defeated on the voices, the minutes must record that fact and, if a person who voted against a motion that was passed on the voices asks that the person's dissent be recorded in the minutes, that dissent must be so recorded.
"(7) The minutes must record the value of each creditor's debt and the total value of the debts of all the creditors.
"(8) If a poll 'is taken on a motion, the minutes must record:
(a) the number and names of the creditors (if any) who voted in favour of the motion and the total value of their debts; and
(b) the number and names of the creditors (if any) who voted against the motion and the total value of their debts; and
(c) the number and names of the creditors (if any) who abstained from voting on the motion and the total value of their debts.
"(9) A reference in this section to the value of a creditor's debt is, if the creditor holds a security in respect of that debt, a reference to the value of that debt after deducting the value of the security as estimated by the creditor in the statement given by the creditor to the trustee under section 64D.
"(10) The minutes must be dated, and be signed by the President and the minutes secretary, not later than 14 days after the date of the meeting.
Entitlement to vote
"64ZA.(1) This section applies to voting:
(a) at an election under section 64P of a person to preside at a meeting; and
(b) on any motion proposed at a meeting or an amendment proposed to such a motion.
"(2) In this section:
'creditor' means a creditor who, or whose proxy or attorney, participates in the meeting in person or by telephone.
"(3) A person other than a creditor is not entitled to vote.
"(4) Subject to subsections (5) and (6), each creditor is entitled to vote and has one vote.
"(5) If a creditor holds a security in respect of a debt, the creditor is not entitled to vote unless the debt, or the total amount of the debts, owed to the creditor exceeds the amount estimated by the creditor in the statement given to the trustee under section 64D to be the value of the security.
"(6) A creditor who has failed to give to the trustee a statement in accordance with section 64D is not entitled to vote.
"(7) A creditor is not disqualified from voting merely because the creditor is the President or the minutes secretary.
"(8) The trustee may determine any question that arises as to the entitlement of a person to vote.
"(9) If the trustee needs a period in which to determine a question referred to in subsection (8), the meeting is to be adjourned to such time, date and place as the meeting resolves, being a date not later than 14 days after the date of the original meeting, for the purpose of enabling the trustee to determine the question.
Manner of voting
"64ZB.(1) A creditor who participates in a meeting in person or by telephone may cast the creditor's vote personally and not otherwise.
"(2) Subject to subsections (3) and (5), the vote of a creditor who is not participating in a meeting in person or by telephone may be cast by a proxy duly appointed by the creditor, or by an attorney duly authorised by the creditor under a power of attorney, being a proxy or attorney participating in the meeting in person or by telephone, and the casting of a creditor's vote by such a proxy or attorney is taken to constitute the casting of a vote by the creditor.
"(3) A creditor's proxy or attorney is not entitled to cast the creditor's vote at a meeting unless the instrument appointing the proxy was received by, or the power of attorney was produced to, the trustee before the announcement about the appointment of proxies and attorneys is made at the meeting under section 64M.
"(4) A creditor's proxy or attorney is not disqualified from casting the creditor's vote merely because the proxy or attorney is the trustee, the President or the minutes secretary.
"(5) If the trustee or an associate of the trustee is a creditor's proxy or attorney, the trustee or associate may not cast the creditor's vote on a motion relating to the trustee's remuneration unless the instrument appointing the proxy or the power of attorney, as the case may be, expressly authorises the trustee or associate to cast the creditor's vote on such a motion.
"(6) For the purposes of subsection (5), a person is an associate of the trustee if the person is:
(a) a partner of the trustee; or
(b) an employee of the trustee; or
(c) a solicitor for the trustee, for a partnership in which the trustee is a partner, or for a person or partnership that employs the trustee.
"(7) A motion proposed at a meeting is to be resolved:
(a) subject to paragraph (b)—on the voices; or
(b) if:
(i) the President is unable to determine the result of the voting on the voices; or
(ii) any of the creditors and their representatives requests a poll, whether the request is made before the motion is put to the vote on the voices or after the President announces the result of the vote on the voices; or
(iii) the motion relates to a matter in respect of which this Act requires the passing of a resolution or special resolution;
by a poll taken:
(iv) by a show of hands or written votes of creditors, or proxies or attorneys, participating in person; and
(v) by statements made by telephone to the President by creditors, or proxies or attorneys, participating by telephone.
Appointment of proxies
"64ZC.(1) An instrument appointing a proxy must set out:
(a) the full name, and the address of a place of residence or business, of the creditor; and
(b) the full name, and the address of a place of residence or business, of the person appointed as proxy.
"(2) An instrument appointing a proxy may appoint more than one person as proxy but:
(a) if the first person named in the instrument as a proxy is participating in person or by telephone in the meeting, only that person may cast the creditor's vote; and
(b) any other person named in the instrument as a proxy may cast the creditor's vote if, and only if, that person is participating in person or by telephone in the meeting and no person named in the instrument as a proxy before the name of that person is participating in person or by telephone in the meeting.
"(3) An instrument appointing a proxy must set out the bankrupt's name and must state whether the appointment relates to a particular meeting or to all meetings.
"(4) An instrument appointing a proxy may authorise the proxy to cast the creditor's vote at a meeting to which the proxy relates on all matters arising at the meeting or may authorise the proxy to cast the creditor's vote at that meeting only on matters specified in the instrument.
"(5) An instrument appointing a proxy may direct the proxy as to the manner in which the proxy is to vote on a particular matter or matters that may arise at the meeting or on a particular motion or motions that may be proposed at the meeting.
"(6) If an instrument appointing a proxy purports to appoint the bankrupt as a proxy, the purported appointment does not have any effect but, if the instrument also appoints another person as a proxy, the appointment of the other person is not affected and the instrument has effect as if the purported appointment of the bankrupt were not included.
Provisions relating to motions and amendments of motions
"64ZD.(1) Subject to the right of the trustee to propose a motion relating to the trustee's remuneration under subsection 64U(4), the only persons who may propose motions, or amendments of motions, at a meeting are the creditors and their representatives.
"(2) A motion or amendment does not need to be seconded.
"(3) If a motion is proposed, the person presiding at the meeting must allow a reasonable time for debate on the motion and on any amendment proposed to the motion.
"(4) After a reasonable time for debate has elapsed, the person presiding must:
(a) if no amendment has been proposed—put the motion to a vote; or
(b) if an amendment or amendments have been proposed, put the amendment or amendments to a vote; and
(i) if the amendment or amendments are defeated—put the original motion to a vote; or
(ii) if an amendment or amendments are passed—put the original motion as amended to a vote.
"(5) If a question arises as to the terms of a motion or amendment that is being put to a vote, the person presiding must read the motion or amendment to the meeting.
Joint bankruptcies
"64ZE.(1) At a meeting of the creditors in a joint bankruptcy, the trustee must explain to the creditors and their representative s the likely effect of section 110 with respect to the distribution of dividends.
"(2) At a meeting of the creditors in a bankruptcy to which section 141 applies, the trustee must explain to the creditors and their representatives the likely effect of section 141 with respect to the distribution of dividends.
Substantial compliance to be sufficient
"64ZF. A meeting, or anything done at a meeting, is not invalid because a requirement of this Subdivision has not been strictly complied with if the requirement has been substantially complied with.".
Heading
13. Before section 70 of the Principal Act the following heading is inserted:
"Division 5A—Committee of inspection".
Committee of inspection
14. Section 70 of the Principal Act is amended by omitting from subsection (1) "qualified" and substituting "entitled".
Annulment of bankruptcy
15. Section 74 of the Principal Act is amended by omitting subsections (1) to (5) inclusive, and substituting the following subsections:
"(5) Upon the passing of a special resolution at a meeting of creditors of a bankrupt under subsection 73(4), the bankruptcy is annulled, by force of this subsection, on the date on which the special resolution was passed.
"(5A) The trustee must, as soon as practicable after that date, give to the Registrar a written certificate setting out the name and the bankruptcy number of the former bankrupt and the date of the annulment.
"(5B) The Registrar must enter in his or her records the fact that the bankruptcy has been annulled and the date of the annulment.".
Effect of composition or scheme of arrangement
16. Section 75 of the Principal Act is amended:
(a) by omitting from subsections (1) and (3) "and approved";
(b) by omitting from subsection (2) "and approval";
(c) by omitting subparagraph (4)(b)(ii) and substituting the following subparagraphs:
"(ii) the approval of the creditors was obtained by a misrepresentation by the former bankrupt; or
(iii) it is desirable that the affairs of the former bankrupt be investigated and administered under the provisions of this Act relating to bankruptcy; or
(iv) it is likely that the creditors will receive a greater dividend if the former bankrupt is again made a bankrupt;".
17. After section 76 of the Principal Act the following section is inserted in Division 6 of Part IV:
Meetings of creditors
"76A. Division 5 of Part IV applies, so far as it is capable of applying and with such modifications (if any) as are prescribed by the rules, to meetings of creditors under this Division.".
Heading
18. After the heading to Part V of the Principal Act the following heading is inserted:
"Division 1—General".
19. After section 77 of the Principal Act the following section is inserted:
Access by Official Receiver to premises
"77AA.(1) The Official Receiver, or an officer authorised in writing by the Official Receiver to exercise powers under this section, is entitled at all reasonable times to full and free access to all premises and books for any purpose of this Act, and for that purpose may make copies of, or take extracts from, any such book.
"(2) An officer is not entitled to enter or remain in or on any premises under this section if, on being requested by the occupier of the premises for proof of authority, the officer does not produce the officer's authority under subsection (1).
"(3) The occupier of any premises entered or proposed to be entered by the Official Receiver, or by an officer, under subsection (1) must provide the Official Receiver or officer with all reasonable facilities and assistance for the effective exercise of powers under this section.
Penalty: $3,000.".
20. After section 77B of the Principal Act the following sections are inserted:
Power of Official Receiver to obtain information and evidence
"77C.(1) The Official Receiver, by written notice given to any person, whether a bankrupt or not, including any person employed by or in connection with a Department, or an authority, of the Commonwealth, of a State or of a Territory, may require the person:
(a) to give to the Official Receiver such information as the Official Receiver requires for the purposes of the performance of the functions of the Official Receiver or a trustee under this Act; and
(b) to attend before the Official Receiver, or before an officer authorised in writing by the Official Receiver to exercise powers under this paragraph, and:
(i) give evidence; and
(ii) produce all books in the possession of the person;
relating to any matters connected with the performance of the functions of the Official Receiver or a trustee under this Act.
"(2) The Official Receiver or authorised officer may require the information or evidence to be given on oath, and either orally or in writing, and for that purpose may administer an oath.
Allowances and expenses in respect of attendance
"77D.(1) Subject to this section, a person who attends before the Official Receiver, or before an authorised officer, under subsection 77C(1) is entitled:
(a) to be paid by the Official Receiver an allowance of $20 in respect of each day or part of a day on which the person so attends; and
(b) to be reimbursed by the Official Receiver any reasonable expenses incurred by the person for transport, meals and accommodation in connection with the person's attendance.
"(2) A person who is or has been a bankrupt is not entitled to be paid an allowance, or reimbursed any expenses, in respect of the attendance of that person to give evidence or produce books relating to his or her bankruptcy.
"(3) A person is not entitled to be reimbursed any expenses unless the person produces to the Official Receiver sufficient documentary evidence to establish that the person incurred those expenses.
"(4) This section has effect subject to section 304A.
Advance on account of allowances and expenses
"77E.(1) If a person who is required by a notice under subsection 77C(1) to attend before the Official Receiver or an authorised officer is entitled under subsection 77D(1) to be paid an allowance and to be reimbursed expenses in respect of the attendance, the Official Receiver must, before the person begins to travel for the purpose of so attending, offer to the person, on account of the allowance and reimbursement of expenses, an advance determined under this section.
"(2) If the Official Receiver is satisfied that it will be necessary for the person to travel by aircraft from the person's principal place of residence to the place at which the person is required to attend, the advance is to be an amount equal to the sum of $20 and the ordinary one-way economy class airfare from the airport nearest to that principal place of residence to the airport nearest to the place at which the person is required to attend.
"(3) If the person will be travelling by private motor vehicle, the advance is to be the sum of $20 and whichever is the lesser of the following amounts:
(a) an amount prescribed by the rules;
(b) if there is an airport open to civilian passenger traffic that is within a radius of 100 kilometres from the person's principal place of residence—the ordinary one-way economy class airfare from that airport to the airport nearest to the place at which the person is required to attend.
"(4) If the person will be travelling otherwise than as mentioned in subsections (2) and (3), the advance is to be:
(a) if the distance between the person's principal place of residence and the place at which the person is required to attend exceeds 50 kilometres—$10 plus such additional amount (if any) as is prescribed by the rules; or
(b) in any other case—$10.
"(5) The rules may prescribe different amounts in respect of different distances and different means of travel.
"(6) This section has effect subject to section 304A.
Allowances and expenses to be paid out of bankrupt's estate
"77F. If the evidence that a person gives, or the books that a person produces, under section 77C, relate to matters concerning the bankruptcy of a particular person, any amount payable to the first-mentioned person under section 77D or 77E is to be paid out of the estate of the bankrupt as an expense of the administration of the bankruptcy.".
Notification of change in name, address or day-time telephone number
21. Section 80 of the Principal Act is amended:
(a) by omitting subsection (1) and the penalty at the foot of that subsection and substituting the following subsection and penalty:
"(1) If during a bankruptcy a change occurs in the bankrupt's name, 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), the bankrupt must immediately tell the Registrar and the trustee in writing of the change.
Penalty: Imprisonment for 6 months.";
(b) by omitting subsection (3) and the penalty at the foot of that subsection.
Discovery of bankrupt's property etc.
22. Section 81 of the Principal Act is amended by inserting ", other than the relevant person," after "person" (first occurring) in subsection (14).
23. After section 81 of the Principal Act the following Divisions are inserted:
"Division 2—Offshore information notices
Issue of notices
"81A.(1) If the Official Receiver has reason to believe that:
(a) information relevant to the examinable affairs of a bankrupt is:
(i) known (whether exclusively or otherwise) by a person outside Australia; or
(ii) recorded (whether exclusively or otherwise) in a book outside Australia; or
(b) books relevant to the examinable affairs of a bankrupt are outside Australia (whether or not copies are in Australia or, if the books are copies of other books, whether or not those other books are in Australia);
the Official Receiver, by written notice (in this Division called the 'offshore information notice') given to any person, may request the person:
(c) to give to the Official Receiver, within the period and in the manner set out in that notice, any such information; or
(d) to produce to the Official Receiver, within the period and in the manner set out in that notice, any such books; or
(e) to make copies of any such books and to produce to the Official Receiver, within the period and in the manner set out in that notice, those copies.
