Article contents
Personal Insolvency in Australia: An Increasingly Middle Class Phenomenon
Published online by Cambridge University Press: 24 January 2025
Extract
In 2009, Australia experienced a record ‘high’ of 36 487 personal insolvencies. The magnitude of this figure, which represents all bankruptcies, debt agreements, and personal insolvency agreements in that financial year, is augmented when placed in the context of the 300 per cent increase seen in the number of Australian personal insolvencies between 1990 and 2009. This growth far exceeded the 28 per cent increase in the Australian population during that period. It is indisputable that personal insolvency is affecting a growing number of Australians.
- Type
- Research Article
- Information
- Copyright
- Copyright © 2010 The Australian National University
Footnotes
The authors are grateful for the suggestions made by anonymous referees.
References
1 Insolvency and Trustee Service Australia, Annual Report by the Inspector-General in Bankruptcy on the Operation of the Bankruptcy Act 2008-2009 (2009) 7 <http://www.itsa.gov.au/dir228/itsaweb.nsf/docindex/about+us-%3Epublications-%3Eannual+reports> at 24 July 2010. This article also draws in part on the findings of our research report on Australian personal insolvency: see Ian Ramsay and Cameron Sim, Trends in Personal Insolvency in Australia (2009) Centre for Corporate Law and Securities Regulation, The University of Melbourne <http://cclsr.law.unimelb.edu.au/go/centre-activities/research/research-reports-and-research-papers/index.cfm> at 24 July 2010. The report outlines the data on trends in Australian personal insolvency between 1990 and 2008. In this article, we analyse the key implications of the data from the report in relation to what we consider to be middle class personal insolvents.
2 Ibid. The population figure is based on current Australian Bureau of Statistic estimates: see Australian Bureau of Statistics, Australian Demographic Statistics December 2009, Cat. No. 3101.0 Table 4 <http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/3101.0Dec%202009?OpenDocument> at 20 August 2010.
3 Ibid.
4 See further Ian, Ramsay and Cameron, Sim, ‘Personal Insolvency Trends in Australia 1990–2008’ (2009) 17 Insolvency Law Journal 69Google Scholar.
5 See further ibid.
6 For the purposes of our analysis we use the term ‘insolvents’ to include both bankrupts and debt agreement debtors. We exclude Part X insolvents as a result of their small numbers.
7 Corporate insolvency is governed by the Corporations Act 2001 (Cth).
8 Insolvency and Trustee Service Australia, Annual Report, above n 1, 11.
9 A more detailed explanation of the Australian personal insolvency regime, including further detail on Part IV bankruptcies, Part IX debt agreements, bankruptcies under Part XI, and current and former Part X arrangements, is available in our report: see Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 29–38. See further Michael, Murray, Keay's Insolvency: Personal and Corporate Law and Practice (6th ed, 2008)Google Scholar.
10 Bankruptcy Act 1966 (Cth) ss 40, 43, 44, 52.
11 Bankruptcy Act 1966 (Cth) s 43(1). The debtor must have committed an act of bankruptcy within six months before presentation of the petition (ss 40, 44(1)(c)), and the debt owed must be for a minimum of A$2000 (s 44(1)(a)).
12 Bankruptcy Act 1966 (Cth) ss 43(2), 52.
13 Bankruptcy Act 1966 (Cth) s 56A(1).
14 Bankruptcy Act 1966 (Cth) s 57(1).
15 Bankruptcy Act 1966 (Cth) s 55.
16 Bankruptcy Act 1966 (Cth) ss 55(4A), 55(8).
17 Insolvency and Trustee Service Australia, above n 1, 7.
18 Bankruptcy Act 1966 (Cth) s 54(1).
19 Bankruptcy Act 1966 (Cth) ss 5(1), 58, 116. See also Bankruptcy Regulations 1996 (Cth) sch 4A, pt 4.
20 Bankruptcy Act 1966 (Cth) s 116(2)(b).
21 Bankruptcy Act 1966 (Cth) s 116(2)(c).
22 Bankruptcy Act 1966 (Cth) ss 120, 121, 121A, 122.
23 Bankruptcy Act 1966 (Cth) s 271.
24 Bankruptcy Act 1966 (Cth) s 77(1)(a)(ii).
25 Bankruptcy Act 1966 (Cth) s 60.
26 Corporations Act 2001 (Cth) s 206B(3).
27 Bankruptcy Act 1966 (Cth) s 139P. On 1 August 2010, the indexed income threshold amount for a bankrupt with no dependants was A$44 189.60; for a bankrupt with over four dependants, this amount was A$60 097.86: Insolvency and Trustee Service Australia, Indexed Amounts <http://www.itsa.gov.au/dir228/itsaweb.nsf/docindex/About+Us-%3EPublications-%3ECurrent+Amounts+Document/$FILE/Current_Amounts.pdf?OpenElement> at 22 August 2010.
