Commonwealth: Insolvency Law Reform Act 2016 (Cth)

Insolvency Law Reform Act 2016 No. 11, 2016 An Act to amend the law in relation to personal and corporate insolvency, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Amendments relating to the Insolvency Practice Schedule (Bankruptcy) Part 1—Insolvency Practice Schedule (Bankruptcy) Bankruptcy Act 1966 Part 2—Amendments consequential on the introduction of the Insolvency Practice Schedule (Bankruptcy) Bankruptcy Act 1966 Bankruptcy (Estate Charges) Act 1997 Part 3—Transition to the Insolvency Practice Schedule (Bankruptcy) Division 1—Introduction Division 2—Application of Part 2 of the Insolvency Practice Schedule (Bankruptcy) and related consequential amendments Division 3—Application of Part 3 of the Insolvency Practice Schedule (Bankruptcy) and related consequential amendments Division 4—Administrative review Division 5—Application of other consequential amendments Division 6—Regulations Schedule 2—Amendments relating to the Insolvency Practice Schedule (Corporations) Part 1—Insolvency Practice Schedule (Corporations) Corporations Act 2001 Part 2—Amendments consequential on the introduction of the Insolvency Practice Schedule (Corporations) Aged Care (Accommodation Payment Security) Act 2006 Australian Securities and Investments Commission Act 2001 Banking Act 1959 Bankruptcy Act 1966 Carbon Credits (Carbon Farming Initiative) Act 2011 Cheques Act 1986 Commonwealth Serum Laboratories Act 1961 Corporations (Aboriginal and Torres Strait Islander) Act 2006 Corporations Act 2001 Corporations (Review Fees) Act 2003 Cross‑Border Insolvency Act 2008 Income Tax Assessment Act 1997 Insurance Act 1973 Life Insurance Act 1995 Medical Indemnity Act 2002 National Consumer Credit Protection Act 2009 National Greenhouse and Energy Reporting Act 2007 Paid Parental Leave Act 2010 Payment Systems and Netting Act 1998 Private Health Insurance (Prudential Supervision) Act 2015 Qantas Sale Act 1992 Superannuation Industry (Supervision) Act 1993 Taxation Administration Act 1953 Tradex Scheme Act 1999 Part 3—Transition to the Insolvency Practice Schedule (Corporations) Australian Securities and Investments Commission Act 2001 Corporations Act 2001 Schedule 3—Other amendments Part 1—Payments for property Corporations Act 2001 Part 2—Contravention of deed of company arrangement Corporations Act 2001 Private Health Insurance (Prudential Supervision) Act 2015 Part 3—Company's former name Corporations Act 2001 Part 4—Termination of deed of company arrangement Corporations Act 2001 Part 5—Relation‑back day Corporations Act 2001 Part 6—Miscellaneous amendments Corporations Act 2001 Part 7—Application of amendments Corporations Act 2001 Insolvency Law Reform Act 2016 No. 11, 2016 An Act to amend the law in relation to personal and corporate insolvency, and for related purposes [Assented to 29 February 2016] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Insolvency Law Reform Act 2016. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 29 February 2016 2. Schedule 1 A single day to be fixed by Proclamation. 1 March 2017 However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 3. Schedule 2, items 1 to 93 At the same time as the provisions covered by table item 2. 1 March 2017 4. Schedule 2, item 94 The later of: Never commenced (a) the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of item 13 of Schedule 3 to the Treasury Legislation Amendment (Repeal Day 2015) Act 2016. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. 5. Schedule 2, items 95 to 302 At the same time as the provisions covered by table item 2. 1 March 2017 6. Schedule 2, item 303 The later of: 1 March 2017 (a) the commencement of the provisions covered by table item 2; and (paragraph (a) applies) (b) immediately after the commencement of item 48 of Schedule 2 to the Carbon Farming Initiative Amendment Act 2014. 7. Schedule 2, items 304 to 322 At the same time as the provisions covered by table item 2. 1 March 2017 8. Schedule 3 Immediately after the commencement of the provisions covered by table item 2. 1 March 2017 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments relating to the Insolvency Practice Schedule (Bankruptcy) Part 1—Insolvency Practice Schedule (Bankruptcy) Bankruptcy Act 1966 1 After section 4 Insert: 4A Insolvency Practice Schedule Schedule 2 has effect. 2 At the end of the Act Add: Schedule 2—Insolvency Practice Schedule (Bankruptcy) Note: See section 4A. Part 1—Introduction Division 1—Introduction 1‑1 Object of this Schedule (1) The object of this Schedule is to ensure that any person registered as a trustee: (a) has an appropriate level of expertise; and (b) behaves ethically; and (c) maintains sufficient insurance to cover his or her liabilities in practising as a registered trustee. (2) The object of this Schedule is also: (a) to regulate the administration of regulated debtors' estates consistently, unless there is a clear reason to treat a matter that arises in relation to a particular kind of estate differently; and (b) to regulate the administration of regulated debtors' estates to give greater control to creditors. 1‑5 Simplified outline of this Schedule Registering trustees Under this Act, only the Official Trustee or a registered trustee can act as the trustee of a regulated debtor's estate. Part 2 of this Schedule sets out the process for registering trustees, and also deals with disciplining registered trustees. Consistently regulating the administration of regulated debtors' estates Part 3 of this Schedule sets out provisions to regulate the administration of regulated debtors' estates consistently. A regulated debtor is a bankrupt, a person whose property is subject to control under Division 2 of Part X, a debtor under a personal insolvency agreement or a deceased person whose estate is being administered under Part XI. Other provisions There are other matters relevant to the administration of regulated debtors' estates in this Act. This Schedule also gives authority for a legislative instrument, the Insolvency Practice Rules, to deal with some matters. Many of the terms in this Schedule are defined. The Dictionary in section 5‑5 contains a list of every term that is defined in this Schedule. Other terms are defined in section 5 of this Act. Division 5—Definitions Subdivision A—Introduction 5‑1 Simplified outline of this Division Terms used in this Schedule are defined in the Dictionary. In some cases, the definition is a signpost to another provision of the Schedule in which the meaning of the term is explained. Some of the key terms, the meaning of which is explained in this Division, are regulated debtor, regulated debtor's estate and trustee of a regulated debtor's estate. Subdivision B—The Dictionary 5‑5 The Dictionary In this Schedule: adequate and appropriate fidelity insurance has a meaning affected by subsection 25‑1(2). adequate and appropriate professional indemnity insurance has a meaning affected by subsection 25‑1(2). administration account: see section 65‑5. annual administration return means the return required to be lodged under subsection 70‑5(2). annual trustee return means the return required to be lodged under subsection 30‑1(1). committee of inspection for a regulated debtor's estate means a committee appointed under sections 80‑10 to 80‑25 in relation to the administration of the estate. creditor, when used