Bankruptcy (Fees and Remuneration) Amendment (Consequential Amendments) Determination 2021

Administered by Attorney-General's Department

Legislation au F2021L00265 Not in force Legislative Instrument

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Bankruptcy (Fees and Remuneration) Amendment (Consequential Amendments) Determination 2021

 

EXPLANATORY STATEMENT
 

Issued by authority of the Assistant Minister to the Attorney-General

under subsection 316(1) of the Bankruptcy Act 1966.

Purpose and operation of the Instrument

The Determination amends the Bankruptcy (Fees and Remuneration) Determination 2015, to reflect that the Bankruptcy Regulations 1996 sunset on the 1 April 2021 and were replaced by the Bankruptcy Regulations 2021. As such, the Determination makes minor amendments to the Bankruptcy (Fees and Remuneration) Determination 2015 to ensure that all references to the Bankruptcy Regulations 1996 are appropriately updated.

The Bankruptcy Act 1966 (the Act) regulates Australia's personal insolvency system and provides a framework to allow people in severe financial stress to discharge unmanageable debts while providing for the realisation of a debtor's available assets for distribution to affected creditors.

As provided under subsection 316(1) of the Act, the Bankruptcy (Fees and Remuneration) Amendment (Consequential Amendments) Determination 2021 (the Determination) determines the fees and remuneration payable for the purposes of the Act. The Determination does not list those matters that do not incur a fee or services for which a levy is charged.

The Australian Financial Security Authority (AFSA) has responsibility for the administration and regulation of Australia’s personal insolvency system. As AFSA is funded completely through a cost recovery model, it must ensure the pricing for its activities cover the efficient costs of performing them. The activities AFSA performs for which a fee or remuneration is payable under the Determination include:

  • processing requests to the Official Trustee for consent to travel outside Australia
  • processing debt agreement proposals
  • processing personal insolvency agreement proposals
  • extension of bankruptcy notices
  • issuing Official Receiver notices
  • regulation of trustees and debt agreement administrators, including interviewing applicants and registration
  • advertising creditors’ meetings on AFSA’s website, and
  • estate administration by the Official Trustee.

Consultation

The Determination has been informed by close collaboration with AFSA.

Regulation Impact Statement

The Sunsetting legislative instruments guidance note, issued by the Office of Best Practice Regulation, stipulates that agencies can self-assess the performance of an instrument. The Attorney‑General’s Department has assessed that the Determination is operating effectively and efficiently and that a Regulation Impact Statement is not required.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Bankruptcy (Fees and Remuneration) Amendment (Consequential Amendments) Determination 2021

This Legislative Instrument (the Determination) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Determination makes minor amendments to the Bankruptcy (Fees and Remuneration) Determination 2015, to reflect that the Bankruptcy Regulations 1996 sunset on the 1 April 2021 and were replaced by the Bankruptcy Regulations 2021.

This Bankruptcy (Fees and Remuneration) Determination 2015, as amended by this Determination, determines the fees and remuneration that are payable for the purposes of the Bankruptcy Act 1966 (the Act).

The Australian Financial Security Authority (AFSA) has responsibility for the administration and regulation of Australia’s personal insolvency system. As AFSA is funded completely through a cost recovery model, it must ensure the pricing for its activities cover the efficient costs of performing them. The Bankruptcy (Fees and Remuneration) Determination 2015 prescribes the fees and remuneration payable for certain of AFSA’s activities under the Act, including but not limited to: processing requests to the Official Trustee for consent to travel outside Australia; processing debt agreement proposals; extending bankruptcy notices; regulating trustees and debt agreement administrators; and advertising creditors’ meetings on AFSA’s website.

Human rights implications

As this Determination makes only minor, consequential amendments to the Bankruptcy (Fees and Remuneration) Determination 2015, it does not engage or impact any of the applicable rights or freedoms.

Conclusion

This Determination is compatible with human rights as it does not raise any human rights issues.

