What bankruptcy law changed in Australia in 2018, and what didn’t

In the last days of parliament for 2018, the government has managed to stave off debate on the proposed one-year bankruptcy law – the Bankruptcy Amendment (Enterprise Incentives) Bill 2017 – leaving the new debt agreement laws to proceed alone, in June 2019.

As we earlier reported, there has been a rather strong debate concerning the reduction in the period of bankruptcy to one year from three and attempts were being made to ‘strengthen’ the new regime to prevent abuse. The one year bankruptcy bill does remain in the long list of bills for debate.

Family law

A change affecting bankruptcy that did become law in 2018 was the Civil Law and Justice Legislation Amendment Act 2018 which amended s 35 of the Bankruptcy Act to clarify that the Family Court has bankruptcy jurisdiction in circumstances where a trustee applies to the Family Court to set aside a financial agreement under ss 90K and 90UM of the Family Law Act.

Debate over the changes to the Family Court and its jurisdiction are before the Senate Standing Committees on Legal and Constitutional Affairs this week, commencing 10 December.

Divisible property

The remaining other change was new paragraph 116(2)(ga) to s 116(2) of the Bankruptcy Act, providing, which excludes as an item of divisible property a payment made to bankrupt under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018. As we pointed out, s 45 of that Act already provides that any redress payment to a bankrupt is “absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise”. As we also pointed out, this drafting style dates back to 1900 NSW law.

Parliament is said to resume in February 2019.

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