Bankruptcy Legislation Amendment (Superannuation
Contributions) Act 2007
No. 57, 2007
An Act to amend the Bankruptcy Act 1966, and for other
purposes
[Assented to 15 April 2007]
The Parliament of Australia enacts:
1
Short title
This Act may be cited as the Bankruptcy
Legislation Amendment (Superannuation Contributions) Act 2007.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 3 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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15 April 2007
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2. Schedule 1, Part 1
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28 July 2006.
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28 July 2006
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3. Schedule 1, Part 2
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A single day to be fixed by Proclamation.
However, if any of the provision(s) do not commence within
the period of 6 months beginning on the day on which this Act receives the
Royal Assent, they commence on the first day after the end of that period.
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15 October 2007
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4. Schedule 2, item 1
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A single day to be fixed by Proclamation.
However, if any of the provision(s) do not commence within
the period of 6 months beginning on the day on which this Act receives the
Royal Assent, they commence on the first day after the end of that period.
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27 April 2007 (see F2007L01131)
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5. Schedule 2, items 2 to 4
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The day after this Act receives the Royal Assent.
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16 April 2007
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6. Schedule 2, items 5 to 7
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At the same time as the provision(s) covered by table
item 4.
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27 April 2007
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7. Schedule 2, item 8
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Immediately after the commencement of item 12 of
Schedule 1 to the Bankruptcy Legislation Amendment (Anti‑avoidance)
Act 2006.
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31 May 2006
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8. Schedule 2, item 9
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Immediately after the commencement of item 208 of
Schedule 1 to the Bankruptcy Legislation Amendment Act 1996.
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16 December 1996
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9. Schedule 2, item 10
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Immediately after the commencement of section 10 of
the Superannuation Industry (Supervision) Consequential Amendments Act
1993.
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1 July 1994
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10. Schedule 2, items 11 to 19
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The day after this Act receives the Royal Assent.
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16 April 2007
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Note: This table relates only to the provisions of
this Act as originally passed by both Houses of the Parliament and assented to.
It will not be expanded to deal with provisions inserted in this Act after
assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—Amendments relating to superannuation contributions
Part 1—Amendments commencing on 28 July 2006
Bankruptcy Act 1966
1 Paragraph 59(1)(e)
Omit “or 122”, substitute “, 122, 128B or 128C”.
2 Before section 115
Insert:
Subdivision A—General
3 Paragraph 116(2)(d)
After “(5)”, insert “of this section and sections 128B and
128C”.
4 Subsection 123(1)
After “(inclusive)”, insert “and sections 128B and 128C”.
5 Subsection 123(6)
Omit “section 121”, substitute “sections 121, 128B and
128C”.
6 At the end of Division 3 of Part VI
Add:
Subdivision B—Superannuation contributions
128A
Simplified outline
The following is a simplified outline of
this Subdivision:
• This Subdivision enables the
recovery of superannuation contributions made to defeat the bankrupt’s
creditors.
• There are 2 types of
recoverable contributions:
(a) contributions
made by a person who later becomes a bankrupt (see section 128B);
(b) contributions
made by a third party for the benefit of a person who later becomes a bankrupt
(see section 128C).
128B
Superannuation contributions made to defeat creditors—contributor is a person
who later becomes a bankrupt
Transfers that are void
(1) A transfer of property by a person who
later becomes a bankrupt (the transferor) to another person (the transferee)
is void against the trustee in the transferor’s bankruptcy if:
(a) the transfer is made by way of a
contribution to an eligible superannuation plan; and
(b) the property would probably have
become part of the transferor’s estate or would probably have been available to
creditors if the property had not been transferred; and
(c) the transferor’s main purpose in
making the transfer was:
(i) to prevent the
transferred property from becoming divisible among the transferor’s creditors;
or
(ii) to hinder or delay the
process of making property available for division among the transferor’s
creditors; and
(d) the transfer occurs on or after
28 July 2006.
Showing the transferor’s main purpose in making a
transfer
(2) The transferor’s main purpose in making
the transfer is taken to be the purpose described in paragraph (1)(c) if
it can reasonably be inferred from all the circumstances that, at the time of
the transfer, the transferor was, or was about to become, insolvent.
(3) In determining whether the transferor’s
main purpose in making the transfer was the purpose described in
paragraph (1)(c), regard must be had to:
(a) whether, during any period ending
before the transfer, the transferor had established a pattern of making
contributions to one or more eligible superannuation plans; and
(b) if so, whether the transfer, when
considered in the light of that pattern, is out of character.
Other ways of showing the transferor’s main purpose in
making a transfer
(4) Subsections (2) and (3) do not limit
the ways of establishing the transferor’s main purpose in making a transfer.
Rebuttable presumption of insolvency
(5) For the purposes of this section, a
rebuttable presumption arises that the transferor was, or was about to become,
insolvent at the time of the transfer if it is established that the transferor:
(a) had not, in respect of that time,
kept such books, accounts and records as are usual and proper in relation to
the business carried on by the transferor and as sufficiently disclose the
transferor’s business transactions and financial position; or
(b) having kept such books, accounts
and records, has not preserved them.
