2004-2005-2006 The Parliament of the Commonwealth of Australia THE SENATE Presented and read a first time Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 (Attorney-General) A Bill for an Act to amend the Bankruptcy Act 1966, and for other purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 3 Schedule 1--Amendments relating to superannuation contributions 4 Part 1--Amendments commencing on 28 July 2006 4 Bankruptcy Act 1966 4 Payment Systems and Netting Act 1998 11 Part 2--Amendments commencing on Proclamation 12 Bankruptcy Act 1966 12 Schedule 2--Other amendments 30 Bankruptcy Act 1966 30 Proceeds of Crime Act 2002 32 i Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] 1 and for other purposes 2 The Parliament of Australia enacts: 3 1 Short title 4 This Act may be cited as the Bankruptcy Legislation Amendment 5 (Superannuation Contributions) Act 2006. 6 2 Commencement 7 (1) Each provision of this Act specified in column 1 of the table 8 commences, or is taken to have commenced, in accordance with 9 column 2 of the table. Any other statement in column 2 has effect 10 according to its terms. 11 12 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1, 28 July 2006. 28 July 2006 Part 1 3. Schedule 1, A single day to be fixed by Proclamation. Part 2 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. 4. Schedule 2, A single day to be fixed by Proclamation. item 1 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. 5. Schedule 2, The day after this Act receives the Royal items 2 to 4 Assent. 6. Schedule 2, At the same time as the provision(s) covered items 5 to 7 by table item 4. 7. Schedule 2, Immediately after the commencement of 31 May 2006 item 8 item 12 of Schedule 1 to the Bankruptcy Legislation Amendment (Anti-avoidance) Act 2006. 8. Schedule 2, Immediately after the commencement of 16 December item 9 item 208 of Schedule 1 to the Bankruptcy 1996 Legislation Amendment Act 1996. 9. Schedule 2, Immediately after the commencement of 1 July 1994 item 10 section 10 of the Superannuation Industry (Supervision) Consequential Amendments Act 1993. 10. Schedule 2, The day after this Act receives the Royal items 11 to 19 Assent. 2 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] 1 passed by both Houses of the Parliament and assented to. It will not be 2 expanded to deal with provisions inserted in this Act after assent. 3 (2) Column 3 of the table contains additional information that is not 4 part of this Act. Information in this column may be added to or 5 edited in any published version of this Act. 6 3 Schedule(s) 7 Each Act that is specified in a Schedule to this Act is amended or 8 repealed as set out in the applicable items in the Schedule 9 concerned, and any other item in a Schedule to this Act has effect 10 according to its terms. 11 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 3 [Page Break] Part 1 Amendments commencing on 28 July 2006 1 Schedule 1--Amendments relating to 2 superannuation contributions 3 Part 1--Amendments commencing on 28 July 2006 4 Bankruptcy Act 1966 5 1 Paragraph 59(1)(e) 6 Omit "or 122", substitute ", 122, 128B or 128C". 7 2 Before section 115 8 Insert: 9 Subdivision A--General 10 3 Paragraph 116(2)(d) 11 After "(5)", insert "of this section and sections 128B and 128C". 12 4 Subsection 123(1) 13 After "(inclusive)", insert "and sections 128B and 128C". 14 5 Subsection 123(6) 15 Omit "section 121", substitute "sections 121, 128B and 128C". 16 6 At the end of Division 3 of Part VI 17 Add: 18 Subdivision B--Superannuation contributions 19 128A Simplified outline 20 The following is a simplified outline of this Subdivision: 21 · This Subdivision enables the recovery of superannuation 22 contributions made to defeat the bankrupt's creditors. 23 · There are 2 types of recoverable contributions: 24 4 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on 28 July 2006 Part 1 (a) contributions made by a person who later becomes 1 a bankrupt (see section 128B); 2 (b) contributions made by a third party for the benefit 3 of a person who later becomes a bankrupt (see 4 section 128C). 5 128B Superannuation contributions made to defeat creditors-- 6 contributor is a person who later becomes a bankrupt 7 Transfers that are void 8 (1) A transfer of property by a person who later becomes a bankrupt 9 (the transferor) to another person (the transferee) is void against 10 the trustee in the transferor's bankruptcy if: 11 (a) the transfer is made by way of a contribution to an eligible 12 superannuation plan; and 13 (b) the property would probably have become part of the 14 transferor's estate or would probably have been available to 15 creditors if the property had not been transferred; and 16 (c) the transferor's main purpose in making the transfer was: 17 (i) to prevent the transferred property from becoming 18 divisible among the transferor's creditors; or 19 (ii) to hinder or delay the process of making property 20 available for division among the transferor's creditors; 21 and 22 (d) the transfer occurs on or after 28 July 2006. 23 Showing the transferor's main purpose in making a transfer 24 (2) The transferor's main purpose in making the transfer is taken to be 25 the purpose described in paragraph (1)(c) if it can reasonably be 26 inferred from all the circumstances that, at the time of the transfer, 27 the transferor was, or was about to become, insolvent. 28 (3) In determining whether the transferor's main purpose in making 29 the transfer was the purpose described in paragraph (1)(c), regard 30 must be had to: 31 (a) whether, during any period ending before the transfer, the 32 transferor had established a pattern of making contributions 33 to one or more eligible superannuation plans; and 34 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 5 [Page Break] Part 1 Amendments commencing on 28 July 2006 (b) if so, whether the transfer, when considered in the light of 1 that pattern, is out of character. 