2010 THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Attorney-General) Personal Property Securities Bill 2010 Contents Page Part 1 Preliminary 1 Name of Act 2 2 Commencement 2 3 Notes 2 4 Expiry--Act 3 Part 2 Savings and transitional provisions Division 2.1 General 5 Definitions 4 6 Giving information to the Commonwealth 5 7 Territory not liable--PPS transitional matters 5 J2009-829 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page 8 Transitional regulations 6 9 Application of Legislation Act, s 88 6 Division 2.2 Interests in motor vehicles 10 Existing motor vehicle provisions cease to have effect at registration commencement time 6 11 Search certificates and notices 7 12 Enforcement of interests in motor vehicles 7 Division 2.3 Interests to which Instruments Act 1933 applies 13 Existing Act ceases to have effect at registration commencement time 8 14 Registrar-general may refuse to exercise registration functions 8 15 Registrable instruments executed before commencement time 9 16 Enforcement of interests 9 17 Fees payable 10 Part 3 Legislation amended and repealed 18 Legislation amended--schs 1-3 11 19 Legislation repealed 11 Schedule 1 Amendments--interests not personal property for PPS Act 12 Part 1.1 Liquor Act 1975 12 Part 1.2 Planning and Development Act 2007 12 Schedule 2 Amendments--statutory interests for PPS Act 13 Part 2.1 Confiscation of Criminal Assets Act 2003 13 Part 2.2 Criminal Code 2002 13 Part 2.3 Hemp Fibre Industry Facilitation Act 2004 14 Part 2.4 Public Trustee Act 1985 14 Part 2.5 Road Transport (Safety and Traffic Management) Regulation 2000 15 contents 2 Personal Property Securities Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page Schedule 3 Other amendments 16 Part 3.1 Cooperatives Regulation 2003 16 Part 3.2 Mercantile Law Act 1962 16 Part 3.3 Registration of Deeds Act 1957 16 Part 3.4 Sale of Motor Vehicles Act 1977 17 Personal Property Securities Bill 2010 contents 3 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Attorney-General) Personal Property Securities Bill 2010 A Bill for An Act relating to personal property securities to make provision consequent on the enactment by the Parliament of the Commonwealth of the Personal Property Securities Act 2009 (Cwlth) The Legislative Assembly for the Australian Capital Territory enacts as follows: J2009-829 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 1 1 Part 1 Preliminary 2 1 Name of Act 3 This Act is the Personal Property Securities Act 2010. 4 2 Commencement 5 (1) Division 2.1 commences on the day after this Act's notification day. 6 Note The naming and commencement provisions automatically commence on 7 the notification day (see Legislation Act, s 75 (1)). 8 (2) The remaining provisions commence on-- 9 (a) a day fixed by the Minister by written notice; or 10 (b) if a day has not been fixed before the day of the registration 11 commencement time--the day of the registration 12 commencement time. 13 Note 1 A single day or time may be fixed, or different days or times may be 14 fixed, for the commencement of different provisions (see Legislation 15 Act, s 77 (1)). 16 Note 2 For the meaning of registration commencement time see the Personal 17 Property Securities Act 2009 (Cwlth). 18 (3) A day may not be fixed under subsection (2) (a) that is earlier than 19 the day of the registration commencement time. 20 (4) The Legislation Act, section 79 (Automatic commencement of 21 postponed law) does not apply to this Act. 22 3 Notes 23 A note included in this Act is explanatory and is not part of this Act. 24 Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of 25 notes. page 2 Personal Property Securities Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 4 1 4 Expiry--Act 2 This Act expires 2 years after division 2.1 commences. Personal Property Securities Bill 2010 page 3 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 2.1 General Section 5 1 Part 2 Savings and transitional 2 provisions 3 Division 2.1 General 4 5 Definitions 5 In this Act: 6 existing Act means the Instruments Act 1933. 7 existing motor vehicle provisions means the Sale of Motor Vehicles 8 Act 1977, part 4A (other than section 32F). 9 director-general means the director-general under the NSW Act. 10 migration time--see the PPS Act, section 306. 11 NSW Act means the Registration of Interests in Goods Act 1986 12 (NSW). 