Commonwealth Numbered Acts

RETIREMENT SAVINGS ACCOUNTS ACT 1997 No. 61, 1997 - SECT 161

Court's power to protect interests of certain creditors etc.

(1) If:

   (a)  any of the following applies:

        (i)    an investigation is being carried out under this Act in
               relation to an act or omission by a person (the contravening
               person), being an act or omission that constitutes or may
               constitute a contravention of this Act; or

        (ii)   a prosecution has begun against a person (also the contravening
               person) for a contravention of this Act; or

        (iii)  a civil proceeding has begun against a person (also the
               contravening person) under this Act; and

   (b)  the Commissioner or a person (an aggrieved person) to whom the
        contravening person is liable, or may become liable:

        (i)    to pay money (whether in respect of a debt, by way of damages
               or compensation or otherwise); or

        (ii)   to account for property; applies to the Court; and

   (c)  the Court considers it necessary or desirable to make such an order
        for the purpose of protecting the interests of an aggrieved person;
        the Court may make one or more of the orders specified in subsection
        (4).

Court's power to protect the interests of holders

(2) If:

   (a)  the Commissioner is of the opinion that it is necessary for the Court
        to make one or more of the orders specified in subsection (4) to
        protect the interests of any or all of the holders of an RSA; and

   (b)  the Commissioner applies to the Court for such an order in relation to
        the RSA provider; and

   (c)  the Court considers it necessary or desirable to protect the interests
        of any or all of the holders; the Court may make one or more of the
        orders specified in subsection (4).

(3) For the purposes of subsection (2), subsection (4) has effect as if any
reference to the contravening person were a reference to the RSA provider.

Orders that Court may make

(4) The orders that the Court may make are the following:

   (a)  an order prohibiting a person who is indebted to the contravening
        person or to an associate of the contravening person from making a
        payment in total or partial discharge of the debt to:

        (i)    the contravening person or associate; or

        (ii)   another person at the direction or request of the contravening
               person or associate;

   (b)  an order prohibiting a person holding money or property on behalf of
        the contravening person or of an associate of the contravening person
        from:

        (i)    paying all or any of the money; or

        (ii)   transferring or otherwise parting with possession of the
               property; to:

        (iii)  the contravening person or associate; or

        (iv)   another person at the direction or request of the contravening
               person or associate;

   (c)  an order prohibiting the taking or sending out of Australia by a
        person of money of the contravening person or of an associate of the
        contravening person;

   (d)  an order prohibiting the taking, sending or transfer by a person of
        property of the contravening person, or of an associate of the
        contravening person from a place in Australia to a place outside
        Australia (including the transfer of interests from a register in
        Australia to a register outside Australia);

   (e)  if the contravening person is an individual-an order requiring that
        person to deliver up to the Court his or her passport and such other
        documents as the Court thinks fit;

   (f)  if the contravening person is an individual-an order prohibiting that
        person from leaving Australia without the consent of the Court.

Meaning of property in paragraph (4)(d)

(5) A reference in paragraph (4)(d) to property of a person includes a
reference to property that the person holds otherwise than as sole beneficial
owner, for example:

   (a)  as trustee for, as nominee for, or otherwise on behalf of or on
        account of, another person; or

   (b)  in a fiduciary capacity.

Purpose of subsection (5)

(6) Subsection (5) is to avoid doubt, is not to limit the generality of
anything in subsection (1) and is not to affect by implication the
interpretation of any other provision of this Act.

Absolute or conditional orders

(7) An order made under subsection (1) or (2) prohibiting conduct may prohibit
the conduct either absolutely or subject to conditions.

Interim orders

(8) If an application is made to the Court for an order under subsection (1)
or (2), the Court may, if in the opinion of the Court it is desirable to do
so, before considering the application, grant an interim order (being an order
of the kind applied for that is expressed to have effect pending the
determination of the application).

Damages undertakings

(9) On an application under subsection (1) or (2), the Court must not require
the applicant or any other person, as a condition of granting an interim order
under subsection (8), to give an undertaking as to damages.

Further orders

(10) If the Court has made an order under this section on a person's
application, the Court may, on application by that person or by any person
affected by the order, make a further order discharging or varying the
first-mentioned order.

Period of order

(11) An order made under subsection (1), (2) or (8) may be expressed to
operate for a specified period or until the order is discharged by a further
order under this section.

Court's other powers not affected

(12) This section does not affect the powers that the Court has apart from
this section.

Section subject to Bankruptcy Act

(13) This section has effect subject to the Bankruptcy Act 1966.

Offence to contravene orders

(14) A person who intentionally or recklessly contravenes an order by the
Court under this section that is applicable to the person is guilty of an
offence punishable on conviction by imprisonment for a term of not more than 6
months.