"(2) The period set out in the offshore information notice must end 90 days after the date on which the notice is given.
Extension of period of notice
"81B.(1) Upon written application made by the person to whom the offshore information notice was given within the period set out in that notice, the Official Receiver, by written notice given to that person, may extend the period set out in the offshore information notice.
"(2) If:
(a) an application under subsection (1) is made before the end of the period set out in the offshore information notice; and
(b) at the end of the period, the Official Receiver has not notified the person of the decision of the Official Receiver on the application;
the following provisions have effect:
(c) the Official Receiver is taken to have extended the period under subsection (1) to the end of the day on which the decision of the Official Receiver is notified to the person to whom the offshore information notice was given;
(d) if the Official Receiver decides to extend the period—the extended period must end after the day referred to in paragraph (c).
"(3) A reference in this Division (other than subsection (1) of this section) to the period set out in the offshore information notice is a reference to the period as extended under that subsection.
Variation of notices
"81C.(1) If:
(a) an offshore information notice (in this subsection called the 'first notice') was given to a person; and
(b) during the period set out in the first notice (including a period set out by virtue of one or more previous applications of this subsection), another offshore information notice (in this subsection called the 'subsequent notice') is given to the person; and
(c) the subsequent notice is expressed to be by way of variation of the first notice;
the following provisions have effect:
(d) the request, or each of the requests, set out in the subsequent notice is taken, for the purposes of section 81G, to have been set out in the first notice;
(e) if the period set out in the first notice would, apart from this subsection, end before the end of the period set out in the subsequent notice—the period set out in the first notice is taken
to have been extended under subsection 81B(1) to the end of the period set out in the subsequent notice.
"(2) The Official Receiver, by written notice given to the person to whom the offshore information notice was given, may vary the offshore information notice by:
(a) reducing its scope; or
(b) correcting a clerical error or obvious mistake;
and, if the Official Receiver does so, a reference in this Division to the offshore information notice is taken to be a reference to that notice as so varied.
Withdrawal of notices
"81D.(1) The Official Receiver may withdraw an offshore information notice.
"(2) If the Official Receiver withdraws an offshore information notice, the withdrawal does not prevent the Official Receiver from giving another offshore information notice in substitution, in whole or in part, for the withdrawn notice.
Notices may be included in same document
"81E. An offshore information notice may be contained in the same document as a notice under section 77C.
Relationship between this Division and section 77C
"81F. Nothing in this Division affects the operation of section 77C and nothing in section 77C affects the operation of this Division.
"Division 3—Failure to comply with certain notices
Effect of non-compliance with notice
"81G.(1) In this section:
'relevant proceeding' means a proceeding:
(a) for the recovery of an amount payable by a bankrupt under section 139ZG; or
(b) for the recovery of an amount payable by a person under section 139ZL; or
(c) involving the question whether a transaction is void against the trustee under Division 3 of Part VI.
"(2) Subject to subsection (3), where a person refuses or fails to comply with a request or requirement set out in a notice given to the person under Division 1 or 2 to give any information or produce any books:
(a) if the request or requirement applies to information—the information is not admissible in a relevant proceeding; or
(b) if the request or requirement applies to books—neither the books, nor any secondary evidence of the books, is admissible in a relevant proceeding.
"(3) Subsection (2) does not apply to information or a book if the person proves that:
(a) the information or book was not in the possession of the person when the notice was given; and
(b) there were no reasonable steps that the person could have taken to obtain the information or book.
"(4) A notice given to a person under Division 1 or 2 must set out the effect of subsections (2) and (3).
"(5) A failure to comply with subsection (4) does not affect the validity of the notice.".
Income of bankrupt
24. Section 131 of the Principal Act is repealed.
25. After Division 4A of Part VI of the Principal Act the following Divisions are inserted:
"Division 4B—Contribution by bankrupt and recovery of property
"Subdivision A—Preliminary
Objects of Division
"139J. The objects of this Division are:
(a) to require a bankrupt who derives income during the bankruptcy to pay contributions towards the bankrupt's estate; and
(b) to enable the recovery of certain money and property for the benefit of the bankrupt's estate.
"Subdivision B—Interpretation
Definitions
"139K. In this Division, unless the contrary intention appears:
'actual income threshold amount', in relation to a bankrupt, at a particular time, means:
(a) if the bankrupt does not have any dependants at that time— the base income threshold amount; or
(b) if the bankrupt has one dependant at that time—the base income threshold amount increased by:
(i) if the dependant is wholly dependent on the bankrupt for economic support—18%; or
(ii) if the dependant is only partly dependent on the bankrupt for economic support—9%; or
(c) if the bankrupt has 2 dependants at that time—the base income threshold amount increased by:
(i) if both dependants are wholly dependent on the bankrupt for economic support—27%; or
(ii) if either of the dependants is only partly dependent on the bankrupt for economic support—13.5%; or
(d) if the bankrupt has 3 dependants at that time—the base income threshold amount increased by:
(i) if all the dependants are wholly dependent on the bankrupt for economic support—32%; or
(ii) if any of the dependants is only partly dependent on the bankrupt for economic support—16%; or
(e) if the bankrupt has 4 dependants at that time—the base income threshold amount increased by:
(i) if all the dependants are wholly dependent on the bankrupt for economic support—34%; or
(ii) if any of the dependants is only partly dependent on the bankrupt for economic support—17%; or
(f) if the bankrupt has more than 4 dependants at that time—the base income threshold amount increased by:
(i) if all the dependants are wholly dependent on the bankrupt for economic support—36%; or
(ii) if any of the dependants is only partly dependent on the bankrupt for economic support—18%;
'assessment', in relation to a contribution assessment period, means the original assessment or a subsequent assessment in respect of that period;
'base income threshold amount', at any time, means the amount that, at that time, is specified in column 3, item 3, Table B, point 1064-B1, Pension Rate Calculator A, in the Social Security Act 1991, multiplied by 3.5;
'contribution assessment period', in relation to a bankrupt, means a period that:
(a) begins on:
(i) the commencement of the bankruptcy or the commencement of this Division, whichever is the later; or
(ii) an anniversary of that commencement, being an anniversary that occurs during the bankruptcy; and
(b) ends one year after that commencement or that anniversary, as the case requires, or if the bankrupt is discharged within that year, ends upon the discharge;
'dependant', in relation to a bankrupt, means a person who:
(a) resides with the bankrupt; and
(b) does not receive any income from a person other than the bankrupt or a spouse or former spouse of the bankrupt; and
(c) is wholly dependent on the bankrupt for economic support or is dependent for economic support partly on the bankrupt and partly on a spouse or former spouse of the bankrupt;
'derived' means earned, derived or received from any source, whether within or outside Australia;
'income', in relation to a bankrupt, has the meaning given by section 139L;
'original assessment', in relation to a contribution assessment period, means the assessment made by the trustee under subsection 139W(1) in respect of that period;
'spouse', in relation to a bankrupt, includes a de facto spouse of the bankrupt;
'subsequent assessment', in relation to a contribution assessment period, means an assessment made by the trustee under subsection 139W(2) in respect of that period;
'value', in relation to property referred to in a notice, means the market value of the property when the notice is given.
"Subdivision C—Income
Meaning of income
"139L. In this Division:
'income', in relation to a bankrupt, means any amount derived by the bankrupt that is income according to ordinary usages and concepts, and includes:
(a) a payment to the bankrupt from a provident, benefit, superannuation, retirement or approved deposit fund; and
(b) a payment to the bankrupt in consequence of a termination of any office or employment; and
(c) an amount received by the bankrupt under a policy of life insurance or endowment insurance; and
(d) an amount received by the bankrupt as a beneficiary under a trust to the extent to which the amount was paid out of income of the trust; and
(e) the value of a benefit that is, or if it were provided by an employer would be, a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986, being that value as worked out in accordance with the provisions of that Act but subject to any modifications of those provisions made by the rules; and
(f) the amount of any money, or the value of any other consideration, received by a person other than the bankrupt
from another person as a result of work done or services performed by the bankrupt, less any expenses (other than expenses of a capital nature) necessarily incurred by the first-mentioned person in connection with the work or services;
but does not include an amount that is not income for the purposes of the Social Security Act 1991 because of subsection 8(8) of that Act (other than paragraph (a), (b), (h), (ha), (j), (k), (ka), (m), (z), (za) or (zb) of that subsection).
Derivation of income
"139M.(1) Income is taken to be derived by a bankrupt for the purposes of this Division even though it is not actually received by the bankrupt because:
(a) an amount is deducted from it, or it is wholly or partly otherwise applied, under a law of the Commonwealth, of a State or of a Territory; or
(b) it is reinvested, accumulated or capitalised; or
(c) it is dealt with on behalf of the bankrupt or as the bankrupt directs.
"(2) A reference in this Division to the income that a bankrupt is likely to derive during a contribution assessment period includes a reference to income that the bankrupt has derived during that period.
"(3) A reference in this Division to income derived by a bankrupt during a contribution assessment period includes a reference to income so derived in respect of work done or services performed by the bankrupt before that period or work to be done or services to be performed by the bankrupt after that period.
Income varied by income tax payments and refunds and child support payments
"139N. The income that is likely to be derived, or was derived, by a bankrupt during a contribution assessment period:
(a) is taken to be reduced by:
(i) any amount that the bankrupt pays or is likely to be liable to pay, or paid or was liable to pay, as the case may be, during that period in respect of income tax; and
(ii) any amount that the bankrupt pays or is likely to be liable to pay, or paid or was liable to pay, as the case may be, during that period in respect of child support under the Child Support (Assessment) Act 1989; and
(iii) if the bankrupt pays or is likely to be liable to pay, or paid or was liable to pay, as the case may be, during that period an amount for the support of a child pursuant to a maintenance agreement entered into under the Family Law Act 1975—so much of that amount as does not
exceed the maximum amount that, but for that agreement, the bankrupt could be, or could have been, liable to pay during that period in respect of child support under the Child Support (Assessment) Act 1989; and
(b) is taken to be increased by any amount that the bankrupt receives or is likely to receive, or received or was entitled to receive, as the case may be, during that period as a refund of income tax.
"Subdivision D—Liability of bankrupt to pay contributions
Liability of bankrupt to pay contribution
"139P.(1) Subject to section 139Q, if the income that a bankrupt is likely to derive during a contribution assessment period as assessed by the trustee under an original assessment exceeds the actual income threshold amount applicable in relation to the bankrupt when that assessment is made, the bankrupt is liable to pay to the trustee a contribution in respect of that period.
"(2) Subject to section 139Q, if the income that a bankrupt is likely to derive during a contribution assessment period as assessed by the trustee under an original assessment does not exceed the actual income threshold amount applicable in relation to the bankrupt when that assessment is made, the bankrupt is not liable to, but may if he or she so wishes, pay to the trustee a contribution in respect of that period.
Change in liability of bankrupt
"139Q.(1) If the income that a bankrupt is likely to derive, or derived, during a contribution assessment period as assessed by the trustee under a subsequent assessment exceeds the actual income threshold amount applicable in relation to the bankrupt when the subsequent assessment is made, the bankrupt is liable to pay to the trustee a contribution in respect of that period.
"(2) The liability of the bankrupt under subsection (1) in respect of a contribution assessment period is in substitution for any liability of the bankrupt in respect of that period under subsection 139P(1) or under any previous application of subsection (1) of this section and has effect despite subsection 139P(2).
"(3) If the income that a bankrupt is likely to derive, or derived, during a contribution assessment period as assessed by the trustee under a subsequent assessment does not exceed the actual income threshold amount applicable in relation to the bankrupt when the subsequent assessment is made:
(a) the bankrupt is not liable to, but may if he or she so wishes, pay to the trustee a contribution in respect of that income; and
(b) any liability that the bankrupt had under subsection 139P(1) or
under subsection (1) of this section to pay a contribution in respect of that period is extinguished.
Liability not affected by subsequent discharge
"139R. Any liability of a bankrupt under section 139P or 139Q is not affected by his or her discharge from bankruptcy after the making of the assessment that gave rise to the liability.
Contribution payable by bankrupt
"139S. The contribution that a bankrupt is liable to pay in respect of a contribution assessment period is the amount worked out in accordance with the formula:
where:
'Assessed income' means the amount assessed by the trustee to be the income that the bankrupt is likely to derive, or derived, during the contribution assessment period;
'Actual income threshold amount' means the actual income threshold amount assessed by the trustee to be applicable in relation to the bankrupt when the assessment is made.
Official Receiver may vary contribution if bankrupt suffers hardship
"139T.(1) If:
(a) the trustee has made an assessment of a contribution that a bankrupt is liable to pay to the trustee in respect of 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 Official Receiver for the making of a determination under this section in respect of that period.
"(2) The reasons for which an application may be made under subsection (1) 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 not provided by, or by an authority of, the Commonwealth, a State or a Territory, or by 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 prescribed reason.
"(3) The Official Receiver 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 Official Receiver 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 Official Receiver does not make a decision on the application within that period of 30 days, the Official Receiver is taken to have made a decision at the end of that period refusing the 0 application.
"(6) If the Official Receiver is satisfied that the bankrupt will suffer hardship if required to pay the contribution, the Official Receiver 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 Official Receiver determines.
"(7) If the Official Receiver is not satisfied that the bankrupt will suffer hardship if required to pay the contribution, the Official Receiver is to refuse the application.
"(8) If the Official Receiver makes a determination under subsection (6), the Official Receiver has all the powers of the trustee in relation to the bankrupt in respect of the contribution assessment period and may make such assessment under section 139W as is necessary to give effect to the determination.
"(9) An assessment made by the Official Receiver in accordance with subsection (8) is taken to have been made by the trustee.
"(10) The Official Receiver must give written notice to the bankrupt and, if the trustee is a registered trustee, to the trustee:
(a) setting out the Official Receiver'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.
"(11) A notice given under subsection (10) to the bankrupt must include a statement to the effect that, if the bankrupt is dissatisfied with the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision.
"(12) A contravention of subsection (11) in relation to a decision does not affect the validity of the decision.
"(13) An application may be made to the Administrative Appeals Tribunal for the review of a decision by the Official Receiver under this section.
