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Wednesday, 21 October 1914


Senator SENIOR (SOUTH AUSTRALIA) - Practically it is intended to supersede the State Courts?


Senator GARDINER - They will practically be superseded by Courts which will be given Commonwealth jurisdiction within the States. The whole of the changes I have outlined do not constitute any very great or drastic departure from State law. The four methods with which I have dealt pretty -well cover all theforms of procedure followed in the States, so that when the change is effected it will, not be of so radical a character as to causeundue embarrassment.


Senator Shannon - It makes a uniform law for the whole of the States.


Senator GARDINER - It is really aconsolidating Bill providing uniform; principles and procedures for the whole; of the States. I have said that I feel diffidence in submitting such a measure to the Senate. I have briefly touched upon its salient features, but honorable senators may consider that they have reasonable ground for complaint, because I have not gone much more into detail in my -explanation of the measure at this particular" stage at which, under the Standing Orders, the opportunity is afforded to supply honorable senators with the fullest information concerning the measure. I repeat, however, that this Bill specially lends itself to fuller and more detailed consideration at the Committee stage. The Government, of course, invite discussion on the second reading, and while I do not promise on their behalf to accept amendments moved indiscriminately in Committee, I hope (hat the various provisions of the Bill will be given careful consideration, and that the result will be the passage of one of the most useful pieces of legislation which could occupy the time of the Senate.


Senator O'Keefe - Can the honorable senator say whether the main principles of the existing Bankruptcy Acts of the different States are fairly uniform?


Senator GARDINER - I can say that the main principles of the Bankruptcy Acts of the States are closely related. We have followed in this Bill first of all the Bankruptcy Act of 1869 of Great Britain; then the Bankruptcy Act of 1883, which represented a great step forward in this legislation. The different State Parliaments in their legislation on the subject of bankruptcy have followed very closely the principles and procedure of the English. Acts referred to, and Acts related thereto. In the four methods of procedure which I have outlined, there is little or no departure in the Bill from the procedure followed in the different States. The Insolvency Act of South Australia enables small insolvent estates, where the assets and liabilities do not amount to over £200, to be dealt with very effectively. South Australia, in the provision made for dealing with small estates, set a very distinct lead, and, although with the exception of Western Australia, the other States have not followed the South Australian lead, I have concluded, as the result of the consideration I have been able to give to the matter, that the legislation of the other States, in this respect, is not as effective as is that of South Australia, and, consequently, the provisions of the South Australian Act for dealing with small estates have been adopted in this measure almost in their entirety. I hope that when the Bill becomes law the result will be that we shall have made provision for dealing with the affairs of debtors and creditors in the most expeditious and economic way. I hope that, under this legislation, where there is no evidence of fraud or fraudulent intent, it will be possible to expeditiously and economically settle the affairs of an estate to the advantage of debtors and creditors alike. Because of the difficulties, dangers, and delays of the law in regard to bankruptcy, many business men are prepared to accept almost any compromise offered by a debtor, rather than go through the difficulties and delays of the Bankruptcy Court, unless in cases where the amounts involved are very large. This should not be, and the Bankruptcy Court should offer facilities of advantage to debtors and creditors alike. Where there is evidence of fraud or fraudulent intent on the part of the debtor, the offender should be dealt with, I will not say unrelentingly, but with sternness, and his offence should be punished severely. Where a debtor:, because of misfortune, is unable to meet his liabilities, a method of sympathetic and rapid administration should be adopted in the interests of debtor and creditor alike.


Senator de Largie - Can the Ministersay whether, under the" Bill, a debtor is compelled to apply for his discharge?


Senator GARDINER - Debtors or creditors may apply under the Bill. A fixed time is made within which i debtor shall apply for discharge, and his application must be heard in open Court, in the same way that the statement of hisaffairs is given in open Court, and he ia subject to examination by his creditors.

Debate (on motion by Senator Keating) adjourned -







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