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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Personal Property Securities
egislation Amendment Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Explanatory notes 2
Schedule 1 Amendment of Acts and Regulations 3
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2010
New South Wales
Personal Property Securities
egislation Amendment Bill 2010
Act No , 2010
An Act to amend certain Acts and Regulations consequent on the enactment by the
Parliament of the Commonwealth of the Personal Property Securities Act 2009; and
for related purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Personal Property Securities Legislation Amendment Bill 2010
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Personal Property Securities Legislation Amendment
Act 2010.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Explanatory notes
The matter appearing under the heading "Explanatory note" in
Schedule 1 does not form part of this Act.
Page 2
Personal Property Securities Legislation Amendment Bill 2010
Amendment of Acts and Regulations Schedule 1
Schedule 1 Amendment of Acts and Regulations
1.1 Building and Construction Industry Security of Payment Act
1999 No 46
Section 11 Due date for payment
Insert after section 11 (5):
(6) Except as otherwise provided by this section, the rules and
principles of the common law and equity apply to the
determination of priorities between a lien under subsection (3)
over any unfixed plant and materials and any other interest in the
plant and materials.
(7) Section 73 (2) of the Personal Property Securities Act 2009 of the
Commonwealth is declared to apply to liens under subsection (3).
Explanatory note
Section 73 of the Personal Property Securities Act 2009 of the Commonwealth (the
Commonwealth Act) provides for priorities in certain circumstances between security
interests in personal property to which that Act applies and interests in the property
created, arising or being provided for under a law of the State (a statutory interest).
Section 73 (2) of the Commonwealth Act enables a law of a State, by declaring that the
subsection applies to a statutory interest, to provide for the priority between the
statutory interest and security interests to be determined in accordance with the law of
the State rather than the Commonwealth Act. However, the declaration operates only
in relation to statutory interests arising after the declaration comes into effect.
The proposed amendment to the Building and Construction Industry Security of
Payment Act 1999:
(a) provides for the determination of priorities between a lien created under
section 11 of that Act and other security interests to be determined in
accordance with that section rather than in accordance with section 73 of the
Commonwealth Act, and
(b) confirms that the common law and equity applies to the determination of
priorities unless section 11 provides otherwise.
1.2 Confiscation of Proceeds of Crime Act 1989 No 90
[1] Section 48 Charge on property subject to restraining order or freezing
notice
Omit "of the State" from section 48 (4).
Insert instead "(whether or not a law of the State)".
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Personal Property Securities Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulations
[2] Section 48 (6)
Insert after section 48 (5):
(6) Section 73 (2) of the Personal Property Securities Act 2009 of the
Commonwealth is declared to apply to a charge created by
subsection (1).
[3] Section 83 Charge on property subject to registered interstate
restraining orders
Omit "of New South Wales" from section 83 (4).
Insert instead "(whether or not a law of the State)".
[4] Section 83 (6)
Insert after section 83 (5):
(6) Section 73 (2) of the Personal Property Securities Act 2009 of the
Commonwealth is declared to apply to a charge created by
subsection (1).
Explanatory note
Section 73 of the Personal Property Securities Act 2009 of the Commonwealth (the
Commonwealth Act) provides for priorities in certain circumstances between security
interests in personal property to which that Act applies and interests in the property
created, arising or being provided for under a law of the State (a statutory interest).
Section 73 (2) of the Commonwealth Act enables a law of a State, by declaring that the
subsection applies to a statutory interest, to provide for the priority between the
statutory interest and security interests to be determined in accordance with the law of
the State rather than the Commonwealth Act. However, the declaration operates only
in relation to statutory interests arising after the declaration comes into effect.
Items [2] and [4] of the proposed amendments to the Confiscation of Proceeds of Crime
Act 1989 (the Act) provide for the determination of priorities between a charge created
under sections 48 and 83 of that Act, respectively, and other security interests to be
determined in accordance with those sections rather than in accordance with
section 73 of the Commonwealth Act.
Items [1] and [3] of the proposed amendments to the Act will enable the NSW Trustee
and Guardian or an appropriate officer to register such charges created in relation to
personal property under the Commonwealth Act.
1.3 Conveyancing Act 1919 No 6
[1] Section 184C General Register of Deeds
Insert "that were" before "registered" wherever occurring in section
184C (2) (g) and (h).
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Personal Property Securities Legislation Amendment Bill 2010
Amendment of Acts and Regulations Schedule 1
[2] Section 184C (2) (h1)
Omit "that are". Insert "that were".
Explanatory note
The proposed amendments to the Conveyancing Act 1919 limit references to
instruments that are registered under the Security Interests in Goods Act 2005 and
certain other personal property legislation to instruments that were previously
registered under that legislation.
1.4 Conveyancing (General) Regulation 2008
Schedule 1 Fees
Omit items 2 and 3.
Explanatory note
The proposed amendment to the Conveyancing (General) Regulation 2008 omits
references to the Security Interests in Goods Act 2005 that will become outdated on
the repeal of that Act by the Personal Property Securities (Commonwealth Powers)
Amendment Act 2009.
1.5 Criminal Assets Recovery Act 1990 No 23
[1] Section 31 Charge on property
Insert after section 31 (4):
(5) Section 73 (2) of the Personal Property Securities Act 2009 of the
Commonwealth is declared to apply to a charge created by
subsection (1).
[2] Section 52G Charge on property subject to interstate restraining order
Omit "of New South Wales" from section 52G (5).
Insert instead "(whether or not a law of the State)".
[3] Section 52G (7)
Insert after section 52G (6):
(7) Section 73 (2) of the Personal Property Securities Act 2009 of the
Commonwealth is declared to apply to a charge created by this
section.
Explanatory note
Section 73 of the Personal Property Securities Act 2009 of the Commonwealth (the
Commonwealth Act) provides for priorities in certain circumstances between security
interests in personal property to which that Act applies and interests in the property
created, arising or being provided for under a law of the State (a statutory interest).
