Bankruptcy and Family Law Legislation Amendment Act 2005 (20 of 2005)
Schedule 2 Amendments relating to income contributions
Bankruptcy Act 1966
4 After section 139ZI
Insert:
Subdivision HA - Supervised account regime
139ZIA Objects
The objects of this Subdivision are:
(a) to improve the likelihood that a bankrupt will have sufficient money to pay contributions or instalments of contributions; and
(b) to ensure that all monetary income received by the bankrupt is deposited to a single account (the supervised account ); and
(c) to enable the trustee to supervise withdrawals from the account.
139ZIB Definitions
In this Subdivision:
bankrupt includes a person who has been discharged from bankruptcy.
bankrupt to whom the supervised account regime applies means a bankrupt in respect of whom a determination under subsection 139ZIC(1) is in force.
constructive income receipt arrangement means an arrangement the effect of which is that income derived by a bankrupt is not actually received by the bankrupt because it is:
(a) reinvested, accumulated or capitalised; or
(b) dealt with on behalf of the bankrupt or as the bankrupt directs.
contribution means a contribution that a bankrupt is liable to pay under subsection 139P(1) or 139Q(1).
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
non-monetary income receipt arrangement means an arrangement the effect of which is that income derived by a bankrupt is not actually received by the bankrupt in monetary form because it is derived in a non-monetary form.
reviewable decision means a decision of the trustee of a bankrupt's estate:
(a) to make a subsection 139ZIC(1) determination; or
(b) to refuse to revoke a subsection 139ZIC(1) determination; or
(c) to specify a period in a supervised account notice for the purposes of subparagraph 139ZIE(1)(a)(ii); or
(d) to refuse to specify a period in a supervised account notice for the purposes of subparagraph 139ZIE(1)(a)(ii); or
(e) to specify requirements in a supervised account notice for the purposes of subparagraph 139ZIE(1)(a)(ix); or
(f) to refuse to exercise the powers conferred by subsection 139ZIEA(1); or
(g) to refuse to give a consent under subsection 139ZIG(3), 139ZIH(5), 139ZIHA(5) or 139ZII(3); or
(h) to vary a consent given under subsection 139ZIG(3), 139ZIH(5), 139ZIHA(5) or 139ZII(3); or
(i) to refuse to vary a consent given under subsection 139ZIG(3), 139ZIH(5), 139ZIHA(5) or 139ZII(3); or
(j) to revoke a consent given under subsection 139ZIG(3), 139ZIH(5), 139ZIHA(5) or 139ZII(3).
supervised account , in relation to a bankrupt to whom the supervised account regime applies, means an account maintained by the bankrupt in accordance with a supervised account notice that is in force in relation to the bankrupt.
supervised account notice has the meaning given by subsection 139ZIE(1).
withdraw , in relation to an account, includes:
(a) transfer out of; and
(b) draw a cheque on; and
(c) do any other thing that results in a debit from.
working day , in relation to a bankrupt, means a day that is not a Saturday, Sunday or a public holiday in the place where the bankrupt resides.
139ZIC Trustee may determine that the supervised account regime applies to the bankrupt
(1) The trustee of a bankrupt's estate may, by written notice given to the bankrupt, determine that the supervised account regime applies to the bankrupt.
(2) The trustee must not make a determination under subsection (1) in relation to the bankrupt unless, at the time the determination is made:
(a) the bankrupt is liable to pay a contribution; and
(b) either:
(i) if the trustee has made a determination under section 139ZG permitting the contribution to be paid by instalments - the bankrupt has not paid the whole of an instalment at or before the time when it became payable; or
(ii) if the trustee has made a determination under section 139ZG requiring the bankrupt to pay the contribution at a specified time - the bankrupt has not paid the whole of the contribution at or before the time when it became payable.
(3) A notice under subsection (1) must be in the approved form.
