Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this Act, unless the contrary intention appears:
"ADI" (authorised deposit - taking institution) means:
(a) a body corporate that is an ADI for the purposes of the Banking Act 1959 ; or
(b) the Reserve Bank of Australia; or
(c) any other bank approved in writing for the purposes of this definition:
(i) by the Treasurer; or
(ii) by a person authorised in writing by the Treasurer to give approvals for the purposes of this definition.
"administrator" , in relation to a debt agreement, means the person:
(a) authorised by the agreement to deal with property under the agreement; or
(b) who becomes the replacement administrator under section 185ZB; or
(c) appointed by an Official Receiver under section 185ZC.
"affidavit" includes affirmation and statutory declaration.
"approved form" : a document is in the approved form if it is in accordance with section 6D.
"associated entity" , in relation to a person, means:
(a) an entity (other than a company) that is, or has been, associated with the person; or
(b) a company that is, or has been, associated with the person at a time when the company is, or was, as the case may be, a private company.
"authorised employee" means an APS employee whose duties include either or both of the following:
(a) supporting the Inspector - General in the performance of his or her functions, or in the exercise of his or her powers, under this Act;
(b) supporting the Official Receivers in the performance of their functions, or in the exercise of their powers, under this Act.
"authority" , in relation to a Territory, means an authority established by or under a law of the Territory, and includes the holder of an office established by or under a law of the Territory.
"available act of bankruptcy" , in relation to a debtor, means an act of bankruptcy available for a petition against the debtor at the date of the presentation of the petition on which, or by virtue of the presentation of which, the debtor becomes a bankrupt.
"bank" means an ADI or any other bank.
"bankrupt" means a person:
(a) against whose estate a sequestration order has been made; or
(b) who has become a bankrupt by virtue of the presentation of a debtor's petition.
"bankruptcy" , in relation to jurisdiction or proceedings, means any jurisdiction or proceedings under or by virtue of this Act.
"books" includes any account, deed, paper, writing or document and any record of information however compiled, recorded or stored, whether in writing, on microfilm, by electronic process or otherwise.
"breach of duty" means malfeasance, misfeasance, negligence, wilful default or breach of trust.
"business day" means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place concerned.
"child" : without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a) an adopted child, stepchild or exnuptial child of the person;
(b) someone who is a child of the person within the meaning of the Family Law Act 1975 .
"close relative" , in relation to a person, means a spouse, de facto partner, parent, child, brother, sister, half - brother, or half - sister, of the person.
"Commonwealth proceeds of crime authority" means a proceeds of crime authority within the meaning of the Proceeds of Crime Act 2002 .
Note: Under that Act, the proceeds of crime authority is either the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definition of proceeds of crime authority in section 338 of that Act). Responsibility can be transferred between these authorities (see section 315B of that Act).
"company" means a corporation, other than a corporation that is incorporated within Australia or an external Territory and is:
(a) a public authority; or
(b) an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory.
"company officer" , in relation to a corporation, includes:
(a) a director or secretary of the corporation;
(b) a receiver and manager of property of the corporation appointed under a power contained in an instrument;
(ba) an administrator, within the meaning of the Corporations Act 2001 , of the corporation;
(bb) an administrator of a deed of company arrangement executed by the corporation under Part 5.3A of that Act;
(d) a liquidator of the corporation appointed in a voluntary winding up of the corporation; and
(e) a trustee or other person administering a compromise or arrangement made between the corporation and another person or other persons;
but does not include:
(f) a receiver who is not also a manager;
(g) a receiver and manager appointed by a court; or
(h) a liquidator appointed by a court.
"confiscation order" has the same meaning as in the Proceeds of Crime Act 2002 .
"constable" means a member or special member of the Australian Federal Police or a member of the Police Force of a State or Territory.
"corporation" includes any body corporate.
"corresponding law" has the same meaning as in the Proceeds of Crime Act 2002 .
"court of summary jurisdiction" includes a court of a Territory sitting as a court for the making of summary orders or the summary punishment of offences under the law of the Territory.
"creditor" , in relation to a liability under a maintenance order, includes the Child Support Registrar referred to in the Child Support (Registration and Collection) Act 1988 .
"creditor's petition" means a petition presented by a creditor or by 2 or more creditors jointly.
"debt" includes liability.
"debt agreement" means an agreement under section 185H resulting from the acceptance of a debt agreement proposal.
"debt agreement proposal" means a written proposal referred to in subsection 185C(1).