Section 73 (2) of the Commonwealth Act enables a law of a State, by declaring that the
subsection applies to a statutory interest, to provide for the priority between the
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Personal Property Securities Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulations
statutory interest and security interests to be determined in accordance with the law of
the State rather than the Commonwealth Act. However, the declaration operates only
in relation to statutory interests arising after the declaration comes into effect.
Items [1] and [3] of the proposed amendments to the Criminal Assets Recovery Act
1990 (the Act) provide for the determination of priorities between a charge created
under sections 31 and 52G of that Act, respectively, and other security interests to be
determined in accordance with those sections rather than in accordance with
section 73 of the Commonwealth Act.
Item [2] of the proposed amendments to the Act will enable the NSW Trustee and
Guardian or an appropriate or authorised officer to register a charge created by
section 52G of the Act in relation to personal property under the Commonwealth Act.
Section 31 of the Act already makes similar provision in relation to charges created by
that section.
1.6 Duties Act 1997 No 123
Section 222 Exempt mortgages and supporting instruments
Omit section 222 (2) (f1). Insert instead:
(f1) an instrument that creates a security interest in crops or
livestock (within the meaning of the Personal Property
Securities Act 2009 of the Commonwealth), and
Explanatory note
The proposed amendment to the Duties Act 1997 omits a reference to an agricultural
goods mortgage under the Security Interests in Goods Act 2005 that will become
outdated on the repeal of that Act by the Personal Property Securities (Commonwealth
Powers) Amendment Act 2009. The reference is replaced with a reference to the
equivalent concept under the Personal Property Securities Act 2009 of the
Commonwealth.
1.7 Fair Trading Act 1987 No 68
[1] Section 9A Exchange of information
Omit "but only to the extent that the information is reasonably necessary to
assist in the exercise of functions under this Act (or any other Act administered
by the Minister for Fair Trading, whether solely or jointly with another
Minister) or the functions of the relevant agency concerned." from
section 9A (3).
Insert instead:
but only to the extent that the information is reasonably
necessary:
(c) to assist in the exercise of functions (existing NSW fair
trading functions) under this Act (or any other Act
administered by the Minister for Fair Trading, whether
solely or jointly with another Minister) or of the functions
of the relevant agency concerned, or
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Personal Property Securities Legislation Amendment Bill 2010
Amendment of Acts and Regulations Schedule 1
(d) to assist in a proposed transfer of existing NSW fair trading
functions to the relevant agency concerned or a proposed
transfer of functions of the relevant agency concerned to
the Minister, Director-General or other fair trading agency
of the State.
[2] Section 9A (6)
Omit the subsection. Insert instead:
(6) This section does not:
(a) limit the functions that may be exercised by the
Director-General under section 9, or
(b) require the Director-General to provide information to a
relevant agency only in accordance with an information
sharing arrangement where that information can otherwise
be lawfully provided, or
(c) limit the operation of any other Act or law under which a
relevant agency is authorised or required to disclose
information to another person or body.
[3] Schedule 5 Savings and transitional provisions
Insert before clause 12:
11J Personal Property Securities Legislation Amendment Act 2010
Section 9A (as amended by the Personal Property Securities
Legislation Amendment Act 2010) extends to information
obtained before the commencement of the amendments to that
section.
Explanatory note
Item [1] of the proposed amendments to the Fair Trading Act 1987 (the Act) enables
information sharing arrangements to be entered into by the Director-General within the
meaning of that Act in connection with the proposed transfer of functions relating to fair
trading (including to a Commonwealth agency).
Item [2] of the proposed amendments to the Act makes it clear that the
Director-General may share information with other agencies even in the absence of an
information sharing arrangement under section 9A of the Act where the
Director-General can lawfully do so.
Item [3] of the proposed amendments to the Act enacts a transitional provision that
confirms that the amendments proposed to be made by items [1] and [2] extend to
information obtained before the commencement of the amendments.
Page 7
Personal Property Securities Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulations
1.8 Fines Act 1996 No 99
Schedule 1 Statutory provisions under which penalty notices issued
Omit the matter relating to the Registration of Interests in Goods Act 1986.
Explanatory note
The proposed amendment to the Fines Act 1996 omits a reference to the Registration
of Interests in Goods Act 1986 that will become outdated on the repeal of that Act by
the Personal Property Securities (Commonwealth Powers) Amendment Act 2009.
1.9 Fisheries Management Act 1994 No 38
Section 286A
Insert after section 286:
286A Certain licences, leases, permits and other rights not personal
property under Personal Property Securities Act 2009 (Cth)
Each of the following is declared not to be personal property for
the purposes of the Personal Property Securities Act 2009 of the
Commonwealth:
(a) a commercial fishing licence,
(b) an endorsement on a commercial fishing licence,
(c) a fishing boat licence,
(d) a share in any share management fishery,
(e) an aquaculture lease,
(f) an aquaculture permit,
(g) a charter fishing boat licence,
(h) an allocation made under Division 8 of Part 3,
(i) a permit issued under section 37,
(j) a permit issued under Part 7,
(k) a licence granted under Subdivision 1 of Division 6 of
Part 7A.
Note. The Personal Property Securities Act 2009 of the Commonwealth
does not apply in relation to a right, licence or authority granted by or
under a law of a State that is declared by the law not to be personal
property for the purposes of that Act.
Explanatory note
Section 8 (1) (k) of the Personal Property Securities Act 2009 of the Commonwealth
(the Commonwealth Act) provides for that Act not to apply to a particular right, licence
or authority (the statutory right) granted by or under a law of a State, if, at the time
when the statutory right is granted, or at any time afterwards, a provision of that law
declares that kind of statutory right not to be personal property for the purposes of the
Commonwealth Act (no matter whether the provision remains in force). The definition
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Personal Property Securities Legislation Amendment Bill 2010
Amendment of Acts and Regulations Schedule 1
of personal property in section 10 of the Commonwealth Act also excludes any
statutory right that has been declared not to be personal property for the purposes of
the Commonwealth Act.