"(14) If the Administrative Appeals Tribunal sets aside a determination made by the Official Receiver under subsection (6), varies that determination, or sets aside that determination and makes a determination in substitution for that determination, the Official Receiver has, and is to exercise, the powers of the trustee under section 139W for the purpose of giving effect to the decision of the Administrative Appeals Tribunal.
"Subdivision E—Provision of information to trustee
Bankrupt to provide evidence of income
"139U.(1) A bankrupt must, as soon as practicable, and in any event not later than 21 days, after the end of a contribution assessment period, give to the trustee:
(a) a statement:
(i) setting out particulars of all the income that was derived by the bankrupt during that contribution assessment period; and
(ii) indicating what income (if any) the bankrupt expects to derive during the next contribution assessment period; and
(b) such books evidencing the derivation of the income referred to in subparagraph (a)(i) as are in the possession of the bankrupt or the bankrupt can readily obtain.
Penalty: Imprisonment for 6 months.
"(2) The particulars that a bankrupt is required to include in a statement given to the trustee under subparagraph (1)(a)(i) are all the particulars that are known to the bankrupt and any particulars that the bankrupt can readily obtain.
"(3) Without limiting the generality of paragraph (1)(b), the books that a bankrupt is required to give to the trustee under that paragraph in respect of a contribution assessment period include:
(a) if the bankrupt received from his or her employer one or more pay slips or other documents evidencing salary or wages paid to him or her by that employer during that period—that document or each of those documents; and
(b) any group certificate or tax stamps sheet in the possession of the bankrupt that relates in whole or in part to that period; and
(c) any statement provided to the bankrupt by a bank or other financial institution that shows periodic payments made during that period to an account kept by the bankrupt (either alone or jointly with any other person) with that institution; and
(d) any notice of assessment issued to the bankrupt under the Income Tax Assessment Act 1936 in respect of a year of income in which that period is included; and
(e) if the bankrupt is in receipt of a pension, allowance or other benefit under a law of the Commonwealth, of a State or of a Territory—any letter or other document sent or given to the bankrupt by the Department or authority that administers the legislation or scheme under which the benefit is provided.
Power of trustee to require bankrupt to provide additional evidence
"139V. If the trustee has reasonable grounds to suspect that:
(a) any particulars set out in the statement given by the bankrupt under subsection 139U(1) are false or misleading in a material respect; or
(b) any material particulars have been omitted from that statement;
then, for the purpose of enabling the trustee to decide whether the particulars set out in the statement are correct, the trustee, by written notice given to the bankrupt, may require the bankrupt to give to the trustee within a specified period of not less than 14 days such information or books as are specified in the notice.
"Subdivision F—Assessments of income and contribution
Assessment of bankrupt's income and contribution
"139W.(1) As soon as practicable after the start of each contribution assessment period in relation to a bankrupt and before the bankrupt is discharged, the trustee is to make an assessment of the income that is likely to be derived by the bankrupt during that period, of the actual income threshold amount that is applicable in relation to the bankrupt when the assessment is made and of the contribution (if any) that the bankrupt is liable to pay in respect of that period under section 139S.
"(2) If at any time, whether during or after a contribution assessment period but before the bankrupt is discharged, any one or more of the following paragraphs applies or apply:
(a) the trustee is satisfied that the income that is likely to be derived, or was derived, by the bankrupt during that period is or was greater or less than the amount of that income as assessed by the last preceding assessment in respect of that period;
(b) the base income threshold amount increased after the making of the last preceding assessment in respect of that period and before the end of that period;
(c) the trustee is satisfied that the number of the bankrupt's dependants who were wholly or partly dependent on the bankrupt for economic support increased or decreased after the making of the last preceding assessment and before the end of that period;
the trustee is to make a fresh assessment of the income that is likely to be derived, or was derived, by the bankrupt during that period, of the actual income threshold amount that is applicable in relation to the bankrupt when the assessment is made and of the contribution (if any) that the bankrupt is liable to pay in respect of that period.
"(3) The powers of the trustee under subsection (2) may be exercised on the trustee's own initiative or at the bankrupt's request, but the trustee is not required to consider whether to exercise those powers at the bankrupt's request unless the bankrupt satisfies the trustee that there are reasonable grounds for the trustee to do so.
"(4) As soon as practicable after the making of an assessment the trustee must give to the bankrupt written notice setting out particulars of the assessment.
Basis of assessments
"139X.(1) In making an assessment of the income that is likely to be derived, or was derived, by a bankrupt during a contribution assessment period the trustee may have regard to any information provided by the bankrupt or any other information in the trustee's possession.
"(2) If the trustee considers that any information provided by the bankrupt is or may be incorrect, the trustee may disregard that information and may make an assessment on the basis of what the trustee considers to be the correct information.
Trustee may regard bankrupt as receiving reasonable remuneration
"139Y.(1) If:
(a) the bankrupt is engaging or has engaged during a contribution
assessment period in employment or other work or in activities that resemble employment or other work; and
(b) the bankrupt does not receive or did not receive any remuneration in respect of the employment, work or activities or receives or received remuneration that is less than the remuneration (in this subsection called the 'reasonable remuneration') that:
(i) in the case of employment where an industrial award or agreement prescribes rates or minimum rates of salary or wages for the employment—might reasonably be expected to be or to have been received by the bankrupt in respect of the employment by virtue of that award or agreement; or
(ii) in any other case—might reasonably be expected to be or to have been received by a person who engaged in similar employment, work or activities where there was no relationship or other connection between that person and the person for whom the employment, work or activities were carried out;
then, for the purpose of making an assessment, the trustee may determine that the bankrupt receives or received the reasonable remuneration in respect of the employment, work or activities.
"(2) If:
(a) the bankrupt enters or entered during a contribution assessment period into any transaction that might reasonably be expected to produce or to have produced income; and
(b) the bankrupt does not derive or did not derive any income from the transaction or derives or derived income that is less than the income (in this subsection called the 'reasonable income') that might reasonably be expected to be or to have been derived if the transaction were or had been entered into at arm's length;
then, for the purpose of making an assessment, the trustee may determine that the bankrupt derives or derived the reasonable income from the transaction.
If bankrupt claims not to be in receipt of income
"139Z.(1) If a bankrupt:
(a) does not provide information about whether he or she is likely to derive, or derived, income or a particular class of income during a contribution assessment period; or
(b) claims not to be likely to derive, or not to have derived, any income or a particular class of income during a contribution assessment period;
but the trustee has reasonable grounds for believing that the bankrupt is likely to derive, or derived, income, or income of that class, during that period, then, for the purpose of making an assessment, the trustee may determine that the bankrupt is likely to derive, or derived, income, or income of that class, during that period and may also determine the amount of that income.
"(2) Without limiting the matters that a trustee may take into account for the purpose of making an assessment as mentioned in subsection (1) in respect of a contribution assessment period, the trustee may have regard to any employment or other work or other income-producing activities that were engaged in by the bankrupt before that period and may determine whether the bankrupt is likely to engage, or to have engaged, in similar employment, work or other income-producing activities during that period.
"Subdivision G—Review of assessment
Internal review of assessment
"139ZA.(1) The Inspector-General may review a decision of a trustee to make an assessment:
(a) on the Inspector-General's own initiative; or
(b) if requested to do so by the bankrupt for reasons that appear to the Inspector-General to be sufficient to justify such a review.
"(2) The Inspector-General must review such a decision if requested to do so by the Ombudsman.
"(3) A request by the bankrupt to the Inspector-General for the review of such a decision must:
(a) be in writing and lodged with the Official Receiver's office; and
(b) be accompanied by:
(i) a copy of the notice of assessment; and
(ii) any documents on which the bankrupt relies in support of the request.
"(4) The Official Receiver must endorse on the request the date when it was lodged and must send the request and the accompanying documents to the Inspector-General as soon as practicable after they are received.
"(5) Within 60 days after the request is lodged, the Inspector-General must:
(a) decide whether to review the decision; and
(b) if the Inspector-General decides to review the decision—make his or her decision on the review.
Inspector-General may authorise officer to act on his or her behalf
"139ZB. The Inspector-General may authorise an officer to exercise the powers of the Inspector-General under this Subdivision, either generally or in a particular case or class of cases, and a reference in this Subdivision to the Inspector-General includes a reference to an officer so authorised.
Inspector-General may request further information
"139ZC.(1) For the purposes of the exercise of powers under this Subdivision, the Inspector-General may:
(a) ask the bankrupt to provide such further information, either orally or in writing, in support of the request as the Inspector-General specifies; and
(b) ask the trustee to provide such information, either orally or in writing, about the decision to make the assessment and the reasons for the decision as the Inspector-General specifies.
"(2) If any information is provided orally, the Inspector-General must record it in writing.
Decision on review
"139ZD. On a review of a decision, the Inspector-General has all the powers of the trustee and may either:
(a) confirm the decision; or
(b) set aside the decision and make a fresh assessment under subsection 139W(2).
Inspector-General to notify bankrupt and trustee of decision
"139ZE.(1) If the Inspector-General:
(a) reviews a decision; or
(b) refuses a request by a bankrupt for a review of a decision;
the Inspector-General must give written notice to the bankrupt, to the trustee, and, if the trustee is a registered trustee, to the Official Receiver, of the Inspector-General's decision on the review or on the request, as 30 the case may be.
"(2) The notice must:
(a) set out the decision; and
(b) refer to the evidence or other material on which the decision was based; and
(c) give the reasons for the decision.
"(3) In the case of a decision reviewing the trustee's decision to make an assessment, the notice must also include a statement to the effect that, if the bankrupt or the trustee, is dissatisfied with the Inspector-General's decision, application may, subject to the
Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision.
"(4) In the case of a decision refusing a request to review the trustee's decision to make an assessment, the notice to the bankrupt must also include a statement to the effect that, if the bankrupt is dissatisfied with the Inspector-General's decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for a review of the decision.
"(5) A contravention of subsection (3) or (4) in relation to a decision does not affect the validity of the decision.
"(6) If, within 60 days after lodgment of a request by a bankrupt for the review of the trustee's decision to make an assessment, the Inspector-General has not given written notice to the bankrupt of his or her decision in accordance with subsection (1), the Inspector-General is taken to have reviewed the trustee's decision and confirmed it under paragraph 139ZD(a).
"(7) If the Inspector-General makes a fresh assessment, the Inspector-General must, as soon as practicable, give to the bankrupt written notice setting out particulars of the fresh assessment.
"(8) This Division, apart from this Subdivision, applies to an assessment made by the Inspector-General as if it had been made by the trustee under subsection 139W(2).
Applications to Administrative Appeals Tribunal
"139ZF. An application may be made to the Administrative Appeals Tribunal for the review of:
(a) a decision by a trustee to make an assessment; or
(b) a decision of the Inspector-General on the review of such a decision; or
(c) a decision of the Inspector-General refusing a request to review such a decision.
"Subdivision H—When contribution payable
Payment of contribution
"139ZG.(1) Subject to subsection 139ZI(3), a contribution that a person is liable to pay under subsection 139P(1) or 139Q(1) is payable at such time as the trustee determines or, if the trustee permits the contribution to be paid by instalments, at such times and in such amounts as the trustee determines.
"(2) The liability of a person to pay a contribution under subsection 139P(1) or 139Q(1) is not affected by:
(a) the making of an application by the person to the Official Receiver under subsection 139T(1); or
(b) the making by the person of a request to the Inspector-General for a review of the decision of the trustee to make the assessment that gave rise to the liability; or
(c) the making of an application to the Administrative Appeals Tribunal for review of the decision of the Inspector-General or of the decision of the trustee.
"(3) Subject to subsection (4), if an amount or amounts payable by a person to the trustee under subsection (1) has not or have not been paid, the trustee may:
(a) sign a certificate stating that the amount or the total of the amounts is due and payable by the person to the trustee but has not been paid; and
(b) file the certificate in a court having jurisdiction to the extent of the amount or total of the amounts.
"(4) A certificate in relation to a person may not be filed in a court under subsection (3) at a time later than 3 years after the bankrupt was discharged from his or her bankruptcy.
"(5) If a certificate has been filed in a court in accordance with this section, it may be enforced, and has effect for the purposes of this Act, as a final judgment of that court.
If excess contribution paid
"139ZH.(1) If:
(a) a person has paid an amount in respect of the contribution that the person was assessed to be liable to pay in respect of a contribution assessment period; and
(b) as a result of a subsequent assessment:
(i) the person is not liable to pay a contribution in respect of that period; or
(ii) the amount referred to in paragraph (a) exceeds the amount of the contribution that the person is liable to pay in respect of that period;
the person is not entitled to a refund of the amount paid or of the excess, as the case may be.
"(2) If a person has paid in respect of a contribution assessment period an amount that, because of a subsequent assessment made in respect of that period, the person was not liable to pay, the trustee is to apply that amount in or towards any contribution that the person is liable to pay in respect of a later contribution assessment period.
Notice of determinations
"139ZI.(1) If the trustee makes a determination under section 139ZG in respect of a person, the trustee must give to the person written notice setting out particulars of the determination.
"(2) A notice given to a person under subsection (1) may be contained in a notice of assessment.
"(3) The time at which a payment is to be made by a person as a result of a determination made under section 139ZG must not be earlier than 14 days after notice in relation to the determination is given to the person under subsection (1) of this section.
"Subdivision I—Collection of money or property by Official Receiver from person other than the bankrupt
Definition
"139ZJ. In this Subdivision:
'bankrupt' includes a person who has been discharged from bankruptcy.
Persons to whom Subdivision applies
"139ZK.(1) This Subdivision applies to a person:
(a) from whom any money is due or accruing, or may become due, to a bankrupt; or
(b) who holds, or may subsequently hold, money for or on account of a bankrupt; or
(c) who holds, or may subsequently hold, money on account of some other person for payment to or on behalf of a bankrupt; or
(d) who has authority from some other person to pay money to or on behalf of a bankrupt; or
(e) who is liable to pay money or transfer property wholly or principally in consideration of personal services supplied by a bankrupt after the commencement of the bankruptcy, whether the services were supplied to the first-mentioned person or to some other person; or
(f) who has received money or property wholly or principally in consideration of personal services supplied by a bankrupt after the commencement of the bankruptcy, whether the services were supplied to the first-mentioned person or to some other person.