Protection of successors in title
(6) This section does not affect the rights
of a person who acquired property from the transferee in good faith and for at
least the market value of the property.
Meaning of transfer of property and market
value
(7) For the purposes of this section:
(a) transfer of property
includes a payment of money; and
(b) a person who does something that
results in another person becoming the owner of property that did not
previously exist is taken to have transferred the property to the other person;
and
(c) the market value of
property transferred is its market value at the time of the transfer.
128C
Superannuation contributions made to defeat creditors—contributor is a third
party
Transfers that are void
(1) If:
(a) a person (the transferor)
transfers property to another person, (the transferee); and
(b) the transfer is by way of a
contribution to an eligible superannuation plan for the benefit of a person who
later becomes a bankrupt (the beneficiary); and
(c) the transferor did so under a
scheme to which the beneficiary was a party; and
(d) the property would probably have
become part of the beneficiary’s estate or would probably have been available
to creditors if the property had not been transferred; and
(e) the beneficiary’s main purpose in
entering into the scheme was:
(i) to prevent the
transferred property from becoming divisible among the beneficiary’s creditors;
or
(ii) to hinder or delay the
process of making property available for division among the beneficiary’s
creditors; and
(f) the transfer occurred on or after
28 July 2006;
the transfer is void against the trustee in the
beneficiary’s bankruptcy.
(2) For the purposes of
paragraph (1)(b), disregard a benefit that is payable in the event of the
death of a person.
Showing the beneficiary’s main purpose in entering into
the scheme
(3) The beneficiary’s main purpose in
entering into the scheme is taken to be the purpose described in
paragraph (1)(e) if it can reasonably be inferred from all the
circumstances that, at the time when the beneficiary entered into the scheme,
the beneficiary was, or was about to become, insolvent.
(4) In determining whether the beneficiary’s
main purpose in entering into the scheme was the purpose described in
paragraph (1)(e), regard must be had to:
(a) whether, during any period ending
before the scheme was entered into, the transferor had established a pattern of
making contributions to one or more eligible superannuation plans for the
benefit of the beneficiary; and
(b) if so, whether the transfer, when
considered in the light of that pattern, is out of character.
(5) For the purposes of
paragraph (4)(a), disregard a benefit that is payable in the event of the
death of a person.
Other ways of showing the beneficiary’s main purpose in
entering into a scheme
(6) Subsections (3) and (4) do not limit
the ways of establishing the beneficiary’s main purpose in entering into a
scheme.
Rebuttable presumption of insolvency
(7) For the purposes of this section, a
rebuttable presumption arises that the beneficiary was, or was about to become,
insolvent at the time the beneficiary entered into the scheme if it is
established that the beneficiary:
(a) had not, in respect of that time,
kept such books, accounts and records as are usual and proper in relation to
the business carried on by the beneficiary and as sufficiently disclose the
beneficiary’s business transactions and financial position; or
(b) having kept such books, accounts
and records, has not preserved them.
Protection of successors in title
(8) This section does not affect the rights
of a person who acquired property from the transferee in good faith and for at
least the market value of the property.
Meaning of transfer of property and market
value
(9) For the purposes of this section:
(a) transfer of property
includes a payment of money; and
(b) a person who does something that
results in another person becoming the owner of property that did not
previously exist is taken to have transferred the property to the other person;
and
(c) the market value of
property transferred is its market value at the time of the transfer.
128D
Time for making claims by trustee
(1) An action under section 128B or 128C
with respect to a transaction may be commenced by the trustee of a bankrupt’s
estate at any time.
(2) A section 139ZQ notice in relation
to a transaction that, under section 128B or 128C, is void against the
trustee of a bankrupt’s estate must not be given before the commencement of
Part 2 of Schedule 1 to the Bankruptcy Legislation Amendment
(Superannuation Contributions) Act 2007.
(3) A section 139ZQ notice in relation
to a transaction that, under section 128B or 128C, is void against the
trustee of a bankrupt’s estate may be given even if the transaction occurred
before the commencement of Part 2 of Schedule 1 to the Bankruptcy
Legislation Amendment (Superannuation Contributions) Act 2007.
128N
Definitions
In this Subdivision:
approved deposit fund has the same meaning as
in the Superannuation Industry (Supervision) Act 1993.
contribution, in relation to an RSA, has the same
meaning as in the Retirement Savings Accounts Act 1997.
eligible superannuation plan means any of the
following:
(a) a regulated superannuation fund;
(b) an approved deposit fund;
(c) an RSA;
(d) a public sector superannuation
scheme.
public sector superannuation scheme has the
same meaning as in the Superannuation Industry (Supervision) Act 1993,
but does not include a regulated superannuation fund.
regulated superannuation fund has the same
meaning as in the Superannuation Industry (Supervision) Act 1993.
scheme means:
(a) any agreement, arrangement,
understanding, promise or undertaking, whether express or implied and whether
or not enforceable, or intended to be enforceable, by legal proceedings; and
(b) any scheme, plan, proposal,
action, course of action or course of conduct, whether unilateral or otherwise.