The proposed amendment to the Fisheries Management Act 1994 ensures that certain
licences, shares, leases, permits and other rights issued or granted under the Act are
not treated as being personal property for the purposes of the Commonwealth Act.
1.10 Health Practitioner Regulation (Adoption of National Law)
Act 2009 No 86
Schedule 1 Modification of Health Practitioner Regulation National Law
Insert after clause 3 (2) of Schedule 5F of the modifications to the Health
Practitioner Regulation National Law (as set out in Schedule 1 [25] to the Act):
(3) To avoid doubt, any failure to register a pecuniary interest that is
a security interest with respect to a pharmacy business does not--
(a) affect the validity, priority or enforceability of the security
interest or of the agreement or other arrangement
providing for the security interest; or
(b) otherwise limit the effect of the security interest or the
agreement or other arrangement providing for the security
interest.
Explanatory note
Section 254 (2) (d) of the Personal Property Securities Act 2009 of the Commonwealth
recognises that a law of a State that requires a security interest in personal property to
be registered under that law is capable of operating concurrently with the
Commonwealth Act if a failure to register the security interest under the law does not
limit the effect of the security interest or a security agreement for the security interest.
The proposed amendment to the Health Practitioner Regulation (Adoption of National
Law) Act 2009 makes it clear that a failure under clause 3 of Schedule 5F of the
modifications set out in that Act to the Health Practitioner Regulation National Law to
register a pecuniary interest that is a security interest with respect to a pharmacy
business does not limit the effect of the interest or the agreement that creates the
interest.
1.11 Housing Act 2001 No 52
Section 69B Access to information for preventing, investigating or
prosecuting fraud
Omit section 69B (1) (e).
Explanatory note
The proposed amendment to the Housing Act 2001 omits a reference to the Register
of Interests in Goods kept under the Registration of Interests in Goods Act 1986 that
will become outdated on the repeal of that Act by the Personal Property Securities
(Commonwealth Powers) Amendment Act 2009.
Page 9
Personal Property Securities Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulations
1.12 Impounding Act 1993 No 31
[1] Section 20 Impounding authority to notify owner
Omit "Register under the Registration of Interests in Goods Act 1986 for
registrable interests in the vehicle" from section 20 (1).
Insert instead "PPS Register for information concerning PPS security interests
in the vehicle".
[2] Section 20 (4)
Omit "Register reveals a registrable interest".
Insert instead "PPS Register reveals a PPS security interest".
[3] Section 20 (8)
Insert after section 20 (7) (before the note):
(8) In this section:
PPS Register means the Personal Property Securities Register
under the Personal Property Securities Act 2009 of the
Commonwealth.
PPS security interest, in relation to a motor vehicle, means a
security interest in the vehicle to which the Personal Property
Securities Act 2009 of the Commonwealth applies (including a
transitional security interest within the meaning of that Act).
Explanatory note
The proposed amendments to the Impounding Act 1993 require an impounding
authority to search the new Personal Property Securities Register established under
the Personal Property Securities Act 2009 of the Commonwealth for security interests
in a motor vehicle before impounding the vehicle. Currently, an impounding authority is
required to search the Register maintained under the Registration of Interests in Goods
Act 1986. That Register will be replaced by the Register under the Commonwealth Act
when that Act commences.
1.13 Law Enforcement (Powers and Responsibilities) Act 2002
No 103
[1] Section 219 Disposal of property on application to court
Insert "(including adjusting rights by extinguishing, whether in whole or in
part, any interests in the property of such persons)" after "parts of property" in
section 219 (2) (a).
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Personal Property Securities Legislation Amendment Bill 2010
Amendment of Acts and Regulations Schedule 1
[2] Section 219 (5)
Insert after section 219 (4):
(5) An order under subsection (2) (a) that provides for the
extinguishment, whether in whole or in part, of any interest in
property operates to extinguish the interest according to its tenor.
Explanatory note
Section 254 (2) (g) of the Personal Property Securities Act 2009 of the Commonwealth
(the Commonwealth Act) recognises that a law of a State that operates to extinguish
(however described) a security interest in circumstances other than those provided
under the Commonwealth Act is capable of operating concurrently with the
Commonwealth Act.
The proposed amendments to the Law Enforcement (Powers and Responsibilities) Act
2002 ensure that a court exercising functions under section 219 of that Act (Disposal
of property on application to court) may adjust rights between parties by extinguishing
an interest of any of those parties.
1.14 Local Government Act 1993 No 30
Section 68B
Insert after section 68A:
68B Approvals not personal property under Personal Property
Securities Act 2009 (Cth)
An approval under this Part is declared not to be personal
property for the purposes of the Personal Property Securities Act
2009 of the Commonwealth.
Note. The Personal Property Securities Act 2009 of the Commonwealth
does not apply in relation to a right, licence or authority granted by or
under a law of a State that is declared by the law not to be personal
property for the purposes of that Act.
Explanatory note
Section 8 (1) (k) of the Personal Property Securities Act 2009 of the Commonwealth
(the Commonwealth Act) provides for that Act not to apply to a particular right, licence
or authority (the statutory right) granted by or under a law of a State, if, at the time
when the statutory right is granted, or at any time afterwards, a provision of that law
declares that kind of statutory right not to be personal property for the purposes of the
Commonwealth Act (no matter whether the provision remains in force). The definition
of personal property in section 10 of the Commonwealth Act also excludes any
statutory right that has been declared not to be personal property for the purposes of
the Commonwealth Act.
The proposed amendment to the Local Government Act 1993 ensures that approvals
under Part 1 of Chapter 7 of that Act are not treated as being personal property for the
purposes of the Commonwealth Act.
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Personal Property Securities Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulations
1.15 Mining Act 1992 No 29
[1] Section 218B
Insert after section 218A:
218B Registration of certain interests in mineral claims
(1) The Director-General is to keep a register of legal and equitable
interests in mineral claims.
(2) Any person claiming a legal or equitable interest in a mineral
claim may apply for registration of the interest.
