A
AFSA's online annual administration return (AAR) service.
The person or group of persons who has responsibility for, and control over, the entity's operations. AFSA's accountable authority is our Chief Executive and Inspector-General in Bankruptcy.
Written instructions to officials that assist AAs to meet their obligations under the Public Governance, Performance and Accountability Act 2013 (PGPA Act).
Sequential numbers assigned to insolvency administrations. In the format STATE SEQUENTIAL NUMBER / YEAR / CHECK DIGIT—e.g. TAS 6000/14/3.
A process under the Personal Property Securities Act 2009 that allows persons with an interest in collateral described in a registration to demand to have the registration removed or amended in certain circumstances.
An Act relating to the review on questions of law of certain administrative decisions.
The provisions contained in a range of legislation giving entitlement to seek review of a decision made by a government department or agency.
Provides independent review of a wide range of administrative decisions made by the Australian Government and some non-government bodies.
Publication of a notice on the AFSA website or in a newspaper via the method approved by the Inspector-General advising a meeting of creditors.
The ASC supports AFSA's personal insolvency and PPS businesses and provides both information and electronic registry services to clients.
Property acquired by a bankrupt after the date of bankruptcy and before discharge.
A collateral class registrable on the Personal Property Securities Register (PPSR).
It includes all personal property over which the grantor has an interest both at the time a registration is made and after.
This is sometimes abbreviated to ‘AllPAAP’.
A collateral class registerable on the Personal Property Securities Register (PPSR).
It includes all present and after-acquired property, except for any personal property of the grantor stated in the registration as being exempt.
This is sometimes abbreviated to ‘AllPAAP except’.
A person or entity who/that is alleged to have committed a criminal offence/s.
Used to collect information on the operation of the Bankruptcy Act 1966 from debt agreement administrators, controlling trustees and registered trustees. Section 70-5 of Schedule 2 of the Insolvency Practice Schedule (Bankruptcy) and section 185LEA of the Bankruptcy Act empowers the Inspector-General in Bankruptcy to obtain this information.
A document prepared by a Commonwealth entity's accountable authority after the end of a financial year that acquits actual performance against the planned performance for that year described in the entity's corporate plan. Annual performance statements are included in an entity's annual report.
A transaction that has taken place prior to a personal insolvency agreement or bankruptcy that is void against the trustee. Includes a transaction where less than market value has been paid for an asset, a transfer has been made to prevent the property becoming divisible among creditors or a preferential payment has been made to a specific creditor. A trustee has the ability to recover the asset or difference in purchase price paid.
The record of independent reviews performed by the Administrative Review Tribunal (ART). The ART provides independent review of a wide range of administrative decisions made by the Australian Government and some non-government bodies.
Prior to commencement of the Personal Property Securities Register, company charges were recorded on a register administered by the Australian Securities and Investments Commission (ASIC). Those charges were migrated to the Personal Property Securities Register.
Maintenance incurred in relation to a managed asset i.e. insurance, registration, land taxes, rates, services, storage, real estate expenses, etc.
The central web-based facility for the publication of Australian Government procurement information, including business opportunities, annual procurement plans and contracts awarded.
ARITA represents practitioners and other associated professionals who specialise in the fields of restructuring, insolvency and turnaround.
An independent Australian government body that acts as Australia's corporate regulator. It's role is to enforce and regulate company and financial services laws to protect Australian consumers, investors and creditors.
B
An Act to impose realisations charge and interest charge in relation to certain administrations under the Bankruptcy Act 1966.
The Commonwealth legislation that provides for bankruptcy, Part IX (debt agreements), Part X (personal insolvency agreements) and Part XI deceased estate administrations. It deals with individuals.
An Act that introduced a range of amendments to the Bankruptcy Act 1966.
A formal, final demand for payment of a debt by a creditor owed at least $10,000 on one or more final judgments or final orders. This notice is issued by the Official Receiver at the request of a creditor, who must have a judgment from a court of competent jurisdiction to evidence their claim that they are owed money. Failure to comply with a bankruptcy notice constitutes an act of bankruptcy.
An online service offered by AFSA that allows access to personal insolvency information via the National Personal Insolvency Index (NPII) for a fee.
Is a record, at a point in time, of evidence that has been collated by AFSA for referral to the Commonwealth Director of Public Prosecutions (CDPP), or to be served against a defendant in a prosecution, in relation to a suspected offence/s.
A set of activities that a business must perform in order to meet its business goals and objectives.
A service that provides value to its consumers through the enactment of a defined business process.
Where an individual's bankruptcy is directly related to his or her proprietary interest in a business.
C
The ability for AFSA to utilise resources effectively to achieve a predictable, productive outcome. A capability is built from the people, knowledge and skills present within AFSA, the services they provide and consume, the systems utilised in providing and consuming those services, and the data that underpins these systems and human knowledge. AFSA’s core capabilities are contained in the following key areas; financial and legal, process and administration, data analytics and technology.
A certificate issued by the Official Receiver confirming the appointment of a trustee (or trustees) to an insolvency administration.