"debtor's petition" means a petition presented by a debtor against himself or herself and includes a petition presented against a partnership in pursuance of section 56A and a petition presented by joint debtors against themselves in pursuance of section 57.
"declaration of intention" means a declaration that has been presented under section 54A and accepted under section 54C.
"declared debtor" means a debtor who has presented under section 54A a declaration of intention.
"de facto partner" has the meaning given by the Acts Interpretation Act 1901 .
"default period" means:
(a) if a period longer than 21 days is prescribed--the prescribed period; or
(b) otherwise--21 days.
"director" , in relation to a corporation, includes:
(a) any person occupying or acting in the position of director of the corporation, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position;
(b) any person in accordance with whose directions or instructions the directors of the corporation are accustomed to act; and
(c) if the corporation has a committee of management, council or other governing body:
(i) a member of that committee of management, council or other governing body;
(ii) any person occupying or acting in the position of member of that committee of management, council or other governing body, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act, in the position; and
(iii) any person in accordance with whose directions or instructions the members of that committee of management, council or other governing body are accustomed to act.
"eligible judge" means a judge of the Court declared by the Minister to be an eligible judge under subsection 129A(2).
"end" means:
(a) in relation to a bankruptcy--the discharge of the bankrupt from the bankruptcy or the annulment of the bankruptcy; or
(b) in relation to a composition or scheme of arrangement under Division 6 of Part IV--the time when the composition or scheme, as the case may be, ceases to be in effect; or
(ba) in relation to a personal insolvency agreement--the time when all the obligations that the agreement created have been discharged; or
(c) in relation to an administration under Part XI--the end of the administration.
"enforcement process" , in relation to a frozen debt, means, in the case of a judgment debt:
(a) process of a court issued to enforce in any manner payment of the judgment debt; or
(b) without limiting the generality of paragraph (a), process of a court for attaching, in order to meet the judgment debt, a debt or other money payable or owing, or to become payable or owing, to the declared debtor.
"entity" means a natural person, company, partnership or trust.
"examinable affairs" , in relation to a person, means:
(a) the person's dealings, transactions, property and affairs; and
(b) the financial affairs of an associated entity of the person, in so far as they are, or appear to be, relevant to the person or to any of his or her conduct, dealings, transactions, property and affairs.
"examinable period" has the meaning given by section 139CA.
"examinable person" , in relation to a person (in this definition called the relevant person ), means:
(a) if the relevant person is a debtor and property of the debtor is known or suspected to be in the possession of a person--that person;
(b) if the relevant person has become a bankrupt and any of the property of the bankrupt is known or suspected to be in the possession of a person--that person;
(c) in any case--a person who is believed to be indebted to the relevant person;
(d) if a person, including:
(i) a person who is an associated entity of the relevant person; or
(ii) a person with whom an associated entity of the relevant person is or has been associated;
may be able to give information about the relevant person or any of the relevant person's examinable affairs--that person; or
(e) if books (including books of an associated entity of the relevant person):
(i) are in the possession of a person, including a person of a kind referred to in subparagraph (d)(i) or (ii); and
(ii) may relate to the relevant person or any of the relevant person's examinable affairs;
that person.
"Finance Minister" means the Minister administering the Public Governance, Performance and Accountability Act 2013 .
"forfeiture order" means a forfeiture order made under a proceeds of crime law.
"frozen debt" means a debt that:
(a) is owed by a declared debtor; and
(b) would, if the debtor had become a bankrupt when the declaration of intention was accepted under section 54C, be provable in the bankruptcy;
but does not include a debt in respect of the debtor's liability under a maintenance agreement or maintenance order (whenever entered into or made).
"goods" includes all chattels personal.
"industrial instrument" means:
(a) a law of the Commonwealth, a State or a Territory regulating conditions of employment; or
(b) an award, determination or agreement made under such a law.
"Insolvency Practice Rules" means the rules made by the Minister under section 105 - 1 of Schedule 2.
"Inspector-General" means the Inspector - General in Bankruptcy, and includes a person acting as the Inspector - General.
"interstate confiscation order" means an interstate forfeiture order or an interstate pecuniary penalty order.
"interstate forfeiture order" has the same meaning as in the Proceeds of Crime Act 2002 .
"interstate pecuniary penalty order" has the same meaning as in the Proceeds of Crime Act 2002 .
"in the possession of" includes in the custody of or under the control of.
"law" , in relation to a Territory, means a law in force in the Territory.
