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TASMANIA
__________
PERSONAL PROPERTY SECURITIES
(COMMONWEALTH POWERS) BILL 2009
__________
CONTENTS
1. Short title and purpose of Act
2. Commencement
3. Definitions
4. Meaning of "referred PPS matter"
5. Meaning of "security interest" in personal property
6. Initial and amendment references
7. Termination of references
8. Effect of termination of amendment references before initial
reference
9. Evidence of tabled text
10. Administration of Act
[Bill 103]-I
2
PERSONAL PROPERTY SECURITIES
(COMMONWEALTH POWERS) BILL 2009
(Brought in by the Minister for Justice, the Honourable
Larissa Tahireh Giddings)
A BILL FOR
An Act to refer certain matters relating to security
interests in personal property to the Parliament of the
Commonwealth for the purposes of section 51(xxxvii) of
the Constitution of the Commonwealth
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title and purpose of Act
(1) This Act may be cited as the Personal Property
Securities (Commonwealth Powers) Act 2009.
(2) The purpose of this Act is to refer certain matters
relating to security interests in personal property
to the Parliament of the Commonwealth for the
purposes of section 51(xxxvii) of the
Constitution of the Commonwealth.
2. Commencement
(1) Except as provided in subsection (2), this Act
commences on the day on which this Act
receives the Royal Assent.
[Bill 103] 3
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(2) Section 6(2), (3) and (4) commence on a day or
days to be proclaimed.
3. Definitions
In this Act
"amendment reference" means a reference
under section 6(2), (3) or (4);
"Commonwealth PPS Act" means a
Commonwealth Act enacted in the terms,
or substantially in the terms, of the tabled
text and as in force from time to time;
"Commonwealth PPS instrument" means
any instrument (whether or not of a
legislative character) that is made or
issued under the Commonwealth PPS
Act;
"crops" includes (but is not limited to) the
kinds of things that are included in the
definition of "crops" for the purposes of
the tabled text;
"excluded State statutory right" means a
State statutory right that is declared by
the law of the State by or under which it
is granted not to be personal property for
the purposes of the Commonwealth PPS
Act;
"express amendment" of the Commonwealth
PPS Act means the direct amendment of
the text of that Act (whether by the
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insertion, omission, repeal, substitution
or relocation of words or matter) by
another Commonwealth Act, but does not
include the enactment by a
Commonwealth Act of a provision that
has or will have substantive effect
otherwise than as part of the text of the
Commonwealth PPS Act;
"fixtures" means goods, other than crops, that
are affixed to land;
"general law" means the principles and rules
of the common law and equity to the
extent to which they have effect in the
State from time to time;
"goods" means personal property that is
tangible property, and includes (but is not
limited to) the kinds of things that are
included in the definition of "goods" for
the purposes of the tabled text;
"initial reference" means the reference under
section 6(1);
"initial referred provisions" means the
tabled text to the extent to which that text
deals with matters that are included in the
legislative powers of the Parliament of
the State;
"interest", in relation to property, includes a
right in the property;
"land" includes all estates and interests in
land, whether freehold, leasehold or
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chattel, but does not include goods that
are affixed to land;
"law of the State" means any Act of the State
or any instrument made under such an
Act, whenever enacted or made and as in
force from time to time;
"licence" means either of the following:
(a) a transferable right, entitlement or
authority to do one or more of the
following:
(i) to manufacture, produce,
sell, transport or
otherwise deal with
personal property;
(ii) to provide services;
(iii) to explore for, exploit or
use a resource;
(b) a transferable authority to
exercise rights comprising
intellectual property
but does not include an excluded State
statutory right;
"personal property" means property
(including a licence) other than
(a) land; or
(b) an excluded State statutory right;
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"reference" means
(a) the initial reference; or
(b) an amendment reference;
"referred PPS matters" in relation to
personal property see section 4;
"register" means any system for recording
interests or information (whether in
written or electronic form);
"security interest" in personal property see
section 5;
"State statutory right" means a right,
entitlement or authority that is granted by
or under a law of the State;
"tabled text" means the text of the proposed
Personal Property Securities Bill 2009
for a Commonwealth Act as tabled in the
Legislative Assembly of New South
Wales on 16 June 2009 by or on behalf
of the Minister introducing the Bill for
the Personal Property Securities
(Commonwealth Powers) Act 2009 of
that State in that Legislative Assembly;
"transferable", in relation to a right,
entitlement or authority, means
transferable under the general law or a
law of the State by the holder of the right,
entitlement or authority (whether or not
the right, entitlement or authority is
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exclusive, and whether or not a transfer is
restricted or requires consent);
"water right" means a right, entitlement or
authority, whether or not exclusive, that
is granted by or under the general law or
a law of the State in relation to the
control, use or flow of water, but does
not include an excluded State statutory
right.