(4) A notice under subsection (1) must be accompanied by:
(a) a supervised account notice relating to the bankrupt concerned; and
(b) a statement setting out:
(i) the effect of sections 139ZIE to 139ZIT; and
(ii) such other information (if any) as is specified in the regulations.
139ZID Revocation of determination
(1) If a determination is in force under subsection 139ZIC(1) in relation to a bankrupt, the trustee may, by written notice given to the bankrupt, revoke the determination.
(2) The trustee must not revoke the determination unless the trustee is satisfied, having regard to:
(a) the past payment record of the bankrupt; and
(b) any other relevant matters;
that the bankrupt will pay the whole of any current or future contributions or instalments of contributions at or before the time when they become payable.
(3) The power conferred on the trustee by subsection (1) may be exercised:
(a) on his or her own initiative; or
(b) on the application of the bankrupt.
(4) If, following the bankrupt's application, the trustee refuses to revoke the determination, the trustee must give the bankrupt written notice of the refusal.
(5) A notice under subsection (1) must be in the approved form.
139ZIDA When determination ceases to be in force
Annulment
(1) If:
(a) a determination is in force under subsection 139ZIC(1) in relation to a bankrupt; and
(b) the bankruptcy is annulled;
the determination ceases to be in force on the date of the annulment.
Discharge - no liability to pay contributions
(2) If:
(a) a determination is in force under subsection 139ZIC(1) in relation to a bankrupt; and
(b) the bankrupt is discharged from the bankruptcy; and
(c) at the time of the discharge, the bankrupt is not liable to pay a contribution;
the determination ceases to be in force at the time of the discharge.
Discharge - continuing liability to pay contributions
(3) If:
(a) a determination is in force under subsection 139ZIC(1) in relation to a bankrupt; and
(b) the bankrupt is discharged from the bankruptcy; and
(c) at the time of the discharge, the bankrupt is liable to pay a contribution;
the determination ceases to be in force when the bankrupt is no longer liable to pay a contribution.
139ZIE Bankrupt must open and maintain supervised account
Supervised account notice
(1) For the purposes of this Subdivision, a supervised account notice is a written notice that is issued by the trustee of a bankrupt's estate and that:
(a) requires the bankrupt, within:
(i) 10 working days after the notice is given to the bankrupt; or
(ii) such longer period (if any) as is specified in the notice;
to open an account (a supervised account ) that complies with the following requirements:
(iii) the account is kept with an ADI;
(iv) the account is kept in Australia;
(v) the account is denominated in Australian currency;
(vi) the account is held solely in the name of the bankrupt;
(vii) deposits may be made to, and withdrawals may be made from, the account;
(viii) the account is designed not to have a debit balance;
(ix) such other requirements (if any) as are specified in the notice; and
(b) requires the bankrupt to inform the ADI, when opening the account, that the account is a supervised account; and
(c) requires the bankrupt, after the account is opened, to maintain the account for so long as the notice is in force.
(2) A supervised account notice must be in the approved form.
Compliance with supervised account notice
(3) A bankrupt to whom the supervised account regime applies must comply with a supervised account notice in force in relation to the bankrupt.
When supervised account notice ceases to be in force
(4) A supervised account notice relating to a bankrupt ceases to be in force if the bankrupt ceases to be a bankrupt to whom the supervised account regime applies.
Note: A supervised account notice may be revoked under subsection 139ZIEA(1).
Trustee to be notified of account details
(5) A bankrupt to whom the supervised account regime applies must, within 2 working days after opening a supervised account, give a written notice to the trustee setting out the following information about the supervised account:
(a) the name of the ADI concerned;
(b) the name in which the account is held;
(c) the account number;
(d) the BSB number concerned.
Offence
(6) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (3) or (5); and
(b) the person engages in conduct; and
(c) the person's conduct breaches the requirement.
Penalty for contravention of this subsection: Imprisonment for 6 months.