(3) An application must be lodged with the Director-General and
must be accompanied by the appropriate lodgment fee and by
documentary evidence of the legal or equitable interest
concerned.
(4) The Director-General may, if satisfied that the applicant holds the
interest concerned, register the document by which the legal or
equitable interest is evidenced.
(5) The Director-General may, on application by the holder of an
interest or otherwise, make such amendments to the register kept
under this section as are appropriate to reflect dealings in the
interest.
(6) Without limiting the generality of subsection (5), the
Director-General may cancel the registration of an interest if of
the opinion that the interest has ceased to exist.
(7) The registration of an interest under this section is not to be taken
to be evidence of the existence of the interest.
(8) For the purposes of any legal proceedings concerning a mineral
claim:
(a) a registered interest has priority over an interest that is not
registered, and
(b) an earlier registered interest has priority over a later
registered interest.
(9) The register must be kept available at such offices of the
Department as may be prescribed by the regulations for
inspection, free of charge, by members of the public.
(10) Section 208 applies to an application under this section in the
same way as it applies to an application referred to in
section 208 (1).
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Personal Property Securities Legislation Amendment Bill 2010
Amendment of Acts and Regulations Schedule 1
[2] Section 235F
Insert after section 235E:
235F Registration of certain interests in opal prospecting licences
(1) The Director-General is to keep a register of legal and equitable
interests in opal prospecting licences.
(2) Any person claiming a legal or equitable interest in an opal
prospecting licence may apply for registration of the interest.
(3) An application must be lodged with the Director-General and
must be accompanied by the appropriate lodgment fee and by
documentary evidence of the legal or equitable interest
concerned.
(4) The Director-General may, if satisfied that the applicant holds the
interest concerned, register the document by which the legal or
equitable interest is evidenced.
(5) The Director-General may, on application by the holder of an
interest or otherwise, make such amendments to the register kept
under this section as are appropriate to reflect dealings in the
interest.
(6) Without limiting the generality of subsection (5), the
Director-General may cancel the registration of an interest if of
the opinion that the interest has ceased to exist.
(7) The registration of an interest under this section is not to be taken
to be evidence of the existence of the interest.
(8) For the purposes of any legal proceedings concerning an opal
prospecting licence:
(a) a registered interest has priority over an interest that is not
registered, and
(b) an earlier registered interest has priority over a later
registered interest.
(9) The register must be kept available at such offices of the
Department as may be prescribed by the regulations for
inspection, free of charge, by members of the public.
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Personal Property Securities Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulations
[3] Section 379A
Insert after section 379:
379A Certain licences and leases not personal property under Personal
Property Securities Act 2009 (Cth)
Each of the following is declared not to be personal property for
the purposes of the Personal Property Securities Act 2009 of the
Commonwealth:
(a) an exploration licence,
(b) an assessment lease,
(c) a mineral claim,
(d) a mining lease,
(e) an opal prospecting licence.
Note. The Personal Property Securities Act 2009 of the Commonwealth
does not apply in relation to a right, licence or authority granted by or
under a law of a State that is declared by the law not to be personal
property for the purposes of that Act.
[4] Schedule 6 Savings, transitional and other provisions
Insert at the end of the Schedule (with appropriate Part and clause numbers):
Part Provision consequent on enactment of
Personal Property Securities Legislation
Amendment Act 2010
Application of sections 218B and 235F
(1) Section 218B (as inserted by the Personal Property Securities
Legislation Amendment Act 2010) applies only in relation to
mineral claims granted or renewed after the commencement of
the section.
(2) Section 235F (as inserted by the Personal Property Securities
Legislation Amendment Act 2010) applies only in relation to opal
prospecting licences granted after the commencement of the
section.
Explanatory note
Section 8 (1) (k) of the Personal Property Securities Act 2009 of the Commonwealth
(the Commonwealth Act) provides for that Act not to apply to a particular right, licence
or authority (the statutory right) granted by or under a law of a State, if, at the time
when the statutory right is granted, or at any time afterwards, a provision of that law
declares that kind of statutory right not to be personal property for the purposes of the
Commonwealth Act (no matter whether the provision remains in force). The definition
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Personal Property Securities Legislation Amendment Bill 2010
Amendment of Acts and Regulations Schedule 1
of personal property in section 10 of the Commonwealth Act also excludes any
statutory right that has been declared not to be personal property for the purposes of
the Commonwealth Act.
Item [3] of the proposed amendments to the Mining Act 1992 (the Act) ensures that
certain licences, leases and claims under the Act are not treated as being personal
property for the purposes of the Commonwealth Act.
Items [1] and [2] of the proposed amendments to the Act will require the
Director-General of the Department of Industry and Investment to keep registers of
legal and equitable interests in mineral claims and opal prospecting licences. The
Director-General already keeps similar registers in relation to other licences and leases
issued under the Act. As the Commonwealth Act will not apply in relation to these
claims and licences, these proposed amendments also provide for priorities between
registered and unregistered interests. Item [4] of the proposed amendments enacts a
transitional provision to make it clear that the requirement to maintain a register only
applies in relation to mineral claims or opal prospecting licences that are granted or
renewed after the commencement of the provisions concerned.
1.16 Personal Property Securities (Commonwealth Powers) Act
2009 No 35
[1] Schedule 1 Savings, transitional and other provisions consequent on
enactment of Personal Property Securities Act 2009 of the
Commonwealth
Insert after clause 2 (1):
(1A) Without limiting subclause (1), the Director-General is also
specifically authorised to provide any of the following persons
with such information recorded in REVS as the Director-General
considers appropriate in order to assist in verifying the accuracy
of information recorded in REVS for the purposes of data
migration to the PPS Register:
(a) any person who is (or formerly was) recorded in REVS as
a debtor or creditor in relation to prescribed goods (within
the meaning of the Registration of Interests in Goods Act
1986),
(b) any person acting on behalf of such a debtor or creditor (or
former debtor or creditor),
(c) any other person engaged by the Director-General to
assist, or who is otherwise involved in assisting, in the
migration of data from REVS to the PPS Register.
