Div 20Registering trustees

Division 20—Registering trustees 20‑1  Simplified outline of this Division An individual may apply to the Inspector‑General to be registered as a trustee. The application will be referred to a committee, which will assess the application against specified criteria (the applicant’s qualifications, conduct and fitness and whether the applicant will take out appropriate insurance). The committee will report its decision to the Inspector‑General and, if the committee decides that the applicant should be registered, the Inspector‑General will register the applicant as a trustee. A registration may be subject to conditions. Conditions may be imposed on a particular registered trustee by the committee, or on all registered trustees or a class of registered trustees by the Insolvency Practice Rules. A registered trustee may apply to the Inspector‑General to have a condition imposed by a committee removed or varied. That application will be referred to a committee. Registration is for 3 years, but may be renewed. An application for renewal may be made to the Inspector‑General within specified time periods. A decision of a committee about an application for registration or about a condition of registration is reviewable by the Administrative Appeals Tribunal (see Division 96 of this Schedule). Subdivision B—Registration 20‑5  Application for registration  (1) An individual may apply to the Inspector‑General to be registered as a trustee.  (2) The application must be lodged with the Inspector‑General in the approved form.  (3) The application must be accompanied by the application fee determined by the Minister by legislative instrument.  (4) The application is properly made if subsections (2) and (3) are complied with. 20‑10  Inspector‑General may convene a committee to consider  (1) The Inspector‑General may convene a committee for the purposes of considering an application, or applications, for registration as a trustee. Note 1: Section 50‑5 sets out the knowledge and experience that a prescribed body must be satisfied a person has before making an appointment under paragraph (2)(b). Note 2: Section 50‑10 sets out the matters of which the Minister must be satisfied before making an appointment under paragraph (2)(c). 20‑15  Inspector‑General must refer applications to a committee  (1) The Inspector‑General must refer an application for registration as a trustee that is properly made to a committee convened under section 20‑10 for consideration. 20‑20  Committee to consider applications Committee must consider referred applications  (1) If an application for registration as a trustee is referred to a committee, the committee must consider the application.  (2) For the purposes of considering the application, the committee:  (a) must interview the applicant; and  (b) may require the applicant to sit for an exam. Decision of committee  (3) Within 45 business days after interviewing the applicant, the committee must decide whether the applicant should be registered as a trustee or not.  (4) The committee must decide that the applicant should be registered as a trustee if it is satisfied that the applicant:  (a) has the qualifications, experience, knowledge and abilities prescribed; and  (b) will take out:  (c) has not been convicted, within 10 years before making the application, of an offence involving fraud or dishonesty; and  (d) is not, and has not been within 10 years before making the application, an insolvent under administration; and  (e) has not had his or her registration as a trustee under this Act cancelled within 10 years before making the application, other than in response to a written request by the applicant to have the registration cancelled; and  (f) has not had his or her registration as a liquidator under the Corporations Act 2001 cancelled within 10 years before making the application, other than in response to a written request by the applicant to have the registration cancelled; and  (g) is not disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001, or under a law of an external Territory or a law of a foreign country; and  (h) is otherwise a fit and proper person; and  (i) is resident in Australia or in another prescribed country.  (5) The committee may decide that the applicant should be registered even if the committee is not satisfied of a matter mentioned in paragraph (4)(a), (e), (f) or (i), provided the committee is satisfied that the applicant would be suitable to be registered as a trustee if the applicant complied with conditions specified by the committee. Registration may be subject to conditions  (6) The committee may decide that the applicant’s registration is to be subject to any other conditions specified by the committee. Spent convictions  (7) Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914. Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them. 20‑25  Committee to report  (c) if the committee decides under subsection 20‑20(5) or (6) that the applicant should be registered subject to a condition: 20‑30  Registration Registration as trustee  (1) The Inspector‑General must register the applicant as a trustee if:  (a) the committee has decided that the applicant should be registered; and  (b) the applicant has produced evidence in writing to the Inspector‑General that the applicant has taken out:  (c) the applicant has paid the registration fee determined by the Minister by legislative instrument.  (2) The Inspector‑General registers an applicant by entering on the Register of Trustees the details relating to the applicant prescribed for the purposes of subsection 15‑1(3).  (3) The registration is subject to the current conditions imposed on the registered trustee.  (4) After registering a person as a trustee, the Inspector‑General must give the person a certificate of registration.  (6) The registration has effect for 3 years. 