Footnotes
Chapter 1 - Introduction
[1]
Department of Agriculture, Fisheries and Forestry, Exceptional
Circumstances Exit Package Policy Guidelines, revised July 2011, p. 2.
[2]
Senator Nick Xenophon, Second Reading Speech, Senate Hansard, 5 July
2011, p. 4051.
[3] Office of
Parliamentary Counsel, Drafting Direction No. 3.8: Subordinate instruments,
www.opc.gov.au/about/drafting_series/DD3.8.pdf
(accessed 14 July 2011).
[4]
Mr Nathan Hancock, Parliamentary Library, 'Migration Legislation
Amendment (Parents and Other Measures) Bill 2000' Bills Digest, 26 June
2000, www.aph.gov.au/library/pubs/bd/1999-2000/2000bd200.htm
(accessed 15 July 2011).
[5]
Explanatory Memorandum, Bankruptcy Legislation Amendment (Superannuation
Contributions) Bill 2006, paragraph 120.
[6]
A Henry VIII clause in legislation is one which enables subordinate
legislation to amend an Act of Parliament.
[7]
Senate Standing Committee for the Scrutiny of Bills, Alert Digest No.
8 of 2011, 17 August 2011, p. 5.
Chapter 2 - Drought and industry exit assistance in Australia
[1]
Department of Agriculture, Fisheries and Forestry, National Drought
Policy, www.daff.gov.au/__data/assets/pdf_file/0006/924306/national-drought-policy.pdf
(accessed 14 July 2011).
[2]
National Drought Policy, www.daff.gov.au/__data/assets/pdf_file/0006/924306/national-drought-policy.pdf
(accessed 2 September 2011).
[3]
Department of Agriculture, Fisheries and Forestry, 'Background', Exceptional
Circumstances, www.daff.gov.au/agriculture-food/drought/ec/background
(accessed 14 July 2011).
[4]
Department of Agriculture, Fisheries and Forestry, Exceptional Circumstances
Information Handbook: A guide to policy, processes and assistance measures,
October 2010, pp. 4-5 www.daff.gov.au/__data/assets/pdf_file/0013/150322/ec-handbook.pdf
(accessed 14 July 2011).
[5]
Productivity Commission, Government Drought Support, report no.
46, February 2009, p. xxiii.
[6]
Exceptional Circumstance Interest Rate Subsidies (ECIRS) can be provided
at 50 per cent of the interest payable on new and existing loans for the first
year of an EC declaration and at 80 per cent in the second and subsequent years
(up to a maximum of $100,000 in any 12-month period and $500,000 over five
years).
[7]
Department of Agriculture, Fisheries and Forestry, 'Drought assistance',
www.daff.gov.au/agriculture-food/drought/assistance
(accessed 15 July 2011).
[8]
The Hon Mark Vaile MP, Deputy Prime Minister; Minister for Transport and
Regional Services, 'Stick by Farmers to Guarantee Food Security' Media
release 150MV/2007, 25 September 2007.
[9]
Department of Agriculture, Fisheries and Forestry, 'Exceptional
Circumstances Exit Package', www.daff.gov.au/agriculture-food/drought/assistance/exit-grants
(accessed 18 July 2011).
[10]
Department of Agriculture, Fisheries and Forestry, 'Exceptional
Circumstances Exit Package', www.daff.gov.au/agriculture-food/drought/assistance/exit-grants
(accessed 18 July 2011).
[11]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
3.
[12]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
3.
[13] To receive
the maximum amount of $150,000, total net assets need to be $350,000 or less.
A reduced grant may be available to those whose assets are above this
limit—in these cases for every $3 in assets above the threshold limit, the
grant reduces by $2 (based on this formula, an applicant cannot receive a grant
if their net assets are more than $575,000).
[14]
Department of Agriculture, Fisheries and Forestry, Exceptional
Circumstances Exit Package: Policy Guidelines, revised July 2011, pp. 4-5, www.daff.gov.au/__data/assets/pdf_file/0010/1867510/ec-exit-guidelines-july11.pdf
(accessed 14 July 2011).