in relation to a regulated debtor's estate, means a creditor of the estate. current conditions: see section 5‑10. end of an administration of a regulated debtor's estate means: (a) in the case of a bankruptcy—the day on which the bankrupt is discharged or the bankruptcy is annulled, whichever happens first; and (b) in the case of an administration under Part X—the day 3 years after the day on which a personal insolvency agreement made by the debtor for the administration of the debtor's estate took effect; and (c) in the case of an administration under Part XI—the day 3 years after the day on which the administration is taken to have commenced under section 247A. financial interest: a person has a financial interest in the administration of a regulated debtor's estate in the circumstances set out in section 5‑30. GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999. Insolvency Practice Rules means the rules made by the Minister under section 105‑1. Insolvency Practice Schedule (Corporations) means Schedule 2 to the Corporations Act 2001, and includes rules made under section 105‑1 of that Schedule. March quarter means the period of 3 months beginning on 1 January. maximum default amount for a trustee of a regulated debtor's estate: see section 60‑15. notified estate charge: see subsection 20‑75(7). prescribed means prescribed by the Insolvency Practice Rules. registered trustee means an individual who is registered as a trustee under Part 2 of this Schedule. Register of Trustees means the register established and maintained by the Inspector‑General under section 15‑1. regulated debtor: see section 5‑15. regulated debtor's estate: see section 5‑16. remuneration determination, for a trustee of a regulated debtor's estate, means a determination made: (a) under section 60‑10 or 60‑11 in relation to the trustee; and (b) in accordance with section 60‑12. this Schedule includes the Insolvency Practice Rules. trustee of a regulated debtor's estate: see section 5‑20 and 5‑25. Subdivision C—Other definitions 5‑10 Meaning of current conditions (1) Each of the following is a current condition imposed on a registered trustee: (a) a condition that a committee decides that the registered trustee is to be subject to under subsection 20‑20(5) or (6), subject to any variation that a committee has decided should be made to the condition under section 20‑55; (b) a condition imposed on all registered trustees, or on registered trustees of the trustee's class, under section 20‑35; (c) a condition imposed under subsection 40‑15(2) (direction not to accept further appointments); (d) a condition that a committee decides that the registered trustee is to be subject to under paragraph 40‑55(1)(f) or (g) (conditions as a result of disciplinary action), subject to any variation that a committee has decided should be made to the condition under section 20‑55; (e) a condition imposed on the registered trustee by the Court under section 45‑1. (2) However, the current conditions imposed on a registered trustee do not include: (a) a condition that a committee has decided to remove under section 20‑55; or (b) a condition that is removed under subsection 40‑15(4) (condition removed because a direction not to accept further appointments has been withdrawn); or (c) a condition that the Court has ordered be removed under section 45‑1. 5‑15 Meaning of regulated debtor A person is a regulated debtor if the person is: (a) a bankrupt; or (b) a person whose property is subject to control under Division 2 of Part X; or (c) a debtor under a personal insolvency agreement; or (d) a deceased person whose estate is being administered under Part XI. 5‑16 Meaning of regulated debtor's estate An estate is a regulated debtor's estate if it is: (a) in relation to a bankrupt—the estate of the bankrupt, other than any estate of the bankrupt administered under Part XI because the bankrupt is a deceased person; and (b) in relation to a person whose property is subject to control under Division 2 of Part X—the estate of the person; and (c) in relation to a debtor under a personal insolvency agreement—the estate of the debtor; and (d) in relation to a deceased person whose estate is being administered under Part XI—the estate of the person being administered under that Part. 5‑20 Meaning of trustee of a regulated debtor's estate A person is the trustee of a regulated debtor's estate if the person is: (a) in relation to a bankrupt—the trustee of the bankrupt's estate; and (b) in relation to a person whose property is subject to control under Division 2 of Part X—the controlling trustee; and (c) in relation to a debtor under a personal insolvency agreement—the trustee of the agreement; and (d) in relation to a deceased person whose estate is being administered under Part XI—the trustee administering the estate under that Part. 5‑25 References to the trustee of a regulated debtor's estate A reference in this Schedule to the trustee of a regulated debtor's estate is to be read: (a) in relation to a regulated debtor's estate in respect of which there are 2 or more joint trustees—as a reference to all of the trustees; and (b) in relation to a regulated debtor's estate in respect of which there are 2 or more joint and several trustees—as a reference to all of the trustees or any one or more of the trustees. 5‑30 Persons with a financial interest in the administration of a regulated debtor's estate A person has a financial interest in the administration of a regulated debtor's estate: (a) if the person is one of the following: (i) the regulated debtor; (ii) a creditor; (iii) the trustee; or (b) in any other circumstances prescribed. Division 6—Application of this Schedule to Official Trustee 6‑1 Schedule generally does not apply to the Official Trustee A provision of this Schedule does not apply to the Official Trustee unless the provision is expressed to apply to the Official Trustee. Part 2—Registering and disciplining practitioners Division 10—Introduction 10‑1 Simplified outline of this Part Registering trustees An individual may apply to the Inspector‑General to be registered as a trustee. The Inspector‑General will refer the application to a committee who will consider the applicant's qualifications, conduct and fitness and whether the applicant will take out appropriate insurance. Registration may be subject to conditions, is for 3 years and may be renewed. A registered trustee must: (a) lodge an annual return with the Inspector‑General that includes proof that the trustee has appropriate insurance; and (b) give the Inspector‑General notice if the trustee's circumstances change or if certain other events happen. Disciplining registered trustees If a registered trustee fails to comply with certain requirements, such as the requirement to lodge a document or give information, the Inspector‑General may give directions that may result in the trustee being unable to accept further appointments. The Inspector‑General may also seek a Court order. The Inspector‑General may suspend or cancel a trustee's registration in certain circumstances. The Inspector‑General may also give the trustee a show‑cause notice. If such a notice is given and no sufficient explanation is given, the Inspector‑General may take further disciplinary action on the decision of a committee. Industry bodies may notify the Inspector‑General where they suspect there are grounds for disciplinary action. Court powers The Court has broad powers to make orders in relation to registered trustees (including imposing conditions on registration). 