28 Bankruptcy Regulations 1996 (Cth) pt 13.
29 Bankruptcy Act 1966 (Cth) s 269(1)(a).
30 Bankruptcy Act 1966 (Cth) s 269.
31 Bankruptcy Act 1966 (Cth) ss 149, 149A(2)(a).
32 In the past ten years the debtor must not have been a bankrupt, had a debt agreement, or had a Part X arrangement: Bankruptcy Act 1966 (Cth) s 185C(4)(a)(i)–(iii).
33 Bankruptcy Act 1966 (Cth) s 185C(1).
34 The proposal may provide for any matter relating to the debtor's financial affairs: s 185C(3). However, the proposal must meet several requirements: Bankruptcy Act 1966 (Cth) s 185C(2). One such requirement is that all provable debts in relation to the debt agreement must rank equally: s 185C(2)(d)(i).
35 Bankruptcy Act 1966 (Cth) s 185C(4)(d).
36 Bankruptcy Act 1966 (Cth) s 185C(4)(b).
37 Bankruptcy Act 1966 (Cth) s 185C(4)(c).
38 Bankruptcy Act 1966 (Cth) s 185C(4).
39 Bankruptcy Act 1966 (Cth) s 185C(4)(d); Insolvency and Trustee Service Australia, Indexed Amounts, above n 27.
40 Bankruptcy Act 1966 (Cth) s 185C(4)(b); Insolvency and Trustee Service Australia, Indexed Amounts, above n 27.
41 Bankruptcy Act 1966 (Cth) s 185C(4)(c); Insolvency and Trustee Service Australia, Indexed Amounts, above n 27. Divisible property includes any equity held in property, which would include any equity held in the family home: Bankruptcy Act 1966 (Cth) s 5.
42 Bankruptcy Act 1966 (Cth) s 40(1)(ha).
43 Bankruptcy Act 1966 (Cth) s 185E(2).
44 Bankruptcy Act 1966 (Cth) s 185EA.
45 Bankruptcy Act 1966 (Cth) s 185EC.
46 Bankruptcy Act 1966 (Cth) s 185EC.
47 Bankruptcy Act 1966 (Cth) s 185H.
48 Bankruptcy Act 1966 (Cth) s 185NA(1).
49 Bankruptcy Act 1966 (Cth) s 185N(2).
50 The Annual Reports are published pursuant to the Bankruptcy Act 1966 (Cth) s 12. Copies of the Annual Reports from 1999 onwards are available at <http://www.itsa.gov.au/dir228/itsaweb.nsf/docindex/About%20Us-%3EPublications-%3EAnnual%20Report%20Archive?OpenDocument> and the Profiles of Debtors in 2002, 2003, 2005, and 2007, are available at <http://www.itsa.gov.au/dir228/itsaweb.nsf/docindex/Statistics+&+Research-%3EDebtor+Profiles>.
51 See Bankruptcy Act 1966 (Cth) ss 54(1)(a), 54(2)(a), 55(2)(b), 56B(1), 56F(1)(a), 56F(1)(b), 57(1), 185C(2B), 185D, 185M(1B), 185P(1B), 188(2C), 188(2D).
52 Bankruptcy Act 1966 (Cth) s 267.
53 Further details on methodology are available in our research report: see Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 27–8.
54 See above nn 2–3.
55 Ibid.
56 See further Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 9–26, 130–42; Ramsay and Sim, ‘Personal Insolvency Trends in Australia', above n 4.
57 See further Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 39–44.
58 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 9; Insolvency and Trustee Service Australia, Annual Report above n 1, 15.