Example: A law in force in a Territory that is an applied law of a State or another Territory.
"magistrate" means:
(a) a person who holds office as a Magistrate of a State, being a person in respect of whom an arrangement under subsection 17B(1) applies;
(b) a person who holds office as a Judge of the Local Court of the Northern Territory, being a person in respect of whom an arrangement under subsection 17B(2) applies; or
(c) a person who holds office as a Magistrate of a Territory.
"maintenance agreement" means:
(a) a maintenance agreement (within the meaning of the Family Law Act 1975 ) that has been registered in, or approved by, a court in Australia or an external Territory; or
(b) any other agreement with respect to the maintenance of a person that has been registered in, or approved by, a court in Australia or an external Territory;
but does not include a financial agreement, or Part VIIIAB financial agreement, within the meaning of the Family Law Act 1975 or a financial agreement within the meaning of Part 5A of the Family Court Act 1997 (WA).
"maintenance order" means:
(a) an order relating to the maintenance of a person, including an order relating to the payment of arrears of maintenance, that is made or registered under a law of the Commonwealth or of a State or Territory; or
(b) an assessment made under the Child Support (Assessment) Act 1989 .
"modifications" includes additions, omissions and substitutions.
"National Personal Insolvency Index" means the Index of that name established under the regulations.
"net value" , in relation to property, means:
(a) if the property is unencumbered--the value of the property;
(b) if the property is encumbered and the unencumbered value of the property exceeds the amount or value of the encumbrances--the amount of the excess; or
(c) in any other case--a nil amount.
"net worth" , in relation to an entity, in relation to a time, means:
(a) if the entity is a trust and the total value of the trust property as at that time exceeds the total of the amounts of the trustee's liabilities as at that time (other than liabilities constituted by the rights of persons as beneficiaries under the trust)--the amount of the excess;
(b) if the entity is not a trust and the total value of the entity's assets as at that time exceeds the total of the amounts of the entity's liabilities as at that time--the amount of the excess; or
(c) in any other case--a nil amount.
"oath" includes affirmation and statutory declaration.
"offence against this Act" includes an offence against section 137.1 or 137.2 of the Criminal Code , being an offence that relates to this Act.
"officer" means an officer of the Court or of the Commonwealth.
"Official Receiver" includes a person acting as an Official Receiver.
"Official Trustee" means the Official Trustee in Bankruptcy.
"operations" , in relation to an entity, means all of the following:
(a) the business, trading, transactions and dealings of the entity:
(i) whether alone or jointly with another entity or other entities; and
(ii) whether or not as agent, bailee or trustee;
(b) the profits, income and receipts of the entity;
(c) the losses, outgoings and expenditure of the entity.
"parent" : a person is the parent of anyone who is the person's child.
"pecuniary penalty order" means:
(a) a pecuniary penalty order made under a proceeds of crime law; or
(b) a literary proceeds order within the meaning of the Proceeds of Crime Act 2002 ; or
(c) an unexplained wealth order within the meaning of the Proceeds of Crime Act 2002 .
"personal insolvency agreement" means a personal insolvency agreement executed under Part X.
Note: Section 188A sets out requirements for personal insolvency agreements.
"personal services" , in relation to a bankrupt, means services of a physical, intellectual or other kind supplied by the bankrupt himself or herself:
(a) whether or not in a capacity as employee; and
(b) whether or not the supply of the services by the bankrupt discharged the obligations of an entity to supply services.
"petition" means a petition under this Act.
"PPSA grantor or debtor" (short for Personal Property Securities Act grantor or debtor), in relation to a PPSA security interest, means a grantor or debtor within the meaning of the Personal Property Securities Act 2009 .
"PPSA secured party" (short for Personal Property Securities Act secured party), in relation to a PPSA security interest, means a secured party within the meaning of the Personal Property Securities Act 2009 .
"PPSA security agreement" (short for Personal Property Securities Act security agreement), in relation to a PPSA security interest, means a security agreement within the meaning of the Personal Property Securities Act 2009 .
"PPSA security interest" (short for Personal Property Securities Act security interest) means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.
Note 1: The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act:
(a) section 8 (interests to which the Act does not apply);
(b) section 12 (meaning of security interest );
(c) Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security interest , see section 308 of the Personal Property Securities Act 2009 .
"premises" includes:
(a) any land;
(b) any structure, building, aircraft, vehicle, vessel or place (whether built on or not); and
(c) any part of such a structure, building, aircraft, vehicle, vessel or place.
