EXPLANATORY STATEMENT
Issued by the authority of the Attorney-General
Bankruptcy Act 1966
Bankruptcy (Fees and Remuneration) Determination 2010 (No. 2) Amendment Determination 2011 (No.1)
Statutory basis
Paragraph 316(1)(b)(v) of the Bankruptcy Act 1966 (the Act) provides that the Minister may make legislative instruments determining the amounts of fees in relation to the making of other requests or applications under the Act or the presentation or lodgement of other documents under the Act.
Purpose
The Bankruptcy (Fees and Remuneration) Determination 2010 (No 2) Amendment Determination 2011 (No. 1) (the amending Determination) amends the Bankruptcy (Fees and Remuneration) Determination 2010 (No. 2) (the Determination). The Amending Determination provides for the following changes to the fees charged by the Insolvency and Trustee Service Australia (ITSA):
the introduction of a fee for the advertising of creditors’ meetings on ITSA’s website that are called or convened under section 64 or 73 of the Act or under an authority under section 188 of the Act; and
provides that persons who have received certain State and/or Commonwealth disaster relief payments in the 12 months prior to submitting a debt agreement proposal do not have to pay a fee for the lodgement of the debt agreement proposal.
The Amending Determination also makes minor changes to headings in the Determination in order to clarify which fees and remuneration the goods and services tax (GST) applies to.
Commencement
The Amending Determination commences on 1 July 2011.
Consultation
Introduction of new fee for the advertising of creditors’ meetings on ITSA’s website
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 new creditor meetings advertising fee. The consultation process for the new included the release of a discussion paper detailing the 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.
Debt agreement proposal fee waiver
As this amendment was prompted by recent natural disasters and was considered to be an urgent amendment, no consultation was undertaken. It should be noted that this Determination will not adversely affect any person and no new (or increased) fees or obligations will be levied on any person as a result of this Determination.
Details of the changes
Amendment to heading for Part 2 (item 1 of Schedule 1)
Item 1 of Schedule 1 amends the heading for Part 2 of the Determination in order to clarify that GST does not apply to fees and charges that are listed in Part 2 of the Determination.
Amendment to clause 2.10 of the Determination (item 2 of Schedule 1)
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. Item 2 of Schedule 1 amends the
2010 Determination to provide that persons who in the 12 months prior to lodging a DAP have received a payment listed in the new table in clause 2.10 are not required to pay the fee.
The new table in clause 2.10 lists various disaster relief payments made by the Commonwealth and State Governments and the legislative sources for the payments. The new section 3 in clause 2.10 provides a definition of the Natural Disaster Relief and Recovery Arrangements Determination 2007.
Insertion of new Part 2A (item 2 of Schedule 1)
Item 3 of Schedule 1 provides for a new Part 2A to be included in the Determination.
Clause 1 of the new Part 2A.01 provides for a fee to be charged for the advertising of creditor meetings on ITSA’s website that are called or convened under section 64 or 73 of the Act or under an authority under section 188 of the Act. Clause 2 of the new Part 2A.01 provides that the fee will be $275.
Amendment to heading for Part 3 (item 4 of Schedule 1)
Item 4 of Schedule 1 amends the heading for Part 3 of the Determination in order to clarify that GST does apply to the remuneration amounts that are listed in Part 3 of the Determination.