Bankruptcy Legislation Amendment (Superannuation Contributions) Act 2007 (57 of 2007)
Schedule 1 Amendments relating to superannuation contributions
Part 2 Amendments commencing on Proclamation
Bankruptcy Act 1966
21 After section 128D
Insert:
128E Superannuation account-freezing notice
Scope
(1) This section applies in relation to a member of an eligible superannuation plan if the Official Receiver has reasonable grounds to believe that:
(a) a transaction is void against the trustee of a bankrupt’s estate under section 128B or 128C; and
(b) either:
(i) the whole or a part of the member’s superannuation interest is attributable to the transaction; or
(ii) the trustee of the bankrupt’s estate has made an application for a section 139ZU order that relates to the transaction and the member’s superannuation interest.
Giving of freezing notice
(2) The Official Receiver may, by written notice (a superannuation account-freezing notice ) given to the trustee of the eligible superannuation plan, direct the trustee of the plan not to:
(a) cash or debit; or
(b) permit the cashing, debiting, roll-over, transfer or forfeiture of;
the whole or any part of the superannuation interest except:
(c) for the purposes of complying with a notice under section 139ZQ; or
(d) for the purposes of complying with an order under section 139ZU; or
(e) for the purposes of charging costs against, or debiting costs from, the superannuation interest; or
(f) for the purposes of giving effect to a family law payment split; or
(g) in accordance with the written consent of the Official Receiver given under section 128H; or
(h) for the purposes of complying with an order under paragraph 128K(1)(b); or
(i) for the purposes of complying with an order under subsection 139ZT(2); or
(j) in such circumstances (if any) as are specified in the regulations.
(3) The superannuation account-freezing notice must set out the facts and circumstances because of which the Official Receiver considers that the Official Receiver has reasonable grounds to believe that:
(a) the transaction is void against the trustee of the bankrupt’s estate under section 128B or 128C; and
(b) either:
(i) the whole or a part of the member’s superannuation interest is attributable to the transaction; or
(ii) the trustee of the bankrupt’s estate has made an application for a section 139ZU order that relates to the transaction and the member’s superannuation interest.
When Official Receiver may give freezing notice
(4) The Official Receiver may give the superannuation account-freezing notice:
(a) if the Official Trustee is the trustee of the bankrupt’s estate - on the initiative of the Official Receiver; or
(b) if a registered trustee is the trustee of the bankrupt’s estate - on application by the registered trustee.
When freezing notice comes into force
(5) The superannuation account-freezing notice comes into force when the notice is given to the trustee of the eligible superannuation plan.
128F Revocation of superannuation account-freezing notice
Revocation of freezing notice by Official Receiver
(1) If a superannuation account-freezing notice is in force in relation to a member of an eligible superannuation plan, the Official Receiver may, by written notice given to the trustee of the plan, revoke the superannuation account-freezing notice.
(2) The Official Receiver may revoke a superannuation account-freezing notice that relates to a member of an eligible superannuation plan:
(a) if the Official Trustee is the trustee of the bankrupt’s estate - on the initiative of the Official Receiver; or
(b) if a registered trustee is the trustee of the bankrupt’s estate - on application by the registered trustee; or
(c) in any case - on application by the member.
Revocation of freezing notice when section 139ZQ notice complied with etc.
(3) If:
(a) subparagraph 128E(1)(b)(i) applied in relation to a superannuation account-freezing notice given in relation to a member of an eligible superannuation plan; and
(b) during the 180-day period after the superannuation account-freezing notice comes into force, a section 139ZQ notice is given in relation to the transaction referred to in paragraph 128E(1)(a);
the superannuation account-freezing notice is revoked:
(c) when the trustee of the plan complies with the section 139ZQ notice; or
(d) when the section 139ZQ notice is revoked; or
(e) when the Court sets aside the section 139ZQ notice.
Revocation of freezing notice if no section 139ZQ notice given after 180 days
(4) If subparagraph 128E(1)(b)(i) applied in relation to a superannuation account-freezing notice given in relation to a member of an eligible superannuation plan, the superannuation account-freezing notice is revoked if:
(a) 180 days pass after the notice comes into force; and
(b) no section 139ZQ notice has been given in relation to the transaction referred to in paragraph 128E(1)(a).
Revocation of freezing notice when section 139ZU order complied with etc.