Attachment A

NOTES ON SECTIONS

PART 1 – Preliminary

Section 1 – Name

Section 1 provides that the title of the Determination is the Bankruptcy (Fees and Remuneration) Amendment (Consequential Amendments) Determination 2021.

Section 2 – Commencement

Section 2 provides for the commencement of provisions of the Determination, as set out in the table. Table item 1 provides that the whole of the instrument commences at the same time as the Bankruptcy Regulations 2021 commence. Those Regulations commenced on 1 April 2021.

Section 3 – Authority

Section 3 provides that the Determination is made under subsection 316(1) of the Bankruptcy Act 1966.

Section 4 - Schedules

Section 4 provides that each instrument that is specified in a Schedule to the Determination is amended or repealed as set out in the applicable Schedule.

SCHEDULE 1 – Amendments

Bankruptcy (Fees and Remuneration) Determination 2015

Section 1 – Section 1.04 (paragraph (a) of the note)

Section 1.04 of the Bankruptcy (Fees and Remuneration) Determination 2015 provides transitional arrangements, to ensure that the correct provisions and fees apply in relation to historical bankruptcies with a date of bankruptcy before 1 December 2010. As such, section 1 of the Determination clarifies that the relevant provision applicable to those historical bankruptcies is regulation 8.09 of the Bankruptcy Regulations 1996.

Section 2 – Subsection 1.05(1) (definition of Regulations)

Section 2 provides that the definition of Regulations under the Determination is the Bankruptcy Regulations 2021. This ensures that any references made in the Determination to the Regulations are taken to refer to the current and in-force Bankruptcy Regulations.

Section 3 – Subsection 1.05(2) (note 2)

Section 3 stipulates that in note 2 of subsection 1.05(2), a reference to the Index is taken to mean the National Personal Insolvency Index as established under section 73 of the Regulations. This consequential amendment simply updates the Determination to ensure that it references the correct and up-to-date provision in the Bankruptcy Regulations 2021.

Section 4 – Subsection 2.02(1)

Section 4 stipulates that the reference to subregulation 13.06(1) of the Regulations is replaced with a reference to the equivalent provision in the Bankruptcy Regulations 2021, being subsection 84(2). This consequential amendment simply updates the Determination to ensure that it references the correct and up-to-date provision in the Regulations.

Section 5 – Subsection 2.02(2)

Section 5 stipulates that the reference to subregulation 13.06(3) of the Regulations is replaced with a reference to the equivalent provision in the Bankruptcy Regulations 2021, being subsection 84(3). This consequential amendment simply updates the Determination to ensure that it references the correct and up-to-date provision in the Regulations.

Section 6 – Section 2.05

Section 6 stipulates that the reference to paragraph 4.02A(b) of the Regulations is replaced with a reference to the equivalent provision in the Bankruptcy Regulations 2021, being paragraph 10(1)(b). This consequential amendment simply updates the Determination to ensure that it references the correct and up-to-date provision in the Regulations.

Section 7 – Subsection 2.11(1)

Section 110 of the Bankruptcy Regulations 2021 provides that a fee is payable by a bankrupt to the Official Trustee, when making a request for consent to leave Australia.

Section 7 stipulates that the reference in subsection 2.11(1) to ‘the Official Trustee for consent to leave Australia under regulation 5.02 of the Bankruptcy Regulations 1996’, is replaced with ‘of a kind mentioned in subsection 110(1) of the Regulations’.

This consequential amendment simply updates the Determination to ensure that it references the correct and up-to-date provision in the Regulations, and simplifies the language of the reference.

Overview

The Bankruptcy (Fees and Remuneration) Amendment (Consequential Amendments) Determination 2021 was enacted to amend the Bankruptcy (Fees and Remuneration) Determination 2015 in light of the sunsetting of the Bankruptcy Regulations 1996 and their replacement by the Bankruptcy Regulations 2021. This Determination was issued under subsection 316(1) of the Bankruptcy Act 1966 by the Assistant Minister to the Attorney-General, and its primary objective is to ensure that references to outdated regulations within the 2015 Determination are updated to reflect the current Bankruptcy Regulations 2021. The Australian Financial Security Authority (AFSA), which administers and regulates Australia's personal insolvency system, collaborates closely with the enacting body to ensure that the fees and remuneration set forth in the Determination align with the cost recovery model that funds AFSA's activities.