"(2) In subsection (1):
'personal services', in relation to a bankrupt, means personal services as defined by subsection 5(1), whether or not supplied for the payment of money, or the provision of other consideration, to the bankrupt.
"(3) If, apart from this subsection, money would not be due, or would not be repayable on demand, to a person, or the obligation to transfer property to a person would not arise, unless a condition were fulfilled, then, for the purposes of this section, the money is taken to be due or to be repayable on demand, or the obligation to transfer the
property to the person is taken to arise, as the case may be, even though the condition has not been fulfilled.
Official Receiver may require persons to make payments
"139ZL.(1) If a bankrupt is liable to pay to the trustee a contribution under section 139P or 139Q, the Official Receiver:
(a) if the Official Trustee is the trustee—on the initiative of the Official Receiver; or
(b) if a registered trustee is the trustee—on application by the trustee;
may require a person to whom this Subdivision applies, by written notice given to the person, to make a payment or payments to the trustee in accordance with this section in or towards the discharge of the liability of the bankrupt to make the contribution.
"(2) The notice must set out the facts and circumstances, and in particular must specify the money or property, because of which the Official Receiver considers that this Subdivision applies to the person to whom the notice is given.
"(3) The notice may either:
(a) require payment of so much of the money, or of the value of the property, as does not exceed the amount, or the total of the amounts, of the contribution that the bankrupt is liable to pay; or
(b) in the case of a person who is liable to pay money to or on behalf of the bankrupt, require the person, out of each payment that the person becomes liable from time to time to make, to pay such amount as is set out in the notice until the liability of the bankrupt to pay the contribution has been discharged.
"(4) The notice may either:
(a) require a payment to be made immediately the money becomes due or is held, the authority becomes exercisable, the liability arises or the money or property is received, as the case requires; or
(b) require a payment to be made at a time or within a period set out in the notice, not being a time that occurs, or a period that commences, before the money becomes due or is held, the authority becomes exercisable, the liability arises or the money or property is received, as the case requires.
"(5) After the Official Receiver has given a notice to a person under subsection (1), the Official Receiver may at any time, by a further notice given to the person, revoke or amend the first-mentioned notice.
"(6) If the Official Receiver gives a notice under this section, the Official Receiver must send a copy of the notice to the bankrupt and, if a registered trustee is the trustee, to the trustee.
"(7) A notice to be given under this section to the Commonwealth, a State or a Territory, or to an authority of the Commonwealth, of a State or of a Territory, is taken to be duly given if it is given to a person who, by any law, regulation, appointment or authority, has the function of paying, or in fact pays, money on behalf of a Department of the Commonwealth, of that State or of that Territory, or on behalf of that authority, as the case may be.
"(8) If a person is required by a notice under this section to pay to the trustee the value of any property, the requirement is taken to be complied with if the property is transferred to the trustee.
"(9) A person making a payment or transferring property in accordance with this section is taken to have been acting under the authority of the bankrupt and of all other persons concerned and is entitled to be indemnified out of the estate of the bankrupt in respect of the payment or transfer.
"(10) An amount payable by a person to the trustee under this section is recoverable by the trustee as a debt by action against the person in a court of competent jurisdiction.
Power of Court to set aside notice
"139ZM.(1) If the Court, on application by a person to whom a notice has been given under section 139ZL or by any other interested person, is satisfied that this Subdivision does not apply to the person on the basis of the alleged facts and circumstances set out in the notice, the Court may make an order setting aside the notice.
"(2) A notice that has been set aside is taken not to have been given.
Charge over property
"139ZN.(1) If a notice under section 139ZL is given to a person to whom this Subdivision applies because the person is liable to transfer, or has received, any property as mentioned in paragraph 139ZK(1)(e) or (f):
(a) the property is charged with the liability of the person to make payments as required by the notice; and
(b) if the person makes the payments or transfers the property to the trustee, the property ceases to be subject to the charge.
"(2) Subject to subsection (3), a charge under subsection (1) has priority over any existing or subsequent mortgage, lien, charge or other encumbrance over the property in favour of an associated entity of the bankrupt, and has that priority despite any other law of the Commonwealth or any law of a State or Territory.
"(3) A charge under subsection (1) does not have priority over a mortgage, lien, charge or other encumbrance in favour of an associated
entity of the bankrupt if that entity satisfies the Court that that mortgage, lien, charge or other encumbrance arose from a transaction that was entered into at arm's length and for valuable and adequate consideration provided by that entity.
"(4) If any property being land is subject to a charge under subsection (1), the Official Receiver may certify by signed writing that the land is subject to a charge under that subsection and may lodge the certificate with the Registrar-General, Registrar of Titles or other proper officer of the State or Territory in which the land is situated.
"(5) The officer with whom the certificate is lodged may register the charge as nearly as practicable in the way in which mortgages over land are registered under the law in force in the State or Territory in which the land is situated.
"(6) The trustee has power to sell any property over which a charge exists under subsection (1) and, if the property is so sold, then, subject to any charges that have priority over the first-mentioned charge, the proceeds of the sale are, to the extent of the charge, to be applied in or towards the discharge of the liability to make a payment or payments to the trustee of the person to whom the notice was given.
Failure to comply with notice
"139ZO.(1) A person who refuses or fails to comply with a notice under section 139ZL is guilty of an offence punishable upon conviction by imprisonment for a period not exceeding 6 months.
"(2) If a person is convicted of an offence against subsection (1) in relation to the refusal or failure of the convicted person or another person to comply with a notice under section 139ZL, the court that convicted the person may, in addition to imposing a penalty on the convicted person, order that person to pay to the trustee an amount not exceeding the amount, or the total of the amounts, that the convicted person or the other person, as the case may be, refused or failed to pay to the trustee in accordance with the notice.
Employer not to dismiss or injure bankrupt because of giving of notice
"139ZP.(1) If a notice under section 139ZL is given to the employer of the bankrupt, the employer must not dismiss the bankrupt, injure the bankrupt in his or her employment, or alter the position of the bankrupt to the bankrupt's prejudice, because of the giving of the notice.
Penalty: Imprisonment for 6 months.
"(2) In a prosecution for an offence against subsection (1), it is not necessary for the prosecutor to prove that the defendant's reason for the action charged was the giving of the notice but it is a defence to the prosecution if the defendant proves that the action was not taken because of the giving of the notice.
"(3) If an employer is convicted of an offence against subsection (1) constituted by dismissing a bankrupt, the court that convicted the employer may order the employer:
(a) to reinstate the bankrupt to the position that the bankrupt occupied immediately before the dismissal or a position no less favourable than the first-mentioned position; and
(b) to pay to the bankrupt the whole or part of the wages lost by the bankrupt because of the dismissal.
"Subdivision J—Collection of money or property by Official Receiver from party to transaction that is void against the trustee
Official Receiver may require payment
"139ZQ.(1) If a person has received any money or property as a result of a transaction that is void against the trustee of a bankrupt under Division 3, the Official Receiver:
(a) if the Official Trustee is the trustee—on the initiative of the Official Receiver; or
(b) if a registered trustee is the trustee—on application by the trustee;
may require the person, by written notice given to the person, to pay to the trustee an amount equal to the money or the value of the property received.
"(2) The notice must set out the facts and circumstances because of which the Official Receiver considers that the transaction is void against the trustee.
"(3) The notice may:
(a) require the amount to be paid at a time or within a period set out in the notice; or
(b) require the amount to be paid at such times, and in such instalments, as are set out in the notice.
"(4) After the Official Receiver has given a notice to a person under subsection (1), the Official Receiver may at any time, by a further notice given to the person, revoke or amend the first-mentioned notice.
"(5) If the Official Receiver gives a notice under this section, the Official Receiver must send a copy of the notice to the bankrupt and, if a registered trustee is the trustee, to the trustee.
"(6) A notice to be given under this section to the Commonwealth, a State or a Territory, or to an authority of the Commonwealth, of a State or of a Territory, is taken to be duly given if it is given to a person who, by any law, regulation, appointment or authority, has the function of paying, or in fact pays, money on behalf of a Department
of the Commonwealth, of that State or of that Territory, or on behalf of the authority, as the case may be.
"(7) If a person is required by a notice under this section to pay to the trustee the value of any property, the requirement is taken to be complied with if the property is transferred to the trustee.
"(8) An amount payable by a person to the trustee under this section is recoverable by the trustee as a debt by action against the person in a court of competent jurisdiction.
Charge over property
"139ZR.(1) If a notice under section 139ZQ is given to a person in respect of any property:
(a) the property is charged with the liability of the person to make payments to the trustee as required by the notice; and
(b) if the person makes the payments or transfers the property to the trustee, the property ceases to be subject to the charge.
"(2) Subject to subsection (3), a charge under subsection (1) has priority over any existing or subsequent mortgage, lien, charge or other encumbrance over the property in favour of an associated entity of the bankrupt, and has that priority despite any other law of the Commonwealth or any law of a State or Territory.
"(3) A charge under subsection (1) does not have priority over a mortgage, lien, charge or other encumbrance in favour of an associated entity of the bankrupt if that entity satisfies the Court that that mortgage, lien, charge or other encumbrance arose from a transaction that was entered into at arm's length and for valuable and adequate consideration provided by that entity and is not void against the trustee under Division 3.
"(4) If any property being land is subject to a charge under subsection (1), the Official Receiver may certify by signed writing that the land is subject to a charge under that subsection and may lodge the certificate with the Registrar-General, Registrar of Titles or other proper officer of the State or Territory in which the land is situated.
"(5) The officer with whom the certificate is lodged may register the charge as nearly as practicable in the way in which mortgages over land are registered under the law in force in the State or Territory in which the land is situated.
"(6) The trustee has power to sell any property over which a charge exists under subsection (1) and, if the property is so sold, then, subject to any charges that have priority over the first-mentioned charge, the proceeds of the sale are, to the extent of the charge, to be applied in or towards the discharge of the liability to make a payment or payments to the trustee of the person to whom the notice was given.
Power of Court to set aside notice
"139ZS.(1) If the Court, on application by a person to whom a notice has been given under section 139ZQ or by any other interested person, is satisfied that this Subdivision does not apply to the person on the basis of the alleged facts and circumstances set out in the notice, the Court may make an order setting aside the notice.
"(2) A notice that has been set aside is taken not to have been given.
Failure to comply with notice
"139ZT.(1) A person who refuses or fails to comply with a notice under section 139ZQ is guilty of an offence punishable upon conviction by imprisonment for a period not exceeding 6 months.
"(2) If a person is convicted of an offence against subsection (1) in relation to the refusal or failure of the convicted person or another person to comply with a notice under section 139ZQ, the court that convicted the person may, in addition to imposing a penalty on the convicted person, order that person to pay to the trustee an amount not exceeding the amount, or the total of the amounts, that the convicted person or the other person, as the case may be, refused or failed to pay to the trustee in accordance with the notice.
"Division 4C—Restriction on overseas travel by bankrupt
Bankrupt who is liable to pay contributions not to leave Australia without permission of Court
"139ZU.(1) A bankrupt who is liable to pay to the trustee a contribution under section 139P(1) or 139Q(1) is not entitled to leave Australia unless, on application made by the bankrupt, the Court has made an order granting the bankrupt permission to leave Australia.
"(2) The Court must not grant permission:
(a) unless it is satisfied that:
(i) it is necessary for the bankrupt to leave Australia in order to continue to derive income; or
(ii) it is appropriate for compassionate reasons relating to the death or serious illness of a close relative of the bankrupt to allow the bankrupt to leave Australia; and
(b) if any payments in respect of the contribution will fall due before the bankrupt proposes to return to Australia—unless it is satisfied that the bankrupt has made those payments or has made arrangements that the Court is satisfied will ensure the making of those payments.
"(3) The Court must not grant permission if it is satisfied that any of the grounds of objection referred to in paragraphs 149D(1)(b) to (n),
inclusive, that may be set out in a notice of objection to the discharge of the bankrupt under section 149B has been established, whether or not such a notice has been filed, or has been filed on that ground.
"(4) The Court may grant permission to the bankrupt to leave Australia on a particular occasion only, on a specified number of occasions, or on any occasions occurring during a particular period.
How application for permission is to be made
"139ZV.(1) An application by the bankrupt for an order under section 139ZU must:
(a) be in writing and filed with the Registrar; and
(b) set out, or be accompanied by, a statement of the reasons why the bankrupt wishes to leave Australia; and
(c) set out the period or periods during which the bankrupt proposes to be absent from Australia; and
(d) if any payments that the bankrupt is required to make in respect of the contribution have fallen due before the application is made—state whether the bankrupt has made those payments; and
(e) if any payments that the bankrupt is required to make in respect of the contribution will fall due before the bankrupt proposes to return to Australia—state whether the bankrupt has already made those payments or, if those payments have not already been made, explain how the bankrupt proposes to meet his or her liability to make those payments; and
(f) be accompanied by a certificate signed by the trustee stating whether the bankrupt has made all the payments in respect of the contribution that have fallen due and whether the bankrupt has already made all the payments that will fall due before the bankrupt proposes to return to Australia.
"(2) An application is not taken to be duly made unless copies of the application and of any accompanying documents have been given to the trustee.
Trustee may appear or be represented at hearing of application
"139ZW. The trustee is entitled to appear at the hearing of an application, either in person or by solicitor or counsel, and may give evidence and make submissions to the Court.
Orders may contain conditions
"139ZX.(1) An order by the Court granting permission to a bankrupt to leave Australia may be unconditional or subject to conditions set out in the order.
"(2) The conditions that may be set out may be conditions to be complied with before the bankrupt leaves Australia or conditions to be complied with while the bankrupt is absent from Australia, or both.
"(3) Without limiting the nature of the conditions that the Court may impose, those conditions may include conditions as to the countries to be visited or not to be visited by the bankrupt and conditions as to the period or periods of the absence or absences.
Application may be heard by telephone
"139ZY. Subject to the rules, if the applicant so requests and it is practicable to do so, the Court is to conduct the hearing of an application in a way that enables the applicant, and the trustee if he or she so wishes, to participate by telephone.
Procedure in respect of applications to be prescribed by the rules
"139ZZ. The rules may make provision with respect to the procedure to be followed in or in connection with the hearing of applications, including:
(a) provision enabling formal procedures to be dispensed with and applications to be determined without undue formalities and as quickly as possible; and
(b) without limiting the application of paragraph (a), provision as to the procedure to be followed in, or in connection with, the hearing of an application that involves the participation of the applicant, or of the applicant and the trustee, by telephone.".