[15]
Department of Agriculture, Fisheries and Forestry, Exceptional
Circumstances Exit Package: Policy Guidelines, revised July 2011, p. 5, www.daff.gov.au/__data/assets/pdf_file/0010/1867510/ec-exit-guidelines-july11.pdf
(accessed 18 July 2011).
[16]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
4. The November 2010 Guidelines included a note which clarified that if the
owner of the farm entered into a personal insolvency agreement under Part X of
the Bankruptcy Act (an alternative to bankruptcy where a person enters into an
agreement with their creditors without being made bankrupt) they generally
would still be considered to have been 'effectively in control'. The July 2011
Guidelines, however, did not include this note.
[17]
Farm Household Support Act 1992, s. 8C. This definition is applied
to the program by section 3 of the Dairy Exit Program Scheme 2000.
[18]
Department of Agriculture, Fisheries and Forestry, 'Pilot of drought
reform measures in Western Australia', www.daff.gov.au/agriculture-food/drought-pilot
(accessed 30 August 2011).
[19]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
3.
[20]
A Personal Insolvency Agreement is an arrangement between a debtor and
their creditors where the debtor offers to pay them in full or part by
instalments or a lump sum. A Debt Agreement is similar in many respects,
however, the debtor can offer to pay their creditors an amount which may be
less than the full sum of their debts. There are income, asset and debt limits
that apply for Debt Agreements (but not for Personal Insolvency Agreements).
If a proposal for either a Personal Insolvency Agreement or Debt Agreement is
accepted, then the creditors are bound by the terms of the agreement.
[21]
Attorney-General's Department, Submission 6, p. 1. Bankruptcy, and
therefore consideration of after-acquired property, generally lasts for a
period of three years although it can be extended in certain circumstances.
[22]
Additionally, section 139L of the Bankruptcy Act limits certain forms of
income from being subject to compulsory income contributions. Section 139L of
the Bankruptcy Act provides that in relation to a compulsory income
contributions by a bankrupt post-bankruptcy, income has 'its ordinary meaning',
subject to certain qualifications. Paragraph 139L(1)(b)(v) allows the
regulations to provide that certain payments or amounts are not the income of
the bankrupt. A number of types of income are currently prescribed by the
regulations and thus excluded from compulsory income contributions.
[23]
Bankruptcy Act 1966, s. 5.
* Only
the amounts paid under these programs in the circumstances specified in the
regulations are excluded from the definition of property. For example, the
Sugar Industry Reform Program is exempted for the circumstance where
'assistance is required in the form of a grant to enable a person engaged in
the sugar industry, as a grower or harvester, to exit all agricultural
industries'.
[24] Bankruptcy Regulation 1996, rr.
6.04A, 6.04B. Certain primary industry rural support schemes are also excluded
from income contributions under regulation 6.12D—these include:
• an amount paid to
a person under the DEP Scheme;
• an amount paid to
a person under the Sugar Industry Reform Program for the circumstance mentioned
in the regulations;
• an amount paid to a person under the TGAAP
for the circumstance mentioned for it in the regulations.
[25]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
2.
[26]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
2.
[27]
The Hon. Peter McGauran MP, Minister for Agriculture, Fisheries and
Forestry, '$40 million to help tobacco growers look to the future', Media
release DAFF06/160PM, 26 October 2006; Cancer Council Victoria, Tobacco
in Australia: Facts and Issues, eds. Scollo, M. M. and Winstanley, M. H., 3rd
edition, section 10.9.1, p. 28, www.tobaccoinaustralia.org.au
(accessed 15 July 2011).
[28]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
3.
[29]
Explanatory Statement, Bankruptcy Amendment Regulations 2007 (No.
1), p .1.
[30]
Until 2007, certain rural support schemes were declared to be
non-divisible property within the text of the Bankruptcy Act itself. After the
passage of the Bankruptcy Legislation Amendment (Superannuation
Contributions) Act 2007, these provisions were repealed and instead the
payments under rural support schemes that would not be considered divisible
property would be determined by the regulations.
[31]
Explanatory Statement, Bankruptcy Amendment Regulations 2007 (No.
1), p. 2.
[32]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
3.
