Bankruptcy (Estate Charges) Act 1997

No. 12, 1997

Compilation No.   12

Compilation date: 2 August 2021

Includes amendments up to: Act No. 149, 2020

Registered: 31 August 2021

About this compilation

This compilation

This is a compilation of the Bankruptcy (Estate Charges) Act 1997 that shows the text of the law as amended and in force on 2 August 2021 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self - repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Preliminary 1

1 Short title 1

2 Commencement 1

3 Act to bind the Commonwealth Crown 1

4 Interpretation 1

Part 2—Interest charge 2

5 Interest charge 2

Part 3—Realisations charge 3

6 Realisations charge 3

6A Charge not payable on estate surplus 3

7 Amount of charge payable 4

7A Certain amounts treated as being received by person 4

8 Working out the amount on which charge is payable 4

Part 4—Miscellaneous 6

9 Regulations 6

Endnotes 7

Endnote 1—About the endnotes 7

Endnote 2—Abbreviation key 9

Endnote 3—Legislation history 10

Endnote 4—Amendment history 12

An Act to impose charges in relation to certain matters under the Bankruptcy Act 1966

 1 Preliminary
1 Short title

This Act may be cited as the Bankruptcy (Estate Charges) Act 1997.
2 Commencement 1

Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.

 2

If this Act does not commence within 6 months after the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
3 Act to bind the Commonwealth Crown

This Act binds the Crown in right of the Commonwealth. However, it does not bind the Crown in right of a State, of the Australian Capital Territory or of the Northern Territory.
4 Interpretation 1

In this Act:

charge period means a financial year.

 2

(2) Unless the contrary intention appears, other expressions used in this Act have the same meanings as in the Bankruptcy Act 1966.
2 Interest charge
5 Interest charge 1

(1) An amount of interest to which a person is entitled, in his or her personal capacity, under subsection 185LD(3) of, or subsection 65-31(1) of Schedule 2 to, the Bankruptcy Act 1966 is payable to the Commonwealth as a charge.

 1A

No charge is payable by a person in respect of an account for a charge period if the amount of that charge would be less than $10, or a higher amount prescribed by the regulations.

 3

The charge is payable by the person.

 4

The charge is payable within 35 days after the end of the charge period in which the interest was paid.
3 Realisations charge
6 Realisations charge 1

A charge, calculated in accordance with sections 7 and 8, is imposed in respect of amounts received by a person (including the Official Trustee) who, during a charge period:

 a

(a) is the trustee of the estate of a bankrupt under the Bankruptcy Act 1966; or

 aa

(aa) is the trustee of a composition or scheme of arrangement under Bankruptcy Act 1966; orDivision 6 of Part IV of the

ab

(ab) is the administrator of a debt agreement under Bankruptcy Act 1966; orPart IX of the

b

(b) is controlling trustee in relation to a debtor whose property has become subject to control under Bankruptcy Act 1966; orDivision 2 of Part X of the

c

(c) is the trustee of a personal insolvency agreement executed in relation to a debtor under Part X of the Bankruptcy Act 1966; or

 d

(d) is the trustee of the estate of a deceased person under Bankruptcy Act 1966.Part XI of the

1A

No charge is payable by a person for a charge period in respect of a particular estate, personal insolvency agreement, composition or debtor (as the case requires) if the amount of that charge would be less than $10, or a higher amount prescribed by the regulations.

 2

The charge is payable by the person to the Commonwealth.

 3

The charge is payable within 35 days after the end of the charge period.
6A Charge not payable on estate surplus 1

If:

 a

the person receives an amount in respect of a bankrupt’s estate; and

 b

as a result of receiving the amount, the person becomes able to pay off all the bankrupt’s debts;

then the following amounts are not taken into account in determining the amount on which charge is payable:

 c

any excess of the received amount over the amount needed to pay off all the bankrupt’s debts;

 d

any amount later received by the person in respect of the estate.

 2

In this section:

bankrupt’s debts has the same meaning as in subsection 153A(6) of the Bankruptcy Act 1966.
7 Amount of charge payable 1

The amount of charge payable for a charge period is the percentage, determined by the Minister by legislative instrument, of the amount on which charge is payable for the period.

 2

The Minister may make a legislative instrument determining the percentage.

 3

The percentage determined must not be more than 15%.
7A Certain amounts treated as being received by person

For the purposes of this Part, an amount is treated as received by the person if it is applied or dealt with on behalf of the person, or in accordance with the person’s directions.
8 Working out the amount on which charge is payable 1

(1) The amount on which charge is payable for a charge period is the amount realised less the permitted deductions.