(5) If:
(a) subparagraph 128E(1)(b)(ii) applied in relation to a superannuation account-freezing notice given in relation to a member of an eligible superannuation plan; and
(b) during the 180-day period after the superannuation account-freezing notice comes into force, a section 139ZU order is made in relation to the transaction referred to in paragraph 128E(1)(a) and in relation to the member’s superannuation interest;
the superannuation account-freezing notice is revoked:
(c) when the trustee of the plan complies with the section 139ZU order; or
(d) when the section 139ZU order is set aside on appeal.
Revocation of freezing notice when application for section 139ZU order dismissed or withdrawn
(6) If:
(a) subparagraph 128E(1)(b)(ii) applied in relation to a superannuation account-freezing notice given in relation to a member of an eligible superannuation plan; and
(b) during the 180-day period after the superannuation account-freezing notice comes into force:
(i) the Court dismisses an application for a section 139ZU order in relation to the transaction referred to in paragraph 128E(1)(a) and in relation to the member’s superannuation interest; or
(ii) an application for a section 139ZU order in relation to the transaction referred to in paragraph 128E(1)(a) and in relation to the member’s superannuation interest is withdrawn;
the superannuation account-freezing notice is revoked.
Revocation of freezing notice if no section 139ZU order made after 180 days
(7) If subparagraph 128E(1)(b)(ii) applied in relation to a superannuation account-freezing notice given in relation to a member of an eligible superannuation plan, the superannuation account-freezing notice is revoked if:
(a) 180 days pass after the notice comes into force; and
(b) no section 139ZU order has been made in relation to the transaction referred to in paragraph 128E(1)(a) and in relation to the member’s superannuation interest.
Extension of 180-day period
(8) The Court may, on application by the Official Receiver, extend, or further extend, the 180-day period referred to in subsection (5), (6) or (7).
(9) The Official Receiver may make an application under subsection (8):
(a) if the Official Trustee is the trustee of the bankrupt’s estate - on the initiative of the Official Receiver; or
(b) if a registered trustee is the trustee of the bankrupt’s estate - on application by the registered trustee.
128G Copy of superannuation account-freezing notice to be given to trustee etc.
(1) If the Official Receiver gives or revokes a superannuation account-freezing notice that relates to a member of an eligible superannuation plan:
(a) the Official Receiver must give 2 copies of the superannuation account-freezing notice or the revocation notice, as the case may be, to the trustee of the bankrupt’s estate; and
(b) the trustee must give one of those copies to the member.
(2) A failure to comply with subsection (1) does not affect the validity of the superannuation account-freezing notice or the revocation notice, as the case may be.
128H Consent of Official Receiver to the cashing etc. of a superannuation interest
Scope
(1) This section applies if a superannuation account-freezing notice is in force in relation to a member’s superannuation interest.
Consent
(2) The member may apply in writing to the Official Receiver for the Official Receiver to consent to the cashing, debiting, roll-over, transfer or forfeiture, in whole or in part, of the member’s superannuation interest.
(3) If an application is made under subsection (2), the Official Receiver may, by written notice given to the trustee of the eligible superannuation plan concerned, consent to the cashing, debiting, roll-over, transfer or forfeiture, in whole or in part, of the member’s superannuation interest.
(4) A consent under subsection (3) may be:
(a) unconditional; or
(b) subject to such conditions (if any) as are specified in the notice of consent.
(5) If the Official Receiver gives a consent under subsection (3) in relation to a member’s superannuation interest, the Official Receiver must give a copy of the consent to the member.
Consultation
(6) Before giving a consent under subsection (3), the Official Receiver must consult the trustee of the bankrupt’s estate.
Review of decisions
(7) Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Official Receiver refusing to give a consent under subsection (3).
(8) The trustee of the bankrupt’s estate may apply to the Administrative Appeals Tribunal for review of a decision of the Official Receiver giving a consent under subsection (3).
128J Power of Court to set aside superannuation account-freezing notice
(1) If the Court, on application by:
(a) a person to whom a superannuation account-freezing notice has been given; or
(b) the member whose superannuation interest is affected by a superannuation account-freezing notice; or
(c) any other interested person;
is satisfied that the Official Receiver did not have reasonable grounds to believe that:
(d) the relevant transaction is void against the trustee of a bankrupt’s estate under section 128B or 128C; and
(e) either:
(i) the whole or a part of the relevant member’s superannuation interest is attributable to the transaction; or
(ii) the trustee of the bankrupt’s estate has made an application for a section 139ZU order that relates to the transaction and the relevant member’s superannuation interest;
the Court may make an order setting aside the notice.
