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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
BANKRUPTCY
(ESTATE CHARGES) AMENDMENT BILL 2002
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Daryl Williams AM QC MP)
BANKRUPTCY (ESTATE CHARGES) AMENDMENT BILL 2002
Section 1 - General Outline
The Bankruptcy (Estate Charges)
Amendment Bill 2002 (the Bill) is a short Bill that proposes to amend the
Bankruptcy (Estate Charges) Act 1997 (the 1997 Act) to close a loophole
by imposing the realisations charge and the interest charge on amounts received
by solicitors who are controlling trustees and to amend the Bankruptcy
(Estate Charges) Amendment Act 2001 (the 2001 Act) to enable
the 2001 Act to commence.
Financial Impact
Statement
2 The Bill will result in a minor but unquantifiable
increase in realisations charge and interest charge collections by the
Commonwealth.
Section 2 - Notes on sections
Short
Title
3 By proposed section 1, the Act will be cited as the Bankruptcy
(Estate Charges) Amendment Act 2002.
Commencement
4 In
accordance with the table in proposed section 2, proposed sections 1 to 3,
proposed item 11 of Schedule 1, and anything in the Bill not elsewhere covered
in that table will commence on the day of Royal Assent. Proposed Schedule 1
items 1 to 10, 12 and 13 will commence immediately after section 1 of the
Bankruptcy (Estate Charge) Amendment Act 2001 commences.
Schedule
5 Proposed section 3 is a drafting device to allow
all the amendments proposed to be made to the Act to be set out in a
Schedule. The items in the Schedule will amend both the 1997 Act and the 2001
Act and will have effect according to their terms. Notes on the proposed
Schedule items, including those proposing application provisions,
follow.
Section 3 - Schedule
Schedule 1—Amendments
and Application Provisions
6 This schedule sets out all of the
amendments proposed to be made to the Bankruptcy (Estate Charges) Act 1997
and the Bankruptcy (Estate Charges) Amendment Act
2001.
Part 1—Amendments
Interest Charge and
Realisations Charge
7 Schedule Items 1 to 10 all propose minor amendments to terms used in the
1997 Act. These proposed changes will have the effect of imposing both the
interest charge and the realisations charge on amounts received by solicitors
who are controlling trustees. The changes variously propose to replace
references to ‘trustee’ and ‘trustee’s’ with
references to ‘person’ or ‘person’s’, as the case
requires. The change of terminology is needed because the word
‘trustee’ in the 1997 Act takes its meaning from the Bankruptcy
Act 1966 and means trustees registered under that Act and (as appropriate)
the Official Trustee, but does not extend to solicitors who are controlling
trustees.
8 Item 11 proposes to amend the commencement provision of the
Bankruptcy (Estate Charges) Amendment Act 2001. The existing
commencement provision ties commencement of the 2001 Act to commencement of the
Bankruptcy Legislation Amendment Act 2001. The Bill for an Act of that name
lapsed when the Parliament rose for the 2001 Federal election so, unless the
commencement provision is amended, that provision cannot operate. It now is
proposed that the 2001 Act will commence immediately after the commencement of
section 1 of the Bankruptcy (Estate Charges) Amendment Act 2002. That
section is proposed by the table in section 2 to commence on the day of Royal
Assent.
Part 2—Application provisions.
9 By item
12, Schedule 1 items 1, 2 and 3 will apply to interest paid, after the
commencing time, into the account held by a person (including a solicitor who is
a controlling trustee) for the purpose of section 169 of the Bankruptcy Act.
10 By item 13, the amendments made by Schedule 1 items 4 to 9 and item
10 to impose the realisations charge on persons, including solicitors who are
controlling trustees, will apply to amounts received by them after the
commencing time.