Right of bankrupt to surplus
26. Section 148 of the Principal Act is repealed.
27. The heading to Part VII, and sections 149, 149A, 150, 151 and 152, of the Principal Act are repealed and the following heading and Divisions are substituted:
"PART VII—DISCHARGE AND ANNULMENT
"Division 1—Preliminary
Misleading conduct by bankrupt
"148. For the purposes of this Part, a bankrupt is taken to have engaged in misleading conduct in relation to a person in respect of a particular amount (in this section called the 'relevant amount') if:
(a) the bankrupt, either alone or jointly with any other person, obtained credit to the extent of the relevant amount from the first-mentioned person without informing that person that he or she was an undischarged bankrupt; or
(b) the bankrupt, either alone or jointly with any other person, obtained goods or services from the first-mentioned person:
(i) by giving a bill of exchange or cheque drawn, or a promissory note made, by the bankrupt, either alone or jointly with another person, being a bill, cheque or note under which the relevant amount is payable; or
(ii) by giving 2 or more such instruments under which the total of the amounts payable is equal to the relevant amount;
without informing the first-mentioned person that he or she was an undischarged bankrupt; or
(c) the bankrupt, either alone or jointly with any other person, entered into a hire-purchase agreement with the first-mentioned person, or entered into an agreement for the leasing or hiring of any goods from the first-mentioned person, being a hire-purchase agreement or agreement for the leasing or hiring of goods under which the total of the amounts payable is equal to the relevant amount, without informing the first-mentioned person that he or she was an undischarged bankrupt; or
(d) the bankrupt, either alone or jointly with any other person, obtained goods or services from the first-mentioned person by promising to pay that person or another person the relevant amount, or amounts the total of which is equal to the relevant amount, without informing the first-mentioned person that he or she was an undischarged bankrupt; or
(e) the bankrupt, either alone or jointly with any other person, obtained the relevant amount, or amounts the total of which is equal to the relevant amount, from the first-mentioned person by promising to supply goods to, or render services for, that person or another person without informing the first-mentioned person that he or she was an undischarged bankrupt; or
(f) the bankrupt carried on business under an assumed name, in the name of another person or, either alone or in partnership, under a firm name and:
(i) in the course of the carrying on of that business the bankrupt, or, if the bankrupt carried on the business in partnership under a firm name, the partnership, dealt with the first-mentioned person; and
(ii) the bankrupt did not inform the first-mentioned person that he or she was an undischarged bankrupt.
"Division 2—Discharge by operation of law
"Subdivision A—Discharge after certain period
Automatic discharge
"149.(1) Subject to section 149A, a bankrupt is, by force of this subsection, unless sooner discharged in accordance with Division 3, discharged from bankruptcy in accordance with this section.
"(2) If:
(a) the bankrupt became a bankrupt before the commencement of section 27 of the Bankruptcy Amendment Act 1991; and
(b) immediately before the commencement of that section, either:
(i) paragraph 149(3)(c) of the Bankruptcy Act 1966 as amended applied in relation to the bankrupt; or
(ii) an order under subsection 149(8) or (12) of the Bankruptcy Act 1966 as amended was in force in relation to the bankrupt;
the bankrupt is discharged at the end of the period of 3 years from:
(c) the date on which the bankrupt filed his or her statement of affairs; or
(d) the date of commencement of that section;
whichever is the later.
"(3) If the bankrupt became a bankrupt before the commencement of section 27 of the Bankruptcy Amendment Act 1991, and subsection (2) does not apply in relation to the bankrupt, the bankrupt is discharged at:
(a) the end of the period of 3 years from the date on which the bankrupt filed his or her statement of affairs; or
(b) the commencement of that section;
whichever is the later.
"(4) If the bankrupt becomes a bankrupt after the commencement of section 27 of the Bankruptcy Amendment Act 1991, the bankrupt is discharged at the end of the period of 3 years from the date on which the bankrupt filed his or her statement of affairs.
"(5) The Registrar must cause to be entered in his or her records the date on which the bankrupt was discharged under this section.
Bankruptcy extended when objection made
"149A.(1) If an objection to the discharge of a bankrupt has taken effect in accordance with section 149G, then, unless the objection is withdrawn or cancelled, the reference in whichever of subsections 149(2), (3) and (4) applies in relation to the bankrupt to the period of 3 years from the date on which the bankrupt filed his or her statement of affairs is taken to be a reference to the prescribed number of years from the prescribed date.
"(2) For the purposes of subsection (1):
(a) the prescribed number of years is:
(i) if the objection was made on a ground, or on grounds that included a ground, referred to in paragraph 149D(1)(a), (b), (c), (d), (e), (f), (g) or (h)—8 years; or
(ii) in any other case—5 years; and
(b) the prescribed date is:
(i) if the objection was made on a ground, or on grounds that included a ground, referred to in paragraph 149D(1)(a) or (h)—the date on which the bankrupt returned to Australia; or
(ii) in any other case—the date from which the bankrupt filed his or her statement of affairs.
"(3) If the objection is withdrawn or cancelled:
(a) the objection is taken never to have been made; and
(b) if:
(i) the period specified in whichever of subsections 149(2), (3) and (4) applies in relation to the bankrupt has ended; and
(ii) no other objection against the discharge of the bankrupt is in effect; and
(iii) the bankrupt has not been discharged in accordance with Division 3;
the bankrupt is taken to be discharged under section 149 immediately the objection is withdrawn or cancelled.
"Subdivision B—Objections
Objection to discharge
"149B. Subject to the following provisions of this Subdivision, at any time before a bankrupt is discharged from bankruptcy under section 149, the trustee or Official Receiver may file with the Registrar a written notice of objection to the discharge.
Form of notice of objection
"149C.(1) A notice of objection must:
(a) set out the ground or each of the grounds of objection, being a ground or grounds set out in subsection 149D(1) but not being a ground or grounds of a previous objection to the discharge that was cancelled; and
(b) refer to the evidence or other material that, in the opinion of the trustee or Official Receiver, establishes that ground or each of those grounds; and
(c) state the reasons of the trustee or Official Receiver for objecting to the discharge on that ground or those grounds.
"(2) A notice of objection is not invalid merely because it does not state the ground or grounds of objection precisely as set out in subsection 149D(1) provided that the ground or grounds can reasonably be identified from the terms of the notice.
Grounds of objection
"149D.(1) The grounds of objection that may be set out in a notice of objection are as follows:
(a) the bankrupt has, whether before, on or after the date of the bankruptcy, left Australia and has not returned to Australia;
(b) after the date of the bankruptcy the bankrupt continued to manage a corporation as mentioned in section 91A of the Corporations Law without having been given leave to do so under section 229 of that Law;
(c) after the date of the bankruptcy the bankrupt engaged in misleading conduct in relation to a person in respect of an amount that, or amounts the total of which, exceeded $3,000;
(d) the bankrupt, when requested in writing by the trustee to provide written information about the bankrupt's property, income or expected income, failed to comply with the request;
(e) the bankrupt failed to disclose any particulars of income or expected income as required by a provision of this Act referred to in subsection 6A(1) or by section 139U;
(f) the bankrupt failed to pay to the trustee an amount that the bankrupt was liable to pay under section 139ZG;
(g) at any time during the period of 5 years immediately before the commencement of the bankruptcy, or at any time during the bankruptcy, the bankrupt:
(i) spent money but failed to explain adequately to the trustee the purpose for which the money was spent; or
(ii) disposed of property but failed to explain adequately to the trustee why no money was received as a result of the disposal or what the bankrupt did with the money received as a result of the disposal;
(h) while the bankrupt was absent from Australia he or she was requested by the trustee to return to Australia by a particular date or within a particular period but the bankrupt failed to return by that date or within that period;
(i) the bankrupt has failed, whether intentionally or not, to disclose to the trustee a liability of the bankrupt that existed at the date of the bankruptcy;
(j) the bankrupt failed to comply with subsection 80(1);
(k) the bankrupt refused or failed to sign a document after being lawfully required by the trustee to sign that document;
(l) the bankrupt failed to attend a meeting of his or her creditors without having first obtained written approval of the trustee not to attend or without having given to the trustee a reasonable explanation for the failure;
(m) the bankrupt failed to attend an interview or examination for
the purposes of this Act without having given a reasonable explanation to the trustee for the failure;
(n) the bankrupt failed, whether intentionally or not, to disclose to the trustee the bankrupt's beneficial interest in any property.
"(2) This section has effect subject to section 304A.
Registrar to record objection
"149E. The Registrar must cause to be entered in his or her records the date on which a notice of objection is filed and the ground or grounds of objection.
Copy of notice of objection to be given to bankrupt and Official Receiver
"149F.(1) As soon as practicable after a notice of objection is filed by the trustee or Official Receiver:
(a) the trustee or Official Receiver must give a copy of the notice to the bankrupt together with a notice to the effect that the bankrupt may do either or both of the following:
(i) request the Inspector-General to review the decision of the trustee or Official Receiver to file the notice of objection;
(ii) subject to the Administrative Appeals Tribunal Act 1975, make an application to the Administrative Appeals Tribunal for a review of the decision of the trustee or Official Receiver to file the notice of objection; and
(b) if the trustee is a registered trustee:
(i) if the notice of objection is filed by the trustee—the trustee must give a copy of the notice to the Official Receiver; or
(ii) if the notice of objection is filed by the Official Receiver—the Official Receiver must give a copy of the notice to the trustee.
"(2) A notice given to the bankrupt under subsection (1) must set out the effect of subsection 149K(3).
"(3) A contravention of this section does not affect the validity of the objection.
Date of effect of objection
"149G. An objection takes effect at the beginning of the day on which the notice of objection is filed.
Trustee or Official Receiver ceasing to object on some only of the grounds of objection
"149H.(1) The trustee or the Official Receiver may, at any time before the bankrupt is discharged, tell the Registrar, by written notice filed with the Registrar, that the trustee or Official Receiver no longer objects on a ground or grounds specified in the notice.
"(2) As soon as practicable after the notice is filed:
(a) the trustee or Official Receiver must give a copy of the notice to the bankrupt; and
(b) if the trustee is a registered trustee:
(i) if the notice is filed by the trustee—the trustee must give a copy of the notice to the Official Receiver; or
(ii) if the notice is filed by the Official Receiver—the Official Receiver must give a copy of the notice to the trustee.
"(3) If there is still a remaining ground or grounds of objection, the objection continues to have effect on the remaining ground or grounds.
"(4) The Registrar must amend his or her records by omitting the ground or grounds on which the trustee or Official Receiver no longer objects.
Withdrawal of objection
"149J.(1) The trustee or the Official Receiver may, at any time before the bankrupt is discharged, withdraw the objection by a written notice filed with the Registrar.
"(2) As soon as practicable after the notice is filed:
(a) the trustee or Official Receiver must give a copy of the notice to the bankrupt; and
(b) if the trustee is a registered trustee:
(i) if the notice is filed by the trustee—the trustee must give a copy of the notice to the Official Receiver; or
(ii) if the notice is filed by the Official Receiver—the Official Receiver must give a copy of the notice to the trustee.
"(3) Upon the filing of the notice, the objection is withdrawn and the Registrar must amend his or her records by making an entry to that effect.
"Subdivision C— Review of objection
Internal review of objection
"149K.(1) The Inspector-General may review a decision of the trustee or Official Receiver to file a notice of objection:
(a) on the Inspector-General's own initiative; or
(b) if requested to do so by the bankrupt for reasons that appear to the Inspector-General to be sufficient to justify such a review.
"(2) The Inspector-General must review such a decision if requested to do so by the Ombudsman.
"(3) A request by the bankrupt to the Inspector-General for the review of such a decision must:
(a) be in writing and lodged with the Official Receiver's office; and
(b) be accompanied by:
(i) a copy of the notice of objection; and
(ii) any documents on which the bankrupt relies in support of the request.
"(4) The Official Receiver must endorse on the request the date when it was lodged and must send the request and the accompanying documents to the Inspector-General as soon as practicable after they are received.
"(5) Within 60 days after the request is lodged, the Inspector-General must:
(a) decide whether to review the decision ; and
(b) if the Inspector-General decides to review the decision—make his or her decision on the review.
Inspector-General may authorise officer to act on his or her behalf
"149L. The Inspector-General may authorise an officer to exercise the powers of the Inspector-General under this Subdivision, either generally or in a particular case or class of cases, and a reference in this Subdivision to the Inspector-General includes a reference to an officer so authorised.
Inspector-General may request further information
"149M.(1) For the purposes of the exercise of powers under this Subdivision, the Inspector-General may:
(a) ask the bankrupt to provide such further information, either orally or in writing, in support of the request as the Inspector-General specifies; and
(b) ask the trustee or Official Receiver who filed the notice of objection to provide such information, either orally or in writing, about the decision to file the notice and the reasons for the decision as the Inspector-General specifies.
"(2) If any information is provided orally, the Inspector-General must record it in writing.
Decision on review
"149N.(1) On a review of a decision, if the Inspector-General is satisfied that:
(a) the ground or grounds on which the objection was made was not a ground or were not grounds specified in subsection 149D(1); or
(b) there is insufficient evidence to support the existence of the ground or grounds of objection; or
(c) the reasons given for objecting on that ground or those grounds do not justify the making of the objection; or
(d) a previous objection that was made on that ground or those grounds, or on grounds that included that ground or those grounds, was cancelled;
the Inspector-General must cancel the objection.
"(2) The cancellation does not take effect until:
(a) the end of the period within which an application may be made to the Administrative Appeals Tribunal for the review of the decision of the Inspector-General; or
(b) if such an application is made—the decision of the Tribunal is given.
"(3) If the Inspector-General is not satisfied as mentioned in subsection (1), the Inspector-General must confirm the decision.
Inspector-General to notify bankrupt and trustee of decision
"149P.(1) If the Inspector-General:
(a) reviews a decision; or
(b) refuses a request by a bankrupt for a review of a decision;
the Inspector-General must give written notice to the bankrupt, to the trustee, and, if the trustee is a registered trustee, to the Official Receiver, of the Inspector-General's decision on the review or on the request, as the case may be.
"(2) The notice must:
(a) set out the decision; and
(b) refer to the evidence or other material on which the decision was based; and
(c) give the reasons for the decision.
"(3) In the case of a decision reviewing the decision to file a notice of objection, the notice must also include a statement to the effect that, if the bankrupt, or the trustee or Official Receiver, is dissatisfied with the Inspector-General's decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision.