10‑5 Working cooperatively with ASIC In performing his or her functions and exercising his or her powers under this Act in relation to persons who are, have been or may become both registered trustees under this Act and registered liquidators under the Corporations Act 2001, the Inspector‑General must work cooperatively with ASIC. Division 15—Register of trustees 15‑1 Register of Trustees (1) The Inspector‑General must establish and maintain a Register of Trustees. (2) The Register of Trustees may be kept in any form that the Inspector‑General considers appropriate. (3) The Insolvency Practice Rules may provide for and in relation to the Register of Trustees. (4) Without limiting subsection (3), the Insolvency Practice Rules may provide for and in relation to: (a) the details to be entered on the Register of Trustees; and (b) the parts of the Register that are to be made available to the public. (5) Without limiting paragraph (4)(a), those details may include: (a) details of any disciplinary action decided by a committee under section 40‑55; and (b) details of persons who have had their registration as a trustee under this Act suspended or cancelled. Division 20—Registering trustees Subdivision A—Introduction 20‑1 Simplified outline of this Division An individual may apply to the Inspector‑General to be registered as a trustee. The application will be referred to a committee, which will assess the application against specified criteria (the applicant's qualifications, conduct and fitness and whether the applicant will take out appropriate insurance). The committee will report its decision to the Inspector‑General and, if the committee decides that the applicant should be registered, the Inspector‑General will register the applicant as a trustee. A registration may be subject to conditions. Conditions may be imposed on a particular registered trustee by the committee, or on all registered trustees or a class of registered trustees by the Insolvency Practice Rules. A registered trustee may apply to the Inspector‑General to have a condition imposed by a committee removed or varied. That application will be referred to a committee. Registration is for 3 years, but may be renewed. An application for renewal may be made to the Inspector‑General within specified time periods. A decision of a committee about an application for registration or about a condition of registration is reviewable by the Administrative Appeals Tribunal (see Division 96 of this Schedule). Subdivision B—Registration 20‑5 Application for registration (1) An individual may apply to the Inspector‑General to be registered as a trustee. (2) The application must be lodged with the Inspector‑General in the approved form. (3) The application must be accompanied by the application fee determined by the Minister by legislative instrument. (4) The application is properly made if subsections (2) and (3) are complied with. 20‑10 Inspector‑General may convene a committee to consider (1) The Inspector‑General may convene a committee for the purposes of considering an application, or applications, for registration as a trustee. (2) The committee must consist of: (a) the Inspector‑General; and (b) a registered trustee chosen by a prescribed body; and (c) a person appointed by the Minister. Note 1: Section 50‑5 sets out the knowledge and experience that a prescribed body must be satisfied a person has before making an appointment under paragraph (2)(b). Note 2: Section 50‑10 sets out the matters of which the Minister must be satisfied before making an appointment under paragraph (2)(c). 20‑15 Inspector‑General must refer applications to a committee (1) The Inspector‑General must refer an application for registration as a trustee that is properly made to a committee convened under section 20‑10 for consideration. (2) The Inspector‑General must do so within 2 months after receiving the application. 20‑20 Committee to consider applications Committee must consider referred applications (1) If an application for registration as a trustee is referred to a committee, the committee must consider the application. (2) For the purposes of considering the application, the committee: (a) must interview the applicant; and (b) may require the applicant to sit for an exam. Decision of committee (3) Within 45 business days after interviewing the applicant, the committee must decide whether the applicant should be registered as a trustee or not. (4) The committee must decide that the applicant should be registered as a trustee if it is satisfied that the applicant: (a) has the qualifications, experience, knowledge and abilities prescribed; and (b) will take out: (i) adequate and appropriate professional indemnity insurance; and (ii) adequate and appropriate fidelity insurance; against the liabilities that the applicant may incur working as a registered trustee; and (c) has not been convicted, within 10 years before making the application, of an offence involving fraud or dishonesty; and (d) is not, and has not been within 10 years before making the application, an insolvent under administration; and (e) has not had his or her registration as a trustee under this Act cancelled within 10 years before making the application, other than in response to a written request by the applicant to have the registration cancelled; and (f) has not had his or her registration as a liquidator under the Corporations Act 2001 cancelled within 10 years before making the application, other than in response to a written request by the applicant to have the registration cancelled; and (g) is not disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001, or under a law of an external Territory or a law of a foreign country; and (h) is otherwise a fit and proper person; and (i) is resident in Australia or in another prescribed country. (5) The committee may decide that the applicant should be registered even if the committee is not satisfied of a matter mentioned in paragraph (4)(a), (e), (f) or (i), provided the committee is satisfied that the applicant would be suitable to be registered as a trustee if the applicant complied with conditions specified by the committee. Registration may be subject to conditions (6) The committee may decide that the applicant's registration is to be subject to any other conditions specified by the committee. Spent convictions (7) Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914. Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them. 20‑25 Committee to report The committee must give the applicant and the Inspector‑General a report setting out: (a) the committee's decision on the application; and (b) the committee's reasons for that decision; and (c) if the committee decides under subsection 20‑20(5) or (6) that the applicant should be registered subject to a condition: (i) the condition; and (ii) the committee's reasons for imposing the condition. 