20‑35  Conditions imposed on all registered trustees or a class of registered trustees  (1) The Insolvency Practice Rules may impose conditions on all registered trustees, or registered trustees of a specified class.  (2) Without limiting subsection (1), a condition may be imposed limiting the kinds of activity in which a trustee may engage, either for the duration of the registration or for a shorter period. Subdivision C—Varying etc. conditions of registration 20‑40  Application to vary etc. conditions of registration  (1) If a committee has decided under this Schedule that a person’s registration as a trustee is to be subject to a condition, the person may apply to the Inspector‑General for the condition to be varied or removed.  (2) However, an application cannot be made:  (a) if the person’s registration as a trustee is suspended; or  (b) if the condition is of a prescribed kind; or  (c) in prescribed circumstances.  (3) The application must be lodged with the Inspector‑General in the approved form.  (4) The application is properly made if:  (a) an application can be made; and  (b) subsection (3) is complied with.  (5) A single application by a registered trustee may deal with more than one condition. 20‑45  Inspector‑General may convene a committee to consider applications  (1) The Inspector‑General may convene a committee for the purposes of considering an application, or applications, made under section 20‑40. Note 1: Section 50‑5 sets out the knowledge and experience that a prescribed body must be satisfied a person has before making an appointment under paragraph (2)(b). Note 2: Section 50‑10 sets out the matters of which the Minister must be satisfied before making an appointment under paragraph (2)(c). 20‑50  Inspector‑General must refer applications to a committee  (1) The Inspector‑General must refer an application that is properly made under section 20‑40 to a committee convened under section 20‑45 for consideration. 20‑55  Committee to consider applications  (1) If an application to vary or remove a condition of registration is referred to a committee, the committee must consider the application.  (2) Unless the applicant otherwise agrees, the committee must, for the purposes of considering the application, interview the applicant.  (3) The committee must, within 20 business days after interviewing the applicant or obtaining the agreement of the applicant as referred to in subsection (2):  (a) decide whether the condition to which the application relates should be varied or removed; and  (b) if a condition is to be varied, specify the way in which it is to be varied. 20‑60  Committee to report  (c) if the committee decides that a condition should be varied—the variation that is to be made. 20‑65  Committee’s decision given effect   If the committee decides that a condition imposed on a registered trustee is to be varied or removed, the condition is varied or removed in accordance with that decision. Subdivision D—Renewal 20‑70  Application for renewal  (1) An individual may apply to the Inspector‑General to have the individual’s registration as a trustee renewed.  (2) The application must be lodged with the Inspector‑General, in the approved form, before the applicant’s registration as a trustee ceases to have effect. Note: The Court may extend the time within which an application must be lodged: see paragraph 33(1)(c).  (3) If an individual applies to have his or her registration as a trustee renewed, the individual must, at least 1 month before the registration ceases to have effect, pay the renewal fee determined by the Minister by legislative instrument. If the renewal fee is not paid at least 1 month before the registration ceases to have effect, an additional amount equal to 20% of the renewal fee is payable by the applicant by way of penalty.  (4) The application is properly made if subsection (2) is complied with. 20‑75  Renewal Renewal of registration  (1) On application under section 20‑70, the Inspector‑General must renew the registration of the applicant as a trustee if:  (a) the application is properly made; and  (b) the applicant has produced evidence in writing to the Inspector‑General that the applicant maintains:  (c) the applicant has complied with any condition dealing with continuing professional education to which the applicant is subject during the applicant’s current registration; and  (d) the applicant has paid the renewal fee determined by the Minister under subsection 20‑70(3), and any late payment penalty under that subsection; and  (e) the applicant does not owe more than the prescribed amount of notified estate charges.  (2) The Inspector‑General renews the registration of the applicant by entering, or maintaining, on the Register of Trustees the details relating to the applicant prescribed for the purposes of subsection 15‑1(3).  (3) The renewed registration is subject to the current conditions imposed on the registered trustee.  (4) After renewing the registration of a person as a trustee, the Inspector‑General must give the person a certificate of registration.  (6) The renewed registration has effect for 3 years, beginning on the day after the person’s immediately preceding registration as a trustee ceased to have effect. When a notified estate charge is owed  (7) A person owes a notified estate charge if:  (a) the person owes either of the following:  (i) a charge under the Bankruptcy (Estate Charges) Act 1997 (the estate charge);  (ii) a penalty under section 281 (late payment penalty) of this Act in respect of that charge; and  (b) the Inspector‑General notified the person of the unpaid estate charge at least one month and 10 business days before the person’s registration as a trustee ceases to have effect. Subdivision E—Offences relating to registration 20‑80  False representation that a person is a registered trustee   A person commits an offence if:  (a) the person makes a representation; and  (b) the representation is that the person is a registered trustee; and  (c) the representation is false. Penalty: 30 penalty units.