(2) A superannuation account-freezing notice that has been set aside is taken not to have been given.
128K Judicial enforcement of superannuation account-freezing notices
(1) If the Court is satisfied that the trustee of an eligible superannuation plan has breached, or is proposing to breach, a superannuation account-freezing notice, the Court may, on application of the trustee of the relevant bankrupt’s estate, make any or all of the following orders:
(a) an order directing the trustee of the plan to comply with that notice;
(b) an order directing the trustee of the plan to pay to the trustee of the relevant bankrupt’s estate an amount not exceeding the money, or the value of the property, received as a result of the transaction referred to in paragraph 128E(1)(a);
(c) any other order that the Court thinks appropriate.
(2) The Court may discharge or vary an order granted under this section.
(3) An order by the Court under paragraph (1)(b) is enforceable as if it were an order for the payment of money made by the Court when exercising jurisdiction otherwise than under this Act.
128L Protection of trustee of eligible superannuation plan
(1) No criminal or civil proceedings lie against the trustee of an eligible superannuation plan because of anything done (or not done) by the trustee in good faith:
(a) in compliance with a superannuation account-freezing notice; or
(b) in connection with, or incidental to, the trustee’s compliance with a superannuation account-freezing notice; or
(c) in compliance with a section 139ZQ notice; or
(d) in connection with, or incidental to, the trustee’s compliance with a section 139ZQ notice; or
(e) in compliance with a section 139ZU order; or
(f) in connection with, or incidental to, the trustee’s compliance with a section 139ZU order; or
(g) in compliance with a subsection 139ZT(2) order; or
(h) in connection with, or incidental to, the trustee’s compliance with a subsection 139ZT(2) order; or
(i) in compliance with a paragraph 128K(1)(b) order; or
(j) in connection with, or incidental to, the trustee’s compliance with a paragraph 128K(1)(b) order.
(2) Anything done (or not done) by the trustee of a regulated superannuation fund, or the trustee of an approved deposit fund, in good faith:
(a) in compliance with a superannuation account-freezing notice; or
(b) in connection with, or incidental to, the trustee’s compliance with a superannuation account-freezing notice; or
(c) in compliance with a section 139ZQ notice; or
(d) in connection with, or incidental to, the trustee’s compliance with a section 139ZQ notice; or
(e) in compliance with a section 139ZU order; or
(f) in connection with, or incidental to, the trustee’s compliance with a section 139ZU order; or
(g) in compliance with a subsection 139ZT(2) order; or
(h) in connection with, or incidental to, the trustee’s compliance with a subsection 139ZT(2) order; or
(i) in compliance with a paragraph 128K(1)(b) order; or
(j) in connection with, or incidental to, the trustee’s compliance with a paragraph 128K(1)(b) order;
is taken not to be in breach of:
(k) the Superannuation Industry (Supervision) Act 1993; or
(l) any standards prescribed under that Act.
(3) Anything done (or not done) by an RSA provider in good faith:
(a) in compliance with a superannuation account-freezing notice; or
(b) in connection with, or incidental to, the RSA provider’s compliance with a superannuation account-freezing notice; or
(c) in compliance with a section 139ZQ notice; or
(d) in connection with, or incidental to, the RSA provider’s compliance with a section 139ZQ notice; or
(e) in compliance with a section 139ZU order; or
(f) in connection with, or incidental to, the trustee’s compliance with a section 139ZU order; or
(g) in compliance with a subsection 139ZT(2) order; or
(h) in connection with, or incidental to, the trustee’s compliance with a subsection 139ZT(2) order; or
(i) in compliance with a paragraph 128K(1)(b) order; or
(j) in connection with, or incidental to, the trustee’s compliance with a paragraph 128K(1)(b) order;
is taken not to be in breach of:
(k) the Retirement Savings Accounts Act 1997; or
(l) any standards prescribed under that Act.
128M References to a member of an eligible superannuation plan
References in a provision of this Subdivision to:
(a) a member of an eligible superannuation plan; and
(b) a bankrupt;
do not imply that the bankrupt may not be the member.