2 Other ways of showing the transferor's main purpose in making a 3 transfer 4 (4) Subsections (2) and (3) do not limit the ways of establishing the 5 transferor's main purpose in making a transfer. 6 Rebuttable presumption of insolvency 7 (5) For the purposes of this section, a rebuttable presumption arises 8 that the transferor was, or was about to become, insolvent at the 9 time of the transfer if it is established that the transferor: 10 (a) had not, in respect of that time, kept such books, accounts 11 and records as are usual and proper in relation to the business 12 carried on by the transferor and as sufficiently disclose the 13 transferor's business transactions and financial position; or 14 (b) having kept such books, accounts and records, has not 15 preserved them. 16 Protection of successors in title 17 (6) This section does not affect the rights of a person who acquired 18 property from the transferee in good faith and for at least the 19 market value of the property. 20 Meaning of transfer of property and market value 21 (7) For the purposes of this section: 22 (a) transfer of property includes a payment of money; and 23 (b) a person who does something that results in another person 24 becoming the owner of property that did not previously exist 25 is taken to have transferred the property to the other person; 26 and 27 (c) the market value of property transferred is its market value at 28 the time of the transfer. 29 6 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on 28 July 2006 Part 1 128C Superannuation contributions made to defeat creditors-- 1 contributor is a third party 2 Transfers that are void 3 (1) If: 4 (a) a person (the transferor) transfers property to another person, 5 (the transferee); and 6 (b) the transfer is by way of a contribution to an eligible 7 superannuation plan for the benefit of a person who later 8 becomes a bankrupt (the beneficiary); and 9 (c) the transferor did so under a scheme to which the beneficiary 10 was a party; and 11 (d) the property would probably have become part of the 12 beneficiary's estate or would probably have been available to 13 creditors if the property had not been transferred; and 14 (e) the beneficiary's main purpose in entering into the scheme 15 was: 16 (i) to prevent the transferred property from becoming 17 divisible among the beneficiary's creditors; or 18 (ii) to hinder or delay the process of making property 19 available for division among the beneficiary's creditors; 20 and 21 (f) the transfer occurred on or after 28 July 2006; 22 the transfer is void against the trustee in the beneficiary's 23 bankruptcy. 24 (2) For the purposes of paragraph (1)(b), disregard a benefit that is 25 payable in the event of the death of a person. 26 Showing the beneficiary's main purpose in entering into the 27 scheme 28 (3) The beneficiary's main purpose in entering into the scheme is 29 taken to be the purpose described in paragraph (1)(e) if it can 30 reasonably be inferred from all the circumstances that, at the time 31 when the beneficiary entered into the scheme, the beneficiary was, 32 or was about to become, insolvent. 33 (4) In determining whether the beneficiary's main purpose in entering 34 into the scheme was the purpose described in paragraph (1)(e), 35 regard must be had to: 36 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 7 [Page Break] Part 1 Amendments commencing on 28 July 2006 (a) whether, during any period ending before the scheme was 1 entered into, the transferor had established a pattern of 2 making contributions to one or more eligible superannuation 3 plans for the benefit of the beneficiary; and 4 (b) if so, whether the transfer, when considered in the light of 5 that pattern, is out of character. 6 (5) For the purposes of paragraph (4)(a), disregard a benefit that is 7 payable in the event of the death of a person. 8 Other ways of showing the beneficiary's main purpose in entering 9 into a scheme 10 (6) Subsections (3) and (4) do not limit the ways of establishing the 11 beneficiary's main purpose in entering into a scheme. 12 Rebuttable presumption of insolvency 13 (7) For the purposes of this section, a rebuttable presumption arises 14 that the beneficiary was, or was about to become, insolvent at the 15 time the beneficiary entered into the scheme if it is established that 16 the beneficiary: 17 (a) had not, in respect of that time, kept such books, accounts 18 and records as are usual and proper in relation to the business 19 carried on by the beneficiary and as sufficiently disclose the 20 beneficiary's business transactions and financial position; or 21 (b) having kept such books, accounts and records, has not 22 preserved them. 23 Protection of successors in title 24 (8) This section does not affect the rights of a person who acquired 25 property from the transferee in good faith and for at least the 26 market value of the property. 27 Meaning of transfer of property and market value 28 (9) For the purposes of this section: 29 (a) transfer of property includes a payment of money; and 30 (b) a person who does something that results in another person 31 becoming the owner of property that did not previously exist 32 is taken to have transferred the property to the other person; 33 and 34 8 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on 28 July 2006 Part 1 (c) the market value of property transferred is its market value at 1 the time of the transfer. 2 128D Time for making claims by trustee 3 (1) An action under section 128B or 128C with respect to a transaction 4 may be commenced by the trustee of a bankrupt's estate at any 5 time. 6 (2) A section 139ZQ notice in relation to a transaction that, under 7 section 128B or 128C, is void against the trustee of a bankrupt's 8 estate must not be given before the commencement of Part 2 of 9 Schedule 1 to the Bankruptcy Legislation Amendment 10 (Superannuation Contributions) Act 2006. 11 (3) A section 139ZQ notice in relation to a transaction that, under 12 section 128B or 128C, is void against the trustee of a bankrupt's 13 estate may be given even if the transaction occurred before the 14 commencement of Part 2 of Schedule 1 to the Bankruptcy 15 Legislation Amendment (Superannuation Contributions) Act 2006. 