20‑30 Registration Registration as trustee (1) The Inspector‑General must register the applicant as a trustee if: (a) the committee has decided that the applicant should be registered; and (b) the applicant has produced evidence in writing to the Inspector‑General that the applicant has taken out: (i) adequate and appropriate professional indemnity insurance; and (ii) adequate and appropriate fidelity insurance; against the liabilities that the applicant may incur working as a registered trustee; and (c) the applicant has paid the registration fee determined by the Minister by legislative instrument. (2) The Inspector‑General registers an applicant by entering on the Register of Trustees the details relating to the applicant prescribed for the purposes of subsection 15‑1(3). Registration subject to current conditions (3) The registration is subject to the current conditions imposed on the registered trustee. Certificate of registration (4) After registering a person as a trustee, the Inspector‑General must give the person a certificate of registration. (5) The certificate may be given electronically. Period of registration (6) The registration has effect for 3 years. 20‑35 Conditions imposed on all registered trustees or a class of registered trustees (1) The Insolvency Practice Rules may impose conditions on all registered trustees, or registered trustees of a specified class. (2) Without limiting subsection (1), a condition may be imposed limiting the kinds of activity in which a trustee may engage, either for the duration of the registration or for a shorter period. Subdivision C—Varying etc. conditions of registration 20‑40 Application to vary etc. conditions of registration (1) If a committee has decided under this Schedule that a person's registration as a trustee is to be subject to a condition, the person may apply to the Inspector‑General for the condition to be varied or removed. (2) However, an application cannot be made: (a) if the person's registration as a trustee is suspended; or (b) if the condition is of a prescribed kind; or (c) in prescribed circumstances. (3) The application must be lodged with the Inspector‑General in the approved form. (4) The application is properly made if: (a) an application can be made; and (b) subsection (3) is complied with. (5) A single application by a registered trustee may deal with more than one condition. 20‑45 Inspector‑General may convene a committee to consider applications (1) The Inspector‑General may convene a committee for the purposes of considering an application, or applications, made under section 20‑40. (2) The committee must consist of: (a) the Inspector‑General; and (b) a registered trustee chosen by a prescribed body; and (c) a person appointed by the Minister. Note 1: Section 50‑5 sets out the knowledge and experience that a prescribed body must be satisfied a person has before making an appointment under paragraph (2)(b). Note 2: Section 50‑10 sets out the matters of which the Minister must be satisfied before making an appointment under paragraph (2)(c). 20‑50 Inspector‑General must refer applications to a committee (1) The Inspector‑General must refer an application that is properly made under section 20‑40 to a committee convened under section 20‑45 for consideration. (2) The Inspector‑General must do so within 2 months after receiving the application. 20‑55 Committee to consider applications (1) If an application to vary or remove a condition of registration is referred to a committee, the committee must consider the application. (2) Unless the applicant otherwise agrees, the committee must, for the purposes of considering the application, interview the applicant. (3) The committee must, within 20 business days after interviewing the applicant or obtaining the agreement of the applicant as referred to in subsection (2): (a) decide whether the condition to which the application relates should be varied or removed; and (b) if a condition is to be varied, specify the way in which it is to be varied. 20‑60 Committee to report The committee must give the applicant and the Inspector‑General a report setting out: (a) the committee's decision on the application; and (b) the committee's reasons for that decision; and (c) if the committee decides that a condition should be varied—the variation that is to be made. 20‑65 Committee's decision given effect If the committee decides that a condition imposed on a registered trustee is to be varied or removed, the condition is varied or removed in accordance with that decision. Subdivision D—Renewal 20‑70 Application for renewal (1) An individual may apply to the Inspector‑General to have the individual's registration as a trustee renewed. (2) The application must be lodged with the Inspector‑General, in the approved form, before the applicant's registration as a trustee ceases to have effect. Note: The Court may extend the time within which an application must be lodged: see paragraph 33(1)(c). (3) If an individual applies to have his or her registration as a trustee renewed, the individual must, at least 1 month before the registration ceases to have effect, pay the renewal fee determined by the Minister by legislative instrument. If the renewal fee is not paid at least 1 month before the registration ceases to have effect, an additional amount equal to 20% of the renewal fee is payable by the applicant by way of penalty. (4) The application is properly made if subsection (2) is complied with. 20‑75 Renewal Renewal of registration (1) On application under section 20‑70, the Inspector‑General must renew the registration of the applicant as a trustee if: (a) the application is properly made; and (b) the applicant has produced evidence in writing to the Inspector‑General that the applicant maintains: (i) adequate and appropriate professional indemnity insurance; and (ii) adequate and appropriate fidelity insurance; against the liabilities that the applicant may incur working as a registered trustee; and (c) the applicant has complied with any condition dealing with continuing professional education to which the applicant is subject during the applicant's current registration; and (d) the applicant has paid the renewal fee determined by the Minister under subsection 20‑70(3), and any late payment penalty under that subsection; and (e) the applicant does not owe more than the prescribed amount of notified estate charges. (2) The Inspector‑General renews the registration of the applicant by entering, or maintaining, on the Register of Trustees the details relating to the applicant prescribed for the purposes of subsection 15‑1(3). Registration subject to current conditions (3) The renewed registration is subject to the current conditions imposed on the registered trustee. Certificate of registration (4) After renewing the registration of a person as a trustee, the Inspector‑General must give the person a certificate of registration. (5) The certificate may be given electronically. Period of registration (6) The renewed registration has effect for 3 years, beginning on the day after the person's immediately preceding registration as a trustee ceased to have effect. When a notified estate charge is owed (7) A person owes a notified estate charge if: (a) the person owes either of the following: (i) a charge under the Bankruptcy (Estate Charges) Act 1997 (the estate charge); (ii) a penalty under section 281 (late payment penalty) of this Act in respect of that charge; and (b) the Inspector‑General notified the person of the unpaid estate charge at least one month and 10 business days before the person's registration as a trustee ceases to have effect. Subdivision E—Offences relating to registration 