(1B) The Director-General may charge fees with respect to the
provision of information under subclause (1A).
[2] Schedule 1, clause 5
Insert ", 8" after "7" in paragraph (a) of the definition of registration function
in clause 5 (3).
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Personal Property Securities Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulations
[3] Schedule 1, clause 7
Insert after clause 7 (5):
(6) Without limiting clause 4 (2) (b), the regulations may make
provision for or with respect to fees payable in relation to
certificates (or copies of certificates) issued under or in
accordance with this clause.
[4] Schedule 1, clause 8
Insert "and subclause (2)" after "Chapter 9 (Transitional provisions) of the
PPS Act".
[5] Schedule 1, clause 8 (2)
Insert at the end of clause 8 (after the note):
(2) If a registered interest (within the meaning of the existing Act) in
prescribed goods becomes a migrated security interest (within the
meaning of the PPS Act), the date (if any) recorded in the PPS
Register as the date on which the interest was originally
registered is taken to be the date on which the interest was
originally registered under the existing Act in the absence of
evidence to the contrary.
[6] Schedule 1, clause 22 (3)
Insert "or of verifying the accuracy of information recorded in REVS" after
"PPS Register" in paragraph (a) of the definition of PPS transitional matter.
[7] Schedule 1, clause 22A
Insert after clause 22:
22A References to charges and fixed and floating charges
(1) This clause applies in relation to a reference in an Act or statutory
rule to a charge, a fixed charge, or a floating charge, over
property, but only to the extent that:
(a) the charge referred to has attached to personal property,
and
(b) title to the personal property to which the charge has
attached is in the grantor, and
(c) the charge is a security interest to which the PPS Act
applies.
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Personal Property Securities Legislation Amendment Bill 2010
Amendment of Acts and Regulations Schedule 1
(2) However, this clause does not apply to:
(a) a reference to a charge, a fixed charge, or a floating charge,
if the charge referred to is a perfected security interest that
is provided for by a transfer of an account or chattel paper,
or
(b) any other reference (or any reference belonging to a class)
prescribed by the regulations.
(3) On and from the registration commencement time:
(a) a reference to a charge over property is taken to be a
reference to a security interest that has attached to:
(i) a circulating asset, or
(ii) personal property that is not a circulating asset, and
(b) a reference to a fixed charge over property is taken to be a
reference to a security interest that has attached to personal
property that is not a circulating asset, and
(c) a reference to a floating charge over property is taken to be
a reference to a security interest that has attached to a
circulating asset.
(4) Any word or expression used in this clause that is defined in the
PPS Act has the same meaning as in that Act.
[8] Schedule 1, clause 23A
Insert after clause 23:
23A Enforcement of and other dealings with PPS security interests
restricted in certain circumstances
(1) On and from the registration commencement time (but subject to
this clause and the regulations), a person may not take action to
enforce a PPS security interest in personal property or otherwise
deal with the interest or property:
(a) if the action or dealing is (or would be) inconsistent with a
relevant State property law (or an order made under such a
law) that:
(i) requires, authorises or permits the property to be
dealt with in a particular manner (including by
disposing of the property whether by sale,
destruction or any other means), or
(ii) prohibits or prevents the property being dealt with in
a particular manner or places other limitations or
restrictions on how the property may be dealt with,
or
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Personal Property Securities Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulations
(b) if the action or dealing would operate to prevent, impede
or defeat the making of an application to a court, tribunal
or any other person or body under a relevant State property
law with respect to how the property is to be dealt with, or
(c) in such other circumstances as may be prescribed by the
regulations.
(2) Each of the following is a relevant State property law for the
purposes of this clause:
(a) Schedule 2 to the Commercial Agents and Private Inquiry
Agents Act 2004,
(b) the Confiscation of Proceeds of Crime Act 1989,
(c) the Criminal Assets Recovery Act 1990,
(d) Part 8 of the Holiday Parks (Long-term Casual
Occupation) Act 2002,
(e) the Impounding Act 1993,
(f) Division 2 of Part 17 of the Law Enforcement (Powers and
Responsibilities) Act 2002,
(g) the Pawnbrokers and Second-hand Dealers Act 1996,
(h) section 42 of the Property (Relationships) Act 1984,
(i) Division 8 of Part 12 of the Residential Parks Act 1998,
(j) Division 5 of Part 5 of the Residential Tenancies Act 1987,
(k) Division 2 of Part 6 of the Residential Tenancies Act 2010,
(l) Division 7 of Part 9 of the Retirement Villages Act 1999,
(m) section 28 of the Terrorism (Police Powers) Act 2002,
(n) the Uncollected Goods Act 1995,
(o) Division 9 of Part 2 of the Victims Support and
Rehabilitation Act 1996,
(p) the Warehousemen's Liens Act 1935,
(q) an Act or statutory rule (or a provision of an Act or
statutory rule) that is prescribed by the regulations to be a
relevant State property law for the purposes of this clause.
(3) The regulations may make provision for or with respect to the
following:
(a) the application of subclause (1) in relation to a relevant
State property law (include the modification of the
subclause in its application to such a law),
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(b) the modification of a relevant State property law so as to
enable it to operate concurrently, or to remove a direct
inconsistency, with the PPS Act (including providing for
the extinguishment of a PPS security interest in connection
with the application of the law).
(4) This clause does not:
(a) affect the meaning or operation of a relevant State property
law in its application to interests other than PPS security
interests, or
(b) affect the meaning or operation of a relevant State property
law to the extent that the law would (even if subclause (1)
had not been enacted) be capable of operating according to
its tenor because it is:
(i) a law of the State capable of operating concurrently
with the PPS Act, or
(ii) a law of the State that makes provision for a matter
mentioned in section 245 (2) (a), (b) or (c) of the
PPS Act, or
(iii) a law of the State the effect of which is covered by
section 258 (2) of the PPS Act, or
(c) prevent the enforcement of, or other dealings with, a PPS
security interest:
(i) by the State or an instrumentality or other agency of
the State, or
(ii) by any other person (or person belonging to a class
of persons) prescribed by the regulations.