139ZIEA New supervised account
(1) If a bankrupt is a bankrupt to whom the supervised account regime applies, the trustee may:
(a) by written notice given to the bankrupt, revoke a supervised account notice relating to the bankrupt; and
(b) issue a fresh supervised account notice relating to the bankrupt, and give the fresh notice to the bankrupt; and
(c) by written notice given to the bankrupt, require the bankrupt, immediately after the account is opened in accordance with the fresh notice, to transfer:
(i) the balance (if any) of the account maintained in accordance with the revoked notice;
to:
(ii) the account opened in accordance with the fresh notice.
(2) The revocation under paragraph (1)(a) of the supervised account notice takes effect when the bankrupt opens the account in accordance with the fresh supervised account notice.
(3) Notices under paragraphs (1)(a) and (c) may be set out in the same document.
(4) The powers conferred on the trustee by subsection (1) may be exercised:
(a) on his or her own initiative; or
(b) on the application of the bankrupt.
(5) If, following the bankrupt's application, the trustee refuses to exercise the powers conferred by subsection (1), the trustee must give the bankrupt written notice of the refusal.
Offence
(6) A person is guilty of an offence if:
(a) the person is subject to a requirement under paragraph (1)(c); and
(b) the person engages in conduct; and
(c) the person's conduct breaches the requirement.
Penalty for contravention of this subsection: Imprisonment for 6 months.
139ZIF Bankrupt's monetary income to be deposited to supervised account
(1) A bankrupt to whom the supervised account regime applies must ensure that all monetary income actually received by the bankrupt after the opening of the supervised account is deposited to the account:
(a) if the income is received in the form of cash or cheque - within 5 working days of its receipt; or
(b) in any other case - upon its receipt.
Cash refunds
(2) For the purposes of subsection (1), if:
(a) the bankrupt receives an amount of income in the form of cash; and
(b) before the paragraph (a) amount is deposited to the supervised account, the bankrupt uses a part of that amount to make a refund;
the amount that the bankrupt must deposit to the supervised account is the paragraph (a) amount reduced by the part used as mentioned in paragraph (b).
(3) For the purposes of subsection (1), if:
(a) the bankrupt receives an amount of income in the form of cash; and
(b) before the paragraph (a) amount is deposited to the supervised account, the bankrupt uses the whole of that amount to make a refund;
the bankrupt is taken not to have received the paragraph (a) amount.
Offence
(4) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the person's conduct breaches the requirement.
Penalty for contravention of this subsection: Imprisonment for 12 months.
139ZIG Trustee to supervise withdrawals from supervised account
General prohibition on withdrawals
(1) A bankrupt to whom the supervised account regime applies must not:
(a) make a withdrawal from the supervised account; or
(b) authorise the making of a withdrawal from the supervised account.
Exceptions
(2) Subsection (1) does not apply if the withdrawal is made:
(a) in accordance with the consent of the trustee under subsection (3); or
(b) to pay a contribution or an instalment of a contribution; or
(c) to transfer an amount as required by a notice under paragraph 139ZIEA(1)(c); or
(d) to make a refund; or
(e) to reverse a credit previously made to the account where the credit arose from an error or the dishonour of a cheque; or
(f) to discharge any of the bankrupt's tax liabilities (within the meaning of the Taxation Administration Act 1953); or
(g) to discharge the bankrupt's liability to pay a tax (however described) imposed by or under a law of the Commonwealth, a State or a Territory; or
(h) to recover from the bankrupt an amount equal to an amount of tax (however described) that the ADI concerned has paid or is liable to pay in connection with the operation of the account; or
(i) to discharge a liability of the bankrupt to pay a fee or charge in connection with the operation of the account.
Trustee may consent to withdrawals
(3) The trustee may, by written notice given to the bankrupt, consent to any of the following withdrawals from the supervised account:
(a) a specified withdrawal;
(b) withdrawals included in a specified class of withdrawals;
(c) withdrawals up to a daily, weekly, fortnightly or monthly limit ascertained in accordance with the notice.