A certificate pursuant to subsection 185C(2D) of the Bankruptcy Act 1966, which accompanies a debt agreement proposal filed with the Official Receiver. It includes the following:
- consent to be the debt agreement administrator
- confirmation that the prescribed information was given to the debtor
- a statement that the administrator has reasonable grounds to believe the debtor can afford and sustain the debt agreement
- a statement that the administrator has reasonable grounds to believe that the debtor has set out all required information in their statement.
A form of security that ensures the repayment of a debt (or the performance of an obligation) by providing that, should the debt not be repaid, the creditor has rights to be paid, usually out of the proceeds of the sale of an asset.
A form sent to each creditor of a debtor who has proposed a debt agreement, variation or termination so that the creditor can complete it with details of its claim and vote as to whether they accept the proposal or reject it.
A method of doing business that focuses on the client.
Personal property that has a security interest attached to it as a result of an agreement between a grantor and a secured party. For example, property that can be taken by a lender if a loan is not repaid.
When making a registration on the Personal Property Securities Register (PPSR), the collateral must be described by a collateral class.
A set of categories used on the Personal Property Securities Register (PPSR) to describe the collateral contained in a registration.
A registration must only relate to a single collateral class. It cannot be amended once a registration is completed.
Commercial property is personal property that is not consumer property.
It is personal property that is held in the course or furtherance to any degree of carrying on an enterprise to which an ABN has been allocated.
When AFSA, acting as the Official Trustee, administers an estate, all amounts held in respect of the estate are deposited into the Common Investment Fund.
An independent prosecution service established to prosecute alleged offences against Commonwealth law and deprive offenders of the proceeds of criminal activity under the control of the Director, a statutory officer appointed by the Attorney-General.
A framework stipulating the importance of performance for Commonwealth entities as required under paragraph 5(b) of the Public Governance, Performance and Accountability Act 2013.
A Government scheme whereby agencies are able to provide compensation to people who have experienced detriment as a result of an agency's defective actions or inaction.
A debt agreement is completed when the debtor has made all payments and completed all obligations under the debt agreement. (Section 185N of the Bankruptcy Act 1966).
Offences against the Bankruptcy Act 1966 or contraventions of the Personal Property Securities Act 2009 that do not fall within the definition of a compliance offence and cannot be resolved by a compliance letter or an infringement notice. Generally, complex offences involve fraud and/or financial loss.
Administrative-type bankruptcy offences where an individual, whether bankrupt or not, has failed to comply with a legislated requirement under the Bankruptcy Act 1966, the Insolvency Practice Rules (Bankruptcy) or the Bankruptcy Regulations.
- See Section 73 proposal.
- A former Part X arrangement, ceasing as at 1 December 2004. (The term is still used in this context for National Personal Insolvency Index purposes.)
Where a person is serving or trying to serve two or more interests that aren't compatible. For instance, if a solicitor acted for both parties in a matter.
A form completed by a trustee (or two trustees, if they wish to act jointly and severally) confirming that he/she/they is willing and able to act as the trustee(s) of an administration. The form is filed with the Official Receiver.
A measure of changes in the price level of consumer goods and services purchased by households.
Personal property held by an individual, other than personal property held in the course or furtherance, to any degree, of carrying on an enterprise to which an Australian Business Number (ABN) has been allocated.
An asset that might arise if a certain event occurs (e.g. a current legal action being taken by a company might result in an asset if the company wins the case).
A liability that might arise if a certain event occurs (e.g. a current legal action against a company might result in a liability if the company loses the case).
An amount that a bankrupt is liable to pay if their income exceeds a certain amount. The amount that the bankrupt has to pay is calculated using a statutory formula contained in section 139S of the Bankruptcy Act 1966.
A person (a registered trustee, the Official Trustee in Bankruptcy or an eligible solicitor) who investigates a debtor's financial affairs and calls a meeting of the debtor's creditors under Part X of the Bankruptcy Act 1966.
Authorisation given by a debtor to a trustee or solicitor of his or her choice that appoints the trustee/solicitor to manage the debtor’s affairs under section 188 of the Bankruptcy Act 1966, without him or her becoming bankrupt.
The principal planning document of an entity that sets out the entity’s purpose, what it will do to achieve its purpose and how it will know that it has achieved its purpose. The plan should inform the reader about the significant activities the entity will undertake over the period of the plan.
A type of government cost recovery charge used when a good or service or, in certain circumstances, regulation is provided directly to a specific individual or organisation.
A tool for documenting cost recovery design and operation and reporting on a cost recovered activity. A CRIS must be prepared for each cost recovered activity conducted by a government entity.
A file kept by a credit reporting agency that shows a person’s credit history. Lenders access the information in the person’s file to help them decide whether to lend money.
A record of a borrower's responsible repayment of debts.
A report that details a person's credit history, including every time a credit application is made or a default occurs on a repayment. It is held by a credit reporting agency and a lender must ask the person for permission to get this report.
An organisation that collects and sells credit information on individuals and companies.
A person, organisation, company or other entity to whom/which money is owed.
The vote of a creditor in relation to a matter about an insolvency administration, raised in a formal meeting of creditors or through the debt agreement voting process.