(5) In this clause:
modification includes addition, exception, omission or
substitution.
order includes a direction or notice.
PPS security interest means a security interest to which the PPS
Act applies (including a transitional security interest).
Note. Section 254 (2) (b), (c) and (g) of the PPS Act recognises that a
law of a State that has any of the following effects is capable of operating
concurrently with the PPS Act except in cases of direct inconsistency
between the PPS Act and the law of the State:
(a) prohibiting or limiting a person creating, acquiring or dealing with
personal property or a security interest in personal property,
(b) prohibiting or limiting the right of a person to hold, transfer or
assign a security interest in personal property,
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(c) imposing limitations or additional obligations or requirements in
relation to the enforcement of a security interest in personal
property,
(d) operating to extinguish (however described) a security interest in
circumstances other than those provided under the PPS Act.
In the event of a direct inconsistency between the PPS Act and a law of
the State having any of the effects referred to in paragraphs (a)(c)
above, section 258 (1) and (2) of the PPS Act operate to limit the
operation of the PPS Act so as to avoid that inconsistency arising.
The PPS Act also extends to certain security interests created before the
registration commencement time (referred to as transitional security
interests in that Act).
[9] Schedule 1, clause 24 (3) (d)
Insert after clause 24 (3) (c):
(d) the Personal Property Securities Legislation Amendment
Act 2010.
[10] Schedule 1, clause 24 (4) (a)
Insert "or another Act or statutory rule" after "this Schedule".
[11] Schedule 1, clause 25
Omit the clause. Insert instead:
25 Savings and transitional provisions consequent on enactment of
Personal Property Securities Legislation Amendment Act 2010
(1) The following amendments made by the amending Act extend,
on and from the commencement of the amendment concerned, to
interests created or arising before that commencement:
(a) the amendments made to section 219 of the Law
Enforcement (Powers and Responsibilities) Act 2002,
(b) the amendment made to section 42 of the Property
(Relationships) Act 1984,
(c) the amendments made to section 28 of the Terrorism
(Police Powers) Act 2002.
(2) In this clause:
amending Act means the Personal Property Securities
Legislation Amendment Act 2010.
Explanatory note
Item [1] of the proposed amendments to the Personal Property Securities
(Commonwealth Powers) Act 2009 (the Act) enables the information in the Register
kept under the Registration of Interests in Goods Act 1986 to be provided to certain
persons in order to assist in the verification of information recorded in the Register for
the purposes of the migration of data to the new Personal Property Securities Register
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(the PPS Register) established under the Personal Property Securities Act 2009 of the
Commonwealth (the Commonwealth Act). Item [6] of the proposed amendments to
the Act makes a consequential amendment.
Item [2] of the proposed amendments to the Act enables the Director-General under
the Registration of Interests in Goods Act 1986 to refuse to exercise functions under
section 8 of that Act during the pre-PPS transitional period.
Item [3] of the proposed amendments to the Act enables regulations to be made
prescribing fees in relation to certificates (or copies of certificates) issued in relation to
certain matters arising under the Registration of Interests in Goods Act 1986.
Item [5] of the proposed amendments to the Act allows information recorded in the PPS
Register concerning the original date of registration of an interest under the
Registration of Interests in Goods Act 1986 to be relied on for the purposes of
determining priorities under the Registration of Interests in Goods Act 1986 in relation
to matters occurring before the commencement of the Commonwealth Act. Item [4] of
the proposed amendments makes a consequential amendment.
Item [7] of the proposed amendments to the Act provides for certain references in State
legislation to charges, fixed charges or floating charges over personal property to be
updated to reflect changes in terminology effected by the Commonwealth Act.
Section 339 of the Commonwealth Act makes similar provision with respect to
references in Commonwealth legislation.
Item [8] of the proposed amendments to the Act prevents security interests to which the
Commonwealth Act applies being enforced or otherwise dealt with in a manner that
would be inconsistent with, or defeat the operation of, certain State property laws (such
as laws relating to abandoned, uncollected or impounded goods, criminal assets and
proceeds and certain other restrictions on dealings involving property).
Item [9] of the proposed amendments to the Act enables the Governor to make savings
and transitional regulations consequent on the enactment of the proposed Act.
Item [10] of the proposed amendments makes a consequential amendment.
Item [11] of the proposed amendments to the Act omits a provision that has become
outdated because of the enactment of the Commonwealth Act in 2009 rather than in
2010. The proposed amendment also inserts savings and transitional provisions
consequent on the enactment of the proposed Act.
1.17 Petroleum (Onshore) Act 1991 No 84
Section 126B
Insert after section 126A:
126B Petroleum titles and low-impact prospecting titles not personal
property under Personal Property Securities Act 2009 (Cth)
Each of the following is declared not to be personal property for
the purposes of the Personal Property Securities Act 2009 of the
Commonwealth:
(a) a petroleum title,
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Schedule 1 Amendment of Acts and Regulations
(b) a low-impact prospecting title granted under Division 6 of
Part 3.
Note. The Personal Property Securities Act 2009 of the Commonwealth
does not apply in relation to a right, licence or authority granted by or
under a law of a State that is declared by the law not to be personal
property for the purposes of that Act.
Explanatory note
Section 8 (1) (k) of the Personal Property Securities Act 2009 of the Commonwealth
(the Commonwealth Act) provides for that Act not to apply to a particular right, licence
or authority (the statutory right) granted by or under a law of a State, if, at the time
when the statutory right is granted, or at any time afterwards, a provision of that law
declares that kind of statutory right not to be personal property for the purposes of the
Commonwealth Act (no matter whether the provision remains in force). The definition
of personal property in section 10 of the Commonwealth Act also excludes any
statutory right that has been declared not to be personal property for the purposes of
the Commonwealth Act.
The proposed amendment to the Petroleum (Onshore) Act 1991 ensures that
petroleum titles and low-impact prospecting titles under that Act are not treated as
being personal property for the purposes of the Commonwealth Act.
