Compilation #7 | Effective 2020-12-18
FRBR Work URI: /akn/au/act/2008/24
This Act may be cited as the Cross-Border Insolvency Act 2008.
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.
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.
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.
This Act binds the Crown in each of its capacities.
In this Act:
external Territory: see subsection 19(6).
Model Law means the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law, set out in the Annex to United Nations General Assembly Resolution A/RES/52/158 (1997), the English text of which is set out in Schedule 1 to this Act.
Note: In 2008, the text of United Nations General Assembly Resolutions was accessible through the United Nations website (www.un.org).
An expression that is used in both this Act and the Model Law (whether or not a particular meaning is given to it by the Model Law) has, in this Act, the same meaning as in the Model Law.
Subject to this Act, the Model Law, with the modifications set out in this Part, has the force of law in Australia.
In the Model Law (as it has the force of law in Australia), a reference to this State is a reference to Australia.
Note: See also section 19 for references to laws/law of this State and court of this State.
The Model Law has the force of law in Australia as if the Model Law referred to:
(a) the Bankruptcy Act 1966; and
(b) Chapter 5 (other than Parts 5.2 and 5.4A) of the Corporations Act 2001, section 601CL of that Act and Schedule 2 to that Act;
wherever the Model Law provides that the laws of the enacting State relating to insolvency are to be identified.
Entities prescribed by the regulations are designated for the purposes of paragraph 2 of Article 1 of the Model Law (as it has the force of law in Australia).
Note 1: The effect of prescribing an entity is that the Model Law does not apply to it.
Note 2: The regulations may prescribe the entity by reference to a class. See subsection 13(3) of the Legislation Act 2003.
The following courts are taken to be specified in Article 4 of the Model Law (as it has the force of law in Australia) as courts competent to perform the functions referred to in the Model Law relating to recognition of foreign proceedings and cooperation with foreign courts:
if the functions relate to a proceeding involving a debtor who is an individual—the Federal Court of Australia;
if the functions relate to a proceeding involving a debtor other than an individual:
the Federal Court of Australia; and
the Supreme Court of a State or Territory.
Note: References in the Model Law to a court or the court are, because of this section, to be read as references to the Federal Court of Australia or the Supreme Court of a State or Territory.
The Model Law has the force of law in Australia as if the Model Law referred to whichever of the following is appropriate:
(a) the trustee (Bankruptcy Act 1966);within the meaning of subsection 5(1) of the
(b) a registered liquidator (Corporations Act 2001);within the meaning of section 9 of the
wherever the Model Law indicates that the title of the person or body administering a reorganization or liquidation under the law of the enacting State is to be inserted.
For the purposes of Article 13 of the Model Law (as it has the force of law in Australia), the alternative wording set out in footnote 2 to the Model Law replaces paragraph 2 of that Article.
For the purposes of the replacement paragraph, the claims of foreign creditors, other than those concerning tax and social security obligations, must not be ranked lower than the unsecured claims of other creditors solely because the creditor concerned is a foreign creditor.
In addition to the requirement in paragraph 3 of Article 15 of the Model Law (as it has the force of law in Australia) that an application for recognition be accompanied by a statement identifying all foreign proceedings in respect of the debtor that are known to the foreign representative, the application must be accompanied by a statement identifying:
(a) all proceedings under the Bankruptcy Act 1966 in respect of the debtor; and
(b) any appointment of a receiver (Corporations Act 2001), or a controller or a managing controller (both within the meaning of section 9 of that Act), in relation to the property of the debtor; andwithin the meaning of section 416 of the
(c) all proceedings under Chapter 5 of the Corporations Act 2001, section 601CL of that Act or Schedule 2 to that Act, in respect of the debtor;
that are known to the foreign representative.
In addition to the requirement in subparagraph (b) of Article 18 of the Model Law (as it has the force of law in Australia) that the foreign representative inform the court promptly of any other foreign proceeding that becomes known to the foreign representative, the foreign representative must inform the court promptly of:
(a) any proceeding under the Bankruptcy Act 1966 regarding the same debtor; and
(b) any appointment of a receiver (Corporations Act 2001), or a controller or a managing controller (both within the meaning of section 9 of that Act), in relation to the property of the same debtor; andwithin the meaning of section 416 of the
(c) any proceeding under Chapter 5 of the Corporations Act 2001, section 601CL of that Act or Schedule 2 to that Act, regarding the same debtor;
that becomes known to the foreign representative.
