Bankruptcy Amendment Regulations 2002 (No. 1) (255 of 2002)

Schedule 1   Amendments

[11]   Part 8, Division 2

substitute

Division 2 Registration of trustees

Subdivision 1 Preliminary

8.05 Definitions

In this Division, unless the contrary intention appears:

application means an application under subsection 154A (1) of the Act.

chairperson means the chairperson of a committee.

committee means a committee convened under subsection 155 (1) of the Act.

member , in relation to a committee, includes the chairperson.

Subdivision 2 Constitution and procedure of committees generally

8.05A Chairperson of a committee

The chairperson of a committee is:

(a) the Inspector-General; or

(b) if the Inspector-General appoints another member of the committee as chairperson - that person.

8.05B Trustee chosen by the Insolvency Practitioners Association of Australia

A registered trustee chosen by the Insolvency Practitioners Association of Australia under paragraph 155 (2) (c) of the Act must have practised as a registered trustee for at least 5 years.

8.05C Resignation of chairperson

(1) A chairperson other than the Inspector-General may resign the office of chairperson by notice in writing signed by the chairperson and given to the Inspector-General.

(2) A notice of resignation takes effect when the Inspector-General receives it.

8.05D Resignation of members

(1) A member of a committee, other than the Inspector-General, may resign from the committee by notice in writing signed by the member and given to the Inspector-General.

(2) A notice of resignation takes effect when the Inspector-General receives it.

8.05E Disclosure of interests

If a member of a committee:

(a) is a close relative of the applicant; or

(b) has a financial or personal relationship with the applicant;

the member must, as soon as practicable after becoming aware of the identity of the applicant, disclose the nature of the relationship to the other members of the committee and to the Inspector-General.

8.05F Removal of members from a committee

(1) The Inspector-General may terminate the appointment of a member of a committee if:

(a) the member becomes physically or mentally incapable of performing the duties of a member; or

(b) the member becomes a bankrupt; or

(c) the member signs an authority under section 188 of the Act that is effective for the purposes of Part X of the Act; or

(d) the member becomes a party, as a debtor, to a debt agreement; or

(e) the member has been convicted of an offence involving fraud or dishonesty; or

(f) the member neglects his or her duty as a member.

(2) The Inspector-General may terminate the appointment of a member of a committee if:

(a) the member:

(i) is a close relative of the applicant; or

(ii) has a financial or personal relationship with the applicant; and

(b) the Inspector-General believes that relationship may affect the impartiality of the member.

8.05G Convening of a replacement committee

(1) This regulation applies if:

(a) either of the following events occurs:

(i) a member of a committee resigns or dies;

(ii) the appointment of a member of a committee is terminated under regulation 8.05F; and

(b) at the time of that occurrence, the committee has not made a decision under subsection 155A (1) of the Act.

(2) If this regulation applies:

(a) the Inspector-General must convene another committee (the new committee ) in place of the committee referred to in subregulation (1) (the previous committee ); and

(b) the new committee must not have regard to any proceedings of the previous committee.

8.05H General procedures of a committee

(1) Subject to the Act and this Division, a committee may determine its procedure.

(2) A committee must observe natural justice.

(3) A committee is not bound by any rules of evidence but may inform itself on any matter as it sees fit.

(4) A committee must keep a written record of its decisions.

8.05I Procedure at committee meetings

(1) Subject to this regulation, all members of a committee must be present in order to constitute a quorum for a meeting of the committee.

(2) At a meeting of a committee a matter is to be decided by a majority of the votes of the members.

(3) Any member may participate in a meeting by telephone.

(4) A member who participates in a meeting by telephone is taken to be present at the meeting.

(5) A committee may keep minutes of proceedings at its meetings.

8.05J Resolutions without meeting

(1) If the majority of the members of a committee sign a document containing a statement that they are in favour of a resolution in the terms set out in the document, the resolution is taken to have been passed at a meeting of the committee:

(a) on the day on which the document is signed; or

(b) if the members sign the document on different days - on the day on which the document is signed by the member who makes up the majority.

(2) Two or more separate documents that are identical in all material respects (apart from signatures), each of which is signed by 1 or more members, are taken for the purposes of subregulation (1) to constitute a single document.

Subdivision 3 Inquiries and interviews

8.05K Inquiries by the committee

(1) A committee considering an application may make inquiries of any person for the purposes of deciding whether the applicant should be registered as a trustee or not.

(2) If the committee decides that the applicant should be registered, the committee may make inquiries of any person for the purposes of deciding what conditions, if any, should apply to the applicant's practice as a registered trustee.

(3) Inquiries made must be inquiries:

(a) that are reasonable, for the purpose of making an informed decision; or

(b) that the Chairperson of the committee believes are appropriate in order for the committee to have sufficient information to make the decision.

(4) Before making a decision that is adverse to the applicant, a committee must:

(a) inform the applicant of any information or material that the committee relies on, or proposes to rely on, in making the decision; and

(b) give the applicant a reasonable opportunity to reply to, or rebut, the information or material.

8.05L Notice of interview

For subsection 155 (3) of the Act, the Inspector-General or officer of the Department on the committee must, after consultation with the other members of the committee:

(a) fix a date, time and place for the interview; and

(b) give written notice of that date, time and place to the applicant and the other members of the committee.

8.05M Applicant interviews

(1) A committee must interview the applicant as soon as practicable and, for that purpose:

(a) any member of the committee may participate in the interview by telephone; and

(b) the applicant may participate in the interview by telephone.

(2) A member or applicant who participates in an interview as provided by paragraph (1) (a) or (b) is taken to be present at the interview.

(3) If the applicant fails to attend, or participate by telephone in, the interview and does not, within 7 days, give the committee a reasonable excuse for that failure:

(a) the application is taken to have lapsed; and

(b) the application fee is not refundable.

(4) If an applicant who fails to attend, or participate by telephone in, an interview gives the committee, within 7 days, a reasonable excuse for that failure, the committee must arrange another interview date, time and place.

(5) At an interview, the committee may ask the applicant any question that the committee reasonably believes to be related to:

(a) the application; or

(b) a reference accompanying the application; or

(c) the issue of whether the applicant has the qualifications, experience, knowledge and abilities to perform the functions of a registered trustee.

(6) A committee must not interview an applicant until:

(a) the Inspector-General has received the information and documents in relation to the application that are prescribed by regulation 8.01; and

(b) any charge imposed by an Act for making the application has been paid.

8.05N Report of committee decision

(1) A report under subsection 155A (6) of the Act must:

(a) be in writing; and

(b) be signed by each member of the committee; and

(c) in the case of a majority decision - set out the reasons of the minority member.

(2) The report must be given to the applicant and to the Inspector-General within 14 days of the committee making its decision.

Subdivision 4 Other matters

8.05O Confidentiality

A committee must take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers under the Act or these Regulations.

8.05P Evidence of proceedings at committee meetings

In any proceedings, a copy of the minutes of proceedings at a committee meeting, signed by the Chairperson of the committee:

(a) is evidence of the proceedings as recorded in the minutes; and

(b) may be tendered in evidence without further proof.