Bankrupts And Passports: A Call To Repeal SS 77(1)(A)(II) and 272(1)(C) of the Bankruptcy Act

Abstract

Should passports be forfeited in bankruptcy? Upon bankruptcy the bankrupt is required to give their passport to the trustee in bankruptcy. This means that they no longer have the legal freedom of movement to engage in international travel without their trustee’s consent. Some bankrupts have cause to undertake international travel and for them it is a significant issue and the loss of the freedom of movement for international travel and the requirement to seek permission is a significant disability. There have been numerous reported cases involving bankrupts and the use of their passports. This paper canvasses the current law from the Bankruptcy Act and the significant cases of Re Tyndall and Re Hicks. Following a prelusory discussion on the freedom of movement as a human right the paper contemplates several reasons for the removal of the substantive law. The paper concludes that the repeal of the subsection should be addressed in light of human rights considerations, the ease of present methods communication with trustees and the presences of other established means of corralling the bankrupt’s assistance.