The Australian Financial Security Authority (AFSA), the Federal Government’s executive agency responsible for personal bankruptcy and insolvency matters, exercises wide powers in relation to the administration of bankrupt estates. These powers include: removing examinable books from the premises of bankrupts; compelling individuals to provide information to the Official Receiver or provide evidence in court; and collecting money or property from persons in relation to the payment of contributions relevant to the bankruptcy.
These powers, considered in The Laws of Australia Subtitle 3.2 “Bankruptcy Administration”, are exercisable by AFSA in its capacity of performing the functions of the Official Receiver under the Bankruptcy Act 1966 (Cth).
AFSA was formerly called the Insolvency and Trustee Service Australia and got its new name in 2013. The Inspector-General of Bankruptcy is responsible for the general administration of the Bankruptcy Act 1966 and is the Chief Executive of AFSA. The Inspector-General can delegate any of her or his powers and functions to an authorised public servant responsible for supporting the Inspector-General or the Official Receiver. AFSA’s National Manager of Business Services presently acts as the Official Receiver. In practice, the powers and functions of the Official Receiver are exercised by AFSA officers.
The powers of the Official Receiver are extensive, but not untrammelled. For example, while an AFSA officer may remove books from the premises concerned if the books relate to the examinable affairs of a bankrupt whose affairs are being administered under Pt IV of the Bankruptcy Act 1966, an officer is not allowed to remove books where it is reasonable to make copies or take extracts (Bankruptcy Act 1966, s 77AA(1C)).
Still, the powers are significant, as the power to compel any person, bankrupt or not and including government officials, to provide information to the Official Receiver to perform her or his functions, would attest (Bankruptcy Act 1966, s 77C(1)(a)). Underlining this conclusion is that court registrars may issue arrest warrants for any person who fails to appear for examinations pursuant to a summons issued on application of the Official Receiver under s 81 of the Bankruptcy Act 1966. Ultimately, the court has the power to commit to prison any person, including a bankrupt, who fails to comply with an order or direction of the Official Receiver (Bankruptcy Act 1966, s 30(5)(d)).