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Bankruptcy (Estate Charges) Act 1997

Authoritative Version
Act No. 12 of 1997 as amended, taking into account amendments up to Territories Legislation Amendment Act 2016
An Act to impose charges in relation to certain matters under the Bankruptcy Act 1966
Administered by: Attorney-General's
General Comments: The Insolvency Law Reform Act 2016 is modified by the Insolvency Law Reform (Transitional Provisions) Regulation 2016 affecting commenced amendments to the Bankruptcy (Estate Charges) Act 1997.
Registered 07 Mar 2017
Start Date 01 Mar 2017

Bankruptcy (Estate Charges) Act 1997

No. 12, 1997

Compilation No. 9

Compilation date:                              1 March 2017

Includes amendments up to:            Act No. 33, 2016

Registered:                                         7 March 2017

 

 

 

 

 

 

 

 

 

This compilation includes commenced amendments made by Act No. 11, 2016

 

About this compilation

This compilation

This is a compilation of the Bankruptcy (Estate Charges) Act 1997 that shows the text of the law as amended and in force on 1 March 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Act to bind the Commonwealth Crown............................................... 1

3A......... Act does not extend to Norfolk Island................................................ 1

4............ Interpretation....................................................................................... 1

Part 2—Interest charge                                                                                                      3

5............ Interest charge..................................................................................... 3

Part 3—Realisations charge                                                                                             4

6............ Realisations charge.............................................................................. 4

6A......... Charge not payable on estate surplus.................................................. 5

7............ Amount of charge payable.................................................................. 5

7A......... Certain amounts treated as being received by person.......................... 5

8............ Working out the amount on which charge is payable.......................... 6

Part 4—Miscellaneous                                                                                                         7

9............ Regulations......................................................................................... 7

Endnotes                                                                                                                                      8

Endnote 1—About the endnotes                                                                              8

Endnote 2—Abbreviation key                                                                                10

Endnote 3—Legislation history                                                                             11

Endnote 4—Amendment history                                                                           12


An Act to impose charges in relation to certain matters under the Bankruptcy Act 1966

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Bankruptcy (Estate Charges) Act 1997.

2  Commencement

             (1)  Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.

             (2)  If this Act does not commence within 6 months after the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3  Act to bind the Commonwealth Crown

                   This Act binds the Crown in right of the Commonwealth. However, it does not bind the Crown in right of a State, of the Australian Capital Territory, of the Northern Territory or of Norfolk Island.

3A  Act does not extend to Norfolk Island

                   This Act does not extend to Norfolk Island.

4  Interpretation

             (1)  In this Act:

charge period means a financial year.

             (2)  Unless the contrary intention appears, other expressions used in this Act have the same meanings as in the Bankruptcy Act 1966.

Part 2Interest charge

  

5  Interest charge

             (1)  An amount of interest to which a person is entitled, in his or her personal capacity, under subsection 185LD(3) of, or subsection 65‑31(1) of Schedule 2 to, the Bankruptcy Act 1966 is payable to the Commonwealth as a charge.

          (1A)  No charge is payable by a person in respect of an account for a charge period if the amount of that charge would be less than $10, or a higher amount prescribed by the regulations.

             (3)  The charge is payable by the person.

             (4)  The charge is payable within 35 days after the end of the charge period in which the interest was paid.

Part 3Realisations charge

  

6  Realisations charge

             (1)  A charge, calculated in accordance with sections 7 and 8, is imposed in respect of amounts received by a person (including the Official Trustee) who, during a charge period:

                     (a)  is the trustee of the estate of a bankrupt under the Bankruptcy Act 1966; or

                    (aa)  is the trustee of a composition or scheme of arrangement under Division 6 of Part IV of the Bankruptcy Act 1966; or

                   (ab)  is the administrator of a debt agreement under Part IX of the Bankruptcy Act 1966; or

                     (b)  is controlling trustee in relation to a debtor whose property has become subject to control under Division 2 of Part X of the Bankruptcy Act 1966; or

                     (c)  is the trustee of a personal insolvency agreement executed in relation to a debtor under Part X of the Bankruptcy Act 1966; or

                     (d)  is the trustee of the estate of a deceased person under Part XI of the Bankruptcy Act 1966.

          (1A)  No charge is payable by a person for a charge period in respect of a particular estate, personal insolvency agreement, composition or debtor (as the case requires) if the amount of that charge would be less than $10, or a higher amount prescribed by the regulations.

          (1B)  Charge is not payable by a person in the person’s capacity as administrator of a debt agreement under Part IX of the Bankruptcy Act 1966 if the person is the debtor to whom the debt agreement relates.

             (2)  The charge is payable by the person to the Commonwealth.

             (3)  The charge is payable within 35 days after the end of the charge period.

6A  Charge not payable on estate surplus

             (1)  If:

                     (a)  the person receives an amount in respect of a bankrupt’s estate; and

                     (b)  as a result of receiving the amount, the person becomes able to pay off all the bankrupt’s debts;

then the following amounts are not taken into account in determining the amount on which charge is payable:

                     (c)  any excess of the received amount over the amount needed to pay off all the bankrupt’s debts;

                     (d)  any amount later received by the person in respect of the estate.

