Customs Amendment Act (No. 2) 1980 (Cth)

Customs Amendment Act (No. 2) 1980

No. 13 of 1980

An Act to amend the Customs Act 1901 in consequence of certain amendments of the Bankruptcy Act 1966

[Assented to 8 April 1980]

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:

Short title, &c.

1. (1) This Act may be cited as the Customs Amendment Act (No. 2) 1980.

(2) The Customs Act 1901 is in this Act referred to as the Principal Act.

Commencement

2. This Act shall come into operation on the date fixed under sub-section 2(2) of the Bankruptcy Amendment Act 1980.

Court may direct the Official Trustee to take control of property

3. Section 243e of the Principal Act is amended by adding at the end thereof the following sub-section:

“(7) Notwithstanding anything contained in the Bankruptcy Act 1966, moneys that have come into the possession, or under the control, of the Official Trustee in accordance with an order made under sub-section (2) shall not be paid into the Common Investment Fund established in pursuance of section 20b of that Act.”.

Sale of property before bankruptcy

4. (1) Section 243l of the Principal Act is amended—

(a) by omitting paragraph (a) of sub-section (1) and substituting the following paragraph:

“(a) the Commonwealth has, within 6 months before the presentation of a petition, or after the presentation of a petition, against a person, received moneys from the Official Trustee or an Official Receiver in pursuance of an order under section 243g in relation to the liability of the person to pay a pecuniary penalty; and”; and

(b) by omitting from sub-section (1) “(if any)”.

(2) The amendments of section 243l of the Principal Act made by sub-section (1) of this section apply in relation to a person who becomes a bankrupt after the commencement of this Act on, or by virtue of the presentation of, a petition, whether the petition was presented before, or is presented after, the commencement of this Act.

5. (1) Section 243m of the Principal Act is repealed and the following section substituted:

Duties of the Official Trustee after receiving notice of presentation of creditor’s petition, &c.

“243m. (1) Where, after the Official Trustee has been directed by an order under sub-section (1) of section 243g to pay an amount to the Commonwealth in relation to the liability of a person to pay a pecuniary penalty, notice in writing of the presentation of a creditor’s petition against the person is given to the Official Trustee, the Official Trustee—

(a) shall refrain from taking action to sell property of the person in pursuance of any direction to do so contained in an order under that section; and

(b) shall not pay to the Commonwealth any moneys in pursuance of the direction to do so contained in the first-mentioned order,

until the petition has been dealt with by a bankruptcy court or has lapsed.

“(2) Where, after the Official Trustee has been directed by an order under sub-section (1) of section 243g to pay an amount to the Commonwealth in relation to the liability of a person to pay pecuniary penalty, notice in writing of the reference to a bankruptcy court of a debtor’s petition against the person is given to the Official Trustee, the Official Trustee—

(a) shall refrain from taking action to sell property of the person in pursuance of any direction to do so contained in an order under that section; and

(b) shall not pay to the Commonwealth any moneys in pursuance of the direction to do so contained in the first-mentioned order,

until a bankruptcy court has dealt with the petition.

“(3) Where a person who is liable to pay a pecuniary penalty becomes a bankrupt (whether on a creditor’s petition or otherwise), any property of the person in the possession, or under the control, of the Official Trustee in accordance with an order made under this Division shall be deemed to be in the possession, or under the control, of the Official Trustee as, or on behalf of, the trustee of the estate of the bankrupt, and not otherwise.

“(4) In this section, ‘bankruptcy court’ means a court having jurisdiction in bankruptcy under the Bankruptcy Act 1966.”.

(2) Notwithstanding the amendments made by sub-section (1) of this section, where an order has been made by the Court under sub-section 243e(2) of the Principal Act before the commencement of this Act in relation to property of a person, the provisions of section 243m of the Principal Act continue to apply, after the commencement of this Act, subject to sub-section (3) of this section, in relation to that property as if that section of the Principal Act had not been repealed.

