Bankruptcy Amendment Regulations 2010 (No. 1)

(195 of 2010)

Dated 8 July 2010

Bankruptcy Act 1966

1 Name of Regulations

These Regulations are the Bankruptcy Amendment Regulations 2010 (No. 1).

2 Commencement

These Regulations commence on 1 August 2010.

3 Amendment of Bankruptcy Regulations 1996

Schedule 1 amends the Bankruptcy Regulations 1996.

Schedule 1 Amendments

[1] Subregulation 1.03 (1), definition of 2006 Fees Determination

[1]

omit

[2] Subregulation 1.03 (1), after definition of FC (Bankruptcy) Rules

insert

Fees and Remuneration Determination means each determination made under subsection 316 (1) of the Act, as in force from time to time.

[3] Regulation 4.01

substitute

4.01 Application for bankruptcy notice

(1) Subject to subregulation (2), to apply for the issue of a bankruptcy notice, a person must lodge with the Official Receiver:

(a) an application in the approved form; and

(b) 1 of the following documents in relation to the final judgment or final order specified by the person on the approved form:

(i) a copy of the sealed or certified judgment or order;

(ii) a certificate of the judgment or order sealed by the court or signed by an officer of the court;

(iii) a copy of the entry of the judgment or order certified as a true copy of that entry and sealed by the court or signed by an officer of the court.

(2) If the final judgment or final order specified by the person on the approved form is an award mentioned in paragraph 40 (3) (a) of the Act, the person must lodge with the Official Receiver:

(a) an application in the approved form; and

(b) a copy of the award certified as a true copy by the arbitrator who made the award or, failing the arbitrator, by an officer of the Court after having compared the copy with the original award; and

Note 1 For bankruptcy notices, see regulation 4.02 and Form 1.

Note 2 A fee is payable to the Official Registrar for an application under this regulation - see Fees and Remuneration Determination.

[4] Regulation 4.02A, note

substitute

Note 1 If paragraph (b) applies to a bankruptcy notice, a fee is payable under the Fees and Remuneration Determination.

Note 2 A bankruptcy notice may be served by any of the methods mentioned in regulation 16.01.

[5] Subregulation 4.04 (3)

substitute

(3) For paragraph (2) (b), the conversion of an amount of foreign currency into an equivalent amount of Australian currency must be done in accordance with the telegraphic rate of exchange prevailing on the second day before the day when the application to which the conversion applies is lodged under subregulation 4.01 (1).

[6] Subregulation 4.05 (1)

substitute

(1) A creditor who presents a petition under Division 2 of Part IV of the Act must, within 2 working days after the petition is endorsed by the Court, give an endorsed copy of the petition to the Official Receiver.

[7] After subregulation 4.05 (2)

insert

(3) A creditor who presents a petition under Division 2 of Part IV of the Act must give a copy of any order, endorsed by the Court, dismissing, staying or extending the petition, or adjourning the hearing of the petition, to the Official Receiver within 2 working days after the Court has endorsed the order.

[8] Subregulation 4.11 (3)

substitute

(3) The Official Receiver must not accept a declaration of intention to present a debtor’s petition under section 54A of the Act or a debtor’s petition under section 55, 56B or 57 of the Act unless the debtor has given to the Official Receiver a signed acknowledgement (which may be included in or appended to the petition) that the debtor has received and read the prescribed information.

[9] Subregulation 4.11 (5)

substitute

(5) Subregulation (6) applies if a person (the intending petitioner ) intends to present a petition under Division 2 of Part IV of the Act and the intending petitioner is:

(a) unable to read the relevant material, because he or she is:

(i) blind, partially sighted, illiterate or partially literate; or

(ii) insufficiently familiar with the English language; or

(b) unable to sign the petition or the acknowledgment, because of a physical incapacity.

(6) The petition and the acknowledgement may be signed by another person, who must sign a statement:

(a) if subparagraph (5) (a) (i) applies - that he or she has read the relevant material to the intending petitioner; or

(b) if subparagraph (5) (a) (ii) applies - that he or she has interpreted the relevant material to the intending petitioner in a language with which both persons are familiar; or

(c) if paragraph (5) (b) applies - that he or she believes that the intending petitioner has read and understood the relevant material.

(7) In this regulation:

relevant material means the petition, the prescribed information and the acknowledgment.

[10] Regulation 4.17, note

omit

2006 Fees Determination.

insert

Fees and Remuneration Determination.

[11] Subregulation 6.12B (2)

substitute

(2) Contributions for a year are taken to be income of a person if:

(a) the contributions exceed 9% of the employee’s ordinary time earnings for the year; and

(b) the employer has an obligation to make the contributions that arise under an individual industrial agreement; and

[12] Subregulation 6.12B (3), definition of industrial agreement made solely between the employer and the person

substitute

individual industrial agreement means an industrial agreement made solely between the employer and the person, including the following:

(a) an AWA, or an ITEA, to which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 applies;

(b) a similar agreement under the law of a State or Territory.

[13] Subregulation 8.04A (1)

omit

Official Receiver

insert

Inspector-General

[14] Paragraph 8.35 (1) (f)

substitute

(f) either:

(i) is not a full member of the Insolvency Practitioners Association of Australia; or

(ii) has not satisfactorily completed a course in insolvency approved by the Inspector-General.