An application to a court that is filed by a creditor owed $10,000 or more, or two or more creditors owed $10,000 or more, in which the creditor seeks to make a debtor involuntarily bankrupt.
A meeting of the creditors of a debtor or bankrupt that is convened by the controlling trustee or trustee so that certain issues can be put to creditors for their consideration and a vote.
An order made by the court that allows the Official Trustee in Bankruptcy to take custody and control of property covered by a restraining order, until further orders are made. The order can be made in relation to property that is believed to have been obtained using the proceeds of criminal activity.
D
A legally-binding agreement under Part IX of the Bankruptcy Act 1966 between a person who cannot pay his or her debts and his or her creditors. A debt agreement is made when creditors agree to accept the proposed terms and conditions of the debt agreement to settle the debts.
An eligible person nominated by a debtor to handle a debt agreement on his or her behalf. May only be a Registered Debt Agreement Administrator, a Registered Trustee or the Official Trustee.
A proposal put forward by an eligible debtor with unmanageable debts to enter into a debt agreement. This proposal must be on a set form and is put to creditors to vote upon. Proposing a debt agreement is an act of bankruptcy.
The fee payable to the Official Receiver (AFSA) when a debtor lodges a debt agreement proposal.
An entity that buys debts from a creditor (for less than their face value) and tries to recover the full amount.
A person who owes a debt.
An application from a debtor to become voluntarily bankrupt.
The relevant form for the above process is the Bankruptcy Form.
Debts that a bankrupt is still liable to pay after discharge from bankruptcy, completion of a debt agreement or discharge of a personal insolvency agreement obligations.
- The property and assets of a person who has died.
- Part XI of the Bankruptcy Act 1966 contains provisions enabling the insolvent estate of a deceased person to be administered in a way that is similar to a Part IV bankruptcy. Part XI provides for both the administration of deceased estates for persons who are insolvent at the date of death and those deceased estates that subsequently become insolvent because of debts incurred by the legal personal representative of the deceased estate.
Used in bankruptcy to show how many people depend on the bankrupt person for economic support. To be classified as dependant, they must meet three conditions:
- live with the bankrupt person
- be wholly or partly dependant on the bankrupt person for economic support
- have an annual income less than the set amount.
An officer appointed to be responsible for directing and managing the affairs of the company.
At present, the date of discharge is the day after bankruptcy ends, which is three years and one day from either the date the debtor’s petition was accepted or, for a sequestration order, when the bankrupt filed a statement of affairs which was accepted, unless an objection to discharge is filed by the trustee that extends the bankruptcy.
A person whose period of bankruptcy has ended. A discharged bankrupt still has obligations at law but is no longer bankrupt.
A type of trust where the distributions from the trust are made at the discretion of the trustee.
A distribution of funds that is made to creditors from any asset or income realisations in an administration under the Bankruptcy Act 1966.
Assets/property that can legally be sold in bankruptcy by the trustee.
E
For a Commonwealth entity, the Act or legislative instrument that establishes the entity.
AFSA's Enforcement function is responsible for investigating all alleged offences under the Bankruptcy Act 1966 and Personal Property Securities Act 2009, preparing briefs for prosecution and providing support to prosecutors and litigants.
The Regulation function operates independently from AFSA's other functional roles, discharging the regulatory and review responsibilities of the Inspector-General in Bankruptcy under the Bankruptcy Act. The enforcement function is responsible for investigating all alleged offences under the Bankruptcy Act and preparing briefs for prosecution.
An integrated view of the data produced and consumed across an entire organisation.
A person's estate is comprised of his or her property. When a person becomes bankrupt, ownership of most property and the rights attached to this property transfers to the trustee, and the trustee deals with this property (the trustee administers the estate) for the benefit of creditors.
In relation to a person means the person's dealings, transactions, property and affairs and the financial affairs of an associated entity of the person in so far as they are or appear to be relevant to the person or to any of his or her conduct, dealings, transactions, property and affairs.
Assets/property that cannot be sold in bankruptcy by the trustee. These are identified in s116 of the Bankruptcy Act 1966.
When a debt is released after bankruptcy, debt agreement or personal insolvency agreement. This means the person is no longer liable to pay the debt.
F
A judgment that finally determines the issues between the parties in a proceeding. A bankruptcy notice must be founded on a 'final judgment or order'.
A person who gives confidential and independent assistance to people with financial problems. Financial counselling services are usually provided by community or welfare organisations and are often provided free of charge.
Financial Property is one of the four collateral class categories. It includes personal property such as currency, document of title, shares and cheques.
The information entered by a secured party when making changes to an existing registration on the Personal Property Securities Register (PPSR).
The information entered by a secured party when making a registration on the Personal Property Securities Register (PPSR).
Property that the court determines was obtained with the proceeds of criminal activity and that has its ownership transferred to the Commonwealth under proceeds of crime legislation.
A court order under proceeds of crime legislation transferring property to the Commonwealth.
Defined by the Commonwealth Fraud Control Better Practice Guidance as 'dishonestly obtaining a benefit, or causing a loss, by deception or other means'.