13 PPS Act means the Personal Property Securities Act 2009 (Cwlth). 14 PPS register--see the PPS Act, section 10, definition of register. 15 PPS registrar--see the PPS Act, section 10, definition of Registrar. 16 pre-PPS transitional period means the period-- 17 (a) commencing at the migration time or an earlier time prescribed 18 by regulation; and 19 (b) ending at the registration commencement time. 20 registration commencement time--see the PPS Act, section 306. 21 REVS means the register kept under the NSW Act, section 4. 22 transitional security interest--see the PPS Act, section 308. page 4 Personal Property Securities Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] General Division 2.1 Section 6 1 6 Giving information to the Commonwealth 2 (1) The registrar-general is authorised to give the Commonwealth, the 3 PPS registrar or any other officer of the Commonwealth the 4 information recorded in, or concerning the use of, any register, book 5 or index kept under the existing Act that the registrar-general 6 considers appropriate in order to assist the Commonwealth in 7 establishing the PPS register. 8 (2) The registrar-general may give the information in whatever form 9 (including by means of electronic data or in a form approved for the 10 PPS Act) that the registrar-general considers appropriate. 11 (3) This section has effect despite anything in another territory law. 12 7 Territory not liable--PPS transitional matters 13 (1) The Territory, or an officer, employee or agent of the Territory, does 14 not incur liability for an act or omission done honestly and without 15 recklessness if the act or omission is a PPS transitional matter or 16 arises (directly or indirectly) from a PPS transitional matter. 17 (2) In this section: 18 PPS transitional matter means-- 19 (a) the giving of information to the Commonwealth, the PPS 20 registrar, any other officer of the Commonwealth or any other 21 person for the purpose of assisting the Commonwealth in 22 establishing the PPS register; or 23 (b) a request to the director-general to give information to the 24 Commonwealth, the PPS registrar, any other officer of the 25 Commonwealth or any other person for the purpose of 26 assisting the Commonwealth in establishing the PPS register; 27 or 28 (c) the exercise of a function under, or the administration of, this 29 part. Personal Property Securities Bill 2010 page 5 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 2.2 Interests in motor vehicles Section 8 1 8 Transitional regulations 2 (1) A regulation may prescribe transitional matters necessary or 3 convenient to be prescribed because of the enactment of this Act. 4 (2) A regulation may modify this part (including in relation to another 5 territory law) to make provision in relation to anything that, in the 6 Executive's opinion, is not, or is not adequately or appropriately, 7 dealt with in this part. 8 (3) A regulation under subsection (2) has effect despite anything 9 elsewhere in this Act or another territory law. 10 9 Application of Legislation Act, s 88 11 This part is a law to which the Legislation Act, section 88 (Repeal 12 does not end effect of transitional laws etc) applies. 13 Division 2.2 Interests in motor vehicles 14 10 Existing motor vehicle provisions cease to have effect at 15 registration commencement time 16 (1) The existing motor vehicle provisions cease to have effect in 17 relation to motor vehicles at the registration commencement time, 18 except as otherwise provided by this division. 19 (2) If an existing provision (the primary provision) is continued in 20 effect by this division, any other provision of the existing motor 21 vehicle provisions that is mentioned in the primary provision is also 22 continued in effect to the extent necessary for the purposes of the 23 continued application of the primary provision. page 6 Personal Property Securities Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Interests in motor vehicles Division 2.2 Section 11 1 (3) This division has effect-- 2 (a) despite anything in the existing motor vehicle provisions; and 3 (b) in relation to the existing motor vehicle provisions that this 4 division continues in effect after the registration 5 commencement time even after the existing motor vehicle 6 provisions are repealed by