[33] Department
of Agriculture, Fisheries and Forestry, Submission 3, p. 6. This
statement was an observation made by a Rural Financial Counsellor and does not
necessarily represent the views of DAFF.
Chapter 3 - Views on the Bill
[1]
Senator Nick Xenophon, Second Reading Speech, Senate Hansard, 5
July 2011, p. 4051.
[2]
The Hon. Tim Mulherin MP, Queensland Minister for Agriculture, Food and
Regional Economies, Submission 4; The Hon. Terry Redman MLA, Western
Australian Minister for Agriculture and Food, Submission 2.
[3]
The Hon. Tim Mulherin MP, Queensland Minister for Agriculture, Food and
Regional Economies, Submission 4, p. 1.
[4]
Where possible, these concerns will be noted in the relevant sections of
this report. For the remaining concerns, see Western Australian Farmers
Federation, Submission 8.
[5]
National Farmers' Federation, Submission 5, p. 1.
[6]
National Farmers' Federation, Submission 5, p. 1.
[7]
Department of Agriculture, Fisheries and Forestry, Submission 3,
p. 4.
[8]
Department of Agriculture, Fisheries and Forestry, Submission 3,
p. 5.
[9]
Department of Agriculture, Fisheries and Forestry, Submission 3,
p. 3.
[10]
Western Australian Farmers Federation, Submission 8, p. 3.
[11]
National Farmers' Federation, Submission 5, p. 1.
[12]
Western Australian Farmers Federation, Submission 8, p. 2.
[13] Department
of Agriculture, Fisheries and Forestry, Submission 3, p. 6. DAFF gave
the qualification that the case study does not necessarily represent its views.
[14]
National Farmers' Federation, Submission 5, p. 1.
[15]
Senator Nick Xenophon, Second Reading Speech, Senate Hansard, 5
July 2011, p. 4051.
[16]
South Australian Farmers Federation, Submission 1, p. 1.
[17]
Name withheld, Submission 9, p. 4.
[18]
Western Australian Farmers Federation, Submission 8, p. 2.
[19]
Insolvency Practitioners Association of Australia, Submission 7, p.
2.
[20]
Attorney-General's Department, Submission 6, p. 5.
[21]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
5.
[22]
Insolvency Practitioners Association, Submission 7, p. 1.
[23]
Attorney-General's Department, Submission 6, p. 5.
[24]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
3.
[25]
The Hon. Tim Mulherin MP, Queensland Minister for Agriculture, Food and
Regional Economies, Submission 4, p. 1.
[26]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
4.
[27]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
4.
[28]
Department of Agriculture, Fisheries and Forestry, Submission 3, p.
5.
[29]
Western Australian Farmers Federation, Submission 8, pp. 2–3.
Chapter 4 - Provisions of the Bill
[1]
The July 2011 Guidelines require that claims must be lodged by 15 May
2012 (although the program has now closed).
[2]
Department of Agriculture, Fisheries and Forestry, 'Exceptional
Circumstances Exit Package' www.daff.gov.au/agriculture-food/drought/assistance/exit-grants
(accessed 1 September 2011).
[3]
Insolvency Practitioners Association of Australia, Submission 7,
p. 3.
[4]
Attorney-General's Department, Submission 6, p. 4
[5]
Insolvency Practitioners Association of Australia, Submission 7,
p. 3.
[6]
The next two paragraphs of the Bankruptcy Act provide for further
limitations—allowing for the regulations to prescribe the amounts that will be
excluded.
[7]
Attorney-General's Department, Submission 6, pp. 4-5. The
Department also noted that if the bankrupt has spent the money on some form of
property they may be entitled to retain the property due to paragraph 116(2)(n)
and s 116(3) of the Bankruptcy Act, which allows a bankrupt to retain property
if the 'whole, or substantially the whole' of the money used for the purpose of
a particular property is 'protected money'.
[8]
Insolvency Practitioners Association of Australia, Submission 7,
p. 2.
Dissenting Report by Senator Xenophon
[1]
Department of Agriculture, Fisheries and Forestry, www.daff.gov.au
[2]
Submission 1, p. 1.
[3]
Submission 4, p. 1.
[4]
Submission 3, p. 3.