7 Subparagraph 149A(2)(a)(i)
After “149D(1)(ab),”, insert “(ac), (ad),”.
8 After paragraph 149D(1)(ab)
Insert:
(ac) any transfer is void against the
trustee in the bankruptcy because of section 128B;
(ad) any transfer is void against the
trustee in the bankruptcy because of section 128C;
9 Paragraph 250(1)(e)
Omit “or 122”, substitute “, 122, 128B or 128C”.
10 After subsection 302A(2)
Insert:
(2A) This section does not apply to a provision
that facilitates compliance with:
(a) section 128B; or
(b) section 128C.
11 At the end of section 302AB
Add:
(3) This section does not apply to a
provision that facilitates compliance with:
(a) section 128B; or
(b) section 128C.
12 Section 302B
Before “A provision”, insert “(1)”.
13 At the end of section 302B
Add:
(2) This section does not apply to a
provision that facilitates compliance with:
(a) section 128B; or
(b) section 128C.
Payment Systems and Netting Act 1998
14 Section 5 (paragraph (e) of the definition of specified
provisions)
Omit “and 122”, substitute “, 122, 128B and 128C”.
Part 2—Amendments commencing on Proclamation
Bankruptcy Act 1966
15 At the end of paragraphs 116(1)(a), (b) and (d)
Add “and”.
16 After paragraph 116(1)(d)
Insert:
(e) money that is paid to the trustee
of the bankrupt’s estate under an order under paragraph 128K(1)(b); and
(f) money that is paid to the trustee
of the bankrupt’s estate under a section 139ZQ notice that relates to a
transaction that is void against the trustee under section 128C; and
(g) money that is paid to the trustee
of the bankrupt’s estate under an order under section 139ZU;
17 Paragraph 116(2)(d)
Omit “and 128C”, substitute “, 128C and 139ZU”.
18 At the end of section 128A
Add:
• Superannuation accounts may
be frozen for up to 180 days pending the taking of recovery action under
section 139ZQ or 139ZU.
19 After subsection 128B(5)
Insert:
Refund of contributions tax etc.
(5A) If:
(a) as a result of
subsection (1), a transfer made by way of a contribution to an eligible
superannuation plan is void against the trustee in the transferor’s bankruptcy;
and
(b) any of the following amounts was
debited from the contribution:
(i) an amount in respect
of tax in respect of the contribution;
(ii) a fee, or a charge, in
respect of the contribution; and
(c) in compliance with a
section 139ZQ notice that relates to the transfer, the trustee of the
eligible superannuation plan pays an amount to the trustee in the transferor’s
bankruptcy; and
(d) the amount paid in compliance with
the section 139ZQ notice exceeds the amount so debited;
the trustee in the transferor’s bankruptcy must pay to the
trustee of the eligible superannuation plan an amount equal to the amount so
debited.
20 After subsection 128C(7)
Insert:
Refund of contributions tax etc.
(7A) If:
(a) as a result of
subsection (1), a transfer made by way of a contribution to an eligible
superannuation plan is void against the trustee in the beneficiary’s
bankruptcy; and
(b) any of the following amounts was
debited from the contribution:
(i) an amount in respect
of tax in respect of the contribution;
(ii) a fee, or a charge, in
respect of the contribution; and
(c) in compliance with a
section 139ZQ notice that relates to the transfer, the trustee of the
eligible superannuation plan pays an amount to the trustee in the beneficiary’s
bankruptcy; and
(d) the amount paid in compliance with
the section 139ZQ notice exceeds the amount so debited;
the trustee in the beneficiary’s bankruptcy must pay to
the trustee of the eligible superannuation plan an amount equal to the amount
so debited.
21 After section 128D
Insert:
128E
Superannuation account‑freezing notice
Scope
(1) This section applies in relation to a
member of an eligible superannuation plan if the Official Receiver has
reasonable grounds to believe that:
(a) a transaction is void against the
trustee of a bankrupt’s estate under section 128B or 128C; and
(b) either:
(i) the whole or a part of
the member’s superannuation interest is attributable to the transaction; or
(ii) the trustee of the
bankrupt’s estate has made an application for a section 139ZU order that
relates to the transaction and the member’s superannuation interest.
Giving of freezing notice
(2) The Official Receiver may, by written
notice (a superannuation account‑freezing notice) given to
the trustee of the eligible superannuation plan, direct the trustee of the plan
not to:
(a) cash or debit; or
(b) permit the cashing, debiting, roll‑over,
transfer or forfeiture of;
the whole or any part of the superannuation interest
except:
(c) for the purposes of complying with
a notice under section 139ZQ; or
(d) for the purposes of complying with
an order under section 139ZU; or
(e) for the purposes of charging costs
against, or debiting costs from, the superannuation interest; or
(f) for the purposes of giving effect
to a family law payment split; or
(g) in accordance with the written
consent of the Official Receiver given under section 128H; or
(h) for the purposes of complying with
an order under paragraph 128K(1)(b); or
(i) for the purposes of complying
with an order under subsection 139ZT(2); or
(j) in such circumstances (if any) as
are specified in the regulations.
