Bankruptcy (Estate Charges) Amendment Act 2004
No. 81, 2004
An Act to amend the Bankruptcy (Estate Charges) Act 1997, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Amendment of the Bankruptcy (Estate Charges) Act 1997
Part 1—Amendments
Part 2—Transitional provisions
Bankruptcy (Estate Charges) Amendment Act 2004
No. 81, 2004
An Act to amend the Bankruptcy (Estate Charges) Act 1997, and for related purposes
[Assented to 23 June 2004]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Bankruptcy (Estate Charges) Amendment Act 2004.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 23 June 2004 |
2. Schedule 1 | At the same time as Schedule 1 to the Bankruptcy Legislation Amendment Act 2004 commences. | 1 December 2004 |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendment of the Bankruptcy (Estate Charges) Act 1997
Part 1—Amendments
1 Paragraphs 5(2)(b), (c) and (d)
Repeal the paragraphs, substitute:
(b) subsection 231(5) (which applies section 169 to a personal insolvency agreement);
2 Paragraph 6(1)(c)
Repeal the paragraph, substitute:
(c) is the trustee of a personal insolvency agreement executed in relation to a debtor under Part X of the Bankruptcy Act 1966; or
3 Subsection 6(1A)
Omit “deed”, substitute “personal insolvency agreement”.
Part 2—Transitional provisions
4 Transitional
(1) In this item:
post‑commencement composition means a composition that was accepted after the commencement of this item by a special resolution of a meeting of creditors under section 204 of the Bankruptcy Act 1966 as that section continues to apply because of item 213 of Schedule 1 to the Bankruptcy Legislation Amendment Act 2004.
post‑commencement deed means a deed of assignment or a deed of arrangement that was executed after the commencement of this item by a debtor and a trustee under Part X of the Bankruptcy Act 1966 as that Part continues to apply because of item 213 of Schedule 1 to the Bankruptcy Legislation Amendment Act 2004.
pre‑commencement composition has the same meaning as in item 212 of Schedule 1 to the Bankruptcy Legislation Amendment Act 2004.
pre‑commencement deed has the same meaning as in item 212 of Schedule 1 to the Bankruptcy Legislation Amendment Act 2004.
(2) Despite the amendment made by item 1 of this Schedule, section 5 of the Bankruptcy (Estate Charges) Act 1997 continues to apply, in relation to an amount to which a person is entitled because the person is:
(a) the trustee of a pre‑commencement deed; or
(b) the trustee of a pre‑commencement composition; or
(c) the trustee of a post‑commencement deed; or
(d) the trustee of a post‑commencement composition;
as if that amendment had not been made.
(3) Despite the amendments made by items 2 and 3 of this Schedule, Part 3 of the Bankruptcy (Estate Charges) Act 1997 continues to apply, in relation to an amount received by a person because the person is:
(a) the trustee of a pre‑commencement deed; or
(b) the trustee of a pre‑commencement composition; or
(c) the trustee of a post‑commencement deed; or
(d) the trustee of a post‑commencement composition;
as if those amendments had not been made.
[Minister’s second reading speech made in—
House of Representatives on 24 March 2004
Senate on 13 May 2004]
Overview
The Bankruptcy (Estate Charges) Amendment Act 2004 was enacted by the Parliament of Australia to address specific issues within the existing Bankruptcy (Estate Charges) Act 1997. This amendment was introduced to refine and update certain provisions related to estate charges, ensuring they align with the broader legislative framework governing bankruptcy and insolvency. The Act seeks to improve the efficiency and effectiveness of estate charge management by making targeted changes to the primary legislation. By clarifying and updating certain definitions and references within the 1997 Act, this amendment aims to provide better clarity and consistency in the application of estate charges, facilitating smoother processes for trustees and other stakeholders involved in bankruptcy proceedings.
The policy objective of the Bankruptcy (Estate Charges) Amendment Act 2004 is to enhance the administration of bankruptcy by ensuring that estate charges are properly managed and enforced. This includes updating terminology to reflect current practices and ensuring that the legislative framework supports the efficient resolution of bankruptcy cases. The Act's amendments are designed to support the broader goals of insolvency law by ensuring that estate charges are handled in a manner that is both fair and effective, thereby contributing to the overall stability and integrity of the insolvency system in Australia.
Scope and Application
The Bankruptcy (Estate Charges) Amendment Act 2004 applies to trustees of personal insolvency agreements executed under the Bankruptcy Act 1966, specifically to the charges and costs that can be incurred in the administration of bankruptcy estates. This Act amends the Bankruptcy (Estate Charges) Act 1997, affecting the persons and entities involved in bankruptcy proceedings, including trustees and creditors. Its geographic and jurisdictional reach is within the Commonwealth of Australia, and it applies to conduct and transactions involving the administration of bankruptcy estates. Certain transitional provisions ensure continuity of application for pre-existing arrangements. The Act itself does not specify any exclusions or exemptions but allows for further details to be set out in subordinate instruments or regulations, which can extend or restrict its application. The Act commenced on 23 June 2004, with specific provisions related to the schedule amendments commencing on 1 December 2004.
Key Provisions
The Bankruptcy (Estate Charges) Amendment Act 2004 (C2004A01314) amends the Bankruptcy (Estate Charges) Act 1997 to modify the application of certain sections regarding trustees of personal insolvency agreements and deeds. Specifically, section 1 of Schedule 1 repeals paragraphs 5(2)(b), (c), and (d) and replaces them with a new provision that applies section 169 to a personal insolvency agreement. Section 6(1)(c) is also repealed and substituted with a new paragraph that specifies the trustee of a personal insolvency agreement executed under Part X of the Bankruptcy Act 1966. Furthermore, subsection 6(1A) is amended by omitting the term "deed" and substituting it with "personal insolvency agreement".
This Act imposes certain obligations on the trustees of personal insolvency agreements and deeds. Trustees must adhere to the amended provisions, which now specifically reference "personal insolvency agreements" rather than "deeds". This change ensures that the trustees' duties and entitlements under the Bankruptcy (Estate Charges) Act 1997 are aligned with the terminology used in the Bankruptcy Act 1966. Additionally, the transitional provisions in Schedule 1, item 2 ensure that the amended sections do not affect the entitlements of trustees who were appointed before the commencement of this Act.
The Act does not explicitly state any new offences or penalties for non-compliance with its provisions. However, any breach of the obligations imposed by the amended sections could potentially lead to legal consequences under other related statutes, such as the Bankruptcy Act 1966. Trustees who fail to comply with their duties may face civil or criminal penalties, including fines and imprisonment, depending on the severity of the breach. The maximum penalties would be as prescribed under the relevant provisions of the Bankruptcy Act 1966 or other applicable legislation.