"(4) In the case of a decision refusing a request to review the decision to file a notice of objection, the notice to the bankrupt must also include a statement to the effect that, if the bankrupt is dissatisfied with the Inspector-General's decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for a review of the decision.
"(5) A contravention of subsection (3) or (4) in relation to a decision does not affect the validity of the decision.
"(6) If, within 60 days after lodgment of a request by a bankrupt for the review of the trustee's decision to file a notice of objection, the Inspector-General has not given written notice to the bankrupt of his or her decision in accordance with subsection (1), the Inspector-General is taken to have reviewed the decision and confirmed it under subsection 149N(3).
Applications to Administrative Appeals Tribunal
"149Q. An application may be made to the Administrative Appeals Tribunal for the review of:
(a) a decision of the trustee or Official Receiver to file a notice of objection; or
(b) a decision of the Inspector-General on the review of such a decision; or
(c) a decision of the Inspector-General refusing a request to review an objection.
"Division 3—Early discharge
"Subdivision A—Preliminary
Interpretation
"149R.(1) In this Division:
'actual income threshold amount' has the same meaning as in Division 4B of Part VI;
'derive' has the same meaning as in Division 4B of Part VI;
'income' has the same meaning as in Division 4B of Part VI.
"(2) A reference in this Division to the filing of a bankrupt's statement of affairs is a reference to the filing of such a statement under section 54, 55, 56 or 57.
"Subdivision B—Application for early discharge
Making of application
"149S.(1) At any time after 6 months from:
(a) the date on which a bankrupt filed his or her statement of affairs; or
(b) the date of commencement of this section;
whichever is the later, the bankrupt may apply in writing to the trustee for early discharge from the bankruptcy.
"(2) If the trustee is a registered trustee, the application is not duly made unless a copy of the application has been given to the Official Receiver.
"(3) A bankrupt is not entitled to be discharged under this Division unless he or she is eligible under Subdivision C to apply for early discharge and is not disqualified under Subdivision D from early discharge.
"(4) The trustee must determine the application as soon as practicable.
"Subdivision C—Criteria of eligibility for early discharge
Eligibility to apply for early discharge
"149T. A bankrupt is eligible to apply for early discharge if, and only if:
(a) when the bankrupt applies for discharge:
(i) there is no money available to pay, or insufficient money available to pay in full, the remuneration and expenses of the trustee; or
(ii) there is no money available to pay a dividend to the bankrupt's creditors; and
(b) either:
(i) the bankrupt has not, whether before, on or after the date of the bankruptcy, entered into a transaction that is void against the trustee; or
(ii) the bankrupt has entered into such a transaction but, if the trustee were to take action to avoid the transaction, the action would not result in a dividend being paid to the bankrupt's creditors; and
(c) the income that the bankrupt is likely to derive during the period of one year beginning at the time when the application is made will not exceed the actual income threshold amount applicable in relation to the bankrupt at that time.
Lack of divisible property
"149U.(1) The trustee may determine the matters referred to in subparagraphs 149T(a)(i) and (ii) on the basis of the information provided to the trustee by the bankrupt whether in the bankrupt's statement of affairs or otherwise.
"(2) The trustee may also have regard to any other information in the possession of the trustee but is not required to seek any such information.
Transactions void against trustee
"149V.(1) The trustee may determine the matter referred to in subparagraph 149T(b)(i) on the basis of the information provided to the trustee by the bankrupt whether in the bankrupt's statement of affairs or otherwise.
"(2) The trustee may also have regard to any other information in the possession of the trustee but is not required to seek any such information.
"(3) In determining the matter referred to in subparagraph 149T(b)(ii), the trustee may take into account:
(a) the likely costs of a proceeding to avoid a transaction; and
(b) whether the trustee has any money available to meet those costs; and
(c) whether any creditor has given money to the trustee, or has given an indemnity to the trustee, in respect of those costs.
"(4) In any proceedings, a certificate signed by the trustee stating that, if the trustee were to take action to avoid a particular transaction, the action would not result in a dividend being paid to the bankrupt's creditors is proof of the fact stated unless it is established that there are reasonable grounds for believing that the taking of that action would result in such a dividend being paid.
"(5) In any proceedings, unless the contrary is established, a document purporting to be a certificate referred to in subsection (4) is taken to be such a certificate and to have been duly given.
Income of bankrupt
"149W. The trustee may determine the income that the bankrupt is likely to derive as mentioned in paragraph 149T(c) on the basis of any information provided to the trustee by the bankrupt or any other person or any other information in the possession of the trustee.
"Subdivision D—Disqualifying criteria
Previous bankruptcy or composition with creditors
"149X. A bankrupt is disqualified from early discharge if:
(a) he or she has previously been a bankrupt, or has executed a deed of assignment or deed of arrangement, or his or her creditors have accepted a composition under Part X; or
(b) he or she is or has been a bankrupt or insolvent, or has executed a similar assignment or arrangement, or his or her creditors
have accepted a similar composition, under the law of an external Territory or of a foreign country;
and the bankruptcy, assignment, arrangement or composition referred to in paragraph (a) or (b) occurred within the period of 10 years immediately preceding the bankruptcy from which the bankrupt is applying for discharge.
Unsecured liabilities exceeding 150% of income
"149Y.(1) Subject to subsection (2), a bankrupt is disqualified from early discharge if the bankrupt's unsecured liabilities exceeded 150% of the income that the trustee determines to have been derived by the bankrupt during the year immediately before the date of the bankruptcy.
"(2) Subsection (1) does not apply where:
(a) the unsecured liabilities were wholly or principally attributable to a tort committed by the bankrupt; and
(b) the bankrupt was not insured against liability for that tort.
"(3) The trustee may determine any matter referred to in subsection (1) on the basis of the information provided to the trustee by the bankrupt, whether in the bankrupt's statement of affairs or otherwise.
"(4) The trustee may also have regard to any other information in the possession of the trustee but is not required to seek any such information.
Failure to disclose beneficial interest in property
"149Z.(1) A bankrupt is disqualified from early discharge if the bankrupt has at any time failed, whether intentionally or not, to disclose to the trustee the bankrupt's beneficial interest in any property.
"(2) The trustee may determine whether a bankrupt has or had a beneficial interest in property on the basis of evidence that was provided by any person or otherwise came to the knowledge of the trustee, but the trustee is not required to investigate any allegation made by a person that is not supported by evidence or to make enquiries in order to find out whether the bankrupt has such an interest that was not disclosed in the bankrupt's statement of affairs.
Failure to disclose liability
"149ZA.(1) A bankrupt is disqualified from early discharge if the bankrupt has at any time failed, whether intentionally or not, to disclose to the trustee any liability of the bankrupt that existed at the date of the bankruptcy.
"(2) The trustee may determine that the bankrupt has failed to disclose a liability as mentioned in subsection (1) if:
(a) a person has lodged with the trustee a proof of debt that has been accepted by the trustee; and
(b) the bankrupt's statement of affairs:
(i) did not disclose that the person was a creditor; or
(ii) did not disclose the debt claimed by the person or disclosed part only of that debt.
Failure to disclose income
"149ZB.(1) A bankrupt is disqualified from early discharge if the bankrupt has failed to disclose in the bankrupt's statement of affairs income that the bankrupt expected to derive in the 12 months following the filing of the statement.
"(2) The trustee must accept that the bankrupt has disclosed all that income in the statement of affairs unless the trustee is satisfied on the basis of information given to the trustee by any person or obtained by the trustee as a result of his or her own enquiries that income that should have been included in that statement was not so included.
"(3) The trustee may disregard an allegation that the bankrupt failed to disclose income in the statement of affairs unless the allegation was made in writing and identified the nature and source of the alleged income.
"(4) The trustee is not required to make any enquiries for the purpose of ascertaining whether the bankrupt failed to disclose income in the statement of affairs.
If bankrupt engages in misleading conduct
"149ZC.(1) A bankrupt is disqualified from early discharge if, after the date of the bankruptcy, the bankrupt engaged in misleading conduct in relation to a person in respect of an amount that, or amounts the total of which, exceeded $3,000.
"(2) A bankrupt is not taken to have engaged in misleading conduct in relation to a person for the purposes of subsection (1) unless a person has given to the trustee a written statement setting out matters alleged to constitute misleading conduct, including particulars of the nature and date of the relevant transaction.
"(3) The trustee is not required to enquire into the correctness of a statement referred to in subsection (2).
"(4) This section has effect subject to section 304A.
If bankrupt continues to manage corporation
"149ZD.(1) A bankrupt is disqualified from discharge if, after the date of the bankruptcy, the bankrupt continued to manage a corporation as mentioned in section 91A of the Corporations Law without having been given leave to do so under section 229 of that Law.
"(2) The bankrupt is not taken to have managed a corporation at a particular time for the purposes of subsection (1) unless a person has
given to the trustee a written statement setting out matters alleged to constitute the management of the corporation by the bankrupt at that time, including the name of the corporation and the relevant acts by the bankrupt.
"(3) If the trustee receives such a statement, the trustee:
(a) must search the relevant records kept by the Australian Securities Commission; and
(b) if those records support the correctness of the statement that the bankrupt managed the corporation at the time set out in the notice, must accept the correctness of the statement;
but is not required to make any other enquiries for the purpose of establishing the correctness of the statement.
Failure of bankrupt to give passport to trustee
"149ZE. A bankrupt is disqualified from early discharge if, at any time after the date of the bankruptcy:
(a) the bankrupt had a passport (whether an Australian passport or a passport issued by the relevant authority of a foreign country); and
(b) the trustee requested the bankrupt to give the passport to the trustee; and
(c) the bankrupt refused or failed to comply with that request.
"Subdivision E—Procedure following application for discharge
If application granted
"149ZF.(1) If the trustee determines that the bankrupt is eligible under Subdivision C to apply for early discharge and is not disqualified under Subdivision D from early discharge, the trustee must sign a certificate stating that the bankrupt is discharged from bankruptcy on a date set out in the certificate.
"(2) The date to be set out is the date on which the trustee signs the certificate.
"(3) The trustee must, as soon as practicable after the certificate is signed, give the certificate to the Registrar and send a copy of the certificate to the former bankrupt.
"(4) In any proceedings, the certificate is prima facie evidence that the person to whom it relates was discharged from bankruptcy on the date set out in the certificate.
"(5) In any proceedings, a document purporting to be a certificate signed under subsection (1) is, unless the contrary is established, to be taken to be such a certificate and to have been duly given.
If application rejected
"149ZG.(1) If the trustee determines that the bankrupt is not eligible under Subdivision C to apply for early discharge or is disqualified under Subdivision D from early discharge, the trustee must give written notice to the bankrupt:
(a) setting out the terms of the determination; and
(b) referring to the evidence or other material on which the determination was made; and
(c) giving the reasons for the determination.
"(2) The notice must include a statement to the effect that the bankrupt may do either or both of the following:
(a) request the Inspector-General to review the determination;
(b) subject to the Administrative Appeals Tribunal Act 1975, make an application to the Administrative Appeals Tribunal for a review of the determination.
"(3) The notice must set out the effect of subsection 149ZH(3).
"(4) A contravention of this section in relation to a determination does not effect the validity of the determination.
"Subdivision F—Review of rejection of application for early discharge
Internal review of determination
"149ZH.(1) The Inspector-General may review a determination by the trustee under subsection 149ZG(1):
(a) on the Inspector-General's own initiative; or
(b) if requested to do so by the bankrupt for reasons that appear to the Inspector-General to be sufficient to justify such a review.
"(2) The Inspector-General must review such a determination if requested to do so by the Ombudsman.
"(3) A request by the bankrupt to the Inspector-General for the review of a determination must:
(a) be in writing and lodged with the Official Receiver's office; and
(b) be accompanied by:
(i) a copy of the notice of determination; and
(ii) any documents on which the bankrupt relies in support of the request.
"(4) The Official Receiver must endorse on the request the date when it was lodged and must send the request and the accompanying documents to the Inspector-General.
"(5) Within 60 days after the request is lodged, the Inspector-General must:
(a) decide whether to review the determination; and
(b) if the Inspector-General decides to review the determination— make his or her decision on the review.
Inspector-General may authorise officer to act on his or her behalf
"149ZI. The Inspector-General may authorise an officer to exercise the powers of the Inspector-General under this Subdivision, either generally or in a particular case or class of cases, and a reference in this Subdivision to the Inspector-General includes a reference to an officer so authorised.
Inspector-General may request further information
"149ZJ.(1) For the purposes of the exercise of powers under the Subdivision, the Inspector-General may:
(a) ask the bankrupt who has requested a review of a determination to provide such further information, either orally or in writing, in support of the request as the Inspector-General specifies; and
(b) ask the trustee who has made a determination to provide such information, either orally or in writing, about the determination and the reasons for the determination as the Inspector-General specifies.
"(2) If any information is provided orally, the Inspector-General must record it in writing.
Decision on review
"149ZK.(1) On a review, if the Inspector-General is satisfied that the bankrupt:
(a) is eligible under Subdivision C to apply for early discharge; and
(b) is not disqualified under Subdivision D from early discharge;
the Inspector-General must cancel the determination and direct the trustee to sign a certificate under section 149ZF in relation to the bankrupt.
"(2) A decision by the Inspector-General on a review does not take effect until:
(a) the end of the period within which an application may be made to the Administrative Appeals Tribunal for a review of the decision; or
(b) if such an application is made—the decision of the Tribunal is given.
"(3) If the Inspector-General is not satisfied as mentioned in subsection (1), the Inspector-General must confirm the determination.
"(4) The trustee must comply with a direction in force under subsection (1).
Inspector-General to notify bankrupt and trustee of decision
"149ZL.(1) If the Inspector-General:
(a) reviews a determination by the trustee under subsection 149ZG(1); or
(b) refuses a request by a bankrupt for a review of such a determination;
the Inspector-General must give written notice to the bankrupt and to the trustee of the decision on the review or on the request, as the case may be.
"(2) The notice must:
(a) set out the decision; and
(b) refer to the evidence or other material on which the decision was based; and
(c) give the reasons for the decision.
"(3) In the case of a decision reviewing a determination, the notice must also include a statement to the effect that, if the bankrupt or the trustee is dissatisfied with the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision.
"(4) In the case of a decision refusing a request to review a determination, the notice to the bankrupt must also include a statement to the effect that, if the bankrupt is dissatisfied with the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for a review of the decision.