To avoid doubt, no provisions are inserted or referred to in paragraph 2 of Article 19 of the Model Law (as it has the force of law in Australia).
For the purposes of paragraph 2 of Article 20 of the Model Law (as it has the force of law in Australia), the scope and the modification or termination of the stay or suspension referred to in paragraph 1 of that Article, are the same as would apply if the stay or suspension arose under:
(a) the Bankruptcy Act 1966; or
(b) Chapter 5 (other than Parts 5.2 and 5.4A) of the Corporations Act 2001;
as the case requires.
The actions referred to for the purposes of paragraph 1 of Article 23 of the Model Law (as it has the force of law in Australia) are actions arising under or because of:
(a) Bankruptcy Act 1966; orsection 120, 121, 121A, 122, 128B or 128C or Division 4A of Part VI of the
(b) Corporations Act 2001.Division 2 of Part 5.7B of the
A provision referred to in paragraph (1)(a) or (b) applies, with appropriate changes, in relation to an action for the purposes of a foreign proceeding in the same way it would apply if the action were for the purposes of a proceeding in relation to:
(a) a bankrupt (Bankruptcy Act 1966); orwithin the meaning of subsection 5(1) of the
(b) a company (Corporations Act 2001);within the meaning of section 9 of the
as the case requires.
To avoid doubt, no additional forms or examples of cooperation are added by subparagraph (f) of Article 27 of the Model Law (as it has the force of law in Australia).
Laws/law of this State
A reference in Article 7 of the Model Law (as it has the force of law in Australia) to laws of this State is a reference to the following laws:
a law of the Commonwealth;
a law of a State;
a law of a Territory (other than an external Territory).
A reference in Article 21 of the Model Law (as it has the force of law in Australia) to the laws of this State is a reference to a law of the Commonwealth.
A reference in Articles 14, 21, 23, 28 and 29 of the Model Law (as it has the force of law in Australia) to the law of this State is a reference to a law of the Commonwealth.
A reference in Article 24 of the Model Law (as it has the force of law in Australia) to the law of this State is a reference to the following laws:
a law of the Commonwealth;
a law of a State;
a law of a Territory (other than an external Territory).
Courts of this State
A reference in Article 10 of the Model Law (as it has the force of law in Australia) to the courts of this State is a reference to the following courts:
a federal court;
a court of a State;
a court of a Territory (other than an external Territory).
Definition
In this section:
external Territory does not include Norfolk Island, the Territory of Christmas Island or the Territory of the Cocos (Keeling) Islands.
This Act applies to proceedings under:
(a) the Bankruptcy Act 1966; or
(b) Chapter 5 (other than Parts 5.2 and 5.4A) of the Corporations Act 2001, section 601CL of that Act and Schedule 2 to that Act;
commenced before, on or after the commencement of this Part.
This Act applies to foreign proceedings commenced on or after the commencement of this Part.
If the Model Law (as it has the force of law in Australia) or a provision of this Act is inconsistent with Bankruptcy Act 1966, the Model Law or the provision of this Act prevails, and that section has no effect to the extent of the inconsistency.section 29 of the
If the Model Law (as it has the force of law in Australia) or a provision of this Act is inconsistent with a provision of:
(a) Corporations Act 2001; orDivision 9 of Part 5.6 of the
(b) Corporations Act 2001; orPart 5.7 of the
(c) Schedule 2 to the Corporations Act 2001;
the Model Law or the provision of this Act prevails, and the provision of the Corporations Act 2001 has no effect to the extent of the inconsistency.
(2) The Model Law (as it has the force of law in Australia) and this Act, are in addition to, and not in derogation of, Corporations Act 2001.section 601CL of the
The Governor-General may make regulations prescribing matters:
required or permitted by this Act to be prescribed; or
necessary or convenient to be prescribed for carrying out or giving effect to this Act.