Notification of disallowance - 23 June 2014

Overview

The Bankruptcy Amendment (2014 Measures No. 1) Regulation 2014, along with the Bankruptcy (Fees and Remuneration) Determination 2014, were disallowed by the Senate on 23 June 2014. These regulations were made under the Bankruptcy Act 1966 and aimed to address issues within the administration and financial aspects of the bankruptcy system in Australia. The disallowance by the Senate, as notified on 23 June 2014, reflects the legislative oversight mechanism where the Senate has the authority to review and disallow certain legislative instruments made under Commonwealth Acts. The disallowance suggests a concern with the content or implications of these regulations as they pertain to the administration of bankruptcy in Australia.

Scope and Application

The Bankruptcy Amendment (2014 Measures No. 1) Regulation 2014, and the accompanying Bankruptcy (Fees and Remuneration) Determination 2014, which were disallowed by the Senate on 23 June 2014, primarily apply to individuals and entities involved in bankruptcy proceedings in Australia. This includes trustees, creditors, and debtors subject to the Bankruptcy Act 1966. The disallowance of these regulations means that the specific changes they proposed, particularly in relation to fees and remuneration within the bankruptcy system, will not come into effect. The geographic reach of this legislation is national, as it pertains to the administration of bankruptcy throughout Australia under Commonwealth law. While the disallowance resolves immediate application of the amendments, it does not alter the existing framework or operation of the Bankruptcy Act 1966 outside of the disallowed provisions.

Key Provisions

The legislative instrument in question, C2014G01023, pertains to the disallowance of specific provisions within the Bankruptcy Amendment (2014 Measures No. 1) Regulation 2014 and the Bankruptcy (Fees and Remuneration) Determination 2014. Specifically, Item 4.10A of Schedule 1 of the Regulation (paragraph 4.10A) and Division 2.11 of the Determination (paragraph 2.11) have been disallowed by the Senate resolution passed on 23 June 2014. These provisions were originally made under the Bankruptcy Act 1966, which governs the legal process of bankruptcy in Australia, and were published in the Federal Register of Legislative Instruments as Select Legislative Instrument 2014 No. 36 and F2014L00367, respectively. The disallowance of these provisions impacts the operation and enforcement of the Bankruptcy Act 1966, particularly concerning the fees and remuneration for services provided by trustees and other professionals involved in bankruptcy proceedings. Item 4.10A of Schedule 1 in the Regulation would have amended the fees payable to trustees, while Division 2.11 of the Determination would have detailed the specific remuneration for various services rendered under the Act. The disallowance effectively means these changes cannot be implemented as they were originally intended, and the existing fee structures and remuneration provisions remain in force. Entities and individuals governed by the Bankruptcy Act 1966, including trustees, creditors, and debtors, must adhere to the existing fee and remuneration frameworks as no new changes can be enacted without the disallowed provisions. Trustees, for example, will continue to receive fees as outlined in the previous regulations, and creditors will not be subject to any altered remuneration for services provided by professionals involved in bankruptcy cases. The disallowance ensures that the legislative changes proposed in the disallowed provisions do not take effect, maintaining the status quo in terms of financial arrangements and obligations under the Act. Failure to comply with the disallowed provisions, which are now inoperative, would not result in direct penalties or consequences as these provisions have been formally disallowed. However, any attempt to enforce or rely on the disallowed provisions could lead to legal challenges and potential civil or administrative consequences. The disallowance by the Senate means that these specific changes are not legally binding, and thus, the existing framework under the Bankruptcy Act 1966 remains enforceable without the disallowed amendments.