this Act. 7 11 Search certificates and notices 8 Section 32D of the existing motor vehicle provisions continues to 9 apply after the registration commencement time in relation to any 10 certificate issued under that section before that time. 11 Note 1 The director-general may continue to issue certificates under the NSW 12 Act, s 8 (5) during a post-PPS transitional period as to the state of 13 REVS in relation to motor vehicles at any time in the 7 years before the 14 registration commencement time. The provisions of that Act, s 8 will 15 continue to apply to these certificates. A NSW regulation may make 16 provision in relation to the issue of certificates during a pre-PPS 17 transitional period. 18 Note 2 For the NSW provisions-- 19 · post-PPS transitional period means the period of 7 years 20 commencing at the registration commencement time; and 21 · pre-PPS transitional period--see s 5. 22 12 Enforcement of interests in motor vehicles 23 Subject to the PPS Act, chapter 9 (Transitional provisions), 24 section 32E, section 32G and section 32H of the existing motor 25 vehicle provisions continue to apply to an interest in a motor vehicle 26 if the interest is created before the registration commencement time. Personal Property Securities Bill 2010 page 7 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 2.3 Interests to which Instruments Act 1933 applies Section 13 1 Division 2.3 Interests to which Instruments 2 Act 1933 applies 3 13 Existing Act ceases to have effect at registration 4 commencement time 5 (1) The existing Act ceases to have effect at the registration 6 commencement time, except as otherwise provided by this division. 7 (2) If a provision of the existing Act (the primary provision) is 8 continued in effect by this division, any other provision of the 9 existing Act that is mentioned in the primary provision is also 10 continued in effect to the extent necessary for the purposes of the 11 continued application of the primary provision. 12 (3) This division has effect-- 13 (a) despite anything in the existing Act; and 14 (b) in relation to a provision of the existing Act that this division 15 continues in effect after the registration commencement time 16 even after the existing Act is repealed by this Act. 17 14 Registrar-general may refuse to exercise registration 18 functions 19 (1) The registrar-general may refuse to exercise a registration function 20 during the pre-PPS transitional period. 21 (2) Without limiting subsection (1), the registrar-general may refuse to 22 exercise a registration function during the pre-PPS transitional 23 period in relation to a matter that was not finally determined or 24 concluded immediately before the commencement of that period. 25 (3) In this section: 26 registration function means any of the registrar-general's functions 27 under the existing Act relating to the registration of instruments for 28 the existing Act. page 8 Personal Property Securities Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Interests to which Instruments Act 1933 applies Division 2.3 Section 15 1 15 Registrable instruments executed before commencement 2 time 3 (1) Nothing in this division is intended to affect the continued validity 4 and enforceability of any registrable instrument that is in effect 5 immediately before the time when the existing Act ceases to apply 6 because of section 13. 7 (2) Any instrument executed before the registration commencement 8 time that has not been (but could have been) registered under the 9 existing Act immediately before the registration commencement 10 time is taken to have had effect in accordance with its terms 11 immediately before that time. 12 (3) Any instrument executed before the registration commencement 13 time that has not been (but could have been) registered under the 14 existing Act as a variation, renewal, assignment or discharge of an 15 instrument immediately before the registration commencement time 16 is taken to have effect in accordance with its terms immediately 17 before that time. 18 (4) This section has effect subject to the PPS Act, chapter 9 19 (Transitional provisions). 