(3) The superannuation account‑freezing
notice must set out the facts and circumstances because of which the Official
Receiver considers that the Official Receiver has reasonable grounds to believe
that:
(a) the transaction is void against
the trustee of the bankrupt’s estate under section 128B or 128C; and
(b) either:
(i) the whole or a part of
the member’s superannuation interest is attributable to the transaction; or
(ii) the trustee of the
bankrupt’s estate has made an application for a section 139ZU order that
relates to the transaction and the member’s superannuation interest.
When Official Receiver may give freezing notice
(4) The Official Receiver may give the
superannuation account‑freezing notice:
(a) if the Official Trustee is the
trustee of the bankrupt’s estate—on the initiative of the Official Receiver; or
(b) if a registered trustee is the
trustee of the bankrupt’s estate—on application by the registered trustee.
When freezing notice comes into force
(5) The superannuation account‑freezing
notice comes into force when the notice is given to the trustee of the eligible
superannuation plan.
128F
Revocation of superannuation account‑freezing notice
Revocation of freezing notice by Official Receiver
(1) If a superannuation account‑freezing
notice is in force in relation to a member of an eligible superannuation plan,
the Official Receiver may, by written notice given to the trustee of the plan,
revoke the superannuation account‑freezing notice.
(2) The Official Receiver may revoke a
superannuation account‑freezing notice that relates to a member of an
eligible superannuation plan:
(a) if the Official Trustee is the
trustee of the bankrupt’s estate—on the initiative of the Official Receiver; or
(b) if a registered trustee is the
trustee of the bankrupt’s estate—on application by the registered trustee; or
(c) in any case—on application by the
member.
Revocation of freezing notice when section 139ZQ
notice complied with etc.
(3) If:
(a) subparagraph 128E(1)(b)(i) applied
in relation to a superannuation account‑freezing notice given in relation
to a member of an eligible superannuation plan; and
(b) during the 180‑day period
after the superannuation account‑freezing notice comes into force, a
section 139ZQ notice is given in relation to the transaction referred to
in paragraph 128E(1)(a);
the superannuation account‑freezing notice is
revoked:
(c) when the trustee of the plan
complies with the section 139ZQ notice; or
(d) when the section 139ZQ notice
is revoked; or
(e) when the Court sets aside the
section 139ZQ notice.
Revocation of freezing notice if no section 139ZQ
notice given after 180 days
(4) If subparagraph 128E(1)(b)(i) applied in
relation to a superannuation account‑freezing notice given in relation to
a member of an eligible superannuation plan, the superannuation account‑freezing
notice is revoked if:
(a) 180 days pass after the notice
comes into force; and
(b) no section 139ZQ notice has
been given in relation to the transaction referred to in paragraph 128E(1)(a).
Revocation of freezing notice when section 139ZU
order complied with etc.
(5) If:
(a) subparagraph 128E(1)(b)(ii)
applied in relation to a superannuation account‑freezing notice given in
relation to a member of an eligible superannuation plan; and
(b) during the 180‑day period
after the superannuation account‑freezing notice comes into force, a
section 139ZU order is made in relation to the transaction referred to in
paragraph 128E(1)(a) and in relation to the member’s superannuation interest;
the superannuation account‑freezing notice is
revoked:
(c) when the trustee of the plan
complies with the section 139ZU order; or
(d) when the section 139ZU order
is set aside on appeal.
Revocation of freezing notice when application for
section 139ZU order dismissed or withdrawn
(6) If:
(a) subparagraph 128E(1)(b)(ii)
applied in relation to a superannuation account‑freezing notice given in
relation to a member of an eligible superannuation plan; and
(b) during the 180‑day period
after the superannuation account‑freezing notice comes into force:
(i) the Court dismisses an
application for a section 139ZU order in relation to the transaction
referred to in paragraph 128E(1)(a) and in relation to the member’s
superannuation interest; or
(ii) an application for a
section 139ZU order in relation to the transaction referred to in
paragraph 128E(1)(a) and in relation to the member’s superannuation interest is
withdrawn;
the superannuation account‑freezing notice is
revoked.
Revocation of freezing notice if no section 139ZU
order made after 180 days
(7) If subparagraph 128E(1)(b)(ii) applied in
relation to a superannuation account‑freezing notice given in relation to
a member of an eligible superannuation plan, the superannuation account‑freezing
notice is revoked if:
(a) 180 days pass after the notice
comes into force; and
(b) no section 139ZU order has
been made in relation to the transaction referred to in paragraph 128E(1)(a)
and in relation to the member’s superannuation interest.