"(5) A contravention of subsection (3) or (4) in relation to a decision does not affect the validity of the decision.
"(6) If, within 60 days after lodgment of a request by a bankrupt for the review of a determination, the Inspector-General has not given written notice to the bankrupt of his or her decision in accordance with subsection (1), the Inspector-General is taken to have reviewed the determination and confirmed it under subsection 149ZK(3).
Applications to Administrative Appeals Tribunal
"149ZM. An application may be made to the Administrative Appeals Tribunal for the review of:
(a) a determination by the trustee under subsection 149ZG(1); or
(b) a decision of the Inspector-General on a review of such a determination; or
(c) a decision of the Inspector-General refusing a request to review such a determination.
"Division 4—Provisions applicable to all discharges
Discharged bankrupt to give assistance
"152. A discharged bankrupt must, even though discharged, give such assistance as the trustee reasonably requires in the realization and distribution of such of his or her property as is vested in the trustee. Penalty: Imprisonment for 6 months.".
Effect of discharge
28. Section 153 of the Principal Act is amended:
(a) by inserting after paragraph (2)(a) the following paragraph:
"(aa) release the bankrupt from liability to pay an amount to the trustee under subsection 139ZG(1);";
(b) by omitting from subsection (5) "whether by order of discharge or by force of section 149,".
29. Section 154 of the Principal Act is repealed and the following Division is substituted:
"Division 5—Annulment of bankruptcy
Annulment on payment of debts
"153A.(1) If the trustee is satisfied that all the bankrupt's debts have been paid in full, the bankruptcy is annulled, by force of this subsection, on the date on which the last such payment was made.
"(2) The trustee must, as soon as practicable after that date, give to the Registrar a written certificate setting out the former bankrupt's name and bankruptcy number and the date of the annulment.
"(3) The Registrar must enter in his or her records the fact that the bankruptcy has been annulled and the date of the annulment.
"(4) For the purposes of this section, if a debt has been proved by a creditor but the creditor cannot be found or cannot be identified, the debt may be paid to the Registrar and, if so paid, is taken for the purposes of this section to have been paid in full to the creditor.
"(5) If money is paid to the Registrar under subsection (4), the Registrar must pay that money into the Consolidated Revenue Fund and the provisions of subsections 254(3) and (4) apply in relation to that money as if it had been paid into the Consolidated Revenue Fund by a trustee under subsection 254(2).
"(6) In this section:
'bankrupt's debts' means all debts that have been proved in the bankruptcy and includes interest payable on such of those debts as bear interest, and the costs, charges and expenses of the administration of the bankruptcy, including the remuneration and expenses of the trustee.
Annulment by Court
"153B. If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor's petition, that the petition ought not to have been presented or ought not to have been accepted by the Registrar, the Court may make an order annulling the bankruptcy.
Effect of annulment
"154.(1) If the bankruptcy of a person (in this section called the 'former bankrupt') is annulled under this Division:
(a) all sales and dispositions of property and payments duly made, and all acts done, by the trustee or any person acting under the authority of the trustee or the Court before the annulment are taken to have been validly made or done; and
(b) the trustee may apply the property of the former bankrupt still vested in the trustee in payment of the costs, charges and expenses of the administration of the bankruptcy, including the remuneration and expenses of the trustee; and
(c) subject to subsections (3), (6) and (7), the remainder (if any) of the property of the former bankrupt still vested in the trustee reverts to the bankrupt.
"(2) If the property of the former bankrupt referred to in paragraph (1)(b) is insufficient to meet the costs, charges and expenses referred to in that paragraph, the amount of the deficiency is a debt due by the former bankrupt to the trustee and is recoverable by the trustee by action against the former bankrupt in a court of competent jurisdiction.
"(3) If an application is made to the Court by a person claiming an interest in property referred to in paragraph (1)(c), the Court, after hearing such persons as it thinks fit, may make an order, either unconditionally or on such conditions as the Court considers just and equitable, for the vesting of the property in, or delivery of the property to, a person in whom, or to whom, it seems to the Court to be just and equitable that it should be vested or delivered, or to a trustee for that person.
"(4) Subject to subsection (5), if an order vesting property in a person is made under subsection (3), the property vests immediately in the person without any conveyance, transfer or assignment.
"(5) If:
(a) the property to which such an order relates is property the transfer of which is required by a law of the Commonwealth, of a State or of a Territory to be registered; and
(b) that law enables the registration of such an order;
the property, even though it vests in equity in the person named in the order, does not vest in that person at law until the requirements of that law have been complied with.
"(6) The Court may make an order directing the trustee not to pay or transfer the property, or a specified part of the property, referred to in paragraph (1)(c) to the former bankrupt if:
(a) the Director of Public Prosecutions, or a person who is entitled to apply for an interstate confiscation order under a corresponding law, applies to the Court for an order under this subsection; and
(b) the Court is satisfied that:
(i) proceedings are pending under the Proceeds of Crime Act 1987 or a corresponding law; and
(ii) property of the former bankrupt may:
(A) become subject to a forfeiture order or interstate forfeiture order made in the proceedings; or
(B) be required to satisfy a pecuniary penalty order or interstate pecuniary penalty order made in the proceedings.
"(7) The Court, on application made to it, may vary or revoke an order made under subsection (6).".
30. Before section 162 of the Principal Act the following section is inserted in Division 2 of Part VIII.
Primary remuneration of trustee
"161B.(1) The trustee of the estate of a bankrupt (other than the Official Trustee) who consents to act as trustee after the commencement of this section is entitled to receive as remuneration $1,000 in addition to any remuneration fixed in accordance with section 162.
"(2) The amount payable to the trustee under subsection (1) is recoverable by the trustee from the person who is or was the bankrupt as a debt due to the trustee by action in a court of competent jurisdiction.
"(3) This section has effect subject to section 304A.".
Additional remuneration of trustee
31. Section 162 of the Principal Act is amended:
(a) by omitting from subsection (1) "The remuneration" and substituting "Subject to section 161B, the remuneration";
(b) by inserting after subsection (5) the following subsection:
"(5A) The trustee must not withdraw funds from the bankrupt's estate in respect of his or her remuneration at intervals of less than one week.".
32. After section 163 of the Principal Act the following section is inserted:
Costs and expenses of Official Receiver
"163A.(1) If the Official Receiver exercises any power under this Act in relation to a bankrupt, the costs and expenses of the Official Receiver in connection with the exercise of the power are taken to be costs and expenses of the administration of the estate of the bankrupt.
"(2) If the Official Receiver exercises any power under this Act at the request of the trustee of the estate of a bankrupt, the trustee is to pay the prescribed fee to the Official Receiver.
"(3) Any amount paid to the Official Receiver under subsection (2) is to be paid into the Consolidated Revenue Fund.".
Trustee not to accept extra benefit etc.
33. Section 165 of the Principal Act is amended by adding at the end the following subsection:
"(3) This section has effect subject to section 161B.".
Removal of trustee
34. Section 181 of the Principal Act is amended by omitting "special".
Application of general provisions of Act to deeds of assignment
35. Section 231 of the Principal Act is amended by omitting from subsection (2) "148" and substituting "139H (inclusive), Subdivision J of Division 4B of Part VI and sections 140 to 147".
36. After section 231 of the Principal Act the following section is inserted:
Right of debtor to remaining property
"231A.(1) The debtor is entitled to any property remaining after payment in full of:
(a) the costs, charges and expenses of the administration of the deed of assignment; and
(b) all provable debts; and
(c) interest on interest-bearing provable debts.
"(2) The Court may make an order directing the trustee not to pay or transfer the property, or a specified part of the property, referred to in subsection (1), to the debtor if:
(a) the Director of Public Prosecutions, or a person who is entitled to apply for an interstate confiscation order under a corresponding law, applies to the Court for an order under this subsection; and
(b) the Court is satisfied that:
(i) proceedings are pending under the Proceeds of Crime Act 1987 or a corresponding law; and
(ii) property of the debtor may:
(A) become subject to a forfeiture order or interstate forfeiture order made in the proceedings; or
(B) be required to satisfy a pecuniary penalty order or interstate pecuniary penalty order made in the proceedings.
"(3) The Court, on application made to it, may vary or revoke an order made under subsection (1).".
Application of general provisions of Act to deeds of arrangement
37. Section 237 of the Principal Act is amended by omitting from subsection (2) "148" and substituting "147".
38. After section 237 of the Principal Act the following section is inserted:
Right of debtor to remaining property
"237AA.(1) The debtor is entitled to any property remaining after payment in full of:
(a) the costs, charges and expenses of the administration of the deed of arrangement; and
(b) all provable debts; and
(c) interest on interest-bearing provable debts.
"(2) The Court may make an order directing the trustee not to pay or transfer the property, or a specified part of the property, referred to in subsection (1), to the debtor if:
(a) the Director of Public Prosecutions, or a person who is entitled to apply for an interstate confiscation order under a corresponding law, applies to the Court for an order under this subsection; and
(b) the Court is satisfied that:
(i) proceedings are pending under the Proceeds of Crime Act 1987 or a corresponding law; and
(ii) property of the debtor may:
(A) become subject to a forfeiture order or interstate forfeiture order made in the proceedings; or
(B) be required to satisfy a pecuniary penalty order or interstate pecuniary penalty order made in the proceedings.
"(3) The Court, on application made to it, may vary or revoke an order made under subsection (1).".
Application of general provisions of Act to compositions
39. Section 243 of the Principal Act is amended by omitting from subsection (1) "148" and substituting "147".
40. After section 243 of the Principal Act the following section is inserted:
Right of debtor to remaining property
"243AA.(1) The debtor is entitled to any property remaining after payment in full of:
(a) the costs, charges and expenses of the administration of the composition; and
(b) all provable debts; and
(c) interest on interest-bearing provable debts.
"(2) The Court may make an order directing the trustee not to pay or transfer the property, or a specified part of the property, referred to in subsection (1), to the debtor if:
(a) the Director of Public Prosecutions, or a person who is entitled to apply for an interstate confiscation order under a corresponding law, applies to the Court for an order under this subsection; and
(b) the Court is satisfied that:
(i) proceedings are pending under the Proceeds of Crime Act 1987 or a corresponding law; and
(ii) property of the debtor may:
(A) become subject to a forfeiture order or interstate forfeiture order made in the proceedings; or
(B) be required to satisfy a pecuniary penalty order or interstate pecuniary penalty order made in the proceedings.
"(3) The Court, on application made to it, may vary or revoke an order made under subsection (1).".
Application of Act in relation to administrations under this Part
41. Section 248 of the Principal Act is amended by omitting from subsection (1) "147 (inclusive) and sections 157" and substituting "138H (inclusive), Subdivisions I and J of Division 4B of Part VI and sections 140 to 147 (inclusive) and sections 156A".
Vesting of property on making of order
42. Section 249 of the Principal Act is amended by inserting after "Trustee" in paragraph (1)(a) " or, if when the order is made, a registered trustee is trustee of the estate of the deceased person under this Act, in that registered trustee".
43. Sections 252A and 253 of the Principal Act are repealed and the following sections are substituted:
Annulment on payment of debts
"252A.(1) If the trustee of the estate of a deceased person is satisfied that all the debts of the estate of a deceased person have been paid in full, the order for the administration of the estate under this Part is annulled, by force of this subsection, on the date on which the last such payment was made.
"(2) The trustee must, as soon as practicable after that date, give to the Registrar a written certificate setting out the name and the administration number of the estate and the date of the annulment.
"(3) The Registrar must enter in his or her records the fact that the order has been annulled and the date of the annulment.
"(4) For the purposes of this section, if a debt has been proved by a creditor but the creditor cannot be found or cannot be identified, the debt may be paid to the Registrar and, if so paid, is taken for the purposes of this section to have been paid in full to the creditor.
"(5) If money is paid to the Registrar under subsection (4), the Registrar must pay that money into the Consolidated Revenue Fund and the provisions of subsections 254(3) and (4) apply in relation to that money as if it had been paid into the Consolidated Revenue Fund by a trustee under subsection 254(2).
"(6) In this section:
'debts of the estate of a deceased person' means all debts that have been proved in the administration of the estate and includes interest payable on such of those debts as bear interest, and the costs, charges and expenses of the administration of the estate, including the remuneration and expenses of the trustee.
Annulment by Court
"252B. If the Court is satisfied that an order for the administration of the estate of a deceased person under this Part ought not to have been made, the Court may make an order annulling the administration of the estate under this Part.
Effect of annulment
"252C.(1) If the administration of the estate of a deceased person under this Part is annulled under section 252A or 252B:
(a) all sales and dispositions of property and payments duly made, and all acts done, by the trustee of the estate under this Part or any person acting under the authority of the trustee or the Court before the annulment are taken to have been validly made or done; and
(b) the trustee may apply the property still vested in the trustee in
connection with the administration of the estate in payment of the costs, charges and expenses of the administration of the estate, including the remuneration and expenses of the trustee; and
(c) subject to subsection (2), the remainder (if any) of the property still vested in the trustee in connection with the administration of the estate reverts to the estate of the deceased person.
"(2) If an application is made to the Court by a person claiming an interest in property referred to in paragraph (1)(c), the Court, after hearing such persons as it thinks fit, may make an order, either unconditionally or on such conditions as the Court considers just and equitable, for the vesting of the property in, or delivery of the property to, a person in whom, or to whom, it seems to the Court to be just and equitable that it should be vested or delivered, or to a trustee for that person.
"(3) Subject to subsection (4), if an order vesting property in a person is made under subsection (2), the property vests immediately in the person without any conveyance, transfer or assignment.
"(4) If:
(a) the property to which such an order relates is property the transfer of which is required by a law of the Commonwealth, of a State or of a Territory to be registered; and
(b) that law enables the registration of such an order;
the property, even though it vests in equity in the person named in the order, does not vest in that person at law until the requirements of that law have been complied with.".
Offences relating to exercise of powers under section 77A, 77B or 130
44. Section 265A of the Principal Act is amended by omitting the penalty at the foot of subsection (4) and substituting the following penalty:
"Penalty: Imprisonment for 12 months.".
45. Section 267 of the Principal Act is repealed and the following sections are substituted:
False declaration by debtor or bankrupt
"267.(1) This section applies to a declaration contained in a statement that:
(a) is filed under paragraph 54(1)(a) or (2)(a); or
(b) accompanies a petition presented under paragraph 55(2)(b) or subsection 56(1); or
(c) is filed under paragraph 56(13)(a) or (b); or
(d) accompanies a petition presented under subsection 57(1).
