EXPLANATORY STATEMENT
Select Legislative Instrument No. 186, 2014
Issued by the authority of the Judges of the Federal Circuit Court of Australia
Federal Circuit Court (Bankruptcy) Amendment (Examination Summons and Other Measures) Rules 2014
Section 81 of the Federal Circuit Court of Australia Act 1999 permits the Judges or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.
Under sub-section 81(3) of the Federal Circuit Court of Australia Act 1999 the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Circuit Court of Australia Act 1999 or another Act:
a) As if a reference to a legislative instrument were a reference to a rule of court; and
b) as if a reference to a rule maker were a reference to the Chief Judge acting on behalf of the judges of the Court; and
c) subject to such further modifications or adaptations as are provided for in regulations made under section 120 Federal Circuit Court of Australia Act 1999.
Section 9 of the Legislative Instruments Act 2003 provides that Rules of Court made for the Federal Circuit Court are not legislative instruments for the purposes of that Act. As a result the Human Rights (Parliamentary Scrutiny) Act 2011 does not apply to any such Rules of Court and no statement of compatibility for purposes of that latter Act is included in this Explanatory Statement.
The Judges have agreed to adopt the Federal Circuit Court (Bankruptcy) Amendment (Examination Summons and Other Measures) Rules 2014 (‘the Amendment Rules’).
The Amendment Rules include the following amendments to the Federal Circuit Court (Bankruptcy) Rules 2006(which are harmonised with the Federal Court (Bankruptcy) Rules 2005).
- Amendments to rules 6.12 and 6.17 to explicitly provide that a Registrar may exercise a power to discharge an examination summons (see Travagline v Raccunia [2007] FMCA 777).
- Amendments to rule 6.13 to facilitate the staged implementation of an electronic court file. The amendment replicates, in an electronic environment, the requirements for an affidavit supporting an application for the issue of a summons for the examination of an examinable person under Section 81 of the Bankruptcy Act 1966, being filed in a sealed envelope.
- An amendment to Form 6 to remove reference to the Insolvency and Trustee Service Australia with the new title 'Australian Financial Security Authority'.
- The inclusion of subsection 55(3B) of the Bankruptcy Act 1966to the list powers in Schedule 2 that may be exercised by a Registrar (being a power to direct an Official Receiver to accept or reject a debtor's petition).
The Amendment Rules have been the subject of consultation with the Federal Court of Australia and other members of the Harmonised Bankruptcy Rules Monitoring Committee, and the Australian Financial Security Authority.
Details of the Amendment Rules are in the Attachment.
The Amendment Rules commence on the day after they are registered
ATTACHMENT
Federal Circuit Court (Bankruptcy) Amendment (Examination Summons and Other Measures) Rules 2014
1 Name
Rule 1 provides that the Rules are to be cited as the Federal Circuit Court (Bankruptcy) Amendment (Examination Summons and Other Measures) Rules 2014.
2 Commencement
Rule 2 provides commencement of these Rules is on the day after they are registered.
3 Authority
Rule 3 provides that the amendments are made pursuant to the Federal Circuit Court of Australia Act 1999.
4 Schedules
This Rule provides that each instrument specified in the a Schedule to the Amendment Rules is amended or repealed as set out in the applicable items in the Schedule, and that any other item in a Schedule to these Rules have effect according to its terms.
Schedule 1 Amendments
[1] Rule 6.12 (heading)
A minor amendment has been made to the heading of Rule 6.12 to better reflect the content of the rule.
[2] At the end of rule 6.12
In Travagline v Raccunia [2007] FMCA 777 (23 May 2007), Lucev FM (as he then was) at [14] and [15] said:
[14] On a plain reading of s.81 of the Bankruptcy Act and rr.6.13, 6.15 and 6.17 of the FMC Bankruptcy Rules it is apparent that a Registrar has power to issue a summons. It therefore follows that a Registrar ought have power to discharge a summons, either in whole or in part, and this is what is provided for by r.6.17 of the FMC Bankruptcy Rules which contains no qualification or limitation on a Registrar’s power to discharge a summons in whole or in part.
[15] Under s.81 of the Bankruptcy Act and rr.6.13, 6.15 and 6.17 of the FMC Bankruptcy Rules and particularly r.6.17 for these purposes, the Court finds that a Registrar has power to hear the present application to discharge the Summons.
To clarify that a Registrar may order a discharge of an examination summons, a new subrule (3) has been added to rule 6.12 to explicitly provide that an order to discharge the summons may be made by the Court or a Registrar.
[3] Subrules 6.13(5) and (6)
Subrules 6.13(5) and (6) have been repealed and replaced with two new subrules to support the implementation of a staged transition from a paper court file to an electronic court file. These new subrules replicate in an electronic environment the concept of an affidavit supporting an application for the issue of a summons for the examination of an examinable person under Section 81 of the Bankruptcy Act 1966 being filed in a sealed envelope.
[4] Rule 6.17 (heading)
A minor amendment has been made to the heading of Rule 6.17 to better reflect the content of the rule.
[5] At the end of rule 6.17
This amendment mirrors the amendment in item [2] to rule 6.12 by the addition of another subrule to rule 6.17 to clarify that an order to discharge the summons may be made by the Court or a Registrar.
[6] Schedule 1 (Form 6, Part 1, paragraph 5)
The amendment removes a reference on Form 6 to the 'Insolvency and Trustee Service Australia' with the new title ' Australian Financial Services Authority'.
[7] Schedule 2 (after table item 12)
The amendment adds subsection 55(3B) of the Bankruptcy Act 1966 to the list powers in Schedule 2 that may be exercised by a Registrar (being a power to direct an Official Receiver to accept or reject a debtor's petition).