20‑80 False representation that a person is a registered trustee A person commits an offence if: (a) the person makes a representation; and (b) the representation is that the person is a registered trustee; and (c) the representation is false. Penalty: 30 penalty units. Division 25—Insurance 25‑1 Registered trustees to maintain insurance Registered trustee must maintain insurance (1) A registered trustee must maintain: (a) adequate and appropriate professional indemnity insurance; and (b) adequate and appropriate fidelity insurance; against the liabilities that the trustee may incur working as a registered trustee. (2) The Inspector‑General may, by legislative instrument, determine what constitutes adequate and appropriate professional indemnity insurance, and adequate and appropriate fidelity insurance, in relation to either or both of the following: (a) specified circumstances; (b) one or more specified classes of registered trustees. Offence (3) A person commits an offence if: (a) the person is subject to a requirement under subsection (1); and (b) the person intentionally or recklessly fails to comply with the requirement. Penalty: 1,000 penalty units. (4) A person commits an offence of strict liability if: (a) the person is subject to a requirement under subsection (1); and (b) the person fails to comply with the requirement. Penalty: 60 penalty units. Division 30—Annual trustee returns 30‑1 Annual trustee returns Registered trustee must lodge annual return (1) A person who is a registered trustee during all or part of a trustee return year for the person must, within 1 month after the end of that year, lodge with the Inspector‑General a return that conforms with subsection (3). (2) Each of the following is a trustee return year for a person who is or was registered as a trustee under section 20‑30: (a) the period of 12 months beginning on the day on which that registration first began; (b) each subsequent period of 12 months. (3) A return under subsection (1) must: (a) be in the approved form; and (b) include evidence that the person has, during the whole of any period of the year during which the person was registered as a trustee, maintained: (i) adequate and appropriate professional indemnity insurance; and (ii) adequate and appropriate fidelity insurance; against the liabilities that the person may incur working as a registered trustee. (4) The Inspector‑General may, on the application of the registered trustee made before the end of the period for lodging a return under subsection (1), extend, or further extend, that period. Offence (5) A person commits an offence of strict liability if: (a) the person is subject to a requirement under subsection (1); and (b) the person fails to comply with the requirement. Penalty: 5 penalty units. Note: See also section 277B (about infringement notices). Division 35—Notice requirements 35‑1 Notice of significant events Registered trustee must lodge notice (1) A registered trustee must lodge with the Inspector‑General a notice, in the approved form, if any of the following events occur: (a) the trustee becomes an insolvent under administration; (b) a bankruptcy notice is issued under this Act in relation to the trustee as debtor, or a corresponding notice is issued in relation to the trustee as debtor under a law of an external Territory or a law of a foreign country; (c) the trustee is convicted of an offence involving fraud or dishonesty; (d) the trustee is disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001, or under a law of an external Territory or a law of a foreign country; (e) the trustee ceases to have: (i) adequate and appropriate professional indemnity insurance; or (ii) adequate and appropriate fidelity insurance; against the liabilities that the trustee may incur working as a registered trustee; (f) the trustee is issued with a notice under section 40‑40 of Schedule 2 to the Corporations Act 2001 (a show‑cause notice) in relation to the trustee's registration as a liquidator under that Act; (g) the trustee's registration as a liquidator under the Corporations Act 2001 is suspended or cancelled; (h) any other event prescribed. The notice must be lodged within 5 business days after the registered trustee could reasonably be expected to be aware that the event has occurred. Offence (2) A person commits an offence if: (a) the person is subject to a requirement under subsection (1); and (b) the person intentionally or recklessly fails to comply with the requirement. Penalty: 100 penalty units. 35‑5 Notice of other events Registered trustee must lodge notice (1) A registered trustee must lodge with the Inspector‑General a notice, in the approved form, if any of the following events occur: (a) information included in an annual trustee return, or in an annual administration return, prepared by or on behalf of the trustee is or becomes inaccurate in a material particular; (b) any other event prescribed. The notice must be lodged within 10 business days after the registered trustee could reasonably be expected to be aware that the event has occurred. Offence (2) A person commits an offence if: (a) the person is subject to a requirement under subsection (1); and (b) the person intentionally or recklessly fails to comply with the requirement. Penalty: 5 penalty units. Note: See also section 277B (about infringement notices). Division 40—Disciplinary and other action Subdivision A—Introduction 40‑1 Simplified outline of this Division Remedying failure to lodge documents or give information or documents The Inspector‑General may direct a registered trustee to comply with a requirement to lodge a document, or give any information or document, to the Inspector‑General. If the trustee fails to comply with the direction, the Inspector‑General can direct that the trustee accept no further appointments or seek an order from the Court directing the trustee to comply. Correcting and completing information given to the Inspector‑General If the Inspector‑General reasonably suspects that information that a registered trustee is required to give the Inspector‑General under this Act is incomplete or inaccurate, the Inspector‑General can direct the trustee to confirm, complete or correct the information. The Inspector‑General can also direct the trustee to tell someone about the defect in the information. If the trustee fails to comply with a direction, the Inspector‑General can direct that the trustee accept no further appointments or seek an order from the Court directing the trustee to comply. Other grounds for a direction not to accept further appointments There are other grounds on which the Inspector‑General can issue a direction not to accept further appointments, for example, if the registered trustee fails to comply with a direction to convene a meeting. Suspending or cancelling registration An individual's registration as a trustee can be suspended or cancelled. The registration is automatically cancelled if the registered trustee becomes an insolvent under administration or dies. In some circumstances, the Inspector‑General can suspend or cancel the registration of a person as a trustee. The Inspector‑General can also give a registered trustee notice to show‑cause why the trustee should continue to be registered. If the Inspector‑General is not satisfied with the answer, the Inspector‑General can refer the matter to a committee which