16 128N Definitions 17 In this Subdivision: 18 approved deposit fund has the same meaning as in the 19 Superannuation Industry (Supervision) Act 1993. 20 contribution, in relation to an RSA, has the same meaning as in the 21 Retirement Savings Accounts Act 1997. 22 eligible superannuation plan means any of the following: 23 (a) a regulated superannuation fund; 24 (b) an approved deposit fund; 25 (c) an RSA; 26 (d) a public sector superannuation scheme. 27 public sector superannuation scheme has the same meaning as in 28 the Superannuation Industry (Supervision) Act 1993, but does not 29 include a regulated superannuation fund. 30 regulated superannuation fund has the same meaning as in the 31 Superannuation Industry (Supervision) Act 1993. 32 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 9 [Page Break] Part 1 Amendments commencing on 28 July 2006 scheme means: 1 (a) any agreement, arrangement, understanding, promise or 2 undertaking, whether express or implied and whether or not 3 enforceable, or intended to be enforceable, by legal 4 proceedings; and 5 (b) any scheme, plan, proposal, action, course of action or course 6 of conduct, whether unilateral or otherwise. 7 7 Subparagraph 149A(2)(a)(i) 8 After "149D(1)(ab),", insert "(ac), (ad),". 9 8 After paragraph 149D(1)(ab) 10 Insert: 11 (ac) any transfer is void against the trustee in the bankruptcy 12 because of section 128B; 13 (ad) any transfer is void against the trustee in the bankruptcy 14 because of section 128C; 15 9 Paragraph 250(1)(e) 16 Omit "or 122", substitute ", 122, 128B or 128C". 17 10 After subsection 302A(2) 18 Insert: 19 (2A) This section does not apply to a provision that facilitates 20 compliance with: 21 (a) section 128B; or 22 (b) section 128C. 23 11 At the end of section 302AB 24 Add: 25 (3) This section does not apply to a provision that facilitates 26 compliance with: 27 (a) section 128B; or 28 (b) section 128C. 29 12 Section 302B 30 Before "A provision", insert "(1)". 31 10 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on 28 July 2006 Part 1 13 At the end of section 302B 1 Add: 2 (2) This section does not apply to a provision that facilitates 3 compliance with: 4 (a) section 128B; or 5 (b) section 128C. 6 Payment Systems and Netting Act 1998 7 14 Section 5 (paragraph (e) of the definition of specified 8 provisions) 9 Omit "and 122", substitute ", 122, 128B and 128C". 10 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 11 [Page Break] Part 2 Amendments commencing on Proclamation 1 Part 2--Amendments commencing on Proclamation 2 Bankruptcy Act 1966 3 15 At the end of paragraphs 116(1)(a), (b) and (d) 4 Add "and". 5 16 After paragraph 116(1)(d) 6 Insert: 7 (e) money that is paid to the trustee of the bankrupt's estate 8 under an order under paragraph 128K(1)(b); and 9 (f) money that is paid to the trustee of the bankrupt's estate 10 under a section 139ZQ notice that relates to a transaction that 11 is void against the trustee under section 128C; and 12 (g) money that is paid to the trustee of the bankrupt's estate 13 under an order under section 139ZU; 14 17 Paragraph 116(2)(d) 15 Omit "and 128C", substitute ", 128C and 139ZU". 16 18 At the end of section 128A 17 Add: 18 · Superannuation accounts may be frozen for up to 180 days 19 pending the taking of recovery action under section 139ZQ or 20 139ZU. 21 19 After subsection 128B(5) 22 Insert: 23 Refund of contributions tax etc. 24 (5A) If: 25 (a) as a result of subsection (1), a transfer made by way of a 26 contribution to an eligible superannuation plan is void against 27 the trustee in the transferor's bankruptcy; and 28 12 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on Proclamation Part 2 (b) any of the following amounts was debited from the 1 contribution: 2 (i) an amount in respect of tax in respect of the 3 contribution; 4 (ii) a fee, or a charge, in respect of the contribution; and 5 (c) in compliance with a section 139ZQ notice that relates to the 6 transfer, the trustee of the eligible superannuation plan pays 7 an amount to the trustee in the transferor's bankruptcy; and 8 (d) the amount paid in compliance with the section 139ZQ notice 9 exceeds the amount so debited; 10 the trustee in the transferor's bankruptcy must pay to the trustee of 11 the eligible superannuation plan an amount equal to the amount so 12 debited. 13 20 After subsection 128C(7) 14 Insert: 15 Refund of contributions tax etc. 16 (7A) If: 17 (a) as a result of subsection (1), a transfer made by way of a 18 contribution to an eligible superannuation plan is void against 19 the trustee in the beneficiary's bankruptcy; and 20 (b) any of the following amounts was debited from the 21 contribution: 22 (i) an amount in respect of tax in respect of the 23 contribution; 24 (ii) a fee, or a charge, in respect of the contribution; and 25 (c) in compliance with a section 139ZQ notice that relates to the 26 transfer, the trustee of the eligible superannuation plan pays 27 an amount to the trustee in the beneficiary's bankruptcy; and 28 (d) the amount paid in compliance with the section 139ZQ notice 29 exceeds the amount so debited; 30 the trustee in the beneficiary's bankruptcy must pay to the trustee 31 of the eligible superannuation plan an amount equal to the amount 32 so debited. 33 21 After section 128D 34 Insert: 35 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 13 [Page Break] Part 2 Amendments commencing on Proclamation 128E Superannuation account-freezing notice 1 Scope 2 (1) This section applies in relation to a member of an eligible 3 superannuation plan if the Official Receiver has reasonable 4 grounds to believe that: 5 (a) a transaction is void against the trustee of a bankrupt's estate 6 under section 128B or 128C; and 7 (b) either: 8 (i) the whole or a part of the member's superannuation 9 interest is attributable to the transaction; or 10 (ii) the trustee of the bankrupt's estate has made an 11 application for a section 139ZU order that relates to the 12 transaction and the member's superannuation interest. 