59 See further Insolvency and Trustee Service Australia, Annual Report above n 1, 13–7; see also Ramsay and Sim, ‘Personal Insolvency Trends in Australia', above n 4.
60 Insolvency and Trustee Service Australia, Annual Report, above n 1, 14.
61 Ibid 15.
62 Ibid.
63 There have been four major studies on consumer bankruptcy in the US: Consumer Bankruptcy Project I (1981); Consumer Bankruptcy Project II (1991); Consumer Bankruptcy Project III (2001); and Consumer Bankruptcy Project IV (2007). For a useful description of the Consumer Bankruptcy Projects, see Robert, M Lawless et al, ‘Did Bankruptcy Reforms Fail? An Empirical Study of Consumer Debtors’ (2008) 82 American Bankruptcy Law Journal 349Google Scholar, 387–98. See further Teresa, A Sullivan, Elizabeth, Warren and Jay, Lawrence Westbrook, As We Forgive Our Debtors: Bankruptcy and Consumer Credit in America (1989)Google Scholar; Teresa, A Sullivan, Elizabeth, Warren and Jay, Lawrence Westbrook, The Fragile Middle Class: Americans in Debt (2000)Google Scholar.
64 Others have pointed out this lack of research. See, eg, Rosalind, Mason, ‘Consumer Bankruptcies: An Australian Perspective’ (1999) 37 Osgoode Hall Law Journal 449, 458Google Scholar; Rosalind, Mason and John, Duns, ‘Developments in Consumer Bankruptcy in Australia’ in Johanna, Niemi-Kiesiläinen, Iain, Ramsay and William, Whitford (eds), Consumer Bankruptcy in Global Perspective (2003) 227, 227–8Google Scholar. A study that includes empirical research on consumer bankrupts in Melbourne between 1986 and 1987 is Martin, Ryan, ‘Consumer Bankrupts in Melbourne’ (1993) 28 Australian Journal of Social Issues 34Google Scholar.
65 Sullivan, Warren and Westbrook, The Fragile Middle Class, above n 63, 27. See further Sullivan, Warren and Westbrook, As We Forgive Our Debtors, above n 63; Elizabeth, Warren, ‘Bankrupt Children’ (2002) 86 Minnesota Law Review 1003Google Scholar; Elizabeth, Warren, ‘Financial Collapse and Class Status: Who Goes Bankrupt?’ (2003) 41 Osgoode Hall Law Journal 115Google Scholar; Elizabeth, Warren, ‘The Growing Threat to Middle Class Families’ (2003) 69 Brooklyn Law Review 401Google Scholar; David U Himmelstein et al, ‘Illness and Injury as Contributors to Bankruptcy’ [February 2005] Health Affairs <http://content.healthaffairs.org/cgi/reprint/hlthaff.w5.63v1> at 28 July 2010; Teresa A Sullivan, Elizabeth Warren and Jay Lawrence Westbrook, ‘Less Stigma or More Financial Distress: An Empirical Analysis of the Extraordinary Increase in Bankruptcy Filings’ (2006) 59 Stanford Law Review 213.
66 Warren, ‘Financial Collapse and Class Status', above n 65, 118.
67 Ibid 143–4.
68 Ibid 128.
69 Ibid 137. A recent study in the US found that parents were more likely than non-parents to file for bankruptcy in order to save their homes: see Eric, S Nguyen, ‘Parents in Financial Crisis: Fighting to Keep the Family Home’ (2008) 82 American Bankruptcy Law Journal 229Google Scholar.
70 Warren, ‘Financial Collapse and Class Status', above n 65, 134.
71 Warren, ‘The Growing Threat to Middle Class Families', above n 65, 402.
72 Ibid.
73 Warren, ‘Bankrupt Children', above n 65, 1005.
74 See further nn 50–53 and accompanying text on methodology.
75 R W, Connell and T H, Irving, Class Structure in Australian History: Documents, Narrative and Argument (1980) 1Google Scholar.
76 Ibid 17.
77 Tim, Butler, ‘The Debate Over the Middle Classes’ in Tim, Butler and Mike, Savage (eds), Social Change and the Middle Classes (1995) 26, 26Google Scholar.