(3) Section 243m of the Principal Act has effect, after the commencement of this Act, in relation to property referred to in sub-section (2) of this section as if—

(a) “The Official Receiver in Bankruptcy” were omitted from sub-section (1) and “the Official Trustee” were substituted;

(b) the following sub-section were inserted after sub-section (1)—

“(1a) Where, after an Official Receiver has been directed by an order under sub-section (1) of section 243g to pay an amount to the Commonwealth in relation to the liability of a person to pay a pecuniary penalty, notice in writing of the reference to a bankruptcy court of a debtor’s petition against the person is given to the Official Receiver, the Official Receiver—

(a) shall refrain from taking action to sell property of the person in pursuance of any such direction contained in the order; and

(b) shall not pay to the Commonwealth any moneys in pursuance of the direction contained in the order,

until a bankruptcy court has dealt with the petition.”;

(c) “the official receiver” (last occurring) were omitted from paragraph (a) of sub-section (2) and “the Official Trustee” were substituted;

(d) “The Official Receiver in Bankruptcy” were omitted from paragraph (b) of sub-section (2) and “the Official Trustee” were substituted; and

(e) the following sub-section were added at the end thereof :

“(3) In this Section, ‘bankruptcy court’ means a court having jurisdiction in bankruptcy under the Bankruptcy Act 1966.”.

Other amendments

6. The Principal Act is amended as set out in the Schedule.

Transitional provisions

7. (1) The amendments made by section 6 of this Act do not affect an order in force immediately before the commencement of this Act under any of the provisions of Division 3 of Part XIII of the Principal Act.

(2) Where an order is in force, immediately before the commencement of this Act, under sub-section 243e(2) of the Principal Act in relation to property of a person, the property to which that order, or that order as varied at any time, whether before or after the commencement of this Act, applies shall be dealt with under the provisions of Division 3 of Part XIII of the Principal Act and in accordance with any order made, whether before or after the commencement of this Act, under any of the provisions of that Division, as if the amendments of the Principal Act made by section 6 of this Act had not been made.

(3) Section 243g of the Principal Act has effect in relation to property to which an order under sub-section 243e (2) referred to in sub-section (2) of this section applies as if “The Official Receiver in Bankruptcy” (wherever occurring) were omitted from sub-sections (6) and (8) and “the Official Trustee” were substituted.

(4) A reference in sub-section (2) to the provisions of Division 3 of Part XIII of the Principal Act shall be read as a reference to the provisions of that Division in their application in accordance with sections 3, 4 and 5 of this Act and of sub-section (3) of this section.

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SCHEDULE Section 6

OTHER AMENDMENTS

1. The following provisions of the Principal Act are amended by omitting “the official receiver” (wherever occurring) and substituting “the Official Trustee”:

Sections 243a(5), 243f(1)(b), (c) and (d) and (2)(a), 243g(1), (2), (3), (4) and (5), 243h(4), 243j(2)(e)(ii) and (4), 243k, 243n(1), (2), (3) and (4), 243p and 243q.

2. The following provisions of the Principal Act are amended by omitting “an official receiver” (wherever occurring) and substituting “the Official Trustee”:

Sections 243e(1), (2)(a)(ii) and (c), (3), (4) and (5), 243f(1), 243g(1), 243j(1) and (3) and 243n(1)(a) and (4).

3. The Principal Act is further amended as set out in the following table:

Provision

Amendment

Sub-section 243a(1) (definition of “official receiver”)

Omit, substitute the following definition:

“‘Official Trustee’ means the Official Trustee in Bankruptcy;”.

Sub-section 243a(1) (definition of “The Official Receiver in Bankruptcy”)

Omit.

Paragraph 243f(1)(b)

Omit “his” (wherever occurring), substitute “its”.

Paragraph 243g(1)................

Omit “his” (wherever occurring), substitute “its”.

Paragraph 243g(3)(a)

(a) Omit “his” (wherever occurring), substitute “its”.

(b) Omit “him” (wherever occurring), substitute “it”.

Sub-sections 243g(6), (7) and (8)

Omit.

Sub-section 243h(4).............

Omit “him” (wherever occurring), substitute “it”.

Sub-section 243j(4)..............

Omit “he”, substitute “the Official Trustee”.

Sub-sections 243n(1) and (2)

Omit “his”, substitute “its”.

Sub-section 243n(3).............

(a) Omit “An official receiver”, substitute “The Official Trustee”.

(b) Omit “he”, substitute “it”.

Sub-section 243n(4).............

(a) Omit “he”, substitute “the Official Trustee”.

(b) Omit “his”, substitute “its”.

Sub-section 243p..................

(a) Omit “his” (wherever occurring), substitute “its”.

(b) Omit “he” (wherever occurring), substitute “it”.