An Act to give members of the public rights of access to official documents of the Australian Government and of its agencies.
G
An automatic deduction arranged without a person's consent (generally from their income or bank account) due to non-payment of a debt. A trustee in bankruptcy can garnishee income or monies held by third parties on behalf of a bankrupt, where the bankrupt has been assessed as liable to pay income contributions to his or her bankrupt estate and has failed to make payments.
A legally binding promise whereby one party assumes responsibility for the debt, or performance obligations, of another party should that party default in some way, for example, where an entity guarantees payment of bank borrowings by a third party.
H
AFSA’s independent Enforcement and Practitioner Supervision division examines complaints made against registered trustees and registered debt agreement administrators.
A thing or circumstance that causes ongoing or persistent suffering or difficulty. There are specific hardship provisions in section 139T of the Bankruptcy Act 1966 that are limited to exceptional circumstances that would impose an excessive financial burden on a debtor. The list of hardship reasons is exhaustive and includes ongoing medical expenses, necessary childcare costs to enable employment and rent costs.
Some state and territory laws provide that motor vehicles used in the commission of certain offences may be made subject to impoundment, immobilisation and forfeiture. Motor vehicles that have been the subject of such sanctions may be registered on the Personal Property Securities Register, as a hoon lien.
Items that a bankrupt is able to retain when they become a bankrupt (i.e. that are not divisible property). A list of these items can be found in section 27 of the Bankruptcy Regulations 2021.
I
This is the income of the bankrupt that is used for assessing his or her income contributions liability. It is not necessarily the same as the bankrupt's taxable income for taxation purposes, as certain amounts are specifically included in, or excluded from, income for bankruptcy purposes—see section 139L of the Bankruptcy Act 1966.
A bankrupt may be liable to make a contribution—subject to thresholds and the number of dependents—to their bankrupt estate from income earned during their bankruptcy. It is fitting that some of the income from the bankrupt's efforts during the bankruptcy are used to satisfy their past debts.
A legally-binding promise whereby a party undertakes to accept the risk of loss or damage another party may suffer. For example, where an entity hires a venue to host a conference it may indemnify the owner of that venue against losses that may be suffered if attendees damage the venue. An indemnity may give rise to a contingent liability for the party who gives the indemnity.
AFSA no longer has Index Search Agents. Index Search Agents were previously listed on our website as they provided the only way for the general public to search the National Personal Insolvency Index (NPII). AFSA has moved away from this operating model and on 19 October 2014, we launched our own online Bankruptcy Register Search (BRS) service. Users can now self-serve and conduct a search of the NPII for a fee of $15.00.
For more information please see: https://www.afsa.gov.au/online-services/bankruptcy-register-search
Amounts referenced in the Bankruptcy Act 1966 and related statutory instruments that are periodically adjusted in accordance with the consumer price index. Some are adjusted every quarter, others every six months. As an example, they identify the value of assets that can be retained by a bankrupt or the income a bankrupt can earn before they are required by law to contribute towards their bankruptcy.
A person that is an individual person (as opposed to an organisation, such as a company) who grants a security interest in personal property.
Australian Government agencies that are subject to the Freedom of Information Act 1982 (FOI), are required to publish a range of information on their websites as part of the IPS. The IPS is intended to form the basis for a more open and transparent culture across government with agencies encouraged to take a proactive approach to publishing the information they hold, and to consider what they can publish over and above the information they are obliged to publish.
A statutory demand for payment of a fine issued due to contravention of legislation. In relation to the Bankruptcy Act 1966, infringement notices may be issued (by AFSA's Enforcement and Practitioner Supervision division, acting on behalf of the Inspector-General in Bankruptcy) in respect of certain offences against the Act.
- The state of being insolvent.
- One of the types of administrations provided under the Bankruptcy Act 1966.
A person or entity who is unable to pay his or her debts as and when they fall due.
An office created under the Bankruptcy Act 1966 to be responsible for the general administration of the Bankruptcy Act and to have the powers to regulate registered trustees and debt agreement administrators, review decisions of trustees and investigate allegations of offences under the Act.
IGPDs assist regulated entities, by explaining how the law should be interpreted, giving both guidance and direction on specific insolvency practice.
IGPGs give guidance to regulated and non-regulated entities by explaining when and how the Inspector-General in Bankruptcy will interpret areas of work or practice that are specifically governed or provided for under the Bankruptcy Act 1966, describing the principles underlying the Inspector-General's approach and the Inspector-General's expectation of practitioners.
IGPSs give guidance to regulated entities by explaining when and how the Inspector-General in Bankruptcy will exercise specific powers under the Bankruptcy Act 1966, describing the principles underlying the Inspector-General's approach and the Inspector-General's expectation of practitioners.
Under powers in the Bankruptcy Act 1966, AFSA’s independent Enforcement and Practitioner Supervision division—as delegates of the Inspector-General in Bankruptcy—may review decisions made by a bankruptcy trustee about:
- income contribution assessments
- hardship applications
- supervised account notices
- objections to discharge
- trustee remuneration and costs by a third party.