 2

(2) The amount realised is the total amount received by the person in the capacity referred to in subsection 6(1) during the charge period, but not including:

 a

amounts paid to the person by creditors under an indemnity in respect of costs; or

 b

(b) amounts paid to the person under Bankruptcy Act 1966.section 305 of the

3

(3) The permitted deductions are all amounts paid by the person in the capacity referred to in subsection 6(1) during the charge period that are:

 a

amounts paid by the person in carrying on the business of the bankrupt, deceased person or debtor; or

 b

amounts paid to secured creditors.

 4

Once an amount has been taken into account for the purposes of subsection (2) as an amount received, the whole or part of the amount is not to be taken into account again as an amount received for the purposes of another application of that subsection.
4 Miscellaneous
9 Regulations

The Governor-General may make regulations prescribing matters:

 a

required or permitted by this Act to be prescribed; or

 b

necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key
ad = added or inserted o = order(s)
am = amended Ord = Ordinance
amdt = amendment orig = original
c = clause(s) par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x /sub-subparagraph(s)
Ch = Chapter(s) pres = present
def = definition(s) prev = previous
Dict = Dictionary (prev…) = previously
disallowed = disallowed by Parliament Pt = Part(s)
Div = Division(s) r = regulation(s)/rule(s)
ed = editorial change reloc = relocated
exp = expires/expired or ceases/ceased to have renum = renumbered
effect rep = repealed
F = Federal Register of Legislation rs = repealed and substituted
gaz = gazette s = section(s)/subsection(s)
LA = Legislation Act 2003 Sch = Schedule(s)
LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given SLI = Select Legislative Instrument
effect SR = Statutory Rules
(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)
cannot be given effect SubPt = Subpart(s)
mod = modified/modification underlining = whole or part not
No. = Number(s) commenced or to be commenced

Endnote 3—Legislation history
Act Number and year Assent Commencement Application, saving and transitional provisions
Bankruptcy (Estate Charges) Act 1997 12, 1997 13 Mar 1997 (s 2(1) and gaz 1997, No S136)
Bankruptcy (Estate Charges) Amendment Act 2001 158, 2001 3 July 2002 (s 2) Sch 1 (items 10–16)
as amended by
Bankruptcy (Estate Charges) Amendment Act 2002 61, 2002 3 July 2002 Sch 1 (item 11): 3 July 2002 (s 2(1) item 3) —
Bankruptcy (Estate Charges) Amendment Act 2002 61, 2002 3 July 2002 Sch 1 (items 1–10, 12, 13): 3 July 2002 (s 2(1) items 2, 4) Sch 1 (items 12, 13)
Bankruptcy (Estate Charges) Amendment Act 2004 81, 2004 23 June 2004 Sch 1: 1 Dec 2004 (s 2(1) item 2) Sch 1 (item 4)
Bankruptcy Legislation Amendment (Fees and Charges) Act 2006 34, 2006 3 May 2006 Sch 2: 1 July 2006 (s 2(1) item 4) Sch 2 (item 3)
Bankruptcy (Estate Charges) Amendment Act 2007 43, 2007 1 July 2007 (s 2) Sch 1 (item 4)
Insolvency Law Reform Act 2016 11, 2016 29 Feb 2016 Sch 1 (items 99–178): 1 Mar 2017 (s 2(1) item 2) Sch 1 (items 101–178) (as modified by F2016L01898)
Territories Legislation Amendment Act 2016 33, 2016 23 Mar 2016 Sch 5 (item 20): 1 July 2016 (s 2(1) item 7) —
Statute Update (Autumn 2018) Act 2018 41, 2018 22 May 2018 Sch 4 (item 1): 19 June 2018 (s 2(1) item 4) —
Bankruptcy Amendment (Debt Agreement Reform) Act 2018 118, 2018 27 Sept 2018 Sch 6 (items 3, 4): 27 June 2019 (s 2(1) item 12) Sch 6 (item 4)
Bankruptcy (Estate Charges) Amendment (Norfolk Island) Act 2020 149, 2020 17 Dec 2020 2 Aug 2021 (s 2(1) item 1) —

Endnote 4—Amendment history
Provision affected How affected
Part 1
s 3 am No 41, 2018
s 3A ad No 33, 2016
rep No 149, 2020
s 4 am No 158, 2001; No 34, 2006
Part 2
s 5 am No 158, 2001; No 61, 2002; No 81, 2004; No 43, 2007; No 11, 2016
Part 3
s 6 am No 158, 2001; No 61, 2002; No 81, 2004; No 43, 2007; No 118, 2018
s 6A ad No 158, 2001
am No 61, 2002
s 7 rs No 34, 2006
s 7A ad No 158, 2001
am No 61, 2002
s 8 am No 61, 2002
Part 4
Part 4 ad No 158, 2001
s 9 ad No 158, 2001