(4) The trustee may, by written notice given to the bankrupt, vary or revoke a consent.
(5) The powers conferred on the trustee by subsections (3) and (4) may be exercised:
(a) on his or her own initiative; or
(b) on the application of the bankrupt.
(6) If, following the bankrupt's application, the trustee refuses to exercise a power conferred by subsection (3) or (4), the trustee must give the bankrupt written notice of the refusal.
Offence
(7) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the person's conduct breaches the requirement.
Penalty: Imprisonment for 12 months.
Garnishee powers not affected
(8) This section does not affect the exercise of powers conferred by:
(a) section 139ZL of this Act; or
(b) section 260-5 in Schedule 1 to the Taxation Administration Act 1953; or
(c) a similar provision in:
(i) any other law of the Commonwealth; or
(ii) a law of a State or a Territory.
139ZIH Constructive income receipt arrangements
Bankrupt not to enter into new arrangements
(1) A bankrupt to whom the supervised account regime applies must not enter into a constructive income receipt arrangement.
(2) Subsection (1) does not apply if the bankrupt enters into the constructive income receipt arrangement in accordance with the consent of the trustee under subsection (5).
Bankrupt not to participate in existing arrangements
(3) If a bankrupt was participating in a constructive income receipt arrangement immediately before becoming a bankrupt to whom the supervised account regime applies, the bankrupt must, as soon as practicable after becoming such a bankrupt, cease to participate in the arrangement.
(4) Subsection (3) does not apply if the bankrupt continues to participate in the constructive income receipt arrangement in accordance with the consent of the trustee under subsection (5).
Consent
(5) The trustee may, by written notice given to the bankrupt:
(a) consent to the bankrupt entering into:
(i) a specified constructive income receipt arrangement; or
(ii) constructive income receipt arrangements included in a specified class of constructive income receipt arrangements; or
(b) consent to the bankrupt continuing to participate in:
(i) a specified constructive income receipt arrangement; or
(ii) constructive income receipt arrangements included in a specified class of constructive income receipt arrangements.
(6) The trustee may, by written notice given to the bankrupt, vary or revoke a consent.
(7) The powers conferred on the trustee by subsections (5) and (6) may be exercised:
(a) on his or her own initiative; or
(b) on the application of the bankrupt.
(8) If, following the bankrupt's application, the trustee refuses to exercise a power conferred by subsection (5) or (6), the trustee must give the bankrupt written notice of the refusal.
Offence
(9) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (1) or (3); and
(b) the person engages in conduct; and
(c) the person's conduct breaches the requirement.
Penalty for contravention of this subsection: Imprisonment for 12 months.
139ZIHA Non-monetary income receipt arrangements
Bankrupt not to enter into new arrangements
(1) A bankrupt to whom the supervised account regime applies must not enter into a non-monetary income receipt arrangement.
(2) Subsection (1) does not apply if the bankrupt enters into the non-monetary income receipt arrangement in accordance with the consent of the trustee under subsection (5).
Bankrupt not to participate in existing arrangements
(3) If a bankrupt was participating in a non-monetary income receipt arrangement immediately before becoming a bankrupt to whom the supervised account regime applies, the bankrupt must, as soon as practicable after becoming such a bankrupt, cease to participate in the arrangement.
(4) Subsection (3) does not apply if the bankrupt continues to participate in the non-monetary income receipt arrangement in accordance with the consent of the trustee under subsection (5).
Consent
(5) The trustee may, by written notice given to the bankrupt:
(a) consent to the bankrupt entering into:
(i) a specified non-monetary income receipt arrangement; or
(ii) non-monetary income receipt arrangements included in a specified class of non-monetary income receipt arrangements; or
(b) consent to the bankrupt continuing to participate in:
(i) a specified non-monetary income receipt arrangement; or
(ii) non-monetary income receipt arrangements included in a specified class of non-monetary income receipt arrangements.