Personal property (including a licence) e.g. copyright, debts and other receivables, bank accounts, but not goods or financial property.
The interest earned on funds held by registered trustees and debt agreement administrators is paid to the Commonwealth, and used to fund the cost of conducting inquiries in certain bankruptcies, investigating alleged offences, monitoring and regulating trustees and administrators and providing information to a range of clients.
An international body that brings together the collective experience and expertise of government insolvency regulators from jurisdictions around the world.
L
The final day on which creditors can submit claim and vote forms for a debt agreement proposal to the Official Receiver.
A law or body of laws formally made or enacted. The term includes statute law or Acts of Parliament, but also encompasses law made by other bodies under the authority of Parliament.
An obligation or responsibility to do something (such as repay a debt).
Debts or damages where the amount payable has been fixed or is otherwise certain. Admitting liability for an amount being claimed as a debt or damages does not, of itself, necessarily mean that debt or those damages are liquidated.
M
- An application that is registered in an AFSA insolvency system/s that may or may not result in an administration.
- A subject or situation under consideration.
A written agreement between two or more parties that defines the working relationship, expectations and responsibilities. MoUs are usually not legally binding on the parties. They are commonly used to clarify arrangements between non-corporate Commonwealth entities.
Includes a Presiding Officer of a Parliamentary Department.
An estate in which there is an asset(s) that is uncommercial for the trustee to realise at present and which the Official Trustee in Bankruptcy will monitor with a view to taking action to realise the asset(s) if/when it becomes commercial to do so.
N
The electronic record of all personal insolvency administrations in Australia that can be accessed by anyone for a fee.
Where a person is charged with a federal offence, the court may order the person to be discharged without conviction upon giving security by recognisance or otherwise, to the satisfaction of the court (see section 19B of the Crimes Act 1914).
A security interest that is created by a security agreement that was not in force prior to 30 January 2012 and continued in force after that time.
O
A written document that outlines the trustee's decision to extend the bankruptcy and why the decision was made. It is filed with the Official Receiver and is registered on the National Personal Insolvency Index (NPII).
A role created under the Bankruptcy Act 1966 to carry out statutory functions under that Act, including maintaining the National Personal Insolvency Index (NPII), providing registry services in relation to personal insolvencies and assisting trustees to perform their functions though the issue of statutory notices.
The Official Receiver has discretion to cancel a debt agreement proposal during the voting period on the basis of non-disclosure or incorrect information on the proposal and/or explanatory statement on which the creditors are relying when making a decision on their vote, or when a withdrawal request from the debtor has been received. (Section 185ED of the Bankruptcy Act 1966).
The Official Receiver has discretion to withdraw a variation (section 185MD of the Bankruptcy Act 1966) or termination proposal (section 185PD of the Bankruptcy Act) during the voting period when a withdrawal request by the proposing creditor or debtor is received, or if the Official Receiver becomes aware of material reasons that could affect creditors' decisions when voting.
A notice issued by the Official Receiver, either on application by a trustee or at the Official Receiver's initiative, that requires a bankrupt, debtor or third party to do something specific and that imposes penalties for non-compliance.
A body corporate that administers bankruptcies and other personal insolvency arrangements when a registered trustee or other administrator is not appointed.
A resolution passed by a majority in value of the creditors present personally, by telephone, by attorney or by proxy at a meeting of creditors and voting on the resolution.
The knowledge, experience, professional skill sets, and specialised people within AFSA that contribute to servicing clients and stakeholders and achieving AFSA's goals.
An organisation, such as a company, who grants a security interest in personal property.
P
See bankruptcy.
See debt agreement.
See deceased estate.
An individual or an organisation.
Under proceeds of crime legislation, if certain offences have been committed, pecuniary penalty orders can be made, ordering payments to the Commonwealth of amounts based on the benefits that a person has derived from such an offence and the benefits that the person has derived from other unlawful activity.
Data sought and generated by AFSA to determine the efficiency and effectiveness of activities in the achievement of AFSA's purpose(s). Performance information supports stories that describe how public resources are used to deliver on AFSA's purposes.
Mechanisms used by AFSA to generate performance information relating to the efficiency and effectiveness of activities in pursuing AFSA's purpose(s). These measures are reported against in annual performance statements.
A term that covers debt agreements, personal insolvency agreements, debtors' petition bankruptcies, sequestration order bankruptcies and deceased estate administrations.
A formal arrangement under Part X of the Bankruptcy Act 1966 that results from creditors accepting a debtor's proposal to settle his or her debts. Unlike debt agreements, personal insolvency agreements are not subject to income, asset or debt thresholds.
The combination of registered trustees in private practice, AFSA's trustee function (the Official Trustee in Bankruptcy), registered and unregistered debt agreement administrators in private practice, and solicitors who act as controlling trustees in Part X.
An association for practitioners who are primarily involved with the personal insolvency industry, particularly Part IX debt agreements.
The way in which AFSA transmits reports and file downloads of information from the National Personal Insolvency Index (NPII) to credit reporting and licensing organisations.