13 Giving of freezing notice 14 (2) The Official Receiver may, by written notice (a superannuation 15 account-freezing notice) given to the trustee of the eligible 16 superannuation plan, direct the trustee of the plan not to: 17 (a) cash or debit; or 18 (b) permit the cashing, debiting, roll-over, transfer or forfeiture 19 of; 20 the whole or any part of the superannuation interest except: 21 (c) for the purposes of complying with a notice under 22 section 139ZQ; or 23 (d) for the purposes of complying with an order under 24 section 139ZU; or 25 (e) for the purposes of charging costs against, or debiting costs 26 from, the superannuation interest; or 27 (f) for the purposes of giving effect to a family law payment 28 split; or 29 (g) in accordance with the written consent of the Official 30 Receiver given under section 128H; or 31 (h) for the purposes of complying with an order under paragraph 32 128K(1)(b); or 33 (i) for the purposes of complying with an order under subsection 34 139ZT(2); or 35 14 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on Proclamation Part 2 (j) in such circumstances (if any) as are specified in the 1 regulations. 2 (3) The superannuation account-freezing notice must set out the facts 3 and circumstances because of which the Official Receiver 4 considers that the Official Receiver has reasonable grounds to 5 believe that: 6 (a) the transaction is void against the trustee of the bankrupt's 7 estate under section 128B or 128C; and 8 (b) either: 9 (i) the whole or a part of the member's superannuation 10 interest is attributable to the transaction; or 11 (ii) the trustee of the bankrupt's estate has made an 12 application for a section 139ZU order that relates to the 13 transaction and the member's superannuation interest. 14 When Official Receiver may give freezing notice 15 (4) The Official Receiver may give the superannuation 16 account-freezing notice: 17 (a) if the Official Trustee is the trustee of the bankrupt's estate-- 18 on the initiative of the Official Receiver; or 19 (b) if a registered trustee is the trustee of the bankrupt's estate-- 20 on application by the registered trustee. 21 When freezing notice comes into force 22 (5) The superannuation account-freezing notice comes into force when 23 the notice is given to the trustee of the eligible superannuation 24 plan. 25 128F Revocation of superannuation account-freezing notice 26 Revocation of freezing notice by Official Receiver 27 (1) If a superannuation account-freezing notice is in force in relation to 28 a member of an eligible superannuation plan, the Official Receiver 29 may, by written notice given to the trustee of the plan, revoke the 30 superannuation account-freezing notice. 31 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 15 [Page Break] Part 2 Amendments commencing on Proclamation (2) The Official Receiver may revoke a superannuation 1 account-freezing notice that relates to a member of an eligible 2 superannuation plan: 3 (a) if the Official Trustee is the trustee of the bankrupt's estate-- 4 on the initiative of the Official Receiver; or 5 (b) if a registered trustee is the trustee of the bankrupt's estate-- 6 on application by the registered trustee; or 7 (c) in any case--on application by the member. 8 Revocation of freezing notice when section 139ZQ notice complied 9 with etc. 10 (3) If: 11 (a) subparagraph 128E(1)(b)(i) applied in relation to a 12 superannuation account-freezing notice given in relation to a 13 member of an eligible superannuation plan; and 14 (b) during the 180-day period after the superannuation 15 account-freezing notice comes into force, a section 139ZQ 16 notice is given in relation to the transaction referred to in 17 paragraph 128E(1)(a); 18 the superannuation account-freezing notice is revoked: 19 (c) when the trustee of the plan complies with the section 139ZQ 20 notice; or 21 (d) when the section 139ZQ notice is revoked; or 22 (e) when the Court sets aside the section 139ZQ notice. 23 Revocation of freezing notice if no section 139ZQ notice given 24 after 180 days 25 (4) If subparagraph 128E(1)(b)(i) applied in relation to a 26 superannuation account-freezing notice given in relation to a 27 member of an eligible superannuation plan, the superannuation 28 account-freezing notice is revoked if: 29 (a) 180 days pass after the notice comes into force; and 30 (b) no section 139ZQ notice has been given in relation to the 31 transaction referred to in paragraph 128E(1)(a). 32 Revocation of freezing notice when section 139ZU order complied 33 with etc. 34 (5) If: 35 16 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on Proclamation Part 2 (a) subparagraph 128E(1)(b)(ii) applied in relation to a 1 superannuation account-freezing notice given in relation to a 2 member of an eligible superannuation plan; and 3 (b) during the 180-day period after the superannuation 4 account-freezing notice comes into force, a section 139ZU 5 order is made in relation to the transaction referred to in 6 paragraph 128E(1)(a) and in relation to the member's 7 superannuation interest; 8 the superannuation account-freezing notice is revoked: 9 (c) when the trustee of the plan complies with the section 139ZU 10 order; or 11 (d) when the section 139ZU order is set aside on appeal. 12 Revocation of freezing notice when application for section 139ZU 13 order dismissed or withdrawn 14 (6) If: 15 (a) subparagraph 128E(1)(b)(ii) applied in relation to a 16 superannuation account-freezing notice given in relation to a 17 member of an eligible superannuation plan; and 18 (b) during the 180-day period after the superannuation 19 account-freezing notice comes into force: 20 (i) the Court dismisses an application for a section 139ZU 21 order in relation to the transaction referred to in 22 paragraph 128E(1)(a) and in relation to the member's 23 superannuation interest; or 24 (ii) an application for a section 139ZU order in relation to 25 the transaction referred to in paragraph 128E(1)(a) and 26 in relation to the member's superannuation interest is 27 withdrawn; 28 the superannuation account-freezing notice is revoked. 