(6) The trustee may, by written notice given to the bankrupt, vary or revoke a consent.
(7) The powers conferred on the trustee by subsections (5) and (6) may be exercised:
(a) on his or her own initiative; or
(b) on the application of the bankrupt.
(8) If, following the bankrupt's application, the trustee refuses to exercise a power conferred by subsection (5) or (6), the trustee must give the bankrupt written notice of the refusal.
Offence
(9) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (1) or (3); and
(b) the person engages in conduct; and
(c) the person's conduct breaches the requirement.
Penalty for contravention of this subsection: Imprisonment for 12 months.
139ZII Cash income
(1) A bankrupt to whom the supervised account regime applies must not receive income in the form of cash.
(2) Subsection (1) does not apply if the income was received in accordance with the consent of the trustee under subsection (3).
Consent
(3) The trustee may, by written notice given to the bankrupt, consent to the bankrupt receiving in the form of cash:
(a) a specified item of income; or
(b) items of income included in a specified class of items of income.
(4) The trustee may, by written notice given to the bankrupt, vary or revoke a consent.
(5) The powers conferred on the trustee by subsections (3) and (4) may be exercised:
(a) on his or her own initiative; or
(b) on the application of the bankrupt.
(6) If, following the bankrupt's application, the trustee refuses to exercise a power conferred by subsection (3) or (4), the trustee must give the bankrupt written notice of the refusal.
Offence
(7) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the person's conduct breaches the requirement.
Penalty for contravention of this subsection: Imprisonment for 12 months.
139ZIIA Keeping of books
If:
(a) a person is a bankrupt to whom the supervised account regime applies; and
(b) the person has been discharged from the bankruptcy;
section 277A applies in relation to the person as if:
(c) the person were a bankrupt within the meaning of that section; and
(d) the person had been discharged from the bankruptcy when the person ceases to be a bankrupt to whom the supervised account regime applies.
139ZIJ Injunctions
Restraining injunctions
(1) If a bankrupt has engaged, is engaging or is proposing to engage, in any conduct in contravention of this Subdivision, the Court may, on the application of the trustee, grant an injunction:
(a) restraining the bankrupt from engaging in the conduct; and
(b) if, in the Court's opinion, it is desirable to do so - requiring the bankrupt to do something.
Performance injunctions
(2) If:
(a) a bankrupt has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of this Subdivision;
the Court may, on the application of the trustee, grant an injunction requiring the bankrupt to do that act or thing.
139ZIK Interim injunctions
Grant of interim injunction
(1) If an application is made to the Court for an injunction under section 139ZIJ, the Court may, before considering the application, grant an interim injunction restraining a bankrupt from engaging in conduct of a kind referred to in that section.
No undertakings as to damages
(2) The Court is not to require an applicant for an injunction under section 139ZIJ, as a condition of granting an interim injunction, to give any undertakings as to damages.
139ZIL Discharge etc. of injunctions
The Court may discharge or vary an injunction granted under this Subdivision.
139ZIM Certain limits on granting injunctions not to apply
Restraining injunctions
(1) The power of the Court under this Subdivision to grant an injunction restraining a bankrupt from engaging in conduct of a particular kind may be exercised:
(a) if the Court is satisfied that the bankrupt has engaged in conduct of that kind - whether or not it appears to the Court that the bankrupt intends to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the Court that, if an injunction is not granted, it is likely that the bankrupt will engage in conduct of that kind - whether or not the bankrupt has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the bankrupt engages in conduct of that kind.
Performance injunctions
(2) The power of the Court to grant an injunction requiring a bankrupt to do an act or thing may be exercised:
(a) if the Court is satisfied that the bankrupt has refused or failed to do that act or thing - whether or not it appears to the Court that the bankrupt intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
(b) if it appears to the Court that, if an injunction is not granted, it is likely that the bankrupt will refuse or fail to do that act or thing - whether or not the bankrupt has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the bankrupt refuses or fails to do that act or thing.