Extension of 180‑day period
(8) The Court may, on application by the
Official Receiver, extend, or further extend, the 180‑day period referred
to in subsection (5), (6) or (7).
(9) The Official Receiver may make an
application under subsection (8):
(a) if the Official Trustee is the
trustee of the bankrupt’s estate—on the initiative of the Official Receiver; or
(b) if a registered trustee is the
trustee of the bankrupt’s estate—on application by the registered trustee.
128G
Copy of superannuation account‑freezing notice to be given to trustee
etc.
(1) If the Official Receiver gives or revokes
a superannuation account‑freezing notice that relates to a member of an
eligible superannuation plan:
(a) the Official Receiver must give 2
copies of the superannuation account‑freezing notice or the revocation
notice, as the case may be, to the trustee of the bankrupt’s estate; and
(b) the trustee must give one of those
copies to the member.
(2) A failure to comply with
subsection (1) does not affect the validity of the superannuation account‑freezing
notice or the revocation notice, as the case may be.
128H
Consent of Official Receiver to the cashing etc. of a superannuation interest
Scope
(1) This section applies if a superannuation
account‑freezing notice is in force in relation to a member’s
superannuation interest.
Consent
(2) The member may apply in writing to the
Official Receiver for the Official Receiver to consent to the cashing,
debiting, roll‑over, transfer or forfeiture, in whole or in part, of the
member’s superannuation interest.
(3) If an application is made under subsection (2),
the Official Receiver may, by written notice given to the trustee of the
eligible superannuation plan concerned, consent to the cashing, debiting, roll‑over,
transfer or forfeiture, in whole or in part, of the member’s superannuation
interest.
(4) A consent under subsection (3) may
be:
(a) unconditional; or
(b) subject to such conditions (if
any) as are specified in the notice of consent.
(5) If the Official Receiver gives a consent
under subsection (3) in relation to a member’s superannuation interest,
the Official Receiver must give a copy of the consent to the member.
Consultation
(6) Before giving a consent under
subsection (3), the Official Receiver must consult the trustee of the
bankrupt’s estate.
Review of decisions
(7) Applications may be made to the
Administrative Appeals Tribunal for review of a decision of the Official
Receiver refusing to give a consent under subsection (3).
(8) The trustee of the bankrupt’s estate may
apply to the Administrative Appeals Tribunal for review of a decision of the
Official Receiver giving a consent under subsection (3).
128J
Power of Court to set aside superannuation account‑freezing notice
(1) If the Court, on application by:
(a) a person to whom a superannuation
account‑freezing notice has been given; or
(b) the member whose superannuation
interest is affected by a superannuation account‑freezing notice; or
(c) any other interested person;
is satisfied that the Official Receiver did not have
reasonable grounds to believe that:
(d) the relevant transaction is void
against the trustee of a bankrupt’s estate under section 128B or 128C; and
(e) either:
(i) the whole or a part of
the relevant member’s superannuation interest is attributable to the
transaction; or
(ii) the trustee of the
bankrupt’s estate has made an application for a section 139ZU order that
relates to the transaction and the relevant member’s superannuation interest;
the Court may make an order setting aside the notice.
(2) A superannuation account‑freezing
notice that has been set aside is taken not to have been given.
128K
Judicial enforcement of superannuation account‑freezing notices
(1) If the Court is satisfied that the
trustee of an eligible superannuation plan has breached, or is proposing to
breach, a superannuation account‑freezing notice, the Court may, on
application of the trustee of the relevant bankrupt’s estate, make any or all
of the following orders:
(a) an order directing the trustee of
the plan to comply with that notice;
(b) an order directing the trustee of
the plan to pay to the trustee of the relevant bankrupt’s estate an amount not
exceeding the money, or the value of the property, received as a result of the
transaction referred to in paragraph 128E(1)(a);
(c) any other order that the Court
thinks appropriate.
(2) The Court may discharge or vary an order
granted under this section.
(3) An order by the Court under
paragraph (1)(b) is enforceable as if it were an order for the payment of
money made by the Court when exercising jurisdiction otherwise than under this
Act.
128L
Protection of trustee of eligible superannuation plan
(1) No criminal or civil proceedings lie
against the trustee of an eligible superannuation plan because of anything done
(or not done) by the trustee in good faith:
(a) in compliance with a
superannuation account‑freezing notice; or
(b) in connection with, or incidental
to, the trustee’s compliance with a superannuation account‑freezing
notice; or
(c) in compliance with a
section 139ZQ notice; or
(d) in connection with, or incidental
to, the trustee’s compliance with a section 139ZQ notice; or
(e) in compliance with a
section 139ZU order; or
(f) in connection with, or incidental
to, the trustee’s compliance with a section 139ZU order; or
(g) in compliance with a subsection
139ZT(2) order; or
(h) in connection with, or incidental
to, the trustee’s compliance with a subsection 139ZT(2) order; or
(i) in compliance with a paragraph
128K(1)(b) order; or
(j) in connection with, or incidental
to, the trustee’s compliance with a paragraph 128K(1)(b) order.
