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Friday, 23 October 1914

Senator KEATING (Tasmania) . - Senator Barker seems to be misled by the words "public officer." I am an officer of the Supreme Court of Tasmania, and also of the High Court, and in the same sense an Official Receiver will be an officer of the Court. He will be in most cases an accountant, carrying on business either by himself or with a partner. This work will be done by persons carrying on the business of accountants, auditors, liquidators, &c. Those desirous of doing the work will apply to the Court to be appointed Official Receivers for the State in which they are carrying on business, and when bankruptcy estates are sequestrated, they will be selected in turn, perhaps as jurymen are chosen, and not because of any special fitness for the administration of any particular estate. "When such a man has made sufficient money to give up business, he may quit the country, and what will become of the records of the bankruptcies with which lie has been concerned?

Senator Barker - Does the honorable senator say that those records will be the private property of the Official Receiver ?

Senator KEATING - I ask the Minister what will become of them; the Bill does not tell us. The Minister has given the most convincing reason for accepting the amendment. He says that the clause has been drawn by the law officers of the Crown; but has any one of those who took part in the work of the drafting had practical experience of. the working of the Bankruptcy law either . in a Court or in a practising solicitor's office? This Bill was "first introduced to Parliament by the present AttorneyGeneral in December, 1912, at the end of a session, so that it might be circulated among those members of the community who are familiar with the working of the bankruptcy laws. It received wide circulation. As I said yesterday, the chambers of commerce, the chambers of manufactures, the Official Receivers, the liquidators, and the officers of the Courts of the various States, received copies. I took a considerable part in distributing the Bill in Tasmania. In June, 1913, the Associated Chambers of Commerce held a conference, and each chamber that was represented had been notified beforehand ihat the Bill was to be considered by a separate committee, to which it was asked to nominate a representative. That Committee consisted, as I stated yesterday, of men of the standing of Mr. Lemmon - than whom there is no greater authority in Victoria to-day as a private individual on the law of bankruptcy - Mr. Borchard, of Sydney, New South Wales; and Mr. Maclaughlin, of Adelaide, a practising solicitor of repute. I was on the Committee as representing Tasmania, and there were other men whose names I cannot think of at the moment. The Committee were absolutely unanimous on this matter, and their recommendation was -

That section 62 be altered so as to provide that a statement of the affairs of the debtor shall be filed with the Registrar, and a copy thereof furnished to the Official Receiver.

The idea of that recommendation i3 that, once a man goes bankrupt, it does not matter who his Official Receiver is he will have this statement for his guidance in dealing with the property of tha bankrupt, but apart from the Official Receiver who may be here to-day or gone tomorrow, with the Registrar shall be lodged or filed a copy. That is not in tha interests of the bankrupt or of the Registrar. It is not endowing the Registrar with any powers, but it is a safeguard to secure for the community a permanent record of all bankruptcies in the State. It does not matter who the Official Receiver may be in any particular case, he will have the statement; but there will also be on public record the registered statement. That is all that the two amendments in combination ask for. One does not want to know, perhaps some years afterwards, file mere fact that a man had his affairs sequestrated, but one desires to find out certain particulars. One wants to make a search as to the position of a firm in relation either to one's own business or to some other matter, and, therefore, one has to go back through gazettes or other documents to find out who was the Official Receiver in the case. The Official Receiver may have ceased to carry on business, or he' may be dead, or he may have quitted the State, or he may have gone into retirement; but oven if he is found he may not have the documents. So what is the position ? Should there not be, in the interests of the whole community, a statement on permanent record? There was no question by the Committee in regard to the matter, because it is the established practice. This was looked upon as purely an oversight on the part of the draftsman. It was not looked upon as the deliberate expression of any policy, because it is the negativing of any policy, if it is anything.

Senator Gardiner - This follows very closely the English practice.

Senator KEATING - That may be so, but so far as Great Britain is concerned does the honorable senator say that the Bill which was passed last year-

Senator Gardiner - It is not an oversight, but a deliberate attempt to bring in the practice.

Senator KEATING - I venture to say that it is an oversight, and that it is due to the fact that those who "drafted the provision in the first instance had not a familiar or working acquaintance with bankruptcy administration. "What Law officers were associated with the . drafting? Their experience, training, and working are totally different from that of a practising solicitor. Their training is different from that of the officers of the Courts. It is much more academic than is the practice of an ordinary common law clerk, or a managing clerk, in a solicitor's office'. The members of the Committee were men who were practically acquainted with the working of the bankruptcy laws of the several States. They were selected for that reason, and there was no hesitation as to their recommendation. They did not recommend the alteration in their own interests, but in the interests of the community, they wanted continuity of office to secure the registration of these documents, which are important, not alone to the bankrupts, not alone to the creditors, but to the community as a whole. There must be a continuity of registration. Registration should not be scattered. If there are seven Official Receivers in the States, there should not be seven particular places where these documents are filed. Seeing that a man may change his residence or quit the State, is it not better that the Registrar should be left? What extra expense will it mean ? It will mean an extra copy; it might be a duplicated copy, but there should always be one on record. Surely it is not asking the Minister to depart from a vital principle of the Bill! It is not giving the Registrar any power, but it is protecting the public. I venture to say that there is not a legal practitioner in any part of Australia who has had any work in connexion with bankruptcy who would not advise this amendment to be inserted. There is not a man who is practising in any one of the States as an assignee, liquidator, accountant, or Official Receiver, who will not indorse the proposition that there shall be registration with a Registrar. It is not a question of conflict between the Registrar and the Receiver. The latter would prefer that the former should have for permanent use this particular document, and that he himself have a copy. There would then be one statement that could always be looked up. Suppose that the document which the Official Receiver had is lost, or mislaid by a clerk in his office, what responsibility will fall upon him ? But if it be lost, it can always be replaced by a copy from the original, which is lying securely with the Registrar in a public office. What does the cost amount to? Perhaps another1s. 6d. for making a typed copy. Surely to goodness we are not going to spoil the ship for the sake of a hap'orth of tar. My amendment only proposes that the document shall be with the Registrar, and it does not matter a straw what happens to the receiver of the document. If the document is required years afterwards, or if before the bankruptcy proceeding is concluded there is an allegation of fraud in connexion with the statement, the Court will have access to it. The Official Receiver will have his working copy - the one which gets tattered and torn and finger-stained-but the permanent copy will be with the Registrar, and may be consulted at any time by the Court, the Receiver himself, or any creditor. A creditor may be somewhat critical of the Official Receiver, and the feeling between the two may not be too good, and the creditor may wish to consult the statement. He may ask the Receiver for permission, and the latter may put obstacles in his way.

Senator Gardiner - We are providing that he cannot do so.

Senator KEATING - Why cannot the document be lodged with the Registrar, as is done at the present time ?

Senator Gardiner - Your proposal is to substitute the Registrar for the Receiver.

Senator KEATING - The proposition is so patent, I think, on the face of it, that I am really surprised to see the Minister opposing it.

Senator Barker - Do I understand that your contention is that the Registrar should have the document?

Senator KEATING - Yes ; and the Receiver should have his copy. It is an addition ; it is a safeguard in the interests of the community as a whole.

Senator Barker - It is not interfering with the duties of either?

Senator KEATING - No. It gives the Registrar not one whit of power that he does not possess. It takes away from the Receiver nothing; it leaves him as he is, hut it guarantees to the public the security of a continuous record of all bankruptcies with a permanent public officer.

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