29 Revocation of freezing notice if no section 139ZU order made after 30 180 days 31 (7) If subparagraph 128E(1)(b)(ii) applied in relation to a 32 superannuation account-freezing notice given in relation to a 33 member of an eligible superannuation plan, the superannuation 34 account-freezing notice is revoked if: 35 (a) 180 days pass after the notice comes into force; and 36 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 17 [Page Break] Part 2 Amendments commencing on Proclamation (b) no section 139ZU order has been made in relation to the 1 transaction referred to in paragraph 128E(1)(a) and in 2 relation to the member's superannuation interest. 3 Extension of 180-day period 4 (8) The Court may, on application by the Official Receiver, extend, or 5 further extend, the 180-day period referred to in subsection (5), (6) 6 or (7). 7 (9) The Official Receiver may make an application under 8 subsection (8): 9 (a) if the Official Trustee is the trustee of the bankrupt's estate-- 10 on the initiative of the Official Receiver; or 11 (b) if a registered trustee is the trustee of the bankrupt's estate-- 12 on application by the registered trustee. 13 128G Copy of superannuation account-freezing notice to be given to 14 trustee etc. 15 (1) If the Official Receiver gives or revokes a superannuation 16 account-freezing notice that relates to a member of an eligible 17 superannuation plan: 18 (a) the Official Receiver must give 2 copies of the 19 superannuation account-freezing notice or the revocation 20 notice, as the case may be, to the trustee of the bankrupt's 21 estate; and 22 (b) the trustee must give one of those copies to the member. 23 (2) A failure to comply with subsection (1) does not affect the validity 24 of the superannuation account-freezing notice or the revocation 25 notice, as the case may be. 26 128H Consent of Official Receiver to the cashing etc. of a 27 superannuation interest 28 Scope 29 (1) This section applies if a superannuation account-freezing notice is 30 in force in relation to a member's superannuation interest. 31 18 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on Proclamation Part 2 Consent 1 (2) The member may apply in writing to the Official Receiver for the 2 Official Receiver to consent to the cashing, debiting, roll-over, 3 transfer or forfeiture, in whole or in part, of the member's 4 superannuation interest. 5 (3) If an application is made under subsection (2), the Official 6 Receiver may, by written notice given to the trustee of the eligible 7 superannuation plan concerned, consent to the cashing, debiting, 8 roll-over, transfer or forfeiture, in whole or in part, of the 9 member's superannuation interest. 10 (4) A consent under subsection (3) may be: 11 (a) unconditional; or 12 (b) subject to such conditions (if any) as are specified in the 13 notice of consent. 14 (5) If the Official Receiver gives a consent under subsection (3) in 15 relation to a member's superannuation interest, the Official 16 Receiver must give a copy of the consent to the member. 17 Consultation 18 (6) Before giving a consent under subsection (3), the Official Receiver 19 must consult the trustee of the bankrupt's estate. 20 Review of decisions 21 (7) Applications may be made to the Administrative Appeals Tribunal 22 for review of a decision of the Official Receiver refusing to give a 23 consent under subsection (3). 24 (8) The trustee of the bankrupt's estate may apply to the 25 Administrative Appeals Tribunal for review of a decision of the 26 Official Receiver giving a consent under subsection (3). 27 128J Power of Court to set aside superannuation account-freezing 28 notice 29 (1) If the Court, on application by: 30 (a) a person to whom a superannuation account-freezing notice 31 has been given; or 32 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 19 [Page Break] Part 2 Amendments commencing on Proclamation (b) the member whose superannuation interest is affected by a 1 superannuation account-freezing notice; or 2 (c) any other interested person; 3 is satisfied that the Official Receiver did not have reasonable 4 grounds to believe that: 5 (d) the relevant transaction is void against the trustee of a 6 bankrupt's estate under section 128B or 128C; and 7 (e) either: 8 (i) the whole or a part of the relevant member's 9 superannuation interest is attributable to the transaction; 10 or 11 (ii) the trustee of the bankrupt's estate has made an 12 application for a section 139ZU order that relates to the 13 transaction and the relevant member's superannuation 14 interest; 15 the Court may make an order setting aside the notice. 16 (2) A superannuation account-freezing notice that has been set aside is 17 taken not to have been given. 18 128K Judicial enforcement of superannuation account-freezing 19 notices 20 (1) If the Court is satisfied that the trustee of an eligible 21 superannuation plan has breached, or is proposing to breach, a 22 superannuation account-freezing notice, the Court may, on 23 application of the trustee of the relevant bankrupt's estate, make 24 any or all of the following orders: 25 (a) an order directing the trustee of the plan to comply with that 26 notice; 27 (b) an order directing the trustee of the plan to pay to the trustee 28 of the relevant bankrupt's estate an amount not exceeding the 29 money, or the value of the property, received as a result of 30 the transaction referred to in paragraph 128E(1)(a); 31 (c) any other order that the Court thinks appropriate. 32 (2) The Court may discharge or vary an order granted under this 33 section. 