20 16 Enforcement of interests 21 (1) Subject to the PPS Act, chapter 9 (Transitional provisions), any 22 provision of the existing Act with respect to enforcement of an 23 interest continues to apply in relation to-- 24 (a) a transitional security interest; and 25 (b) any registrable instrument (within the meaning of the existing 26 Act) executed before the registration commencement time. 27 (2) In this section: 28 enforcement, of an interest, includes priority of an interest. Personal Property Securities Bill 2010 page 9 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 2.3 Interests to which Instruments Act 1933 applies Section 17 1 17 Fees payable 2 Any fee that is payable under the existing Act immediately before 3 the registration commencement time continues to be payable and 4 may be recovered by the registrar-general in a court of competent 5 jurisdiction after the registration commencement time. page 10 Personal Property Securities Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 18 1 Part 3 Legislation amended and 2 repealed 3 18 Legislation amended--schs 1-3 4 This Act amends the legislation mentioned in schedules 1 to 3. 5 19 Legislation repealed 6 (1) The Instruments Act 1933 (A1933-25) is repealed. 7 (2) All legislative instruments under the Instruments Act 1933 8 (A1933-25) are repealed. Personal Property Securities Bill 2010 page 11 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 1.1 Liquor Act 1975 Amendment [1.1] 1 Schedule 1 Amendments--interests not 2 personal property for PPS Act 3 (see s 18) 4 Part 1.1 Liquor Act 1975 5 [1.1] New section 176 6 insert 7 176 Licences and permits not personal property--PPS Act 8 (1) For the PPS Act, section 10, definition of personal property, a 9 licence or permit is not personal property. 10 (2) In this section: 11 PPS Act means the Personal Property Securities Act 2009 (Cwlth). 12 Part 1.2 Planning and Development 13 Act 2007 14 [1.2] New section 417 (3) 15 insert 16 (3) For the Personal Property Securities Act 2009 (Cwlth), section 10, 17 definition of personal property, a right granted by licence under 18 subsection (1) is not personal property. page 12 Personal Property Securities Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Confiscation of Criminal Assets Act 2003 Part 2.1 Amendment [2.1] 1 Schedule 2 Amendments--statutory 2 interests for PPS Act 3 (see s 18) 4 Part 2.1 Confiscation of Criminal Assets 5 Act 2003 6 [2.1] New section 94 (4) (ba) 7 insert 8 (ba) is a statutory interest of a kind to which the Personal Property 9 Securities Act 2009 (Cwlth), section 73 (2) applies; and 10 Part 2.2 Criminal Code 2002 11 [2.2] New section 377 (6A) 12 insert 13 (6A) Any interest held by the public trustee in relation to property 14 transferred under section 376 (2) is a statutory interest of a kind to 15 which the Personal Property Securities Act 2009 (Cwlth), 16 section 73 (2) applies. Personal Property Securities Bill 2010 page 13 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 2.3 Hemp Fibre Industry Facilitation Act 2004 Amendment [2.3] 1 Part 2.3 Hemp Fibre Industry Facilitation 2 Act 2004 3 [2.3] Section 42 (5) 4 substitute 5 (5) Also, if the chief executive becomes aware that the harvested 6 material is subject to a security interest under the Personal Property 7 Securities Act 2009 (Cwlth) that has not been satisfied, the chief 8 executive must pay any balance-- 9 (a) first, in satisfaction of the security interest; and 10 (b) then, to the former licensee. 11 (6) Any interest held by the chief executive in relation to the proceeds 12 of sale under section 40 or section 41 is a statutory interest of a kind 13 to which the Personal Property Securities Act 2009 (Cwlth), 14 section 73 (2) applies. 15 Part 2.4 Public Trustee Act 1985 16 [2.4] New section 72 (2) 17 insert 18 (2) The lien is a statutory interest to which the Personal Property 19 Securities Act 2009 (Cwlth), section 73 (2) applies. page 14 Personal Property Securities Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Road Transport (Safety and Traffic Management) Regulation 2000 Part 2.5 Amendment [2.5] 1 Part 2.5 Road Transport (Safety and 2 Traffic Management) 3 Regulation 2000 4 [2.5] New section 112 (7) 5 insert 6 (7) An interest mentioned in subsection (6), definition of balance of 7 proceeds of sale paragraph (a) or (b) is a statutory interest of a kind 8 to which the Personal Property Securities Act 2009 (Cwlth), 9 section 73 (2) applies. Personal Property Securities Bill 2010 page 15 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 