The Personal Property Securities Act 2009 (Cth) is the law on security interests in personal property. It also established the PPSR. AFSA, through the Registrar of Personal Property Securities, administers the PPSA and the PPSR.
The PPSR is the official government register of security interests in personal property – these are debts or other obligations that are secured by personal property. It’s an online noticeboard accessible by the general public 24/7 and is not a register of title or ownership of personal property.
The PPSR started on 30 January 2012 and replaced many state based registers, (such as REVS and other vehicle registers and the ASIC Register of Company Charges), to form one national register.
A security interest in personal property.
Refers to an area of responsibility assigned to a Minister of the Australian Government under the Administrative Arrangements Order. A portfolio may encompass more than one Department of State, for example, the Defence Portfolio consists of the Department of Defence and the Department of Veterans' Affairs.
Inform members of parliament and the public of the proposed allocation of resources to government outcomes. They also assist the Senate standing committees with their examination of the government's Budget.
The process of undertaking a compliance review of practitioner estate administration files, and their systems and controls.
Insolvency practitioners—bankruptcy trustees and debt agreement administrators—must apply to the Inspector-General in Bankruptcy and meet particular legislative requirements to become registered practitioners.
The Regulation function operates independently from AFSA's other functional roles, discharging the regulatory and review responsibilities of the Inspector-General in Bankruptcy under the Bankruptcy Act 1966.
A payment or transfer of property by a debtor to a creditor (or to more than one creditor) before the debtor becomes bankrupt, where that payment gave the recipient creditor a priority over other creditors. A trustee can claw back this money or property for the benefit of all creditors if certain criteria are satisfied.
Information that MUST be read by a debtor before submitting a debtor’s petition, debt agreement proposal or controlling trustee authority to the Official Receiver (AFSA).
In addition to security interests, registrations may be made on the Personal Property Securities Register regarding certain types of property prescribed in the Personal Property Securities Regulations 2010, such as motor vehicles subject to hoon liens or property subject to a proceeds of crime order.
The requirement for administrative decisions to be reasonable, fair, just and transparent. The three principles of procedural fairness are the fair hearing rule, the bias rule and the no evidence rule. These principles require that a person whose interests will be adversely affected by a decision is given an opportunity to be heard and to hear the case against them, and the decision is made by the decision-maker without bias or the apprehension of bias, and the decision is based upon logically probative evidence.
An Act providing for the confiscation, restraint and potential forfeiture to the Commonwealth of property related to the commission of certain offences. The Official Trustee in Bankruptcy has various duties and functions under proceeds of crime legislation. The 1987 Act was largely superseded by the Proceeds of Crime Act 2002. Since the introduction of the Proceeds of Crime Act 2002 in January 2003, no new matters have been initiated under the 1987 Act.
The current proceeds of crime legislation under which the Official Trustee in Bankruptcy has various duties in relation to controlling and dealing with assets that are or are alleged to have been acquired with the proceeds of criminal activities pursuant to court orders.
The act of obtaining/procuring goods or services.
One of the three methods used to conduct a procurement—open tender, prequalified tender or limited tender.
Government actions taken to deliver an agency's stated outcomes.
A form on which a creditor can outline its claim in an administration. A dividend will only be paid to those creditors whose proof of debt has been admitted by the trustee.
Efficient, effective, economical and ethical when used in relation to the use or management of public resources under the Public Governance, Performance and Accountability Act 2013 (PGPA Act).
Money that can’t be claimed by a trustee in bankruptcy e.g. some superannuation funds, insurance policies and compensation payments for personal injury.
A debt that entitles the creditor to lodge a claim and participate in a dividend in a debt agreement, personal insolvency agreement, bankruptcy or deceased estate administration.
A written appointment given by one person to another person to act for him or her. In a personal insolvency context, a proxy is usually the granting by a creditor of the right to vote in its place at a meeting of creditors convened by a trustee.
An Act to provide for the establishment and management of the Australian Public Service, and for other purposes.
Q
- The number of members of a group or organisation required to be present to transact business legally, usually a majority.
- At a meeting of creditors a quorum is determined by the trustee and requires a minimum of one creditor who is entitled to vote (either in person or by proxy) and the trustee (or its representative) present. A note to section 64N of the Bankruptcy Act 1966 states that at least two persons must be physically present, that is the trustee (or its representative) cannot also be the proxy or attorney of the creditor who is entitled to vote.
R
Land, including vacant land, or land together with such things that are by law considered to be part of the land, e.g. buildings, houses, fences.
Land and interests in land, including vacant land, or land together with such things that are by law considered to be part of the land, e.g. buildings, houses, fences.
An incoming receipt in a personal insolvency. This could be from the sale of an asset, the recovery of income contributions, a debtor paying instalments from income, a receipt in relation to an Official Receiver notice, the Australian Taxation Office paying a tax return to the trustee, settling litigation etc.
A levy on the money received by bankruptcy, composition, debt agreement, and personal insolvency agreement and deceased estate administration practitioners.