34 20 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on Proclamation Part 2 (3) An order by the Court under paragraph (1)(b) is enforceable as if it 1 were an order for the payment of money made by the Court when 2 exercising jurisdiction otherwise than under this Act. 3 128L Protection of trustee of eligible superannuation plan 4 (1) No criminal or civil proceedings lie against the trustee of an 5 eligible superannuation plan because of anything done (or not 6 done) by the trustee in good faith: 7 (a) in compliance with a superannuation account-freezing notice; 8 or 9 (b) in connection with, or incidental to, the trustee's compliance 10 with a superannuation account-freezing notice; or 11 (c) in compliance with a section 139ZQ notice; or 12 (d) in connection with, or incidental to, the trustee's compliance 13 with a section 139ZQ notice; or 14 (e) in compliance with a section 139ZU order; or 15 (f) in connection with, or incidental to, the trustee's compliance 16 with a section 139ZU order; or 17 (g) in compliance with a subsection 139ZT(2) order; or 18 (h) in connection with, or incidental to, the trustee's compliance 19 with a subsection 139ZT(2) order; or 20 (i) in compliance with a paragraph 128K(1)(b) order; or 21 (j) in connection with, or incidental to, the trustee's compliance 22 with a paragraph 128K(1)(b) order. 23 (2) Anything done (or not done) by the trustee of a regulated 24 superannuation fund, or the trustee of an approved deposit fund, in 25 good faith: 26 (a) in compliance with a superannuation account-freezing notice; 27 or 28 (b) in connection with, or incidental to, the trustee's compliance 29 with a superannuation account-freezing notice; or 30 (c) in compliance with a section 139ZQ notice; or 31 (d) in connection with, or incidental to, the trustee's compliance 32 with a section 139ZQ notice; or 33 (e) in compliance with a section 139ZU order; or 34 (f) in connection with, or incidental to, the trustee's compliance 35 with a section 139ZU order; or 36 (g) in compliance with a subsection 139ZT(2) order; or 37 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 21 [Page Break] Part 2 Amendments commencing on Proclamation (h) in connection with, or incidental to, the trustee's compliance 1 with a subsection 139ZT(2) order; or 2 (i) in compliance with a paragraph 128K(1)(b) order; or 3 (j) in connection with, or incidental to, the trustee's compliance 4 with a paragraph 128K(1)(b) order; 5 is taken not to be in breach of: 6 (k) the Superannuation Industry (Supervision) Act 1993; or 7 (l) any standards prescribed under that Act. 8 (3) Anything done (or not done) by an RSA provider in good faith: 9 (a) in compliance with a superannuation account-freezing notice; 10 or 11 (b) in connection with, or incidental to, the RSA provider's 12 compliance with a superannuation account-freezing notice; or 13 (c) in compliance with a section 139ZQ notice; or 14 (d) in connection with, or incidental to, the RSA provider's 15 compliance with a section 139ZQ notice; or 16 (e) in compliance with a section 139ZU order; or 17 (f) in connection with, or incidental to, the trustee's compliance 18 with a section 139ZU order; or 19 (g) in compliance with a subsection 139ZT(2) order; or 20 (h) in connection with, or incidental to, the trustee's compliance 21 with a subsection 139ZT(2) order; or 22 (i) in compliance with a paragraph 128K(1)(b) order; or 23 (j) in connection with, or incidental to, the trustee's compliance 24 with a paragraph 128K(1)(b) order; 25 is taken not to be in breach of: 26 (k) the Retirement Savings Accounts Act 1997; or 27 (l) any standards prescribed under that Act. 28 128M References to a member of an eligible superannuation plan 29 References in a provision of this Subdivision to: 30 (a) a member of an eligible superannuation plan; and 31 (b) a bankrupt; 32 do not imply that the bankrupt may not be the member. 33 22 Section 128N 34 Insert: 35 22 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on Proclamation Part 2 cashed, in relation to a superannuation interest, includes applied 1 towards the provision of a pension. 2 23 Section 128N 3 Insert: 4 costs: 5 (a) in relation to a regulated superannuation fund, an approved 6 deposit fund or an RSA--includes: 7 (i) transaction costs; and 8 (ii) government charges; and 9 (iii) taxes and duties; and 10 (iv) charges relating to the management or investment of 11 fund assets or RSA assets, as the case may be; or 12 (b) in any other case--includes anything that, under the 13 regulations, is taken to be costs for the purposes of this 14 paragraph. 15 24 Section 128N 16 Insert: 17 family law payment split means a payment split under Part VIIIB 18 of the Family Law Act 1975. 19 25 Section 128N 20 Insert: 21 member: 22 (a) in relation to a regulated superannuation fund--means a 23 member of the fund; or 24 (b) in relation to an approved deposit fund--means a depositor in 25 the fund; or 26 (c) in relation to an RSA--means the RSA holder; or 27 (d) in relation to a public sector superannuation scheme--has the 28 meaning given by the regulations. 29 26 Section 128N 30 Insert: 31 pension includes: 32 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 23 [Page Break] Part 2 Amendments commencing on Proclamation (a) a benefit provided by a fund, if the benefit is taken, under 1 regulations made for the purposes of the definition of 2 pension in subsection 10(1) of the Superannuation Industry 3 (Supervision) Act 1993, to be a pension for the purposes of 4 that Act; and 5 (b) a benefit provided by a public sector superannuation scheme, 6 if the benefit is taken, under the regulations, to be a pension 7 for the purposes of this definition. 8 27 Section 128N 9 Insert: 10 RSA provider has the same meaning as in the Retirement Savings 11 Accounts Act 1997. 12 28 Section 128N 13 Insert: 14 superannuation account-freezing notice means a notice under 15 section 128E. 16 29 Section 128N 17 Insert: 18 superannuation interest means an interest in an eligible 19 superannuation plan, but does not include a reversionary interest. 