Have your say on draft Bill supporting regulator best practice

Consultation is now open on the draft Regulator Performance Omnibus Bill, which includes proposed amendments to the Bankruptcy Act 1966. The Australian Government is consulting publicly on the Bill to ensure it is informed by business and community expectations of regulators.

The Bill updates or removes outdated administrative provisions across Commonwealth legislation that impose unnecessary regulatory burden and prevent regulators from engaging with business and supporting compliance in a modern and flexible way. 

The Department of the Prime Minister and Cabinet has worked closely with Commonwealth departments and regulators to identify suitable provisions for inclusion in the Bill. The Bill is the first of its kind to take a whole-of-Australian Government approach to regulator best practice and performance. 

If enacted, the Bill will progress 46 amendments across 17 Commonwealth Acts which improve or streamline administrative processes, repeal provisions which serve no current purpose, or remove legal uncertainty. It will benefit 13 Commonwealth regulators or regulatory functions.

Proposed amendments to the Bankruptcy Act are intended to improve or streamline administrative processes or remove legal uncertainty. These proposed amendments can be found in Schedule 1 of the Omnibus Bill, and the relevant draft explanatory material can be found at pp 12-15 of the Explanatory Memorandum.

More information on the Bill and how to submit feedback on it is available on the Regulator Performance Omnibus Bill consultation page. You can also read Minister Morton’s media release.

Submissions on the exposure draft close 14 January 2022.

The proposed key changes to the Bankruptcy Act 1966 included in the Bill are as follows:

1 Paragraph 12(1)(c) – enhanced power to request reports

Includes a reference to ‘registered debt agreement administrators’ and ‘the Official Trustee’. This aligns with current paragraph 12(1A) which provides that both registered trustees and registered debt agreement administrators must provide a report to the Inspector-General where requested. 

2 Subsection 50(1B) – mandatory remuneration order

A new requirement so that if a Court directs a trustee to take control of the debtor’s property, the Court must, in addition to specifying when the control is to end (new subparagraph 50(1B)(a)), make orders in relation to the trustee’s remuneration 

3 Section 139K (paragraph (a) annual indexation

Replaces bi-annual indexation to move to an annual indexation method on 1 July each year.

4 Subsections 139T(2) and (4) – evidence standard for hardship applications

Makes clear that a hardship application by a bankrupt must include the satisfactory evidence required for the trustee to properly assess the application, and that the 30-day timeframe to assess the application only begins once the trustee has received an application that includes all the satisfactory evidence. The 30-day timeframe will not commence until the applicant has provided satisfactory evidence to the trustee. 

5 Subsection 139W(4) – Contribution assessment notice only if liability

Repeals the requirement that a trustee must provide a bankrupt written notice setting out particulars of the assessment in all cases, and replaces it with a requirement that this only needs to occur in circumstances when the bankrupt has a contribution liability in the contribution assessment period that has been assessed.

6 Subsection 185C(5) - definition of threshold amount

Amends the definition of ‘threshold amount’ at paragraph 185C(5) to move from bi‑annual indexation to an annual indexation basis.

Establishes a new method for indexation under the Act that will enable the indexable amounts specified at paragraph 304A(1) to be indexed on an annual basis, from 1 July 2022, using the Consumer Price Index for the preceding March quarter.

7 Subsection 304A(1) – indexation amounts to facilitate annual indexation

Repeals outdated indexation amounts referenced in subsection 304A(1) of the Act and substitute those amounts with the current indexed amounts. Substitutes amounts with the current indexed amounts as at 20 September 2021.