A referral made by a practitioner—to AFSA’s independent Enforcement and Practitioner Supervision division—when they consider there is evidence that satisfies the relevant standard of proof of an offence under the Bankruptcy Act 1966. Members of the public can also submit referrals when they have evidence of an offence under the Bankruptcy Act 1966 or a contravention of the Personal Property Securities Act 2009. The offence referral must contain all of the information and evidence about the alleged offence.
A person and/or company registered with AFSA on the National Personal Insolvency Index permitted to have control of the administration of debt agreements under Part IX of the Bankruptcy Act 1966.
A person registered with AFSA on the National Personal Insolvency Index permitted to have control of the administration of bankruptcies, personal insolvency agreements under Part X or debt agreements under Part IX of the Bankruptcy Act 1966.
A person appointed in accordance with the Personal Property Securities Act in order to administer the operation of the Personal Property Securities Register (PPSR) and make and delegate powers to make decisions with respect to its data and other relevant matters.
A creditor who has some relationship to a particular debtor/bankrupt.
For debt agreements lodged after 27 June 2019, 'related creditor' may also refer to a creditor who has some relationship with the debt agreement administrator.
For insolvency purposes in relation to a person, the Bankruptcy Act 1966 defines it as:
- a relative of the person
- a body corporate of which the person, or a relative of the person, is a director
- a body corporate that is related to the body corporate referred to in paragraph (b)
- a director, or a relative of a director, of a body corporate referred to in paragraph (b) or (c)
- a beneficiary under a trust of which the person, or a relative of the person, is a trustee
- a relative of such a beneficiary
- a relative of the spouse, or de facto partner, of such a beneficiary
- a trustee of a trust under which the person, or a relative of the person, is a beneficiary.
For insolvency purposes in relation to a person the Bankruptcy Act 1966 defines it as:
- the spouse of the person or
- a parent or remoter lineal ancestor of the person or of the person's spouse or
- a child or remoter lineal descendant of the person or of the person's spouse or
- a brother or sister of the person or of the person's spouse or
- an uncle, aunt, nephew or niece of the person or of the person's spouse or
- the spouse of a person specified in paragraph (b), (c), (d) or (e).
- When there is no longer a liability to repay a debt.
- At the date of discharge a bankrupt is released from most debts. This means the bankrupt is no longer responsible for or has to pay those debts.
- A debtor subject to a Part X personal insolvency agreement is also released from most debts when he or she meets certain conditions of the agreement with creditors.
- A debt agreement debtor is released from most debts when the terms of the agreement are completed.
A vote accepted by a certain proportion of the parties entitled to vote (or their proxies) at a meeting. The Bankruptcy Act 1966 requires a majority in value of the creditors present personally, by telephone, by attorney or by proxy to vote for a resolution to pass.
Property subject to a restraining order under proceeds of crime legislation that must not be disposed of, or otherwise dealt with, by any person except in the manner and circumstances specified in the court order or under the legislation.
Property of the bankrupt that vested in the trustee can become the former bankrupt's property again if the trustee did not deal with it (most commonly by selling it) within the period specified in legislation and the trustee did not extend the revesting date; and can also occur after an annulment.
S
An authority signed by both the debtor and the controlling trustee to enable either a registered trustee, a solicitor or the Official Trustee to call a meeting of the debtor's creditors to consider a personal insolvency agreement. The authority does not become effective until both parties have signed it.
Trustees may obtain Commonwealth funding assistance under section 305 of the Bankruptcy Act 1966 to initiate or defend proceedings or to pursue inquiries for certain matters. Section 305 funding is intended to facilitate the proper carrying out of the trustee's statutory and fiduciary duties.
Such proposals are compositions or arrangements made by bankrupts through their trustees to finalise their debts. The creditors vote on whether or not to accept such offers. An offer may involve assets already in the bankruptcy or may include other money or assets that would not normally be available to creditors, such as money provided by a relative. These offers may benefit creditors as they receive a dividend that would not be otherwise available. All creditors will receive an equal rate of dividend unless the offer provides otherwise.
A creditor, whose debt is secured. The Bankruptcy Act 1966 requires such a creditor either to satisfy the requirements of the Personal Property Securities Act 2009 or to hold a mortgage, charge or lien on property of the debtor as a security for a debt to the creditor from the debtor.
A loan where an asset is used as security or collateral. If you don’t make repayments, the provider may be able to repossess the asset (even if you are bankrupt).
A security interest is most commonly created when a secured party (such as a lender) takes an interest in personal property of a grantor (such as a borrower), as security for a loan or other obligation. The security interest means the secured party can take the personal property (known as the collateral) if the secured obligation is not met.
Security interests can only arise when there is agreement between the grantor and the secured party. There are a small number of other types of transactions that also create security interests known as deemed security interests.
An order of a court of competent jurisdiction making a person bankrupt based on a creditor being owed $10,000 or more petitioning to have that person made bankrupt.
A public commitment to what clients and stakeholders can expect when dealing with AFSA.
Describe the level of service AFSA aims to deliver.
Outstanding money owing after the sale of a secured asset.