20 30 Section 128N 21 Insert: 22 trustee, in relation to an eligible superannuation plan, means: 23 (a) if the plan is a fund that has a trustee (within the ordinary 24 meaning of that word)--the trustee of the plan; or 25 (b) if the plan is an RSA--the RSA provider; or 26 (c) if: 27 (i) none of the preceding paragraphs apply; and 28 (ii) a person is identified in accordance with the regulations 29 as the trustee of the plan for the purposes of this 30 definition; 31 the person identified in accordance with the regulations; or 32 (d) in any other case--the person who manages the plan. 33 24 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on Proclamation Part 2 If a person who is not the trustee of an eligible superannuation plan 1 nevertheless has the power to make payments to members of the 2 plan, then references in this Subdivision to the trustee of the plan 3 include references to that person. 4 31 Section 128N 5 Insert: 6 withdrawal benefit: 7 (a) in relation to a regulated superannuation fund or an approved 8 deposit fund--has the same meaning as in the 9 Superannuation Industry (Supervision) Regulations 1994; or 10 (b) in relation to an RSA--has the same meaning as in the 11 Retirement Savings Accounts Regulations 1997; or 12 (c) in relation to a public sector superannuation scheme--has the 13 meaning given by the regulations. 14 32 Subsection 139ZQ(1) 15 Omit "the money or the value of the property received.", substitute: 16 whichever of the following is applicable: 17 (c) if: 18 (i) the transaction is void against the trustee under 19 section 128B or 128C; and 20 (ii) the transaction is by way of a contribution to an eligible 21 superannuation plan for the benefit of a person (the 22 beneficiary) who may or may not be the bankrupt; and 23 (iii) the beneficiary is a member of the eligible 24 superannuation plan; 25 whichever is the lesser of the following: 26 (iv) the money or the value of the property received; 27 (v) the beneficiary's withdrawal benefit in relation to the 28 eligible superannuation plan; 29 (d) in any other case--the money or the value of the property 30 received. 31 33 At the end of section 139ZQ 32 Add: 33 (9) For the purposes of subparagraph (1)(c)(ii), disregard a benefit that 34 is payable in the event of the death of a person. 35 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 25 [Page Break] Part 2 Amendments commencing on Proclamation (10) In this section: 1 contribution has the same meaning as in Subdivision B of 2 Division 3. 3 eligible superannuation plan has the same meaning as in 4 Subdivision B of Division 3. 5 member of an eligible superannuation plan has the same meaning 6 as in Subdivision B of Division 3. 7 withdrawal benefit has the same meaning as in Subdivision B of 8 Division 3. 9 34 At the end of Division 4B of Part VI 10 Add: 11 Subdivision K--Rolled-over superannuation interests etc. 12 139ZU Order relating to rolled-over superannuation interests etc. 13 (1) If, on application by the trustee of a bankrupt's estate, the Court is 14 satisfied that: 15 (a) a transaction is void against the trustee of the bankrupt's 16 estate under section 128B or 128C; and 17 (b) the transaction was by way of a contribution to an eligible 18 superannuation plan (the first plan) for the benefit of a 19 person (the beneficiary) who may or may not be the 20 bankrupt; and 21 (c) the beneficiary's withdrawal benefit in relation to the first 22 plan falls short of the amount of the money, or the value of 23 the property, received as a result of the transaction; and 24 (d) the beneficiary has a superannuation interest in another 25 eligible superannuation plan; and 26 (e) the superannuation interest referred to in paragraph (d) is 27 attributable, in whole or in part, to the roll-over or transfer, 28 after the transaction referred to in paragraph (a) happened, of 29 the whole or a part of the beneficiary's superannuation 30 interest in the first plan; 31 the Court may, by order, direct the trustee of the other eligible 32 superannuation plan to pay to the trustee of the bankrupt's estate a 33 26 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on Proclamation Part 2 specified amount not exceeding whichever is the lesser of the 1 following: 2 (f) the amount of the shortfall referred to in paragraph (c); 3 (g) the beneficiary's withdrawal benefit in relation to the other 4 eligible superannuation plan. 5 (2) The Court must not make an order under subsection (1) unless it is 6 satisfied that it is in the interests of the creditors of the bankrupt to 7 do so. 8 (3) For the purposes of paragraph (1)(a), it is immaterial whether the 9 transaction occurred before, at or after the commencement of this 10 section. 11 (4) For the purposes of paragraph (1)(b), disregard a benefit that is 12 payable in the event of the death of a person. 13 (5) For the purposes of paragraph (1)(c), if the beneficiary does not 14 have a superannuation interest in an eligible superannuation plan, 15 the beneficiary is taken to have a nil withdrawal benefit in relation 16 to the plan. 17 (6) For the purposes of paragraph (1)(e), it is immaterial whether the 18 roll-over or transfer occurred directly or indirectly through one or 19 more interposed eligible superannuation plans. 20 (7) An applicant under subsection (1) must give a copy of the 21 application to: 22 (a) the trustee of the other eligible superannuation plan; and 23 (b) the beneficiary. 24 (8) At the hearing of an application under subsection (1): 25 (a) the trustee of the other eligible superannuation plan; and 26 (b) the beneficiary. 27 may appear, adduce evidence and make submissions. 28 (9) For the purposes of sections 128E, 128F and 128J, an order under 29 this section is taken to relate to: 30 (a) the transaction referred to in paragraph (1)(a) of this section; 31 and 32 (b) the beneficiary's superannuation interest referred to in 33 paragraph (1)(d) of this section. 