1.18 Property (Relationships) Act 1984 No 147
Section 42 Transactions to defeat claims
Insert after section 42 (3):
(3A) Without limiting subsection (3), a court making an order with
respect to property under that subsection may also order that any
interest (including a security interest or transitional security
interest to which the Personal Property Securities Act 2009 of the
Commonwealth applies) is extinguished if the court is satisfied
that it is appropriate to do so to prevent the defeat of an order
referred to in subsection (2).
(3B) An order under subsection (3A) operates to extinguish an interest
to which it relates according to its tenor.
Explanatory note
Section 254 (2) (g) of the Personal Property Securities Act 2009 of the Commonwealth
(the Commonwealth Act) recognises that a law of a State that operates to extinguish
(however described) a security interest in circumstances other than those provided
under the Commonwealth Act is capable of operating concurrently with the
Commonwealth Act.
The proposed amendment to the Property (Relationships) Act 1984 ensures that a
court may order that an interest in property (including a security interest to which the
Commonwealth Act applies) is extinguished to avoid transactions aimed at defeating
claims under the Property (Relationships) Act 1984.
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1.19 Registration of Interests in Goods Act 1986 No 37
Schedule 1 Savings, transitional and other provisions
Insert after Part 3:
Part 4 Personal Property Securities Legislation
Amendment Act 2010
10 Previous use of manufacturer's numbers as prime identifiers
(1) Any registered interest in a motor vehicle that, at any time before
the commencement of this clause, was identified in the Register
by reference to the manufacturer's number of the vehicle is taken
to have been (and always to have been) validly recorded in the
Register by reference to the prime identifier of the vehicle.
(2) In this clause:
manufacturer's number, in relation to a motor vehicle, means
the original number (comprising letters or numbers, or both) that
is permanently affixed to or imprinted on the vehicle by the
manufacturer with the intention of uniquely identifying the
vehicle.
Explanatory note
The proposed amendment to the Registration of Interests in Goods Act 1986 validates
the use of a manufacturer's number as the prime identifier of any motor vehicle that
currently appears (or previously appeared) in the Register kept under that Act as a
motor vehicle with a registered interest in it. The purpose of the amendment is to assist
in securing the integrity of data in that Register before it is transferred to the new
Personal Property Securities Register established under the Personal Property
Securities Act 2009 of the Commonwealth.
1.20 Registration of Interests in Goods Regulation 2004
[1] Clause 4 Definitions
Insert in alphabetical order:
manufacturer's number, in relation to a motor vehicle, means
the original number (comprising letters or numbers, or both) that
is permanently affixed to or imprinted on the vehicle by the
manufacturer with the intention of uniquely identifying the
vehicle.
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[2] Clause 5 Prime identifier for motor vehicles
Insert at the end of clause 5 (b):
, or
(c) the manufacturer's number (if the vehicle does not have a
chassis number or vehicle identification number).
Explanatory note
The proposed amendments to the Registration of Interests in Goods Regulation 2004
enable the prime identifier of a motor vehicle that is recorded in the Register kept under
the Registration of Interests in Goods Act 1986 to be the manufacturer's number if the
vehicle does not have a chassis number or a vehicle identification number (VIN). The
purpose of the amendments is to assist in securing the integrity of data in that Register
before it is transferred to the new Personal Property Securities Register established
under the Personal Property Securities Act 2009 of the Commonwealth.
1.21 Road Transport (General) Act 2005 No 11
Section 217 Definitions
Omit the definition of registered interest. Insert instead:
registered interest, in relation to a motor vehicle, means a
security interest in the vehicle with respect to which a financing
statement (within the meaning of the Personal Property
Securities Act 2009 of the Commonwealth) has been registered
under that Act.
Explanatory note
The proposed amendment to the Road Transport (General) Act 2005 replaces a
reference to an interest in a motor vehicle registered under the Registration of Interests
in Goods Act 1986 with a reference to the corresponding concept under the Personal
Property Securities Act 2009 of the Commonwealth. Under the Commonwealth Act,
financing statements are registered with respect to security interests in personal
property rather than the interests themselves.
1.22 Sale of Goods Act 1923 No 1
Section 26 Sale by person not the owner
Omit "Registration of Interests in Goods Act 1986" from section 26 (2) (a).
Insert instead "Personal Property Securities Act 2009 of the Commonwealth".
Explanatory note
The proposed amendment to the Sale of Goods Act 1923 replaces a reference to the
Registration of Interests in Goods Act 1986 with a reference to the Personal Property
Securities Act 2009 of the Commonwealth.
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1.23 Terrorism (Police Powers) Act 2002 No 115
[1] Section 28 Disposal of property on application to court
Insert "(including adjusting rights by extinguishing, whether in whole or in
part, any interests in the property of such persons)" after "parts of property" in
section 28 (2) (a).
[2] Section 28 (5)
Insert after section 28 (4):
(5) An order under subsection (2) (a) that provides for the
extinguishment, whether in whole or in part, of any interest in
property operates to extinguish the interest according to its tenor.
Explanatory note
Section 254 (2) (g) of the Personal Property Securities Act 2009 of the Commonwealth
(the Commonwealth Act) recognises that a law of a State that operates to extinguish
(however described) a security interest in circumstances other than those provided
under the Commonwealth Act is capable of operating concurrently with the
Commonwealth Act.
The proposed amendments to the Terrorism (Police Powers) Act 2002 ensure that a
court may order that an interest in property (including a security interest to which the
Commonwealth Act applies) seized by a police officer under that Act is extinguished to
facilitate the disposal of the property.
1.24 Uncollected Goods Act 1995 No 68
[1] Section 3 Definitions
Omit the definition of publicly registered interest. Insert instead:
publicly registered interest, in relation to goods, means:
(a) in the case of a motor vehicle or a boat or vessel--a
security interest in the motor vehicle or the boat or vessel
recorded in the Personal Property Securities Register
under the Personal Property Securities Act 2009 of the
Commonwealth, or
(b) in the case of any other goods--an interest in the goods
recorded in a register (whether of the Commonwealth or
the State) that is prescribed by the regulations.
