Div 70Information

Division 70—Information 70‑1  Simplified outline of this Division The trustee of a regulated debtor’s estate must:  (a) give annual reports of the administration of the estate (called annual administrative returns) to the Inspector‑General; and  (b) keep books of meetings and other affairs of the estate; and  (c) allow those books to be audited if required to do so; and  (d) allow access to those books by creditors; and  (e) give creditors and others requested information, documents and reports relating to the administration. The committee of inspection (if there is one) may also request information, documents and reports from the trustee under Division 80. If the trustee does not comply with a request, the Inspector‑General may direct the trustee to do so. If the trustee does not comply with the direction, the Inspector‑General may ask the Court to order compliance. Alternatively, the person who requested the information may ask the Court to order compliance with the request. Subdivision B—Annual administration return 70‑5  Annual administration return  (1) This section applies if a person is the trustee of a regulated debtor’s estate during all or part of a financial year. Annual administration return to be lodged  (2) The person must lodge a return in relation to the person’s administration of that estate during that year or part of that year (as the case requires).  (b) be lodged with the Inspector‑General within 25 business days after the end of the financial year. Late lodgement fee payable  (4) If the person does not lodge the return within the period mentioned in paragraph (3)(b), the person must pay a late lodgement fee, determined by the Minister by legislative instrument, by way of penalty. Subdivision C—Record‑keeping 70‑6  Subdivision applies to the Official Trustee   This Subdivision applies to the Official Trustee in the same way as it applies to the trustee of a regulated debtor’s estate. 70‑10  Administration books Trustee must keep proper books  (1) The trustee of a regulated debtor’s estate must keep proper books in which the trustee must cause to be made:  (a) entries or minutes of proceedings at meetings relating to the administration of the estate; and  (b) such other entries as are necessary to give a complete and correct record of the trustee’s administration of the estate.  (2) The trustee must:  (a) ensure that the books are available at the trustee’s office for inspection; and  (b) permit a creditor, or another person acting on the creditor’s behalf, to inspect the books at all reasonable times.  (3) Subsections (1) and (2) do not apply if the trustee has a reasonable excuse.  (a) the person is subject to a requirement under subsection (1) or (2); and Note 1: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code). 70‑11  Trustee’s books when trading Trustee must keep trading books etc.  (1) If the trustee of a regulated debtor’s estate carries on a business previously carried on by the regulated debtor, the trustee must:  (a) keep such books as are usually kept in relation to the carrying on of a business of that kind; and  (b) permit a creditor, or another person acting on the creditor’s behalf, to inspect the books at all reasonable times. 70‑15  Audit of administration books—Inspector‑General Inspector‑General may audit books, or cause them to be audited  (1) The Inspector‑General may audit, or cause to be audited, the books referred to in section 70‑5 (annual administration return), 70‑10 (administration books) or 70‑11 (books when trading). Audit on the Inspector‑General’s initiative or on request  (2) The audit may be conducted:  (a) on the Inspector‑General’s own initiative; or  (b) at the request of the regulated debtor; or  (c) at the request of a creditor. Auditor must prepare a report  (3) The person carrying out the audit must prepare a report on the audit. Inspector‑General must give a copy of the report  (4) The Inspector‑General must give a copy of the report to:  (a) the trustee of the estate; and  (b) the person who requested the report (if any). Costs of an audit  (5) The costs of an audit under this section must be determined by the Inspector‑General and is to be borne by the estate. Qualified privilege in relation to audit reports  (6) A person who conducts an audit under this section has qualified privilege (within the meaning of the Corporations Act 2001) in respect of any report prepared under subsection (3) that is given to a person under subsection (4) or otherwise published. 70‑20  Audit of administration books—on order of the Court  (1) The Court may order that the Inspector‑General audit, or cause to be audited, the books referred to in section 70‑5 (annual administration return), 70‑10 (administration books) or 70‑11 (books when trading).  (2) The order may be made on application of any person with a financial interest in the administration of the regulated debtor’s estate.  (3) The Court may make such orders in relation to the audit as it thinks fit, including:  (a) the preparation and provision of a report on the audit; and  (b) orders as to the costs of the audit. 70‑25  Trustee to comply with auditor requirements  (1) This section applies if books are audited under section 70‑15 or 70‑20. Trustee must give assistance etc.  (2) The trustee of the estate must give to the person carrying out the audit such books, information and assistance as the person reasonably requires.  (3) Subsection (2) does not apply if the trustee has a reasonable excuse. Note 1: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code). 70‑30  Transfer of books to new trustee  (a) a person (the former trustee) ceases to be the trustee of a regulated debtor’s estate; and  (b) a registered trustee (the new trustee) is appointed as trustee of the estate instead. Transfer of books to new trustee  (2) The former trustee must transfer to the new trustee, within the handover period, possession or control of any books relating to the administration of the estate that are in the former trustee’s possession or control.  (3) The handover period is:  (a) the period of 10 business days beginning on the day after the new trustee is appointed; or  (b) if another period is agreed between the former trustee and the new trustee—that other period.  (4) The former trustee may take a copy of any part of the books before transferring possession or control of them to the new trustee. New trustee must accept the books  (5) The new trustee must take possession or accept control of any books relating to the administration of the regulated debtor’s estate. New trustee must allow inspection etc.  (6) After possession or control of the books is transferred, the new trustee must allow the former trustee to inspect them at any reasonable time and take a copy of any part of the books.  (7) A person commits an offence if:  (a) the person is subject to a requirement under subsection (2), (5) or (6); and  (8) If the new trustee is entitled to take possession or control of the books under this section:  (a) a person is not entitled, as against the new trustee, to claim a lien on the books; and 70‑35  Retention, return or destruction of books  (1) The last trustee to administer a regulated debtor’s estate must retain all books that:  (a) relate to the administration of the estate; and  (b) are in the last trustee’s possession or control at the end of the administration; for a period (the retention period) of 7 years from the end of the administration. Exception—reasonable excuse  (2) Subsection (1) does not apply if the trustee has a reasonable excuse. Exception—books given by regulated debtor  (3) Despite subsection (1), any books that the regulated debtor has given to the trustee of the estate may be returned to the regulated debtor within the retention period:  (a) if there is a committee of inspection—as the committee directs; or  (b) otherwise—as the creditors by resolution direct. Return or destruction of books at end of retention period  (4) The trustee may return the books to the regulated debtor, or destroy the books, at the end of the retention period. Note: A defendant bears an evidential burden in relation to the matters in subsections (2) and (3) (see subsection 13.3(3) of the Criminal Code).  (6) Subsections (3) and (4) do not apply to the extent that the trustee is under an obligation to retain the books, or a part of the books, under another provision of this Act or under any other law. 70‑36  Return or destruction of irrelevant books  (1) The trustee of a regulated debtor’s estate may, at any time during the administration of the estate, return to the regulated debtor, or destroy, any books that:  (a) the regulated debtor has given to any trustee of the estate; and  (b) the trustee considers will not help the administration of the estate.  (2) Despite subsection (1), the trustee is not permitted to return the books to the regulated debtor, or to destroy them, if the trustee knows, or reasonably ought to know, that:  (a) another person had a lien over the books before the trustee took possession of them; or  (b) another person has a legal right to possession of the books; or  (c) the trustee is not permitted to return the books to the regulated debtor or destroy them (as the case requires), because of another provision of this Act, or a provision of any other law. Subdivision D—Giving information etc. to creditors and others 70‑37  Subdivision applies to the Official Trustee   This Subdivision applies to the Official Trustee in the same way as it applies to the trustee of a regulated debtor’s estate. 70‑40  Right of creditors to request information etc. from trustee  (1) The creditors may by resolution request the trustee of a regulated debtor’s estate to: to the creditors.  (b) the trustee would breach his or her duties in relation to the administration of the regulated debtor’s estate if the trustee complied with the request; or  (3) The Insolvency Practice Rules may prescribe circumstances in which it is, or is not, reasonable for a trustee to comply with a request of a kind mentioned in subsection (1). 70‑45  Right of individual creditor to request information etc. from trustee  (1) A creditor may request the trustee of a regulated debtor’s estate to: to the creditor.  (b) the trustee would breach his or her duties in relation to the administration of the regulated debtor’s estate if the trustee complied with the request; or  (3) The Insolvency Practice Rules may prescribe circumstances in which it is, or is not, reasonable for the trustee of a regulated debtor’s estate to comply with a request of a kind mentioned in subsection (1). 70‑50  Reporting to creditors  (1) The Insolvency Practice Rules may provide for and in relation to the obligations of trustees of regulated debtors’ estates: to creditors or the regulated debtor.  (a) other circumstances in which the trustee of a regulated debtor’s estate must give information, provide a report or produce a document to a creditor or the regulated debtor; and  (a) make different provision in relation to different kinds of estate administration; and  (b) provide that specified requirements imposed under the Insolvency Practice Rules may be replaced or modified, by resolution, by:  (ii) if there is a committee of inspection—the committee. Subdivision E—Other requests for information etc. 70‑51  Subdivision applies to the Official Trustee   This Subdivision applies to the Official Trustee in the same way as it applies to the trustee of a regulated debtor’s estate. 70‑55  Commonwealth may request information etc.  (1) This section applies if either:  (a) a former employee of a regulated debtor has made a claim for financial assistance from the Commonwealth in relation to unpaid employment entitlements; or  (b) the Commonwealth considers that such a claim is likely to be made. Commonwealth may request information etc.  (2) The Commonwealth may request the trustee of the regulated debtor’s estate to provide specified information, reports or documents in relation to the administration of the regulated debtor’s estate.  (3) The trustee must comply with the request.  (4) The Insolvency Practice Rules may provide for and in relation to who is to bear the cost of providing the information, reports or documents. 70‑56  Right of regulated debtor to request information etc. from trustee  (1) A regulated debtor may request the trustee of the regulated debtor’s estate to: to the regulated debtor.  (b) the trustee would breach his or her duties in relation to the administration of the regulated debtor’s estate if the trustee complied with the request; or  (3) The Insolvency Practice Rules may prescribe circumstances in which it is, or is not, reasonable for a trustee of a regulated debtor’s estate to comply with a request of a kind mentioned in subsection (1). Subdivision F—Reporting to the Inspector‑General 70‑60  Insolvency Practice Rules may provide for reporting to Inspector‑General  (1) The Insolvency Practice Rules may provide for and in relation to the obligations of trustees of regulated debtor’s estates: to the Inspector‑General.  (3) The Insolvency Practice Rules may make different provision in relation to different kinds of estate administration. Note: A failure to give information, provide a report or produce a document to the Inspector‑General in accordance with the Insolvency Practice Rules may lead to disciplinary action under Subdivision B of Division 40 of Part 2 of this Schedule. Subdivision G—Trustee may be compelled to comply with requests for information etc. 70‑65  Application of this Subdivision  (1) This Subdivision applies if the trustee of a regulated debtor’s estate refuses a request made by a person under:  (a) Subdivision D; or  (b) a rule made under section 70‑50; or  (c) Subdivision E; or  (d) section 80‑40; to give information, provide a report or produce a document.  (2) In this Subdivision:  (a) the information, report or document is referred to as the relevant material; and  (b) the request is referred to as the request for relevant material; and  (c) giving the information, providing the report or producing the document is referred to as giving the relevant material. 70‑70  Inspector‑General may direct trustee to comply with the request for relevant material  (1) The Inspector‑General may, in writing, direct the trustee to give all or part of the relevant material to the person or persons who made the request for the relevant material within 5 business days after the direction is given.  (2) A direction under subsection (1) is not a legislative instrument. 70‑75  Inspector‑General must notify trustee before giving a direction under section 70‑70  (1) Before giving the trustee a direction under section 70‑70, the Inspector‑General must give the trustee notice in writing:  (a) stating that the Inspector‑General proposes to give the trustee a direction under that section; and  (b) identifying:  (i) the relevant material, or the part of the relevant material, that the Inspector‑General proposes to direct be given; and  (ii) the person or persons to whom the Inspector‑General proposes to direct that the relevant material, or that part of the relevant material, be given; and  (c) inviting the trustee to make a written submission to the Inspector‑General within 10 business days after the notice is given, stating:  (i) whether the trustee has any objection to giving the relevant material, or that part of the relevant material, to a person or persons as proposed; and  (ii) if the trustee has such an objection—the reasons for that objection.  (2) If the trustee objects to giving the relevant material, or part of the relevant material, to a person, the Inspector‑General must take into account the reasons for that objection when deciding whether to direct that the relevant material, or that part of the relevant material, be given to the person. 70‑80  Inspector‑General must not direct trustee to give the relevant material if trustee entitled not to comply with the request   The Inspector‑General must not give a direction under section 70‑70 to give the relevant material, or part of the relevant material, to a person if the Inspector‑General is satisfied that the trustee was entitled, under a provision of this Act or any other law, not to comply with the request for the relevant material, or that part of the relevant material, to the person. 70‑85  Inspector‑General may impose conditions on use of the relevant material Inspector‑General may, by notice, impose conditions  (1) The Inspector‑General may, by notice in writing to the person or persons to whom the relevant material is to be given, impose conditions on the use and disclosure of the relevant material, or part of the relevant material, by the person or persons.  (a) the Inspector‑General directs that the relevant material, or part of the relevant material, be given to the person; and  (b) the Inspector‑General has given the person notice under subsection (1) imposing a condition in relation to the use or disclosure of that material by the person; and 70‑90  Court may order relevant material to be given  (1) The person or persons who made the request for the relevant material may apply to the Court for an order that the trustee give the person all or part of the relevant material.  (a) the Inspector‑General gives the trustee a direction under section 70‑70 in relation to all or part of the relevant material; and  (b) the trustee does not comply with the direction; the Inspector‑General may apply to the Court for an order that the trustee comply with the direction.  (3) On application under subsection (1) or (2), the Court may:  (a) order the trustee to give the person, or any or all of the persons, who made the request for the relevant material all or part of that material; and  (b) make such other orders, including orders as to costs, as it thinks fit.