Footnotes

Chapter 1 - Introduction

[1]        The Hon. Philip Ruddock MP, Attorney-General and The Hon. Peter Dutton MP, Minister for Revenue & Assistant Treasurer, 'Government Closes Superannuation Loophole in Bankruptcy', 27 July 2006, at http://assistant.treasurer.gov.au/pcd/content/pressreleases/2006/056.asp (accessed 11 December 2006).

[2]        [2003] HCA 36. In Cook v Benson, the High Court ruled that superannuation entitlements rolled over to other superannuation funds by a person who subsequently became bankrupt were not subject to the bankruptcy 'clawback' provisions under sections 120 and 121 of the Bankruptcy Act. This was because Mr Benson's transfer of his superannuation entitlements was deemed to be supported by valuable consideration and therefore not subject to recovery by creditors.

[3]        p. 2.

[4]        Senator the Hon. Chris Ellison, Minister for Justice and Customs, Senate Hansard, 7 December 2006, p. 1.

Chapter 2 - Overview of the Bill

[1]        See the discussion of section 128N below.

[2]        p. 5.

[3]        p. 6.

[4]        pp 6-7.

[5]        p. 7.

[6]        Note that subsections 128D(2) and (3) clarify transitional arrangements in relation to the commencement of certain provisions.

[7]        p. 8.

[8]        p. 7.

[9]        The doctrine of relation-back is an expression of the retrospective operation of bankruptcy. According to the doctrine, bankruptcy starts earlier than the actual date that a debtor or creditor applied for bankruptcy. The bankruptcy is taken to have 'related back to' the time of the earliest act of bankruptcy, up to six months before the petition was presented (s 115, Bankruptcy Act). From that time on, transactions involving the debtor can later be set aside. Some transactions are protected from relation-back under the Bankruptcy Act (ss 123 & 124): Butterworths Australian Legal Dictionary, p. 1004.

[10]      Items 11, 12 and 13 make similar provisions in respect of equivalent terms and conditions of an RSA as defined by the Retirement Savings Accounts Act 1997; and equivalent provisions in a trust deed.

[11]      p. 9.

[12]      p. 9.

[13]      For example, under sections 77C, 139ZL and 139ZQ.

[14]      p. 13.

[15]      Subsection 128L(3) will provide equivalent protection to the provider of an RSA.

[16]      pp 14-15.

[17]      p. 15.

[18]      The discussion of subsection 128C(2) above explains the rationale for this provision.

[19]      p. 16.

[20]      p. 16.

[21]      p. 18.

[22]      p. 18.

[23]      p. 18.

[24]      See EM, p. 17, for further explanation.

[25]      See EM, p. 19, for further explanation.

Chapter 3 - Key issues

[1]        For example, see The Institute of Chartered Accountants, Submission 1, p. 1; ANZ Banking Group, Submission 3, p. 1; Mr Paul Cook, Insolvency Practitioners Association of Australia, Committee Hansard, 23 January 2007, pp 7 & 8; Dr Brad Pragnell, Association of Superannuation Funds of Australia, Committee Hansard, 23 January 2007, p. 2.

[2]        For example, see Dr Brad Pragnell, Association of Superannuation Funds of Australia, Committee Hansard, 23 January 2007, p. 2; Mr Paul Cook, Insolvency Practitioners Association of Australia, Committee Hansard, 23 January 2007, p. 7; Mr Michael Lhuede, Law Council of Australia, Committee Hansard, 23 January 2007, p. 11.

[3]        Submission 9, p. 1.

[4]        Committee Hansard, 23 January 2007, p. 3.

[5]        Committee Hansard, 23 January 2007, p. 3.

[6]        Submission 8, p. 5; Submission 13, p. 7.

[7]        Dr Brad Pragnell, Association of Superannuation Funds of Australia, Committee Hansard, 23 January 2007, p. 5.

[8]        Committee Hansard, 23 January 2007, p. 8.

[9]        Committee Hansard, 23 January 2007, pp 20-21.

[10]      Committee Hansard, 23 January 2007, pp 9 & 10.

[11]      Committee Hansard, 23 January 2007, p. 14.

[12]      For example, see ANZ Banking Group, Submission 3, pp 1-2; Superpartners, Submission 5, p. 2; Association of Superannuation Funds of Australia, Submission 6, pp2-3; AXA Australia, Submission 8, p. 3.

[13]      Committee Hansard, 23 January 2007, pp 2-3.

[14]      Association of Superannuation Funds of Australia, Submission 6, p. 3.

[15]      Dr Brad Pragnell, Association of Superannuation Funds of Australia, Committee Hansard, 23 January 2007, p. 3.

[16]      Submission 14, p. 3.

[17]      For example, see Association of Superannuation Funds of Australia, Submission 6, p. 4; Investment and Financial Services Association, Submission 13, pp 3-4.

[18]      Submission 14, p. 2.

[19]      The current level of the pension RBL for the 2006-07 financial year is $1,356, 291: The Institute of Chartered Accountants, Submission 1, p. 1.

[20]      Submission 12, p 1; Committee Hansard, 23 January 2007, p. 12.

[21]      Submission 14, p. 1; Committee Hansard, 23 January 2007, p. 17.

[22]      Committee Hansard, 23 January 2007, p. 17.

[23]      Submission 1, p. 1; Committee Hansard, 23 January 2007, p. 12.