34 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 27 [Page Break] Part 2 Amendments commencing on Proclamation 139ZV Enforcement of order 1 An order by the Court under section 139ZU is enforceable as if it 2 were an order for the payment of money made by the Court when 3 exercising jurisdiction otherwise than under this Act. 4 139ZW Definitions 5 In this Subdivision: 6 contribution has the same meaning as in Subdivision B of 7 Division 3. 8 eligible superannuation plan has the same meaning as in 9 Subdivision B of Division 3. 10 superannuation interest has the same meaning as in Subdivision B 11 of Division 3. 12 trustee of an eligible superannuation plan has the same meaning as 13 in Subdivision B of Division 3. 14 withdrawal benefit has the same meaning as in Subdivision B of 15 Division 3. 16 35 At the end of subsection 302A(2A) 17 Add: 18 ; or (c) a notice under section 128E; or 19 (d) an order under paragraph 128K(1)(b); or 20 (e) a notice under section 139ZQ; or 21 (f) an order under subsection 139ZT(2); or 22 (g) an order under section 139ZU. 23 36 At the end of subsection 302AB(3) 24 Add: 25 ; or (c) a notice under section 128E; or 26 (d) an order under paragraph 128K(1)(b); or 27 (e) a notice under section 139ZQ; or 28 (f) an order under subsection 139ZT(2); or 29 (g) an order under section 139ZU. 30 28 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] Amendments commencing on Proclamation Part 2 37 At the end of subsection 302B(2) 1 Add: 2 ; or (c) a notice under section 128E; or 3 (d) an order under paragraph 128K(1)(b); or 4 (e) a notice under section 139ZQ; or 5 (f) an order under subsection 139ZT(2); or 6 (g) an order under section 139ZU. 7 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 29 [Page Break] 1 Schedule 2--Other amendments 2 3 Bankruptcy Act 1966 4 1 Subsection 5(1) 5 Insert: 6 rural support scheme means a program or scheme that: 7 (a) is administered by or on behalf of the Commonwealth, a 8 State or a Territory; and 9 (b) relates to: 10 (i) agriculture or the cultivation of land; or 11 (ii) the maintenance of animals for commercial purposes; or 12 (iii) horticulture; or 13 (iv) any other primary industry activity. 14 2 Subsection 20H(5) 15 Omit "Official Trustee" (wherever occurring), substitute 16 "Inspector-General". 17 3 Subsection 20H(5) 18 Omit "it" (wherever occurring), substitute "the Inspector-General". 19 4 Transitional--subsection 20H(5) of the Bankruptcy Act 20 1966 21 (1) This item applies to anything done by the Official Trustee under 22 subsection 20H(5) of the Bankruptcy Act 1966 before the 23 commencement of this item. 24 (2) The thing has effect, after the commencement of this item, as if it had 25 been done under that subsection by the Inspector-General. 26 5 Paragraphs 116(2)(k) to (md) 27 Repeal the paragraphs, substitute: 28 (k) amounts paid to the bankrupt under a rural support scheme 29 prescribed for the purposes of this paragraph; 30 30 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] (l) amounts paid to the bankrupt under a rural support scheme 1 prescribed for the purposes of this paragraph, where the 2 amounts are paid in circumstances prescribed for the 3 purposes of this paragraph; 4 (m) prescribed amounts paid to the bankrupt under a rural support 5 scheme prescribed for the purposes of this paragraph; 6 (ma) prescribed amounts paid to the bankrupt under a rural support 7 scheme prescribed for the purposes of this paragraph, where 8 the amounts are paid in circumstances prescribed for the 9 purposes of this paragraph; 10 (mb) amounts paid to the bankrupt by the Commonwealth as 11 compensation in relation to the loss of: 12 (i) an amount covered by paragraph (k), (l), (m) or (ma); or 13 (ii) property purchased or acquired wholly or partly with 14 such an amount; 15 6 Subsection 116(2D) (paragraph (c) of the definition of 16 exempt money) 17 Repeal the paragraph, substitute: 18 (c) amounts covered by paragraph (2)(k), (l), (m), (ma) or (mb). 19 7 After subsection 116(2D) 20 Insert: 21 (2E) Nothing in this Act or the Legislative Instruments Act 2003 22 prevents regulations made for the purposes of paragraph (2)(k), (l), 23 (m) or (ma) from applying to amounts paid before the regulations 24 take effect. 25 (2F) Regulations made for the purposes of paragraph (2)(k), (l), (m) or 26 (ma) may make provision in relation to a matter by applying, 27 adopting or incorporating any matter contained in an instrument or 28 other writing as in force or existing from time to time. 29 8 Paragraph 121(4)(b) 30 Omit "or", substitute "and". 31 9 Paragraph 121(9)(a) 32 Omit "or", substitute "of". 33 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 31 [Page Break] 10 Subsection 302A(3) 1 Omit "applies", substitute "extends". 2 Proceeds of Crime Act 2002 3 11 Subsections 299(1) and (2) 4 Omit "*Official Trustee", substitute "Inspector-General in Bankruptcy". 5 Note: The heading to section 299 is altered by omitting "Official Trustee" and substituting 6 "Inspector-General in Bankruptcy". 7 12 Subsection 299(2) 8 Omit "Official Trustee", substitute "Inspector-General in Bankruptcy". 9 13 Subsection 299(4) 10 Omit "*Official Trustee", substitute "Inspector-General in Bankruptcy". 11 14 Subsection 299(4) 12 Omit "Official Trustee", substitute "Inspector-General in Bankruptcy". 13 15 Subsection 299(6) 14 Omit "*Official Trustee", substitute "Inspector-General in Bankruptcy". 15 16 Subsection 299(6) 16 Omit "it", substitute "the Inspector-General in Bankruptcy". 17 17 Paragraph 299(7)(a) 18 Omit "*Official Trustee", substitute "Inspector-General in Bankruptcy". 19 18 Paragraph 299(7)(b) 20 Omit "Official Trustee", substitute "Inspector-General in Bankruptcy". 21 19 Transitional--section 299 of the Proceeds of Crime Act 22 2002 23 (1) This item applies to anything done by the Official Trustee under 24 section 299 of the Proceeds of Crime Act 2002 before the 25 commencement of this item. 26 32 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 [Page Break] (2) The thing has effect, after the commencement of this item, as if it had 1 been done under that section by the Inspector-General in Bankruptcy. 2 Bankruptcy Legislation Amendment (Superannuation Contributions) Bill 2006 No. , 2006 33