(2) Anything done (or not done) by the
trustee of a regulated superannuation fund, or the trustee of an approved
deposit fund, in good faith:
(a) in compliance with a
superannuation account‑freezing notice; or
(b) in connection with, or incidental
to, the trustee’s compliance with a superannuation account‑freezing
notice; or
(c) in compliance with a
section 139ZQ notice; or
(d) in connection with, or incidental
to, the trustee’s compliance with a section 139ZQ notice; or
(e) in compliance with a
section 139ZU order; or
(f) in connection with, or incidental
to, the trustee’s compliance with a section 139ZU order; or
(g) in compliance with a subsection
139ZT(2) order; or
(h) in connection with, or incidental
to, the trustee’s compliance with a subsection 139ZT(2) order; or
(i) in compliance with a paragraph
128K(1)(b) order; or
(j) in connection with, or incidental
to, the trustee’s compliance with a paragraph 128K(1)(b) order;
is taken not to be in breach of:
(k) the Superannuation Industry
(Supervision) Act 1993; or
(l) any standards prescribed under
that Act.
(3) Anything done (or not done) by an RSA
provider in good faith:
(a) in compliance with a
superannuation account‑freezing notice; or
(b) in connection with, or incidental
to, the RSA provider’s compliance with a superannuation account‑freezing
notice; or
(c) in compliance with a
section 139ZQ notice; or
(d) in connection with, or incidental
to, the RSA provider’s compliance with a section 139ZQ notice; or
(e) in compliance with a
section 139ZU order; or
(f) in connection with, or incidental
to, the trustee’s compliance with a section 139ZU order; or
(g) in compliance with a subsection
139ZT(2) order; or
(h) in connection with, or incidental
to, the trustee’s compliance with a subsection 139ZT(2) order; or
(i) in compliance with a paragraph
128K(1)(b) order; or
(j) in connection with, or incidental
to, the trustee’s compliance with a paragraph 128K(1)(b) order;
is taken not to be in breach of:
(k) the Retirement Savings Accounts
Act 1997; or
(l) any standards prescribed under
that Act.
128M
References to a member of an eligible superannuation plan
References in a provision of this
Subdivision to:
(a) a member of an eligible
superannuation plan; and
(b) a bankrupt;
do not imply that the bankrupt may not be the member.
22 Section 128N
Insert:
cashed, in relation to a superannuation
interest, includes applied towards the provision of a pension.
23 Section 128N
Insert:
costs:
(a) in relation to a regulated
superannuation fund, an approved deposit fund or an RSA—includes:
(i) transaction costs; and
(ii) government charges;
and
(iii) taxes and duties; and
(iv) charges relating to the
management or investment of fund assets or RSA assets, as the case may be; or
(b) in any other case—includes
anything that, under the regulations, is taken to be costs for the purposes of
this paragraph.
24 Section 128N
Insert:
family law payment split means a payment
split under Part VIIIB of the Family Law Act 1975.
25 Section 128N
Insert:
member:
(a) in relation to a regulated
superannuation fund—means a member of the fund; or
(b) in relation to an approved deposit
fund—means a depositor in the fund; or
(c) in relation to an RSA—means the
RSA holder; or
(d) in relation to a public sector
superannuation scheme—has the meaning given by the regulations.
26 Section 128N
Insert:
pension includes:
(a) a benefit provided by a fund, if
the benefit is taken, under regulations made for the purposes of the definition
of pension in subsection 10(1) of the Superannuation Industry
(Supervision) Act 1993, to be a pension for the purposes of that Act; and
(b) a benefit provided by a public
sector superannuation scheme, if the benefit is taken, under the regulations,
to be a pension for the purposes of this definition.
27 Section 128N
Insert:
RSA provider has the same meaning as in the Retirement
Savings Accounts Act 1997.
28 Section 128N
Insert:
superannuation account‑freezing notice
means a notice under section 128E.
29 Section 128N
Insert:
superannuation interest means an interest in
an eligible superannuation plan, but does not include a reversionary interest.
30 Section 128N
Insert:
trustee, in relation to an eligible
superannuation plan, means:
(a) if the plan is a fund that has a
trustee (within the ordinary meaning of that word)—the trustee of the plan; or
(b) if the plan is an RSA—the RSA
provider; or
(c) if:
(i) none of the preceding
paragraphs apply; and
(ii) a person is identified
in accordance with the regulations as the trustee of the plan for the purposes
of this definition;
the person identified in
accordance with the regulations; or
(d) in any other case—the person who
manages the plan.
If a person who is not the trustee of an eligible
superannuation plan nevertheless has the power to make payments to members of
the plan, then references in this Subdivision to the trustee of the plan
include references to that person.