"private company" , in relation to a particular time, means a company other than a company that, as at that time:
(a) has been admitted to the official list of a declared financial market (as defined by section 9 of the Corporations Act 2001 ); and
(b) has not been removed from that official list.
"proceeding" means proceeding under this Act.
"proceeds" , in relation to enforcement process in respect of a debt, means:
(a) the proceeds of selling property under the enforcement process;
(b) money taken under the enforcement process;
(c) money received as a result of attachment under the enforcement process; or
(d) money paid to avoid the taking or sale of property under, or to avoid attachment under, the enforcement process.
"proceeds of crime law" means:
(a) the Proceeds of Crime Act 2002 ; or
(b) the Proceeds of Crime Act 1987 ; or
(c) a corresponding law.
"proceeds of crime order" means:
(a) a restraining order; or
(b) a forfeiture order; or
(c) a pecuniary penalty order.
"proclaimed law" means a law specified for the time being in a Proclamation in force under section 253B.
"professional advice" means financial, business or legal advice given by a person in the performance of the functions attaching to the person's professional capacity.
"property" means real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property.
"provable debt" means a debt or liability that is, under this Act, provable in bankruptcy.
"provider" , in relation to an RSA, has the same meaning as in the Retirement Savings Accounts Act 1997 .
"registered trustee" has the same meaning as in section 5 - 5 of Schedule 2.
"Register of Trustees" has the same meaning as in section 15 - 1 of Schedule 2.
"Registrar" means:
(a) the Chief Executive Officer and Principal Registrar, a Registrar, a District Registrar or a Deputy District Registrar of the Federal Court; or
(b) a Registrar of the Federal Circuit and Family Court of Australia (Division 2).
"related entity" , in relation to a person, means any of the following:
(a) a relative of the person;
(b) a body corporate of which the person, or a relative of the person, is a director;
(c) a body corporate that is related to the body corporate referred to in paragraph (b);
(d) a director, or a relative of a director, of a body corporate referred to in paragraph (b) or (c);
(e) a beneficiary under a trust of which the person, or a relative of the person, is a trustee;
(f) a relative of such a beneficiary;
(g) a relative of the spouse, or de facto partner, of such a beneficiary;
(h) a trustee of a trust under which the person, or a relative of the person, is a beneficiary;
(i) a member of a partnership of which the person, or a relative of the person, is a member;
For the purposes of paragraph (c) of this definition, the question whether a body corporate is related to another body corporate is to be determined in the same manner as that question is determined for the purposes of the Corporations Act 2001 .
"relative" , in relation to a person, means:
(a) the spouse of the person; or
(b) a parent or remoter lineal ancestor of the person or of the person's spouse; or
(c) a child or remoter lineal descendant of the person or of the person's spouse; or
(d) a brother or sister of the person or of the person's spouse; or
(e) an uncle, aunt, nephew or niece of the person or of the person's spouse; or
(f) the spouse of a person specified in paragraph (b), (c), (d) or (e).
For the purposes of this definition, spouse includes de facto partner.
Note: Parent and child are defined by this subsection.
"resolution" : a resolution is passed by creditors of a regulated debtor's estate:
(a) in a meeting--in the circumstances prescribed under paragraph 75 - 50(2)(k) of Schedule 2; or
(b) without a meeting--in the circumstances prescribed under paragraph 75 - 40(5)(b) of Schedule 2.
"restraining order" means a restraining order made under a proceeds of crime law.
"RSA" has the same meaning as in the Retirement Savings Accounts Act 1997 .
"RSA holder" has the same meaning as in the Retirement Savings Accounts Act 1997 .
"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.
"secured creditor" , in relation to a debtor, means:
(a) in the case of a debt secured by a PPSA security interest--the PPSA secured party in relation to the interest, if the interest:
(i) arose as security for the debt; and
(ii) is perfected (within the meaning of the Personal Property Securities Act 2009 ); or
(b) in the case of any other debt--a person holding a mortgage, charge or lien on property of the debtor as a security for a debt due to him or her from the debtor.
"sheriff" includes any person charged with the execution of a writ or other process.
"special resolution" : a special resolution is passed by creditors of a regulated debtor's estate:
(a) in a meeting--in the circumstances prescribed under paragraph 75 - 50(2)(k) of Schedule 2; or
(b) without a meeting--in the circumstances prescribed under paragraph 75 - 40(5)(b) of Schedule 2.