[2] Section 8 Applications to Local Court for orders for disposal of
uncollected goods
Omit section 8 (4) (b). Insert instead:
(b) a written search result (within the meaning of section 174
of the Personal Property Securities Act 2009 of the
Commonwealth) in relation to the vehicle.
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Explanatory note
The proposed amendments to the Uncollected Goods Act 1995 replace references to
registered interests and certificates under the Registration of Interests in Goods Act
1986 with references to equivalent concepts under the Personal Property Securities
Act 2009 of the Commonwealth.
1.25 Warehousemen's Liens Act 1935 No 19
[1] Section 3 Declaration of warehouseman's lien
Insert at the end of the section:
(2) A warehouseman's lien over property has priority over any other
interest in the property and may be enforced accordingly.
(3) Section 73 (2) of the Personal Property Securities Act 2009 of the
Commonwealth is declared to apply to a warehouseman's lien.
[2] Section 5 Necessity of notice by warehouseman where goods deposited
by person entrusted with possession
Omit section 5 (1) (b). Insert instead:
(b) to any other person of whose interest in the goods the
warehouseman has actual knowledge.
[3] Section 6 Power to sell goods
Omit section 6 (2) (c). Insert instead:
(c) to any other person of whose interest in the goods the
warehouseman has actual knowledge.
Explanatory note
Section 73 of the Personal Property Securities Act 2009 of the Commonwealth (the
Commonwealth Act) provides for priorities in certain circumstances between security
interests in personal property to which that Act applies and interests in the property
created, arising or being provided for under a law of the State (a statutory interest).
Section 73 (2) of the Commonwealth Act enables a law of a State, by declaring that the
subsection applies to a statutory interest, to provide for the priority between the
statutory interest and security interests to be determined in accordance with the law of
the State rather than the Commonwealth Act. However, the declaration operates only
in relation to statutory interests arising after the declaration comes into effect.
Item [1] of the proposed amendments to the Warehousemen's Liens Act 1935 (the Act)
provides that a warehouseman's lien over goods has priority over any other interests
in the goods. The amendment also provides that priority of interests is to be determined
in accordance with that section rather than in accordance with section 73 of the
Commonwealth Act.
Items [2] and [3] of the proposed amendments to the Act omit references to registered
interests under the Security Interests in Goods Act 2005 which will become outdated
when the Personal Property Securities Act 2009 of the Commonwealth commences.
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Personal Property Securities Legislation Amendment Bill 2010
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1.26 Warehousemen's Liens Regulation 2007
Clause 4 Verification of statements of account
Omit clause 4 (2) (e).
Explanatory note
The amendment to the Warehousemen's Liens Regulation 2007 omits a reference to
the Security Interests in Goods Act 2005 which will become outdated when the
Personal Property Securities Act 2009 of the Commonwealth commences. The
amendment is consequential on amendments made to the Warehousemen's Liens Act
1935 by the proposed Act.
1.27 Workers Compensation Act 1987 No 70
Sections 278 and 279
Insert before section 280:
278 Compensation not personal property under Personal Property
Securities Act 2009 (Cth)
Compensation under this Act is declared not to be personal
property for the purposes of the Personal Property Securities Act
2009 of the Commonwealth.
279 Enforcement of interests in certain assets and deposits in priority
over Authority or Nominal Defendant prevented
(1) This section applies in relation to the following assets and
deposits (affected assets or deposits):
(a) any amount of money deposited as required under
section 172A,
(b) any assets of an insurer in respect of which the Authority
has taken a charge or other security under section
182 (1) (c),
(c) any amount of money deposited as required under
section 213 or the deposit of securities of equal value
deposited under section 215.
(2) A person may not enforce an interest in affected assets or deposits
(whether or not a PPS security interest) in priority over the
interest of the Authority or the Nominal Defendant in the assets
or deposits.
(3) Subsection (2) extends to an interest created or arising before the
commencement of this section.
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Personal Property Securities Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulations
(4) In this section:
PPS security interest means a security interest to which the
Personal Property Securities Act 2009 of the Commonwealth
applies (including a transitional security interest within the
meaning of that Act).
Explanatory note
Section 254 (2) (b) and (c) of the Personal Property Securities Act 2009 of the
Commonwealth (the Commonwealth Act) recognises that a law of a State that has
any of the following effects is capable of operating concurrently with the
Commonwealth Act except in cases of direct inconsistency between the
Commonwealth Act and the law of the State:
(a) prohibiting or limiting a person creating, acquiring or dealing with personal
property or a security interest in personal property,
(b) prohibiting or limiting the right of a person to hold, transfer or assign a security
interest in personal property,
(c) imposing limitations or additional obligations or requirements in relation to the
enforcement of a security interest in personal property.
In the event of a direct inconsistency between the Commonwealth Act and a law of the
State having such an effect, section 258 (1) and (2) of the Commonwealth Act operate
to limit the operation of the Commonwealth Act so as to avoid that inconsistency
arising.
Section 8 (1) (k) of the Commonwealth Act also provides for that Act not to apply to a
particular right, licence or authority (the statutory right) granted by or under a law of
a State, if, at the time when the statutory right is granted, or at any time afterwards, a
provision of that law declares that kind of statutory right not to be personal property for
the purposes of the Commonwealth Act (no matter whether the provision remains in
force). The definition of personal property in section 10 of the Commonwealth Act also
excludes any statutory right that has been declared not to be personal property for the
purposes of the Commonwealth Act.
The proposed amendment to the Workers Compensation Act 1987:
(a) ensures that compensation under that Act is not treated as being personal
property for the purposes of the Commonwealth Act, and
(b) prevents a person from enforcing an interest in certain assets and deposits in
which the WorkCover Authority or the Nominal Defendant has an interest in
priority over the Authority's or Nominal Defendant's interest.
Page 28
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