78 John, S Western, Social Inequality in Australian Society (1983) 10Google Scholar.
79 K, Roberts et al, The Fragmentary Class Structure (1977) 16Google Scholar.
80 Craig, McGregor, Class in Australia (2nd ed, 2001) 33Google Scholar.
81 Carolyn, Howe, Political Ideology and Class Formation: A Study of the Middle Class (1992) 6Google Scholar.
82 For different conceptions of ‘middle class’ in Australian society see further Connell and Irving, above n 75, 1–30; Western, above n 78, 9–40; Leonard, Broom and F, Lancaster Jones, Opportunity and Attainment in Australia (1976) 60–84Google Scholar; R A, Wild, Social Stratification in Australia (1978) 42–67Google Scholar; Leonard, Broom et al, The Inheritance of Inequality (1980) 20–56Google Scholar. See generally McGregor, above n 80.
83 Roberts et al, above n 79, 17. See also Chris, Chamberlain, Class Consciousness in Australia (1983) x–xiGoogle Scholar.
84 Clive Hamilton, Christian Downie and Yi-Hua Lu, ‘The State of the Australian Middle Class’ (Discussion Paper No 98, The Australia Institute, 2007) 9.
85 See the various studies cited above n 82.
86 McGregor, above n 80, 36–7; Wild, above n 82, 53; Chamberlain, above n 83, 39–42; Western, above n 78, 36–44.
87 McGregor, above n 80, 19.
88 Warren, ‘Financial Collapse and Class Status: Who Goes Bankrupt?', above n 65, 118–9.
89 Broom et al, above n 82, 13.
90 Broom and Jones, above n 82, 118.
91 See also Warren, ‘Financial Collapse and Class Status: Who Goes Bankrupt?', above n 65, 123–7.
92 In that study, the middle class was defined ‘as those with disposable incomes higher than the bottom 30 per cent and lower than the richest 20 per cent'. See Hamilton, Downie and Lu, above n 84, 9.
93 A further 6.4 per cent believed they were in the bottom 20 per cent income bracket, and 0.7 per cent believed they were in the top 20 per cent income bracket. See Peter, Saunders, Cathy, Thomson and Ceri, Evans, Social Change and Social Policy: Results From a National Survey of Public Opinion (Discussion Paper No 106, Social Policy Research Centre, University of New South Wales, 2000) 19Google Scholar.
94 For further detail on the data contained in this section, see Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1; see also Ramsay and Sim, ‘Personal Insolvency Trends in Australia', above n 4.
95 See above nn 82–93 and surrounding text for discussion of definitions of the middle class.
96 Australian Bureau of Statistics, Australian Social Trends, Cat. No. 4102.0 (Work) <http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/37099EF832916037CA257751001A4AE4/$File/41020_work_indicators_2009.xls> at 23 August 2009.
97 Australian Bureau of Statistics, Australian Standard Classification of Occupations, (2nd ed, 1997) Cat. No. 1220.0 <http://www.abs.gov.au/AUSSTATS/abs@.nsf/0/5c244fd9d252cfc8ca25697e00184d35?OpenDocument> at 16 August 2010.
98 See, eg, Western, above n 78, 36–9, 44; Chamberlain, above n 83, 39–42.
99 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 96–100; see also Ramsay and Sim, ‘Personal Insolvency Trends in Australia’ above n 4.
100 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 98.
101 Ibid 41.
102 Ibid 97–8.
103 Ibid.
104 Ibid.
105 Ibid.
106 Ibid 100–2; see also Ramsay and Sim, ‘Personal Insolvency Trends in Australia', above n 4.
107 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 100-2.
108 Ibid.
109 Ibid.
110 In 1997, 33 per cent of bankrupts were employed, compared to 56 per cent in 2007. In 1997, 63 per cent of debt agreement debtors were employed, compared to 92 per cent in 2007. See Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 106–7.
111 Australian Bureau of Statistics, Australian Social Trends, Cat. No. 4102.0 (Economic resources) <http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4102.0Jun%202010?OpenDocument> at 23 August 2010. The references to dollars from previous years in this and subsequent sections have not been adjusted for inflation.
112 Ramsay and Sim, Trends in Personal Insolvency in Australia above n 1, 107–9; see also Ramsay and Sim, ‘Personal Insolvency Trends in Australia', above n 4.
113 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 107–9.
114 Ibid.
115 Ibid 109–10; see also Ramsay and Sim, ‘Personal Insolvency Trends in Australia', above n 4.
116 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 109-10.
