Federal Register of Legislation - Australian Government

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Determinations/Other as made
This Determination sets out the amounts of fees and charges payable under the Bankruptcy Act 1966, and replaces the Bankruptcy (Fees and Remuneration) Determination 2010.
Administered by: Attorney-General's
General Comments: Transitional: (1) Despite the repeal of the Bankruptcy (Fees and Remuneration) Determination 2010, sections 2.08 and 2.09 of that Determination continue to apply to a bankruptcy if the date of the bankruptcy is before 1 January 2011. Note The Bankruptcy (Fees and Remuneration) Determination 2010, provided for a fee of $50 for each period of 15 minutes, or part of 15 minutes: (a) under section 2.08 — for a taxing officer to tax a claim for remuneration under regulation 8.09 of the Regulations; or (b) under section 2.09 — for taxation of the bill of costs under section 167 of the Act. (2) However, if Schedule 1 to the Bankruptcy Legislation Amendment Act 2010 commences before 1 January 2011, sections 2.08 and 2.09 of that Determination continue to apply to a bankruptcy only if the date of the bankruptcy is before the commencement of that Schedule.
Registered 22 Dec 2010
Tabling HistoryDate
Tabled Senate08-Feb-2011
Tabled HR08-Feb-2011
Date of repeal 01 Jul 2013
Repealed by Bankruptcy (Fees and Remuneration) Determination 2013

EXPLANATORY STATEMENT

Issued by the authority of the Attorney-General

Bankruptcy Act 1966

Bankruptcy (Fees and Remuneration) Determination 2010 (No. 2)

Statutory basis

Section 316 of the Bankruptcy Act 1966 (the Act) provides that the Minister may make legislative instruments determining the amounts of fees in relation to specified provisions of the Act.

Purpose

The Bankruptcy (Fees and Remuneration) Determination 2010 (No 2) (the Determination) repeals and replaces the Bankruptcy (Fees and Remuneration) Determination 2010 (the previous Determination).  The Determination incorporates the following changes to the fees charged by the Insolvency and Trustee Service Australia (ITSA):

·        deletion of the fees previously charged for taxation of a trustee’s remuneration or a third party’s bill of costs.  This reflects recent legislative amendments, which replaced the taxation system with a new review process that is cost-free to the applicant, and

·        introduction of a $191 fee for presentation or lodgement of a debt agreement proposal (DAP fee).

The Determination also incorporates minor changes to correct anomalies and bring the instrument in line with current drafting practices.

Commencement

The Determination commences on 1 January 2011.

Consultation

Consistent with the Australian Government’s Cost Recovery Policy, outlined in the Australian Government Cost Recovery Guidelines, stakeholders likely to be affected were consulted on the proposal to introduce the fee.  The consultation process included the release of a discussion paper detailing the proposed fee, including the amount, the proposed date of commencement, and the methodology used to derive the amount.  The discussion paper was provided to members of the Bankruptcy Reform Consultative Forum, which operates as ITSA’s Cost Recovery Reference Group, and debt agreement administrators, and published on the Attorney-General Department’s website.


Details of the changes

Transitional — fees for taxation of a claim for remuneration or a bill of costs (clause 1.04)

Clause 1.04 provides for the fees for a taxing officer to tax a claim for remuneration (clause 2.08 of the previous Determination), or a bill of costs (clause 2.09 of the previous Determination), to continue to apply to bankruptcies for which the date of bankruptcy is before 1 December 2010 (the commencement date for Schedule 1 to the Bankruptcy Legislation Amendment Act 2010). 

For bankruptcies for which the date of bankruptcy is after 1 December 2010, the taxation process has been replaced by a new cost-free review under clause 13 of Schedule 1 to the Bankruptcy Legislation Amendment Act 2010 and clause 2 of Schedule 1 to the Bankruptcy Amendment Regulations 2010 (No 2).  Accordingly, these fees will not apply to bankruptcies occurring after this date.

Deletion of fee for taxation of trustee’s remuneration (previously clause 2.08)

The fee for a taxing officer to tax a claim for remuneration (clause 2.08 of the previous Determination) has been deleted.  The taxation process has been replaced by a new cost-free review under clause 13 of Schedule 1 to the Bankruptcy Legislation Amendment Act 2010 and clause 2 of Schedule 1 to the Bankruptcy Amendment Regulations 2010 (No 2).

Deletion of fee for taxation of costs (previously clause 2.09)

The fee for a taxing officer to tax a third party’s bill of costs (clause 2.08 of the previous Determination) has been deleted.  The taxation process has been replaced by a new cost-free review under clause 13 of Schedule 1 to the Bankruptcy Legislation Amendment Act 2010 and clause 2 of Schedule 1 to the Bankruptcy Amendment Regulations 2010 (No 2)

Debt agreement proposals (clause 2.10)

Clause 2.10 provides for a fee of $191 to be payable upon presentation or lodgement of a debt agreement proposal under section 185C of the Act. 

The fee is being imposed to recover the costs associated with processing debt agreement proposals lodged with ITSA.  ITSA receives these proposals as part of its function to provide registry services for the lodgement of forms relating to personal insolvency.  Debtors receive significant benefits from ITSA’s role, under subsection 185E(2) of the Act, to ensure that a debt agreement proposal complies with the legislation.  ITSA’s assessment also assists in determining whether a debt agreement proposal is appropriate in the debtor’s circumstances. 

It is therefore considered appropriate that debtors presenting a debt agreement proposal should pay, on a cost-recovery basis, for the service ITSA provides in accepting, checking and processing the proposal.

The clause has been numbered out of sequence to avoid confusion with references, in regulation 16.11 of the Bankruptcy Regulations 1996, to clauses 2.08 and 2.09 of the previous Determination, which have now been deleted.

Giving of authority and statement of affairs (clause 2.11)

This clause was previously clause 2.07.  The clause has been moved and the numbering adjusted in accordance with current drafting practice, to ensure that the ordering of items in the Determination reflects the order of provisions in the Act.

Realised balance (clause 3.01)

Clause 3.01 combines clause 3.01 and clause 3.02 of the previous Determination.  This change reflects current drafting practices, and is intended to clarify how the realised balance should be calculated. 

The numbering of the remaining clauses in Part 3 have not been updated to ensure that references to specific clauses in regulation 16.07 of the Bankruptcy Regulations 1996 remain effective.

Work performed in place of registered trustee or debt agreement administrator (clause 3.10)

Clause 3.10 has been corrected to refer to work transferred to or from a debt agreement administrator, as well as work transferred to or from a registered trustee.  Previously, the section only referred to work transferred to or from a registered trustee.  However, the work referred to in the section includes work under subsection 3.06(1), which is work that could be performed either by a registered trustee, or by a registered debt agreement administrator.