31 Section 128N
Insert:
withdrawal benefit:
(a) in relation to a regulated
superannuation fund or an approved deposit fund—has the same meaning as in the Superannuation
Industry (Supervision) Regulations 1994; or
(b) in relation to an RSA—has the same
meaning as in the Retirement Savings Accounts Regulations 1997; or
(c) in relation to a public sector
superannuation scheme—has the meaning given by the regulations.
32 Subsection 139ZQ(1)
Omit “the money or the value of the property received.”,
substitute:
whichever of the following is applicable:
(c) if:
(i) the transaction is
void against the trustee under section 128B or 128C; and
(ii) the transaction is by
way of a contribution to an eligible superannuation plan for the benefit of a
person (the beneficiary) who may or may not be the bankrupt; and
(iii) the beneficiary is a
member of the eligible superannuation plan;
whichever is the lesser of the
following:
(iv) the money or the value
of the property received;
(v) the beneficiary’s
withdrawal benefit in relation to the eligible superannuation plan;
(d) in any other case—the money or the
value of the property received.
33 At the end of section 139ZQ
Add:
(9) For the purposes of
subparagraph (1)(c)(ii), disregard a benefit that is payable in the event
of the death of a person.
(10) In this section:
contribution has the same meaning as in
Subdivision B of Division 3.
eligible superannuation plan has the same
meaning as in Subdivision B of Division 3.
member of an eligible superannuation plan has
the same meaning as in Subdivision B of Division 3.
withdrawal benefit has the same meaning as in
Subdivision B of Division 3.
34 At the end of Division 4B of Part VI
Add:
Subdivision K—Rolled‑over superannuation interests etc.
139ZU
Order relating to rolled‑over superannuation interests etc.
(1) If, on application by the trustee of a bankrupt’s
estate, the Court is satisfied that:
(a) a transaction is void against the
trustee of the bankrupt’s estate under section 128B or 128C; and
(b) the transaction was by way of a
contribution to an eligible superannuation plan (the first plan)
for the benefit of a person (the beneficiary) who may or may not
be the bankrupt; and
(c) the beneficiary’s withdrawal
benefit in relation to the first plan falls short of the amount of the money,
or the value of the property, received as a result of the transaction; and
(d) the beneficiary has a
superannuation interest in another eligible superannuation plan; and
(e) the superannuation interest
referred to in paragraph (d) is attributable, in whole or in part, to the
roll‑over or transfer, after the transaction referred to in
paragraph (a) happened, of the whole or a part of the beneficiary’s
superannuation interest in the first plan;
the Court may, by order, direct the trustee of the other
eligible superannuation plan to pay to the trustee of the bankrupt’s estate a
specified amount not exceeding whichever is the lesser of the following:
(f) the amount of the shortfall
referred to in paragraph (c);
(g) the beneficiary’s withdrawal
benefit in relation to the other eligible superannuation plan.
(2) The Court must not make an order under
subsection (1) unless it is satisfied that it is in the interests of the
creditors of the bankrupt to do so.
(3) For the purposes of
paragraph (1)(a), it is immaterial whether the transaction occurred
before, at or after the commencement of this section.
(4) For the purposes of
paragraph (1)(b), disregard a benefit that is payable in the event of the
death of a person.
(5) For the purposes of
paragraph (1)(c), if the beneficiary does not have a superannuation
interest in an eligible superannuation plan, the beneficiary is taken to have a
nil withdrawal benefit in relation to the plan.
(6) For the purposes of
paragraph (1)(e), it is immaterial whether the roll‑over or transfer
occurred directly or indirectly through one or more interposed eligible
superannuation plans.
(7) An applicant under subsection (1)
must give a copy of the application to:
(a) the trustee of the other eligible
superannuation plan; and
(b) the beneficiary.
(8) At the hearing of an application under subsection (1):
(a) the trustee of the other eligible
superannuation plan; and
(b) the beneficiary.
may appear, adduce evidence and make submissions.
(9) For the purposes of sections 128E,
128F and 128J, an order under this section is taken to relate to:
(a) the transaction referred to in
paragraph (1)(a) of this section; and
(b) the beneficiary’s superannuation
interest referred to in paragraph (1)(d) of this section.
139ZV
Enforcement of order
An order by the Court under
section 139ZU is enforceable as if it were an order for the payment of
money made by the Court when exercising jurisdiction otherwise than under this
Act.
139ZW
Definitions
In this Subdivision:
contribution has the same meaning as in
Subdivision B of Division 3.
eligible superannuation plan has the same
meaning as in Subdivision B of Division 3.
superannuation interest has the same meaning
as in Subdivision B of Division 3.
trustee of an eligible superannuation plan
has the same meaning as in Subdivision B of Division 3.
withdrawal benefit has the same meaning as in
Subdivision B of Division 3.
35 At the end of subsection 302A(2A)
Add:
; or (c) a notice under section 128E;
or
(d) an order under paragraph
128K(1)(b); or
(e) a notice under section 139ZQ;
or
(f) an order under subsection
139ZT(2); or
(g) an order under section 139ZU.