117 Ibid.
118 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 112–3; see also Ramsay and Sim, ‘Personal Insolvency Trends in Australia’ above n 4.
119 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1,112-3.
120 Ibid, 113–4; see also Ramsay and Sim, ‘Personal Insolvency Trends in Australia', above n 4.
121 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 113–4.
122 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 120–1; see also Ramsay and Sim, ‘Personal Insolvency Trends in Australia', above n 4.
123 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 120-1.
124 Ibid.
125 Debt agreement debtors must have divisible property falling under prescribed limitations: Bankruptcy Act 1966 (Cth) s 185C(4)(c).
126 Ramsay and Sim, Trends in Personal Insolvency in Australia above n 1, 121; see also Ramsay and Sim, ‘Personal Insolvency Trends in Australia', above n 4.
127 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 121.
128 Ibid 122–3; see also Ramsay and Sim, ‘Personal Insolvency Trends in Australia', above n 4.
129 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 122–3.
130 Ibid.
131 See further nn 7–49 and accompanying text for discussion of these forms of insolvency.
132 Bruce, H Mann, ‘Failure in the Land of the Free’ (2003) 77 American Bankruptcy Law Journal 1, 1Google Scholar.
133 For a useful summary of varying positions, see Ziad, Raymond Azar, ‘Bankruptcy Policy: An Empirical Investigation of 50 Jurisdictions Worldwide’ (2008) 82 American Bankruptcy Law Journal 407Google Scholar, 407–10.
134 Rafael, Efrat, ‘Global Trends in Personal Bankruptcy’ (2002) 76 American Bankruptcy Law Journal 81, 87–91Google Scholar.
135 Ibid. Efrat identifies several other jurisdictions which have a similar approach, including the US, England and Wales, Canada, Hong Kong, New Zealand, Russia, Scotland, Taiwan, and the Netherlands.
136 Ibid 82–84. Efrat includes jurisdictions such as China, Vietnam, Mongolia, Bulgaria, Ukraine, Hungary, Turkey, Saudi Arabia, Italy, Greece, Brazil, Mexico, Argentina, Bolivia, El Salvador, Honduras, Panama, Venezuela, the Czech Republic, Chile, and Egypt.
137 Ibid 84–87. Efrat includes jurisdictions such as India, Pakistan, Japan, Singapore, the Philippines, Denmark, Norway, Sweden, Finland, Austria, Germany, France, Portugal, Spain, Israel, South Africa, Kenya, and Uganda.
138 Ibid 91.
139 Ibid 91–109.
140 See, eg, Storey v Lane (1981) 147 CLR 549, 556–7 (Gibbs CJ); Re McMaster; Ex parte McMaster (1991) 33 FCR 70, 72–3 (Hill J).
141 Elizabeth, Warren, ‘A Principled Approach to Consumer Bankruptcy’ (1997) 71 American Bankruptcy Law Journal 483, 483Google Scholar.
142 Australian Law Reform Commission, Insolvency: The Regular Payment of Debts, Report No 6 (1977).
143 Ibid [142].
144 Ibid.
145 These included that non-business bankrupts should be discharged from bankruptcy six months after its commencement (and subject to objections to discharge): ibid [144] – [148].
146 Ibid [3].
147 Bankruptcy Amendment Act 1980 (Cth) s 72.
148 Efrat, ‘Global Trends in Personal Bankruptcy', above n 134, 92.
149 See, eg, David, A Lander, ‘It ‘'is'’ the Best of Times, It ‘'is'’ the Worst of Times: a Short Essay on Consumer Bankruptcy after the Revolution’ (2004) 78 American Bankruptcy Law Journal 201Google Scholar. The issue of credit is considered further below — see nn 186–204 and accompanying text.
150 See, eg, Adam, Feibelman, ‘Defining the Social Insurance Function of Consumer Bankruptcy’ (2005) 13 American Bankruptcy Institute Law Review 129Google Scholar; Richard, M Hynes, ‘Non-Procrustean Bankruptcy’ (2004) University of Illinois Law Review 301Google Scholar, 350–9.