             (2)  In this section:

bankrupt’s debts has the same meaning as in subsection 153A(6) of the Bankruptcy Act 1966.

7  Amount of charge payable

             (1)  The amount of charge payable for a charge period is the percentage, determined by the Minister by legislative instrument, of the amount on which charge is payable for the period.

             (2)  The Minister may make a legislative instrument determining the percentage.

             (3)  The percentage determined must not be more than 15%.

7A  Certain amounts treated as being received by person

                   For the purposes of this Part, an amount is treated as received by the person if it is applied or dealt with on behalf of the person, or in accordance with the person’s directions.

8  Working out the amount on which charge is payable

             (1)  The amount on which charge is payable for a charge period is the amount realised less the permitted deductions.

             (2)  The amount realised is the total amount received by the person in the capacity referred to in subsection 6(1) during the charge period, but not including:

                     (a)  amounts paid to the person by creditors under an indemnity in respect of costs; or

                     (b)  amounts paid to the person under section 305 of the Bankruptcy Act 1966.

             (3)  The permitted deductions are all amounts paid by the person in the capacity referred to in subsection 6(1) during the charge period that are:

                     (a)  amounts paid by the person in carrying on the business of the bankrupt, deceased person or debtor; or

                     (b)  amounts paid to secured creditors.

             (4)  Once an amount has been taken into account for the purposes of subsection (2) as an amount received, the whole or part of the amount is not to be taken into account again as an amount received for the purposes of another application of that subsection.

Part 4Miscellaneous

  

9  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

 

Endnote 2—Abbreviation key

 

ad = added or inserted

o = order(s)

am = amended

Ord = Ordinance

amdt = amendment

orig = original

c = clause(s)

par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x

    /sub‑subparagraph(s)

Ch = Chapter(s)

pres = present

def = definition(s)

prev = previous

Dict = Dictionary

(prev…) = previously

disallowed = disallowed by Parliament

Pt = Part(s)

Div = Division(s)

r = regulation(s)/rule(s)

ed = editorial change

reloc = relocated

exp = expires/expired or ceases/ceased to have

renum = renumbered

    effect

rep = repealed

F = Federal Register of Legislation

rs = repealed and substituted

gaz = gazette

s = section(s)/subsection(s)

LA = Legislation Act 2003

Sch = Schedule(s)

LIA = Legislative Instruments Act 2003

Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given

SLI = Select Legislative Instrument

    effect

SR = Statutory Rules

(md not incorp) = misdescribed amendment

Sub‑Ch = Sub‑Chapter(s)

    cannot be given effect

SubPt = Subpart(s)

mod = modified/modification

underlining = whole or part not

No. = Number(s)

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Act

Number and year

Assent

Commencement

Application, saving and transitional provisions

Bankruptcy (Estate Charges) Act 1997

12, 1997

13 Mar 1997

14 Apr 1997 (s 2(1) and gaz 1997, No S136)

 

Bankruptcy (Estate Charges) Amendment Act 2001

158, 2001

1 Oct 2001

3 July 2002 (s 2)

Sch 1 (items 10–16)

as amended by

 

 

 

 

Bankruptcy (Estate Charges) Amendment Act 2002

61, 2002

3 July 2002

Sch 1 (item 11): 3 July 2002 (s 2(1) item 3)

Bankruptcy (Estate Charges) Amendment Act 2002

61, 2002

3 July 2002

Sch 1 (items 1–10, 12, 13): 3 July 2002 (s 2(1) items 2, 4)

Sch 1 (items 12, 13)

Bankruptcy (Estate Charges) Amendment Act 2004

81, 2004

23 June 2004

Sch 1: 1 Dec 2004 (s 2(1) item 2)

Sch 1 (item 4)

Bankruptcy Legislation Amendment (Fees and Charges) Act 2006

34, 2006

3 May 2006

Sch 2: 1 July 2006 (s 2(1) item 4)

Sch 2 (item 3)

Bankruptcy (Estate Charges) Amendment Act 2007

43, 2007

10 Apr 2007

1 July 2007 (s 2)

Sch 1 (item 4)

Insolvency Law Reform Act 2016

11, 2016

29 Feb 2016

Sch 1 (items 99–178): 1 Mar 2017 (s 2(1) item 2)

Sch 1 (items 101–178)

Territories Legislation Amendment Act 2016

33, 2016

23 Mar 2016

Sch 5 (item 20): 1 July 2016 (s 2(1) item 7)

 

Endnote 4—Amendment history

 

Provision affected

How affected

Part 1

 

s 3A.....................................

ad No 33, 2016

s 4........................................

am No 158, 2001; No 34, 2006

Part 2

 

s 5........................................

am No 158, 2001; No 61, 2002; No 81, 2004; No 43, 2007; No 11, 2016

Part 3

 

s 6........................................

am No 158, 2001; No 61, 2002; No 81, 2004; No 43, 2007

s 6A.....................................

ad No 158, 2001

 

am No 61, 2002

s 7........................................

rs No 34, 2006

s 7A.....................................

ad No 158, 2001

 

am No 61, 2002

s 8........................................

am No 61, 2002

Part 4

 

Part 4...................................

ad No 158, 2001

s 9........................................

ad No 158, 2001