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., 3^rd 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.