151 Feibelman, above n 150, 130.
152 Jean, Braucher, ‘Consumer Bankruptcy as Part of the Social Safety Net: Fresh Start or Treadmill?’ (2004) 44 Santa Clara Law Review 1065, 1065–73Google Scholar.
153 Insolvency and Trustee Service Australia, Annual Report, above n 1, 17.
154 Ibid.
155 Ibid.
156 See, eg, Storey v Lane (1981) 147 CLR 549, 556–7 (Gibbs CJ); Re McMaster; Ex parte McMaster (1991) 33 FCR 70, 72–3 (Hill J).
157 Australian Law Reform Commission, General Insolvency Inquiry, Report No 45 (1988).
158 Ibid [33].
159 Ibid.
160 Ibid.
161 We have previously noted that others have pointed out the lack of research on Australian personal insolvency: see the authors cited in n 64.
162 The Bankruptcy Legislation Amendment Act 2010 (Cth) received Royal Assent on 14 July 2010.
163 David, A Moss and Gibbs, A Johnson, ‘The Rise of Consumer Bankruptcy: Evolution, Revolution, or Both?’ (1999) 73 American Bankruptcy Law Journal 311, 343Google Scholar.
164 Explanatory Memorandum, Bankruptcy Legislation Amendment Bill 2009 (Cth) 7.
165 Explanatory Memorandum, Bankruptcy Legislation Amendment Bill 2009 (Cth) 8.
166 Explanatory Memorandum, Bankruptcy Legislation Amendment Bill 2009 (Cth) 9.
167 Bankruptcy Legislation Amendment Act 2010 (Cth) sch 4, pt 1.
168 Bankruptcy Legislation Amendment Act 2010 (Cth) sch 4, pt 2. Under s 54(E) of the Bankruptcy Act 1966 (Cth), a creditor may not apply for or enforce a remedy against a debtor's property for the stay period following acceptance by the Official Receiver of a debtor's declaration of intention to file a debtor's petition.
169 Bankruptcy Legislation Amendment Bill 2009 (Cth) sch 4, pt 2.
170 Explanatory Memorandum, Bankruptcy Legislation Amendment Bill 2009 (Cth) 133.
171 Insolvency and Trustee Service Australia, above n 1, 7.
172 See, eg, Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Bankruptcy Legislation Amendment Bill 2009 (2010).
173 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 28 October 2009, 11 168 (Robert McClelland, Attorney-General).
174 See, eg, Legal and Constitutional Affairs Legislation Committee, above n 172, [3.52].
175 Commonwealth of Australia, above n 173, 11 169.
176 For information on Statements of Affairs, see Bankruptcy Act 1966 (Cth) ss 54(1)(a), 54(2)(a), 55(2)(b), 56B(1), 56F(1)(a), 56F(1)(b), 57(1), 185C(2B), 185D, 185M(1B), 185P(1B), 188(2C), 188(2D), 267 and text accompanying above nn 51–52.
177 The Senate Committee considering the Bankruptcy Legislation Amendment Bill 2009 (Cth) commented in relation to debt agreement debtors that ‘available statistics are somewhat confusing': see Legal and Constitutional Affairs Legislation Committee, above n 172, [3.50].
178 Warren, ‘Financial Collapse and Class Status', above n 65, 118.
179 See nn 63–73 and accompanying text.
180 The insertion of s 77CA in the Bankruptcy Act 1966 (Cth) contained in the Bankruptcy Legislation Amendment Act 2010 (Cth) provides the Official Receiver with a specific power to compel a bankrupt to provide a Statement of Affairs. This has the potential to increase the level of publicly available data on Australian personal insolvents but the amendment does not deal with the need to increase the available data on the socio-economic details of insolvents.
181 Warren, ‘Financial Collapse and Class Status', above n 65, 128.
182 A study in the US found that the self-employed in bankruptcy did not differ from the non-bankrupt self-employed on age, gender, or marital status, but that African Americans were overrepresented and Asian-Americans were underrepresented among the self-employed in bankruptcy. See Robert M Lawless, ‘Who Are the Self-Employed in Bankruptcy?’ (Working Paper, Social Science Research Network, 2008). Another study found that immigrant entrepreneurs are less likely to file for bankruptcy: see Rafael, Efrat, ‘Immigrant Entrepreneurs in Bankruptcy’ (2008) 82 American Bankruptcy Law Journal 693Google Scholar.