[15] Subregulations 9.01 (5) and (6)

substitute

(5) Subregulation (6) applies if a debtor intends to present a debt agreement proposal and the debtor is:

(a) unable to read the relevant material, because he or she is:

(i) blind, partially sighted, illiterate or partially literate; or

(ii) insufficiently familiar with the English language; or

(b) unable to sign the debt agreement proposal or the acknowledgment, because of a physical incapacity.

(6) The debt agreement proposal and the acknowledgement may be signed by another person, who must sign a statement:

(a) if subparagraph (5) (a) (i) applies - that he or she has read the relevant material to the debtor; or

(b) if subparagraph (5) (a) (ii) applies - that he or she has interpreted the relevant material to the debtor in a language with which both persons are familiar; or

(c) if paragraph (5) (b) applies - that he or she believes that the debtor has read and understood the relevant material.

(7) In this regulation:

relevant material means the debt agreement proposal, the prescribed information and the acknowledgment.

[16] Paragraph 9.02 (b)

substitute

(b) a degree, diploma or similar qualification from an Australian university, college of advanced education or other Australian tertiary institution that is of an equivalent or higher level to, and contains the same or similar subject matter as, the qualification mentioned in paragraph (a).

[17] Subregulations 10.02 (4) and (5)

substitute

(4) Subregulation (5) applies if a debtor intends to sign an authority and the debtor is:

(a) unable to read the relevant material, because he or she is:

(i) blind, partially sighted, illiterate or partially literate; or

(ii) insufficiently familiar with the English language; or

(b) unable to sign the authority or the acknowledgment, because of a physical incapacity.

(5) The authority and the acknowledgement may be signed by another person, who must sign a statement:

(a) if subparagraph (5) (a) (i) applies - that he or she has read the relevant material to the debtor; or

(b) if subparagraph (5) (a) (ii) applies - that he or she has interpreted the relevant material to the debtor in a language with which both persons are familiar; or

(c) if paragraph (5) (b) applies - that he or she believes that the debtor has read and understood the relevant material.

(6) In this regulation:

relevant material means the authority, the prescribed information and the acknowledgment.

[18] Subregulation 10.03 (2)

substitute

(2) The registered trustee or solicitor must, within 2 working days after consenting, give to the Official Receiver for the District where the debtor resides a copy of the signed consent.

(3) The registered trustee or solicitor must, within 2 working days after a proposal for dealing with the debtor’s affairs under Part X of the Act is finalised, give a copy of the proposal to:

(a) the Official Receiver for the District where the debtor resides; and

(b) each creditor of the bankrupt of whom the registered trustee or solicitor is aware.

[19] Paragraph 10.04 (aa)

omit

[20] After regulation 11.01

insert

11.01A Copy of petition etc to be given to Official Receiver

(1) A person who presents a petition under section 244 or 247 of the Act must, within 2 working days after the petition is endorsed by the Court, give a copy of the petition to the Official Receiver.

(2) The time within which, under subsection 244 (14) of the Act, a creditor must give to the Official Receiver a copy of an order under subsection 244 (11) of the Act is 2 working days after the order is endorsed by the Court.

11.01B Proof of statement of affairs

(1) Subregulation (2) applies in any proceedings to a document or copy of a document that purports to be a certificate signed by the Inspector-General stating that, at a particular point in time, the form of statement of affairs that is attached to the certificate was the approved form for section 6A of the Act.

(2) The document or copy:

(a) is proof, in the absence of evidence to the contrary, of information that is stated in it; and

(b) may be tendered in evidence without further proof.

[21] Paragraph 13.06 (2) (a)

omit

2006 Fees Determination

insert

Fees and Remuneration Determination

[22] Subregulation 13.06 (3)

omit

2006 Fees Determination

insert

Fees and Remuneration Determination

[23] Part 16, Division 2, note

omit

2006 Fees Determination.

insert

Fees and Remuneration Determination.

[24] Subregulation 16.07 (1)

omit each mention of

2006 Fees Determination

insert

Fees and Remuneration Determination

[25] Subregulations 16.08 (1) and (2)

omit

2006 Fees Determination

insert

Fees and Remuneration Determination

[26] Paragraphs 16.11 (5) (b), (c) and (d)

substitute

(b) item 1, 2, 3, 4, 9, 13, 14 or 15 of the table following clause 2.01 of the Fees and Remuneration Determination; or

[27] Schedule 3, paragraph 1A. (a)

omit

2006 Fees Determination

insert

Fees and Remuneration Determination

[28] After regulation 16.12

insert

Division 3 Transitional

16.13 Application of Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008

(1) The amendments made by items 20, 21, 22, 23, 29, 30 and 31 of Schedule 2 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 apply to a bankruptcy the date of which is on or after the commencement of those amendments.

(2) The amendments made by items 25 to 28 of Schedule 2 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 apply to a transfer of property that is made on or after the commencement of those amendments.

(3) The amendment made by item 16 of Schedule 2 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 applies to an examinable period, within the meaning of section 139CA of the Act, that begins on or after the commencement of that amendment.

(4) For sections 265 and 268 of the Act, the amendments made by items 11, 13, 18 and 19 of Schedule 2 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 applies to a disposition of property that is made on or after the commencement of those amendments.

[29] Schedule 1, Form 1

substitute

r201000195a

r201000195b

r201000195c