will make a decision on what action should be taken. An industry body can give the Inspector‑General notice of possible grounds for disciplinary action. If a registration is suspended, the trustee can apply to the Inspector‑General to have the suspension lifted or shortened. A decision about the suspension or cancellation of the registration of a trustee is reviewable by the Administrative Appeals Tribunal (see Division 96 of this Schedule). Subdivision B—Direction to comply 40‑5 Registered trustee to remedy failure to lodge documents or give information or documents Application of this section (1) This section applies if a registered trustee fails to comply with a requirement to lodge any document, or give any information or document, that the trustee is required under this Act to lodge with or give to the Inspector‑General. Inspector‑General may give direction to comply (2) The Inspector‑General may, in writing, direct the trustee to comply with the requirement within 10 business days after the notice is given. (3) The Inspector‑General may, on the application of a registered trustee made before the end of the period referred to in subsection (2), extend, or further extend, that period. Consequences for failing to comply (4) If the trustee does not comply within the period, the Inspector‑General may do either or both of the following: (a) give a direction under subsection 40‑15(1) (direction not to accept further appointments); (b) apply to the Court for an order, under section 30 (general powers of Courts in bankruptcy), section 45‑1 of this Schedule or any other provision that is relevant, directing the trustee to comply with the requirement within such time as is specified in the order. Direction is not a legislative instrument (5) A direction under subsection (2) is not a legislative instrument. Relationship with other laws (6) Nothing in this section limits the operation of any other provision of this Act, or any other law, in relation to a person who fails to comply with a requirement to lodge a document with, or give information or a document to, the Inspector‑General. 40‑10 Registered trustee to correct inaccuracies etc. Application of this section (1) This section applies if the Inspector‑General reasonably suspects that information that a registered trustee is required under this Act to give the Inspector‑General (whether in a document lodged or given to the Inspector‑General or otherwise) is incomplete or incorrect in any particular. Inspector‑General may give direction to correct information etc. (2) The Inspector‑General may, in writing, direct the trustee to do one or more of the following within a period of 10 business days after the direction is given: (a) confirm to the Inspector‑General that the information is complete and correct; (b) complete or correct the information (as the case requires); (c) notify any persons specified by the Inspector‑General in the direction of the addition or correction. (3) The Inspector‑General may, on the application of a registered trustee made before the end of the period referred to in subsection (2), extend, or further extend, that period. Consequences for failing to comply (4) If the trustee does not comply within the period, the Inspector‑General may do either or both of the following: (a) give a direction under subsection 40‑15(1) (direction not to accept further appointments); (b) apply to the Court for an order, under section 30 (general powers of Courts in bankruptcy), section 45‑1 of this Schedule or any other provision that is relevant, directing the trustee to comply with the requirement within such time as is specified in the order. Direction is not a legislative instrument (5) A direction under subsection (2) is not a legislative instrument. Relationship with other laws (6) Nothing in this section limits the operation of any other provision of this Act, or any other law, in relation to a person giving incomplete or incorrect information. 40‑15 Direction not to accept further appointments Inspector‑General may give direction not to accept further appointments (1) The Inspector‑General may, in writing, direct a registered trustee not to accept any further appointments as a trustee, or not to accept any further appointments as a trustee during a period specified in the direction, if: (a) the trustee has failed to comply with a direction given to the trustee under section 40‑5 (direction to remedy failure to lodge documents, or give information or documents); or (b) the trustee has failed to comply with a direction given to the trustee under section 40‑10 (direction to correct inaccuracies); or (c) a committee has decided under paragraph 40‑55(1)(d) that the Inspector‑General should give the direction referred to in that paragraph; or (d) the trustee has failed to comply with a direction given to the trustee under section 70‑70 (direction to give relevant material); or (e) the trustee has failed to comply with a direction given to the trustee under subsection 75‑20(1) or (2) (direction to convene a meeting of creditors or comply with requirements in relation to such a meeting). Condition of registration to comply with direction (2) If the Inspector‑General gives a direction to a registered trustee under subsection (1), it is a condition of the trustee's registration that the trustee must comply with the direction. Withdrawal of direction (3) The Inspector‑General may withdraw a direction given under subsection (1). (4) The condition is removed from the trustee's registration if the Inspector‑General withdraws the direction. Direction is not a legislative instrument (5) A direction under subsection (1) is not a legislative instrument. Relationship with other laws (6) Nothing in this section limits the operation of any other provision of this Act, or any other law, in relation to: (a) a person who fails to comply with a requirement to lodge a document with, or give information or a document to, the Inspector‑General; or (b) a person giving incomplete or incorrect information; or (c) any matter in relation to which a committee makes a decision under subsection 40‑55(1). (7) Nothing in this section limits the power of the Inspector‑General under this Act, or any other law, to apply to the Court for an order in relation to a failure to comply with a direction mentioned in subsection (1). Subdivision C—Automatic cancellation 40‑20 Automatic cancellation (1) The registration of a person as a trustee is cancelled if: (a) the person becomes an insolvent under administration; or (b) the person dies. (2) The cancellation takes effect on the day the event mentioned in subsection (1) happens. Subdivision D—Inspector‑General may suspend or cancel registration 40‑25 Inspector‑General may suspend registration (1) The Inspector‑General may suspend the registration of a person as a trustee if: (a) the person is disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001, or under a law of an external Territory or a law of a foreign country; or (b) the person ceases to have: (i) adequate and appropriate professional indemnity insurance; or (ii) adequate and appropriate fidelity insurance; against the liabilities that the person may incur working as a registered trustee; or (c) the person's registration as a liquidator under the Corporations Act 2001 has been cancelled or suspended, other than in compliance with a written request by the person to cancel or suspend the registration; or (d) the person owes more than the prescribed amount of notified estate charges; or (e) if the Court has made an order under section 90‑15 that the person repay remuneration—the person has failed to repay the remuneration; or (f) the person has been convicted of an offence involving fraud or dishonesty; or (g) the person lodges a request with the Inspector‑General in the approved form to have the registration suspended. (2) Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914. Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them. 40‑30 Inspector‑General may cancel registration (1) The Inspector‑General may cancel the registration of a person as a trustee if: (a) the person is disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001, or under a law of an external Territory or a law of a foreign country; or (b) the person ceases to have: (i) adequate and appropriate professional indemnity insurance; or (ii) adequate and appropriate fidelity insurance; against the liabilities that the person may incur working as a registered trustee; or (c) the person's registration as a liquidator under the Corporations Act 2001 has been cancelled, other than in compliance with a written request by the person to cancel the registration; or (d) the person owes more than the prescribed amount of notified estate charges; or (e) if the Court has made an order under section 90‑15 that the person repay remuneration—the person has failed to repay the remuneration; or (f) the person has been convicted of an offence involving fraud or dishonesty; or (g) the person lodges a request with the Inspector‑General in the approved form to have the registration cancelled. (2) Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914. Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them. 40‑35 Notice of suspension or cancellation Application of this section (1) This section applies if the Inspector‑General decides under section 40‑25 or 40‑30 to suspend or cancel the registration of a person as a trustee. Inspector‑General must give notice of decision (2) The Inspector‑General must, within 10 business days after making the decision, give the person a written notice setting out the decision, and the reasons for the decision. When decision comes into effect (3) The decision comes into effect on the day after the notice is given to the person. Failure to give notice does not affect validity of decision (4) A failure by the Inspector‑General to give the notice under subsection (2) within 10 business days does not affect the validity of the decision. Subdivision E—Disciplinary action by committee 40‑40 Inspector‑General may give a show‑cause notice (1) The Inspector‑General may give a registered trustee notice in writing asking the trustee to give the Inspector‑General a written explanation why the trustee should continue to be registered, if the Inspector‑General believes that: (a) the trustee no longer has the qualifications, experience, knowledge and abilities prescribed under paragraph 20‑20(4)(a); or (b) the trustee has committed an act of bankruptcy within the meaning of this Act or a corresponding law of an external Territory or a foreign country; or (c) the trustee is disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001, or under a law of an external Territory or a law of a foreign country; or (d) the trustee has ceased to have: (i) adequate and appropriate professional indemnity insurance; or (ii) adequate and appropriate fidelity insurance; against the liabilities that the person may incur working as a registered trustee; or (e) the trustee has breached a current condition imposed on the trustee; or (f) the trustee has contravened a provision of this Act; or (g) the trustee's registration as a liquidator under the Corporations Act 2001 has been cancelled or suspended, other than in compliance with a written request by the trustee to cancel or suspend the registration; or (h) the trustee owes more than the prescribed amount of notified estate charges; or (i) if the Court has made an order under section 90‑15 that the trustee repay remuneration—the trustee has failed to repay the remuneration; or (j) the trustee has been convicted of an offence involving fraud or dishonesty; or (k) the trustee is permanently or temporarily unable to perform the functions and duties of a trustee because of physical or mental incapacity; or (l) the trustee has failed to carry out adequately and properly (whether in Australia or in an external Territory or in a foreign country): (i) the duties of a trustee; or (ii) any other duties or functions that a registered trustee is required to carry out under a law of the Commonwealth or of a State or Territory, or under the general law; or (m) if the trustee is or was the administrator of a debt agreement—the trustee has failed to carry out adequately and properly (whether in Australia or in an external Territory or in a foreign country) the duties of an administrator in relation to a debt agreement; or (n) the trustee is not a fit and proper person; or (o) the trustee is not resident in Australia or in another prescribed country; or (p) the trustee has failed to comply with a standard prescribed for the purposes of subsection (4). (2) A notice under subsection (1) is not a legislative instrument. (3) Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914. Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them. (4) The Insolvency Practice Rules may prescribe standards applicable to the exercise of powers, or the carrying out of duties, of registered trustees. 40‑45 Inspector‑General may convene a committee (1) The Inspector‑General may convene a committee to make a decision of a kind mentioned in section 40‑55 in relation to a registered trustee, or registered trustees. (2) The committee must consist of: (a) the Inspector‑General; and (b) a registered trustee chosen by a prescribed body; and (c) a person appointed by the Minister. Note 1: Section 50‑5 sets out the knowledge and experience that a prescribed body must be satisfied a person has before making an appointment under paragraph (2)(b). Note 2: Section 50‑10 sets out the matters of which the Minister must be satisfied before making an appointment under paragraph (2)(c). 40‑50 Inspector‑General may refer matters to the committee The Inspector‑General may refer a registered trustee to a committee convened under section 40‑45 if the Inspector‑General: (a) gives the trustee a notice under section 40‑40 (a show‑cause notice); and (b) either: (i) does not receive an explanation within 20 business days after the notice is given; or (ii) is not satisfied by the explanation. 