183 A study in the US found an increased risk of bankruptcies for families with more children: see Warren, ‘Bankrupt Children', above n 65.
184 A study in the US found an increased risk of bankruptcy for those with inadequate health insurance: see Himmelstein et al, above n 65.
185 Information on the realisable asset levels of insolvents would be enhanced by ITSA releasing data on the proportion of insolvents who declare vehicle or share ownership or entitlements. In addition, data on the proportions of insolvents with accountants and solicitors should be published, as this would indicate the proportion of insolvents receiving financial and legal assistance in organising their affairs.
186 Mason, ‘Consumer Bankruptcy: An Australian Perspective', above n 64; Jaynendra, Kumar, Rosalind, Mason and Deborah, Ralston, ‘Consumer Bankruptcies: Causes and Implications for the Credit Industry’ (1998) 17(3) Economic Papers: A Journal of Applied Economics and Policy 18Google Scholar; Deborah Ralston, Rosalind Mason and Jaynendra Kumar, ‘Causes of Consumer Bankruptcy in Australia: a Macroeconomic Analysis’ (Working Paper No 01/1, University of the Sunshine Coast Faculty of Business, 2001).
187 Moss and Johnson, above n 163, 349.
188 Ibid 350.
189 Ibid 351.
190 Michael, Simkovic, ‘The Effect of BAPCPA on Credit Card Industry Profits and Prices’ (2009) 83 American Bankruptcy Law Journal 1Google Scholar.
191 The statistics in this paragraph are from Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1.
192 See, eg, Kumar, Mason and Ralston, ‘Consumer Bankruptcies: Causes and Implications for the Credit Industry', above n 186.
193 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 65; Insolvency and Trustee Service Australia, Annual Report, above n 1, 17.
194 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 68; Insolvency and Trustee Service Australia, Annual Report, above n 1, 17.
195 Insolvency and Trustee Service Australia, Annual Report, above n 1, 17.
196 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 124–7.
197 Ibid.
198 Reserve Bank of Australia, Payments Data (Credit and Charge Card Statistics – Additional Credit Card Statistics) <http://www.rba.gov.au/statistics/tables/xls/additional-credit-card.xls?accessed=Monday,23-Aug-201004:50:40EST> at 23 August 2010.
199 Ibid.
200 Australian Bureau of Statistics, Australian Social Trends March 2009, Cat. No. 4102.0, <http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/C443436A5DEA4C4ECA2575830015EE48/$File/41020_householddebt.pdf> at 23 August 2010.
201 Ibid.
202 Ibid.
203 Reserve Bank of Australia, Statistical Tables: Money and Credit Statistics (Margin Lending – D10) <http://www.rba.gov.au/statistics/tables/xls/d10hist.xls?accessed=2308-05:11:24> at 23 August 2010
204 Ibid.
205 See, eg, Clive Hamilton and Richard Denniss, Affluenza: When Too Much is Never Enough (2005).
206 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 65; Insolvency and Trustee Service Australia, Annual Report, above n 1, 17.
207 Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 65; Insolvency and Trustee Service Australia, Annual Report, above n 1, 17. For further discussion of gambling and bankruptcy, see John, Duns, ‘Other People's Money: Gambling and Bankruptcy’ (2007) 31 Melbourne University Law Review 87Google Scholar.
208 See further the debate on ‘What's Hurting the Middle Class’ on the Boston Review Forum <http://bostonreview.net/forums/> at 30 July 2009.
209 See further Duns, above n 207, who discusses these questions in the context of his analysis of bankruptcy and gambling.
210 Organisation for Economic Co-operation and Development, Growing Unequal? Income Distribution and Poverty in OECD Countries (2008)Google Scholar.
211 Ibid.
212 Many welfare payments in Australia are subject to income and assets tests, including the Age Pension, the Carer Payment, the Child Care Benefit and Tax Rebate, the Disability Support Pension, the Family Tax Benefit, the Newstart Allowance, the Parenting Payment, the Sickness Allowance, the Special Benefit, and the Youth Allowance.
213 The statistics in this paragraph are from Ramsay and Sim, Trends in Personal Insolvency in Australia, above n 1, 92–4.
214 See further Warren, ‘Bankrupt Children', above n 65, 1024–5.
- 5
- Cited by