36 At the end of subsection 302AB(3)
Add:
; or (c) a notice under section 128E;
or
(d) an order under paragraph
128K(1)(b); or
(e) a notice under section 139ZQ;
or
(f) an order under subsection 139ZT(2);
or
(g) an order under section 139ZU.
37 At the end of subsection 302B(2)
Add:
; or (c) a notice under section 128E;
or
(d) an order under paragraph
128K(1)(b); or
(e) a notice under section 139ZQ;
or
(f) an order under subsection
139ZT(2); or
(g) an order under section 139ZU.
Schedule 2—Other amendments
Bankruptcy Act 1966
1 Subsection 5(1)
Insert:
rural support scheme means a program or
scheme that:
(a) is administered by or on behalf of
the Commonwealth, a State or a Territory; and
(b) relates to:
(i) agriculture or the
cultivation of land; or
(ii) the maintenance of
animals for commercial purposes; or
(iii) horticulture; or
(iv) any other primary
industry activity.
2 Subsection 20H(5)
Omit “Official Trustee” (wherever occurring), substitute
“Inspector‑General”.
3 Subsection 20H(5)
Omit “it” (wherever occurring), substitute “the Inspector‑General”.
4 Transitional—subsection 20H(5) of the Bankruptcy Act
1966
(1) This item applies to anything done by the Official
Trustee under subsection 20H(5) of the Bankruptcy Act 1966 before the
commencement of this item.
(2) The thing has effect, after the commencement of
this item, as if it had been done under that subsection by the Inspector‑General.
5 Paragraphs 116(2)(k) to (md)
Repeal the paragraphs, substitute:
(k) amounts paid to the bankrupt under
a rural support scheme prescribed for the purposes of this paragraph;
(l) amounts paid to the bankrupt
under a rural support scheme prescribed for the purposes of this paragraph,
where the amounts are paid in circumstances prescribed for the purposes of this
paragraph;
(m) prescribed amounts paid to the
bankrupt under a rural support scheme prescribed for the purposes of this
paragraph;
(ma) prescribed amounts paid to the
bankrupt under a rural support scheme prescribed for the purposes of this
paragraph, where the amounts are paid in circumstances prescribed for the
purposes of this paragraph;
(mb) amounts paid to the bankrupt by the
Commonwealth as compensation in relation to the loss of:
(i) an amount covered by
paragraph (k), (l), (m) or (ma); or
(ii) property purchased or
acquired wholly or partly with such an amount;
6 Subsection 116(2D) (paragraph (c) of the definition
of exempt money)
Repeal the paragraph, substitute:
(c) amounts covered by
paragraph (2)(k), (l), (m), (ma) or (mb).
7 After subsection 116(2D)
Insert:
(2E) Nothing in this Act or the Legislative
Instruments Act 2003 prevents regulations made for the purposes of
paragraph (2)(k), (l), (m) or (ma) from applying to amounts paid before
the regulations take effect.
(2F) Regulations made for the purposes of
paragraph (2)(k), (l), (m) or (ma) may make provision in relation to a
matter by applying, adopting or incorporating any matter contained in an
instrument or other writing as in force or existing from time to time.
8 Paragraph 121(4)(b)
Omit “or”, substitute “and”.
9 Paragraph 121(9)(a)
Omit “or”, substitute “of”.
10 Subsection 302A(3)
Omit “applies”, substitute “extends”.
Proceeds of Crime Act 2002
11 Subsections 299(1) and (2)
Omit “*Official
Trustee”, substitute “Inspector‑General in Bankruptcy”.
Note: The heading to section 299 is altered by
omitting “Official Trustee” and substituting “Inspector‑General
in Bankruptcy”.
12 Subsection 299(2)
Omit “Official Trustee”, substitute “Inspector‑General in
Bankruptcy”.
13 Subsection 299(4)
Omit “*Official
Trustee”, substitute “Inspector‑General in Bankruptcy”.
14 Subsection 299(4)
Omit “Official Trustee”, substitute “Inspector‑General in
Bankruptcy”.
15 Subsection 299(6)
Omit “*Official
Trustee”, substitute “Inspector‑General in Bankruptcy”.
16 Subsection 299(6)
Omit “it”, substitute “the Inspector‑General in
Bankruptcy”.
17 Paragraph 299(7)(a)
Omit “*Official
Trustee”, substitute “Inspector‑General in Bankruptcy”.
18 Paragraph 299(7)(b)
Omit “Official Trustee”, substitute “Inspector‑General in
Bankruptcy”.
19 Transitional—section 299 of the Proceeds of Crime
Act 2002
(1) This item applies to anything done by the Official
Trustee under section 299 of the Proceeds of Crime Act 2002 before
the commencement of this item.
(2) The thing has effect, after the commencement of
this item, as if it had been done under that section by the Inspector‑General
in Bankruptcy.
[Minister’s second reading speech made in—
Senate on 6 December 2006
House of Representatives on 28 March 2007]