"(2) A person must not sign a declaration to which this section applies that the person knows to be false.
Penalty: Imprisonment for 12 months.
Bankrupt not to give false or misleading statement
"267A. A bankrupt must not give a statement to the trustee under section 139U that is false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
Failure of person to provide information
"267B. A person must not, without reasonable excuse, refuse or fail to comply with a notice given to the person under subsection 6A(3), paragraph 77C(1)(a) or section 139V.
Penalty: Imprisonment for 12 months.
Person not to provide false or misleading information
"267C. A person must not:
(a) in a statement given to the trustee under section 139U; or
(b) pursuant to a requirement contained in a notice given to the person under subsection 6A(3), paragraph 77C(1)(a) or section 139V;
provide information that is, or produce books that are, false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
Failure of person to attend
"267D. A person who is required by a notice under subsection 77C(1) to attend before the Official Receiver or an authorised officer and to whom an advance is offered in accordance with subsection 77E(1) must not, without reasonable excuse:
(a) fail to attend as required by the notice; or
(b) fail to appear and report from day to day, unless excused or released from further attendance by the Official Receiver or authorised officer, as the case may be.
Penalty: Imprisonment for 6 months.
Arrest of person failing to attend before Official Receiver or authorised officer
"267E.(1) Subject to subsection (2), if a person who is required by a notice under subsection 77C(1) to attend before the Official Receiver or an authorised officer:
(a) fails to attend as required by the notice; or
(b) fails to appear and report from day to day, as required by the Official Receiver or authorised officer;
the Registrar, on proof by affidavit of the service of the notice, may issue a warrant for the arrest of the person.
"(2) The Registrar must not issue a warrant under subsection (1) for the arrest of a person unless the Registrar is satisfied, on proof by affidavit, that the person was offered an advance in accordance with subsection 77E(1).
"(3) A warrant issued under subsection (1) authorises the arrest of the person and his or her being brought before the Registrar, and his or her detention in custody until he or she is released by order of the Registrar.
"(4) A warrant issued under subsection (1) may be executed by a constable, and a constable executing the warrant has the power to break in and enter any premises for the purpose of executing the warrant.
"(5) The Registrar may order a person arrested under this section to pay the costs of the arrest.
"(6) The arrest of a person under this section does not relieve the person from any liability incurred because of his or her failure to attend before the Official Receiver or authorised officer.
Refusal to be sworn or give evidence etc.
"267F. A person attending before the Official Receiver or an authorised officer as required by a notice under subsection 77C(1) must not, without reasonable excuse:
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that the person is required to answer by the Official Receiver or authorised officer, as the case may be; or
(c) refuse or fail to produce any books that the person is required by the notice to produce.
Penalty: Imprisonment for 6 months.
Prevarication or evasion in the course of giving evidence
"267G. Where a person who is giving evidence before the Official Receiver or an authorised officer as required by a notice under subsection 77C(1) is guilty of prevarication or evasion, the person is guilty of an offence punishable upon conviction by imprisonment for a period not exceeding 6 months.".
Bankrupt obtaining credit etc. without disclosing bankruptcy
46. Section 269 of the Principal Act is amended:
(a) by omitting "$500" (wherever occurring) and substituting "$3,000";
(b) by adding at the end the following subsection:
"(2) This section has effect subject to section 304A.".
Leaving Australia with intent to defeat creditors etc.
47. Section 272 of the Principal Act is amended:
(a) by adding at the end of paragraph (a) "or";
(b) by inserting after paragraph (b) the following paragraph:
"(ba) being liable to make a contribution to the trustee under subsection 139P(1) or 139Q(1), leaves Australia, or does an act preparatory to leaving Australia, without the permission of the Court;";
(c) by inserting in paragraph (c) "not being a person to whom paragraph (ba) applies," before "after".
48. After section 277 of the Principal Act the following section is inserted in Part XIV:
Keeping of books in respect of period of bankruptcy
"277A.(1) Subject to this section, a bankrupt must:
(a) keep books that record and explain any income derived by the bankrupt, record the particulars of any employment of the bankrupt, and record and explain any other dealings, transactions or other financial or business affairs of the bankrupt, during the period of the bankruptcy; and
(b) retain the books until discharged from the bankruptcy.
"(2) The bankrupt must:
(a) keep the books in writing in the English language or so as to enable the books to be readily accessible and convertible into writing in the English language; and
(b) keep the books so as to enable any liability of the bankrupt arising under this Act by virtue of any acts, transactions or other matters occurring during the period of the bankruptcy to be readily ascertainable.
"(3) A person who has possession of any books referred to in subsection (1) must:
(a) produce the books to the trustee or to the Official Receiver when requested to do so; and
(b) retain the books until the bankrupt is discharged.
"(4) A person is not required to retain books if the trustee or the Official Receiver, by written notice given to the person, has told the person that the retention of those books is not necessary.
Penalty: Imprisonment for 6 months.".
49. After section 304 of the Principal Act the following section is inserted:
Indexation
"304A.(1) In this section:
index number', in relation to a quarter, means the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter;
'indexable amount' means:
(a) the amount of $20 referred to in paragraph 77D(1)(a); or
(b) the amount of $20 referred to in subsection 77E(2); or
(c) the amount of $20 referred to in subsection 77E(3); or
(d) the amount of $10 referred to in paragraph 77E(4)(a); or
(e) the amount of $10 referred to in paragraph 77E(4)(b); or
(f) an amount prescribed by the rules for the purposes of paragraph 77E(3)(a) or (4)(a); or
(g) the amount of $3,000 referred to in paragraph 149D(1)(c); or
(h) the amount of $3,000 referred to in subsection 149ZC(1); or
(i) the amount of $1,000 referred to in subsection 161 B(1); or
(j) each amount of $3,000 referred to in section 269;
or, if any such amount has previously been altered under this section, the amount as so altered or last altered.
"(2) Section 77D or 77E applies in relation to the attendance of a person on a day during a quarter that begins after the commencement of the section concerned as if the indexable amount or each indexable amount in that section were replaced by the amount worked out using the formula in subsection (6).
"(3) Section 149D or 149ZC applies in relation to an act, omission or transaction by a bankrupt that constituted misleading conduct that took place or was entered into on a day during a quarter that begins after the date of commencement of the section concerned as if the indexable amount in that section were replaced by the amount worked out using the formula in subsection (6).
"(4) Section 161B applies in relation to a trustee who was appointed on a day during a quarter that begins after the date of commencement of that section as if the indexable amount in that section were replaced by the amount worked out using the formula in subsection (6).
"(5) Section 269 applies in relation to an act, omission or transaction referred to in that section that took place or was entered into on a day during a quarter that begins after the date of commencement of section 41 of the Bankruptcy Amendment Act 1991 as if each indexable amount in section 269 were replaced by the amount worked out using the formula in subsection (6).
"(6) The formula for the purposes of subsections (2), (3), (4) and (5) is:
where:
'Previous indexable amount' means the indexable amount for the previous quarter;
'Indexation factor' means the indexation factor for the quarter worked out under subsection (8).
"(7) If, apart from this subsection, an amount worked out under subsection (6) would be an amount of dollars and cents, the amount is to be rounded to the nearest dollar (rounding 50 cents upwards).
"(8) The indexation factor for a quarter is the number (worked out to 3 decimal places) worked out by dividing the index number for the previous quarter by the index number for the quarter that immediately preceded the previous quarter.
"(9) If the factor worked out under subsection (8) in relation to a quarter would, if it were worked out to 4 decimal places, end with a number greater than 4, the factor worked out under that subsection in relation to that quarter is taken to be the factor worked out to 3 decimal places and increased by 0.001.
"(10) Subject to subsection (11), if at any time, whether before or after the commencement of this section, the Australian Statistician has published or publishes an index number in respect of a quarter in substitution for an index number previously published by the Australian Statistician in respect of that quarter, the publication of the later index number is to be disregarded for the purposes of this section.
"(11) If at any time, whether before or after the commencement of this section, the Australian Statistician has changed or changes the reference base for the Consumer Price Index, then, for the purposes of the application of this section after the change took place or takes place, regard is to be had only to the index numbers published in terms of the new reference base.".
Payment of expenses by Commonwealth
50. Section 305 of the Principal Act is amended by inserting after paragraph (1)(a) the following paragraph:
"(aa) that the trustee should appear and participate in proceedings before the Administrative Appeals Tribunal reviewing a decision or determination by the trustee, or reviewing a decision of the Inspector-General on a review of such a decision or determination; or".
PART 3—TRANSITIONAL
Amendments to extend to existing bankruptcies
51.(1) Subject to this section, each amendment of the Principal Act that is made by this Act, other than the amendment of section 19 of the Principal Act that is made by section 6 of this Act, and relates to
bankruptcies applies according to its tenor in relation to persons who were bankrupt at the commencement of that amendment as it applies in relation to persons who become bankrupt after that commencement.
(2) Section 6A of the Principal Act as amended by section 4 of this Act applies only in respect of statements of affairs filed after the commencement of section 4 of this Act, and section 6A of the Principal Act continues to apply, despite its repeal, in respect of statements of affairs filed before that commencement.
(3) Any rules in force for the purposes of section 6A of the Principal Act immediately before the commencement of section 4 of this Act continue in force for the purposes of:
(a) section 6A of the Principal Act as it continues to apply by virtue of subsection (2) of this section; and
(b) section 6B of the Principal Act as amended by this Act;
but may be amended by rules made under the Principal Act as amended by this Act.
(4) Subsection 12(4) of the Principal Act as amended by this Act:
(a) applies in respect of all meetings held after the commencement of that subsection; and
(b) in respect of a meeting to which section 64ZA of the Principal Act as amended by this Act does not apply because of subsection (5) of this section, so applies as if section 64ZA applied to that meeting.
(5) The amendments of the Principal Act made by sections 9 to 14 (inclusive) and 17 of this Act apply only in respect of meetings convened by notices given after the commencement of the amendments made by the section concerned and the provisions of the Principal Act that are amended or repealed by those sections continue to apply, despite their amendment or repeal, in respect of meetings convened by notices given before the commencement of those amendments.
Compositions and schemes of arrangement
52.(1) Any proceeding under section 74 of the Principal Act that was pending before the Court immediately before the commencement of section 15 of this Act lapses upon that commencement.
(2) Where:
(a) within the period of 3 months immediately before the date of commencement of section 15 of this Act, the creditors of a bankrupt had accepted a composition or scheme of arrangement; and
(b) the bankruptcy had not been annulled by the Court before that date; and
(c) the Court had not refused to approve the composition or scheme of arrangement before that date;
subsection 74(5) of the Principal Act as amended by this Act has effect as if the special resolution accepting the composition or scheme of arrangement had been passed on that date.
(3) Section 75 of the Principal Act as amended by this Act extends to all compositions and schemes of arrangement that are in force at the commencement of section 16 of this Act.
If proceedings pending under proceeds of crime legislation
53. Any order that was in force under section 148 of the Principal Act immediately before the repeal of that section by section 26 of this Act continues to have effect as if it were made:
(a) in the case of an order in relation to a bankrupt—under subsection 154(6) of the Principal Act as amended by this Act; or
(b) in the case of an order in relation to a debtor who had executed a deed of assignment—under section 231A of the Principal Act as amended by this Act; or
(c) in the case of an order in relation to a debtor who had executed a deed of arrangement—under section 237AA of the Principal Act as amended by this Act; or
(d) in the case of an order in relation to a debtor who had entered into a composition—under section 243AA of the Principal Act as amended by this Act.
Existing objections and proceedings are to lapse
54.(1) Any objection to the discharge of a bankrupt that was entered under paragraph 149(3)(c) of the Principal Act and had not been withdrawn or lapsed before the repeal of section 149 of that Act by this Act lapses upon that repeal but the trustee or Official Receiver is not precluded by the lapsing of that objection from filing a notice of objection under section 149B of the Principal Act as amended by this Act.
(2) Any proceeding that was pending before the Court, and any order by the Court that was in force, under section 149 of the Principal Act immediately before the repeal of that section lapse upon that repeal.
Pending applications to Court for discharge are to lapse
55. Any application made to the Court under section 150 of the Principal Act that did not result before the repeal of that section in the making of an order for the unconditional discharge of the bankrupt, and any order made on such an application, lapse upon the repeal of that section.
Pending proceedings for annulment of bankruptcy under section 154
56.(1) Any proceeding that was pending before the Court immediately before the repeal of section 154 of the Principal Act for an order annulling a bankruptcy on a ground set out in paragraph 154(1)(b) of that Act lapses upon the repeal of that section.
(2) Any proceeding that was pending before the Court immediately before the repeal of section 154 of the Principal Act for an order annulling a bankruptcy on a ground set out in paragraph 154(1)(a) of that Act continues as if it were a proceeding before the Court under section 153B of that Act as amended by this Act, and the Court may give such directions and make such orders as are necessary to resolve any difficulties of practice, procedure or otherwise in giving effect to this subsection.
Amendments to extend to existing deeds and compositions
57. Subject to section 52, each amendment of the Principal Act that is made by this Act and relates to deeds of assignment, deeds of arrangement, or compositions, applies according to its tenor in relation to deeds executed or compositions entered into before the commencement of the amendment as it applies in relation to deeds executed or compositions entered into after that commencement.
Amendments to extend to existing administrations of estates of deceased persons
58. Each amendment of the Principal Act that is made by this Act and relates to the administration of the estates of deceased persons applies according to its tenor in relation to any such estates that were being administered under the Principal Act at the commencement of that amendment as it applies in relation to estates that begin to be administered after that commencement.
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NOTE
1. No. 33, 1966, as amended. For previous amendments, see No. 121, 1968; No. 40, 1969; No. 122, 1970; No. 216, 1973; No. 56, 1975; Nos. 37, 91 and 161, 1976; No. 111, 1977; No. 155, 1979; Nos. 12 and 70, 1980; Nos. 74 and 176, 1981; No. 18, 1983; Nos. 10 and 63, 1984; Nos. 21 and 193, 1985; Nos. 154 and 168, 1986; Nos. 73 and 119, 1987; Nos. 8, 38 and 99, 1988; No. 129, 1989; and No. 115, 1990.
[Minister's second reading speech made in—
Senate on 14 November 1991
House of Representatives on 19 December 1991]