139ZIN Other powers of the Court unaffected
The powers conferred on the Court under this Subdivision are in addition to, and not instead of, any other powers of the Court, whether conferred by this Act or otherwise.
139ZIO Inspector-General may review trustee's decision
Reviewable decisions
(1) The Inspector-General may review a reviewable decision:
(a) on the Inspector-General's own initiative; or
(b) if requested to do so by the bankrupt for reasons that appear to the Inspector-General to be sufficient to justify doing so.
(2) The Inspector-General must review a reviewable decision if requested to do so by the Ombudsman.
Request by bankrupt
(3) A request by the bankrupt to the Inspector-General for the review of a reviewable decision must:
(a) be in writing and lodged with the Official Receiver's office not later than 60 days after the day on which the decision first came to the notice of the bankrupt; and
(b) be accompanied by:
(i) a copy of any relevant documents issued or given by the trustee under this Subdivision; and
(ii) any other documents on which the bankrupt relies in support of the request.
(4) The Official Receiver must:
(a) endorse on the request the date when it was lodged; and
(b) send the request and the accompanying documents to the Inspector-General as soon as practicable after they are received.
Time limit for review
(5) Within 60 days after the request is lodged, the Inspector-General must:
(a) decide whether to review the decision; and
(b) if the Inspector-General decides to review the decision - make his or her decision on the review.
139ZIP Inspector-General may request further information
(1) For the purposes of the exercise of powers in relation to a review, or a request for a review, of a reviewable decision, the Inspector-General may:
(a) ask the bankrupt to provide such further relevant information, either orally or in writing, as the Inspector-General specifies; and
(b) ask the trustee to provide such information, either orally or in writing, about the decision and the reasons for the decision as the Inspector-General specifies.
(2) If any information is provided orally, the Inspector-General must record it in writing.
139ZIR Inspector-General's decision on review
(1) On a review of a reviewable decision, the Inspector-General has all the powers of the trustee and may:
(a) confirm the decision; or
(b) vary the decision; or
(c) set aside the decision; or
(d) set aside the decision and make a decision in substitution for the decision so set aside.
Application of this Subdivision to Inspector-General's decision
(2) This Subdivision (apart from sections 139ZIO to 139ZIT), applies to a decision made by the Inspector-General as if it had been made by the trustee under this Subdivision.
139ZIS Inspector-General to notify bankrupt and trustee of decision
(1) If the Inspector-General:
(a) reviews a reviewable decision; or
(b) refuses a request by a bankrupt for a review of a reviewable decision;
the Inspector-General must give written notice to:
(c) the bankrupt; and
(d) the trustee; and
(e) the Official Receiver;
of the Inspector-General's decision on the review or on the request, as the case may be.
(2) The notice must:
(a) set out the decision; and
(b) give the reasons for the decision.
Notification of right of review by AAT
(3) In the case of a decision on the review of a reviewable decision, the notice must also include a statement to the effect that, if the bankrupt or the trustee is dissatisfied with the Inspector-General's decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision.
(4) In the case of a decision refusing a request to review a reviewable decision, the notice to the bankrupt must also include a statement to the effect that, if the bankrupt is dissatisfied with the Inspector-General's decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for a review of the decision.
(5) A breach of subsection (3) or (4) in relation to a decision does not affect the validity of the decision.
Inspector-General taken to have reviewed and confirmed decision
(6) If, within 60 days after lodgment of a request by a bankrupt for the review of a reviewable decision, the Inspector-General has not given written notice to the bankrupt of his or her decision in accordance with subsection (1), the Inspector-General is taken to have reviewed the trustee's decision and confirmed it under paragraph 139ZIR(1)(a).
139ZIT AAT review of decisions
An application may be made to the Administrative Appeals Tribunal for the review of:
(a) a decision of the Inspector-General on the review of a reviewable decision; or
(b) a decision by the Inspector-General refusing a request to review a reviewable decision.