Bankruptcy Act 1966
The trustee of a bankrupt ' s estate may apply to an eligible judge for the issue of a warrant under subsection (2) if the trustee has reasonable grounds for suspecting that there is on or in any premises property (in this section called relevant property ), being:
(a) any of the property of the bankrupt;
(b) property that may be connected with, or related to, the bankrupt ' s examinable affairs; or
(c) books (including books of an associated entity of the bankrupt) relevant to any of the bankrupt ' s examinable affairs.
View history note
Hide history noteOn an application under subsection (1), the judge may issue a warrant authorising a constable, together with any other person named in the warrant:
(a) to enter on or into the premises, using such force as is necessary for the purpose and is reasonable in the circumstances;
(b) to search the premises for relevant property;
(c) to break open, and search for relevant property, any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, on or in the premises;
(d) to take possession of, or secure against interference, any relevant property found on or in the premises; and
(e) to deliver to the trustee, or to a person authorised in writing by the trustee for the purpose, any property of which possession is taken under the warrant.
An eligible judge shall not issue a warrant under subsection (2) unless:
(a) an affidavit has been furnished to the judge setting out the grounds on which the issue of the warrant is sought;
(b) the applicant for the warrant (or some other person) has given to the judge, either orally or by affidavit, such further information (if any) as the judge requires concerning the grounds on which the issue of the warrant is sought; and
(c) the judge is satisfied that there are reasonable grounds for issuing the warrant.
Where an eligible judge issues a warrant under subsection (2), he or she shall set out on the affidavit furnished in accordance with subsection (3):
(a) on which of the grounds specified in the affidavit; and
(b) on which other grounds (if any);
he or she has relied to justify the issue of the warrant.
A warrant under this section shall:
(a) state whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(b) specify a day, not later than 7 days after the day of issue of the warrant, on which the warrant ceases to have effect.
Where, under this section, a person takes possession of property, or secures property against interference, a person is not entitled, as against the trustee, to claim a lien on the property, but such a lien is not otherwise prejudiced.
Where, under this section, a person takes possession of books, or secures books against interference, that person or any other person to whom the books are delivered under paragraph (2)(e):
(a) may make copies of, or take extracts from, the books;
(b) may require a person who was a party to the compilation of the books to explain to the best of the person ' s knowledge and belief any matter about the compilation of the books or to which the books relate;
(c) may retain possession of the books for such period as is necessary to enable the books to be inspected, and copies of, or extracts from, the books to be made or taken, by or on behalf of the trustee; and
(d) during that period shall permit a person who would be entitled to inspect any one or more of those books if they were not in the possession of the first-mentioned person or the other person to inspect at all reasonable times such of those books as that person would be so entitled to inspect.
The powers conferred by this section are in addition to, and not in derogation of, any other powers conferred by law.
[
CCH Note:
No 13 of 2013, s 3 and Sch 1 item 57 contains the following saving provisions (effective 12 April 2013):
57 Saving provisions
(1)
A consent that is in force immediately before the commencement of this item under subsection
129A(1)
of the
Bankruptcy Act 1966
in respect of a Federal Magistrate continues in force, after that commencement, as a consent in respect of a Judge of the Federal Circuit Court of Australia.
(2)
A declaration that is in force immediately before the commencement of this item under subsection
129A(2)
of the
Bankruptcy Act 1966
in respect of a Federal Magistrate continues in force, after that commencement, as a declaration in respect of a Judge of the Federal Circuit Court of Australia.
(3)
A thing done by, or in relation to, a Federal Magistrate, as an eligible judge, under section
130
of the
Bankruptcy Act 1966
before the commencement of this item has effect, after that commencement, as if it had been done by, or in relation to, a Judge of the Federal Circuit Court of Australia, as an eligible judge, under that section.
No 13 of 2013, s 3 and Sch 4 item 3 contains the following transitional provision (effective 12 April 2013):
3 No limit on operation of section 7 or subsection 25B(1) of the
Acts Interpretation Act 1901
]
3
The following do not limit the operation of section 7 or subsection 25B(1) of the
Acts Interpretation Act 1901
:
(a)
items 30, 45, 53, 57, 108, 110M, 233, 320, 327, 417, 459, 495, 514, 550 and 555 of Schedule 1
[
of No 13 of 2013];
(b)
items 95, 98 and 101 of Schedule 3
[
of No 13 of 2013];
(c)
item 1 of this Schedule
[
of No 13 of 2013].
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