Occurs when the Official Receiver is notified (as required by section 185LC of the Bankruptcy Act 1966) that a debtor has not made any payments for six months after a payment is due, or the debtor does not complete the terms and conditions of the debt agreement within six months of the completion date of the debt agreement. A six-month arrears default results in the debt agreement being terminated (section 185QA).
A type of business structure run by one person. AFSA deals with the insolvency of individuals and sole traders.
A matter administered by the Official Trustee in Bankruptcy other than a bankruptcy, personal insolvency agreement, debt agreement, deceased estate administration or proceeds of crime matter. The function is described in the Bankruptcy Act 1966 as 'acting in accordance with an order of a court relating to the payment of a debt due by a person to the Commonwealth or a Commonwealth authority'.
The Bankruptcy Act 1966 defines this as a resolution passed by a majority in number and at least three-fourths in value of the parties voting. In a personal insolvency context, it is generally creditors to whom issues are put to a vote.
- When a debtor becomes bankrupt, lodges a debt agreement proposal or lodges a personal insolvency agreement proposal, he or she must complete their statement of affairs on a specific form. The information provided must truthfully disclose all relevant details about his or her current financial position, including details of all debts and assets that are both currently-owned and were recently-owned.
- Where a sequestration order is made, the bankrupt must file his or her form within 14 days of being made aware of the order.
Credit cards issued by non-bank institutions such as department stores.
Demonstrates how the various elements of AFSA's organisation align to deliver AFSA's strategic plan.
A document that communicates AFSA's vision, purpose and goals for the next four years. It demonstrates how goals will be achieved through organisational expertise and capability.
T
A debtor may seek temporary relief from recovery action taken by a creditor by completing Form 5 of the Bankruptcy Act 1966. Once such a declaration is accepted by the Official Receiver, it prevents unsecured creditors from enforcing their debts for a period of 21 days. During this time, debtors are able to consider their options under the Bankruptcy Act.
A proposal lodged by the debtor or an affected creditor if the terms and conditions of the debt agreement are not being carried out. Creditors vote on the proposal to terminate in the same way as they vote on a debt agreement proposal. (Section 185P of the Bankruptcy Act 1966).
A debt agreement administrator has a duty to notify creditors where a debt agreement debtor has failed to maintain his or her debt agreement payments for a period of three months.
Australia has a robust personal insolvency system. The integrity of the data contained on the PPSR and the appropriate access and use of this data is also of great importance.
In administering and regulating these systems, AFSA proactively works with stakeholders and members of the public in maintaining high standards of practice. Where it is believed these high standards of practice are compromised, we thoroughly assess the matter.
Examples of a 'tip off' could be where you have information regarding potential fraud being committed by a practitioner, bankrupt or creditor, or an individual using PPSR data in a fraudulently for gain.
A security interest that arises from a transitional security agreement.
TIS National is an interpreting service, provided by the Department of Immigration and Citizenship, for people who do not speak English and for the English speakers who need to communicate with them.
An application made by a bankrupt to his or her trustee for permission to leave Australia.
A person or body who administers a bankruptcy or personal insolvency agreement. They can be either the Official Trustee (AFSA) or a registered trustee. See registered trustee and Official Trustee in Bankruptcy.
U
A transaction where less than market price has been paid for an asset in consideration of a transfer in ownership of the asset. A trustee has the ability to recover the asset or difference in purchase price paid if certain criteria set out in the Bankruptcy Act 1966 are satisfied.
A person who is bankrupt. (That is, someone who became bankrupt and whose bankruptcy has not yet ended.) Bankrupts have various obligations and various restrictions upon their conduct.
A creditor whose debt does not have security attached to it.
A loan that is not tied to any asset e.g. credit cards.
V
A proposal to vary the terms and conditions of an existing debt agreement due to a change in the debtor's circumstances. Creditors vote on the proposal to vary in the same way as they vote on the original proposal. (Section 185M of the Bankruptcy Act 1966.)
A document confirming the details of a registration on the Personal Property Securities Register (PPSR), which is automatically generated by the PPSR and sent to the secured party’s address for service.
It confirms the details of a registration and may need to be given by the secured party to the grantor. Secured parties should ensure that the details on the verification statement received are correct. Some mistakes will mean that the registration is ineffective.
All of the property of the bankrupt that belonged to him/her at the start of the bankruptcy or is acquired during the bankruptcy vests in the trustee, except for exempt property. Section 116 of the Bankruptcy Act 1966 defines exempt property. It includes property held by the bankrupt in trust, some household property, some personal property, property (to a certain value) used in earning income, a vehicle (to a certain value) used by the bankrupt, life assurance policies, some superannuation interests, rights to recover compensation for injury and any compensation recovered.
- Where a bankruptcy trustee has a legal right to deal with both those assets owned by the bankrupt person at the commencement of bankruptcy, and those acquired by or devolved upon the bankrupt person, during the bankruptcy.
- Where the bankruptcy trustee changes during the administration, assets remaining in the bankruptcy vest in the incoming trustee upon appointment, along with any assets acquired by or devolved upon the bankrupt during bankruptcy.
See proxy.
W
An order from a court of competent jurisdiction that permits a sheriff to seize particular property.