40‑55 Decision of the committee (1) If a registered trustee is referred to a committee under section 40‑50, the committee must decide one or more of the following: (a) that the trustee should continue to be registered; (b) that the trustee's registration should be suspended for a period, or until the occurrence of an event, specified in the decision; (c) that the trustee's registration should be cancelled; (d) that the Inspector‑General should direct the trustee not to accept any further appointments as trustee, or not to accept any further appointments as trustee during the period specified in the decision; (e) that the trustee should be publicly admonished or reprimanded; (f) that a condition specified in the decision should be imposed on the trustee; (g) that a condition should be imposed on all other registered trustees that they must not allow the trustee to carry out any of the functions or duties, or exercise any of the powers, of a trustee on their behalf (whether as employee, agent, consultant or otherwise) for a period specified in the decision of no more than 10 years; (h) that the Inspector‑General should publish specified information in relation to the committee's decision and the reasons for that decision. (2) Without limiting paragraph (1)(f), conditions imposed under that paragraph may include one or more of the following: (a) a condition that the trustee engage in, or refrain from engaging in, specified conduct; (b) a condition that the trustee engage in, or refrain from engaging in, specified conduct except in specified circumstances; (c) a condition that the trustee publish specified information; (d) a condition that the trustee notify a specified person or class of persons of specified information; (e) a condition that the trustee publish a specified statement; (f) a condition that the trustee make a specified statement to a specified person or class of persons. (3) In making its decision, the committee may have regard to: (a) any information provided to the committee by the Inspector‑General; and (b) any explanation given by the trustee; and (c) any other information given by the trustee to the committee; and (d) if the trustee is or was also a registered liquidator under the Corporations Act 2001—any information in relation to the trustee given to the committee by ASIC or a committee convened under the Insolvency Practice Schedule (Corporations); and (e) any other matter that the committee considers relevant. 40‑60 Committee to report The committee must give the registered trustee and the Inspector‑General a report setting out: (a) the committee's decision in relation to the trustee; and (b) the committee's reasons for that decision; and (c) if the committee decides under paragraph 40‑55(1)(f) that the trustee should be registered subject to a condition: (i) the condition; and (ii) the committee's reasons for imposing the condition; and (d) if the committee decides under paragraph 40‑55(1)(g) that a condition should be imposed on all other registered trustees in relation to the trustee: (i) the condition; and (ii) the committee's reasons for imposing the condition. 40‑65 Inspector‑General must give effect to the committee's decision The Inspector‑General must give effect to the committee's decision. Subdivision F—Lifting or shortening suspension 40‑70 Application to lift or shorten suspension Application of this section (1) This section applies if a person's registration as a trustee has been suspended. Suspended trustee may apply to the Inspector‑General (2) The person may apply to the Inspector‑General: (a) for the suspension to be lifted; or (b) for the period of the suspension to be shortened. (3) The application must be lodged with the Inspector‑General in the approved form. (4) The application is properly made if subsection (3) is complied with. 40‑75 Inspector‑General may convene a committee to consider applications (1) The Inspector‑General may convene a committee for the purposes of considering an application, or applications, made under section 40‑70. (2) The committee must consist of: (a) the Inspector‑General; and (b) a registered trustee chosen by a prescribed body; and (c) a person appointed by the Minister. Note 1: Section 50‑5 sets out the knowledge and experience that a prescribed body must be satisfied a person has before making an appointment under paragraph (2)(b). Note 2: Section 50‑10 sets out the matters of which the Minister must be satisfied before making an appointment under paragraph (2)(c). 40‑80 Inspector‑General must refer applications to a committee (1) The Inspector‑General must refer an application that is properly made under section 40‑70 to a committee convened under section 40‑75 for consideration. (2) The Inspector‑General must do so within 2 months after receiving the application. 40‑85 Committee to consider applications (1) If an application is referred to a committee, the committee must consider the application. (2) Unless the applicant otherwise agrees, the committee must interview the applicant for the purposes of considering the application. (3) Within 10 business days after interviewing the applicant or obtaining the agreement of the applicant as referred to in subsection (2), the committee must: (a) decide whether the suspension should be lifted, or the period of the suspension shortened; and (b) if the period of the suspension is to be shortened—specify when the suspension is to end. 40‑90 Committee to report The committee must give the applicant and the Inspector‑General a report setting out: (a) the committee's decision on the application; and (b) the committee's reasons for that decision; and (c) if the committee decides that the period of the suspension should be shortened—when the suspension is to end. 40‑95 Committee's decision given effect If the committee decides that a suspension is to be lifted or shortened, the suspension is lifted or shortened in accordance with the decision. Subdivision G—Action initiated by industry body 40‑100 Notice by industry bodies of possible grounds for disciplinary action Industry body may lodge notice (1) An industry body may lodge with the Inspector‑General a notice in the approved form (an industry notice): (a) stating that the body reasonably suspects that there are grounds for the Inspector‑General: (i) to suspend the registration of a registered trustee under section 40‑25; or (ii) to cancel the registration of a registered trustee under section 40‑30; or (iii) to give a registered trustee a notice under section 40‑40 (a show‑cause notice); or (iv) to impose a condition on a registered trustee under another provision of this Schedule; and (b) identifying the registered trustee; and (c) including the information and copies of any documents upon which the suspicion is founded. Inspector‑General must consider information and documents (2) The Inspector‑General must consider the information and the copies of any documents included with the industry notice. Inspector‑General must give notice if no action to be taken (3) If, after such consideration, the Inspector‑General decides to take no action in relation to the matters raised by the industry notice, the Inspector‑General must give the industry body written notice of that fact. 45 business days to consider and decide (4) The consideration of the information and the copies of any documents included with the industry notice must be completed and, if the Inspector‑General decides to take no action, a notice under subsection (3) given, within 45 business days after the industry notice is lodged. Inspector‑General not precluded from taking action (5) The Inspector‑General is not precluded from: (a) suspending the registration of a registered trustee under section 40‑25; or (b) cancelling the registration of a registered trustee under section 40‑30; or (c) giving a registered trustee a notice under section 40‑40 (a show‑cause notice); or (d) imposing a condition on a registered trustee under another provision of this Schedule; wholly or partly on the basis of information or a copy of a document included with the industry notice,