"state of affairs" , in relation to an entity, means all of the following:
(a) the property and assets of the entity:
(i) whether held alone or jointly with another person or other persons; and
(ii) whether or not held as agent, bailee or trustee;
(b) the liabilities of the entity:
(i) whether actual or contingent;
(ii) whether owed alone or jointly with another person or other persons; and
(iii) whether or not owed as trustee.
"statutory minimum" means:
(a) if an amount greater than $5,000 is prescribed--the prescribed amount; or
(b) otherwise--$5,000.
"statutory period" means:
(a) if a period longer than 21 days is prescribed--the prescribed period; or
(b) otherwise--21 days.
"stay period" , in relation to a declaration of intention presented by a debtor, means the period beginning on the day on which the declaration was accepted under section 54C and ending when:
(a) the default period, beginning on that day, ends; or
(b) a creditor's petition or a debtor's petition is presented against the debtor; or
(c) the debtor signs an authority under section 188; or
(d) a sequestration order is made against the debtor;
whichever happens first.
"stay under a proclaimed law" , in relation to a person or the estate of a deceased person, means a stay, by or under a proclaimed law, of proceedings or of execution in relation to all or any of the debts of that person or of that estate, as the case may be.
"stepchild" : without limiting who is a stepchild of a person for the purposes of this Act, someone is the stepchild of a person if he or she would be the person's stepchild except that the person is not legally married to the person's de facto partner.
"the commencement of the bankruptcy" , in relation to a bankrupt, means the time at which his or her bankruptcy is, by virtue of section 115, to be deemed to have commenced.
"the Court" means a Court having jurisdiction in bankruptcy under this Act.
"the date of the bankruptcy" , in relation to a bankrupt, means the date on which a sequestration order was made against his or her estate or, if he or she became a bankrupt by virtue of the presentation of a debtor's petition, the date on which he or she became a bankrupt by force of section 55, 56E or 57, as the case requires.
"the Federal Court" means the Federal Court of Australia.
"the Official Receiver" means any Official Receiver.
"the property of the bankrupt" , in relation to a bankrupt, means:
(a) except in subsections 58(3) and (4):
(i) the property divisible among the bankrupt's creditors; and
(ii) any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt; and
(b) in subsections 58(3) and (4):
(i) the property, rights and powers referred to in paragraph (a) of this definition; and
(ii) any other property of the bankrupt.
"the trustee" means:
(a) in relation to a bankruptcy--the trustee of the estate of the bankrupt; or
(b) in relation to a composition or scheme of arrangement under Division 6 of Part IV--the trustee of the composition or scheme of arrangement; or
(c) in relation to a personal insolvency agreement--the trustee of the agreement; or
(d) in relation to the estate of a deceased person in respect of which an order has been made under Part XI--the trustee of the estate; or
(e) in relation to a trust:
(i) if only one person is a trustee of the trust--that person; or
(ii) if 2 or more persons are trustees of the trust--any one or more of those persons;
in his, her or its capacity as a trustee, or in their respective capacities as trustees, as the case may be, of the trust.
"this Act" includes the regulations and the Insolvency Practice Rules.
"time fixed" , for compliance with a bankruptcy notice, means the period specified in the notice (as required by subsection 41(2A)).
(1A) A reference in this Act to books of an associated entity of a person does not limit the generality of any other reference in this Act to books.
(1B) A reference in this Act to an entity includes, in the case of a trust, a reference to the trustee of the trust.
(1C) Paragraph (b) of the definition of examinable affairs in subsection (1) does not limit the generality of a reference in this Act to a person's conduct, dealings, transactions, property or affairs.
(2) A person is solvent if, and only if, the person is able to pay all the person's debts, as and when they become due and payable.
(3) A person who is not solvent is insolvent .
(4) Unless the contrary intention appears, a reference in this Act to the trustee of the estate of a bankrupt, or to the trustee of a personal insolvency agreement, shall:
(a) in relation to an estate or a personal insolvency agreement in respect of which there are 2 or more joint trustees--be read as a reference to all the trustees; or
(b) in relation to an estate or a personal insolvency agreement in respect of which there are 2 or more joint and several trustees--be read as a reference to all of the trustees or any one or more of the trustees.
(6) For the purposes of this Act, the members of a person's family are taken to include the following (without limitation):
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in this section;
(c) anyone else who would be a member of the person's family if someone mentioned in paragraph (a) or (b) is taken to be a member of the person's family.