Scope and Application

The Bankruptcy (Fees and Remuneration) Amendment (Consequential Amendments) Determination 2021 applies to the administration of personal insolvency under the Bankruptcy Act 1966, specifically addressing the fees and remuneration payable for services provided by the Australian Financial Security Authority (AFSA). This Determination ensures that all references to the now-defunct Bankruptcy Regulations 1996 are updated to the current Bankruptcy Regulations 2021, thereby maintaining the integrity and efficiency of the personal insolvency system. It governs the fees associated with various activities undertaken by AFSA, including processing proposals for debt agreements and personal insolvency agreements, extending bankruptcy notices, regulating trustees and debt agreement administrators, and administering estates by the Official Trustee. This Determination is applicable nationwide and operates under the framework of the Bankruptcy Act, which governs personal insolvency across Australia. There are no stated exclusions or exemptions within this Determination, and it does not introduce any new fees or alter the existing fee structure beyond the necessary updates to align with the new regulations. The Determination itself is issued under the authority of the Assistant Minister to the Attorney-General and is compatible with human rights as it does not introduce new rights or freedoms but rather ensures that the references within the Bankruptcy (Fees and Remuneration) Determination 2015 are up-to-date and aligned with the new Bankruptcy Regulations 2021. This consequential amendment is crucial for maintaining the operational efficiency of AFSA, which operates on a cost recovery model. The effective date of the Determination is synchronised with the commencement of the Bankruptcy Regulations 2021, which is 1 April 2021. The Determination ensures that all references and obligations under the Bankruptcy (Fees and Remuneration) Determination 2015 are updated to reflect the current legislative framework, thereby avoiding any confusion or misapplication of fees under the old regulations.

Key Provisions

The Bankruptcy (Fees and Remuneration) Amendment (Consequential Amendments) Determination 2021 (the Determination) primarily serves to update and reflect changes arising from the sunsetting of the Bankruptcy Regulations 1996 and their replacement by the Bankruptcy Regulations 2021. This is achieved through minor amendments to the Bankruptcy (Fees and Remuneration) Determination 2015, which specifies the fees and remuneration payable for various activities under the Bankruptcy Act 1966 (the Act). These activities include processing requests to the Official Trustee for consent to travel outside Australia, processing debt agreement proposals, extending bankruptcy notices, and regulating trustees and debt agreement administrators, among others. The Determination ensures that references to the now defunct Bankruptcy Regulations 1996 are appropriately updated to refer to the current Bankruptcy Regulations 2021. The Determination imposes specific obligations on the Australian Financial Security Authority (AFSA) and other relevant parties to ensure the efficient cost recovery model is maintained. AFSA, which is funded entirely through a cost recovery model, must ensure that the fees and remuneration it charges for its activities cover the costs of performing those activities. This includes the processing of various requests and proposals, regulation of trustees and administrators, and the administration of creditors’ meetings. The Determination also mandates that AFSA advertise creditors’ meetings on its website and manage the estate administration by the Official Trustee. These obligations are crucial for maintaining the financial integrity and operational efficiency of the personal insolvency system. Breach of the provisions set out in the Determination may not explicitly outline specific offences, penalties, or consequences within the text itself. However, given that the Determination is made under the authority of the Bankruptcy Act 1966, any failure to comply with the Act or the Determination could result in civil or criminal penalties as prescribed under the Act. These may include fines or other financial penalties, and in severe cases, criminal charges. The maximum penalties would depend on the specific breach and the provisions of the Bankruptcy Act 1966, which could include substantial fines and potential imprisonment. The Determination’s alignment with the human rights framework ensures that any enforcement actions are conducted in a manner that respects and upholds human rights.

Legal classification tags

Area of Law
Insolvency Law
Instrument
Determination
Concepts
Definitions & Interpretation
Regulatory Standards
Fees and Remuneration

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.