3.1 Cooperatives Regulation 2003 Amendment [3.1] 1 Schedule 3 Other amendments 2 (see s 18) 3 Part 3.1 Cooperatives Regulation 2003 4 [3.1] Section 44 5 omit 6 Part 3.2 Mercantile Law Act 1962 7 [3.2] Section 20 (2) (b) 8 substitute 9 (b) any person who has a security interest registered under the 10 Personal Property Securities Act 2009 (Cwlth) in relation to 11 the goods; and 12 Part 3.3 Registration of Deeds Act 1957 13 [3.3] Section 4A (1), new note 14 insert 15 Note The Personal Property and Securities Act 2009 (Cwlth) (PPS Act) 16 regulates certain interests in personal property. This Act has no effect to 17 the extent it is inconsistent with the PPS Act. page 16 Personal Property Securities Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Sale of Motor Vehicles Act 1977 Part 3.4 Amendment [3.4] 1 Part 3.4 Sale of Motor Vehicles Act 1977 2 [3.4] Sections 32A to 32F 3 substitute 4 32A Liability of dealer to creditor if security interest defeated 5 (1) This section applies if-- 6 (a) a motor vehicle is purchased from a dealer by a non-dealer; 7 and 8 (b) at any time before payment of the purchase price, the dealer 9 had notice that the vehicle was subject to a security interest 10 within the meaning of the PPS Act; and 11 (c) immediately before payment of the purchase price, the security 12 interest had not been discharged or cancelled. 13 (2) The dealer is liable to the person who had the security interest for 14 any loss of the person because of the operation of the PPS Act, 15 part 2.5 (Taking personal property free of security interests) in 16 relation to the interest. 17 (3) However, the dealer is not liable to the person if the dealer 18 purchased the motor vehicle free from the security interest of the 19 person because of the operation of the PPS Act, part 2.5 in relation 20 to the interest. 21 (4) In this section: 22 non-dealer means a person who is not a dealer. 23 payment, of a purchase price, means-- 24 (a) if the purchase is not by an exchange--giving valuable 25 consideration for the purchase price; or 26 (b) if all of the purchase price is not paid at the same time--the 27 first payment of part of the purchase price; or Personal Property Securities Bill 2010 page 17 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 3.4 Sale of Motor Vehicles Act 1977 Amendment [3.5] 1 (c) if the purchase is by an exchange--making the exchange. 2 PPS Act means the Personal Property Securities Act 2009 (Cwlth) 3 purchase, of a motor vehicle, means acquiring the vehicle from a 4 person selling or exchanging the vehicle who has, or appears to 5 have, authority to dispose of the vehicle in that way. 6 [3.5] Dictionary 7 omit the definitions of 8 creditor 9 debtor 10 director-general 11 hirer 12 lease 13 non-dealer 14 notice 15 NSW Act 16 [3.6] Dictionary, definition of owner 17 substitute 18 owner, in relation to a motor vehicle-- 19 (a) includes a person-- 20 (i) who is the sole owner, joint owner or part owner of the 21 motor vehicle; or 22 (ii) who has possession of the motor vehicle under a hire- 23 purchase agreement, or bill of sale or similar instrument; 24 or page 18 Personal Property Securities Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Sale of Motor Vehicles Act 1977 Part 3.4 Amendment [3.7] 1 (iii) who has possession of the motor vehicle under a contract 2 or hire; but 3 (b) does not include a person-- 4 (i) mentioned in paragraph (a) (i) who does not have 5 possession of the motor vehicle; or 6 (ii) who is entitled under a contract of hire, hire-purchase 7 agreement, or bill or sale of similar instrument, to 8 possession of the motor vehicle but who does not have 9 possession of it. 10 [3.7] Dictionary 11 omit the definitions of 12 participating state 13 payment 14 purchase 15 registered 16 register of interests 17 registrable interest 18 security interest Personal Property Securities Bill 2010 page 19 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Presentation speech Presentation speech made in the Legislative Assembly on 2010. 2 Notification Notified under the Legislation Act on 2010. 3 Republications of amended laws For the latest republication of amended laws, see www.legislation.act.gov.au. © Australian Capital Territory 2010 page 20 Personal Property Securities Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au