4. Meaning of "referred PPS matter"
(1) In this Act
"referred PPS matters", in relation to
personal property, means
(a) the matter of security interests in
the personal property; and
(b) without limiting the generality of
paragraph (a), each of the
following matters:
(i) the recording of security
interests, or information
with respect to security
interests, in the personal
property in a register;
(ii) the recording in such a
register of any other
information with respect
to the personal property
(whether or not there are
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any security interests in
the personal property);
(iii) the enforcement of
security interests in the
personal property
(including priorities to be
given as between security
interests, and as between
security interests and
other interests, in the
personal property).
(2) However, "referred PPS matters" does not
include the matter of making provision with
respect to personal property or interests in
personal property in a manner that excludes or
limits the operation of a law of the State to the
extent that the law makes provision with respect
to
(a) the creation, holding, transfer,
assignment, disposal or forfeiture of a
State statutory right; or
(b) limitations, restrictions or prohibitions
concerning the kinds of interests that
may be created or held in, or the kinds of
persons or bodies that may create or hold
interests in, a State statutory right; or
(c) without limiting the generality of
paragraph (a) or (b), any of the following
matters:
(i) the forfeiture of property or
interests in property (or the
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disposal of forfeited property or
interests) in connection with the
enforcement of the general law or
any law of the State;
(ii) the transfer, by operation of that
law of the State, of property or
interests in property from any
specified person or body to any
other specified person or body
(whether or not for valuable
consideration or a fee or other
reward).
(3) In this section
"forfeiture" means confiscation, seizure,
extinguishment, cancellation, suspension
or any other forfeiture.
5. Meaning of "security interest" in personal property
(1) In this Act, a "security interest" in personal
property means an interest in relation to personal
property provided for by a transaction that, in
substance, secures payment or performance of an
obligation (without regard to the form of the
transaction or the identity of the person who has
title to the property).
(2) A "security interest" in personal property also
includes the following interests in relation to
personal property, whether or not the transaction
concerned, in substance, secures payment or
performance of an obligation:
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(a) the interest of a transferee under a
transfer of a monetary obligation or
chattel paper;
(b) the interest of a consignor who delivers
goods to a consignee under a
consignment;
(c) the interest of a lessor or bailor under a
lease or bailment of goods.
(3) A "security interest" in personal property does
not include a licence.
(4) In this section
"chattel paper" means one or more writings
that evidence both a monetary obligation
and a security interest in, or a lease of,
specific personal property;
"writing" includes (but is not limited to) the
kinds of things that are included in the
definition of "writing" for the purposes
of the tabled text.
6. Initial and amendment references
(1) The matters to which the initial referred
provisions relate are referred to the Parliament of
the Commonwealth on the day on which this
subsection commences, but only to the extent of
the making of a law with respect to those matters
by including the initial referred provisions in an
Act enacted in the terms, or substantially in the
terms, of the tabled text.
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(2) The referred PPS matters in relation to personal
property (other than fixtures and water rights)
are referred to the Parliament of the
Commonwealth on the day on which this
subsection commences, but only to the extent of
the making of laws with respect to those matters
in relation to property of that kind by making
express amendments of the Commonwealth PPS
Act.
(3) The referred PPS matters in relation to fixtures
are referred to the Parliament of the
Commonwealth on the day on which this
subsection commences, but only to the extent of
the making of laws with respect to those matters
in relation to fixtures by making express
amendments of the Commonwealth PPS Act.
(4) The referred PPS matters in relation to
transferable water rights are referred to the
Parliament of the Commonwealth on the day on
which this subsection commences, but only to
the extent of the making of laws with respect to
those matters in relation to such water rights by
making express amendments of the
Commonwealth PPS Act.
(5) Except as provided by subsection (2), the
operation of each of subsections (1), (2), (3) and
(4) is not affected by the other subsections.
(6) The reference of any matter under
subsection (1), (2), (3) or (4) has effect only
(a) if and to the extent that the matter is not
included in the legislative powers of the
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Parliament of the Commonwealth
(otherwise than by a reference under
section 51(xxxvii) of the Constitution of
the Commonwealth); and
(b) if and to the extent that the matter is
included in the legislative powers of the
Parliament of the State.
(7) For the avoidance of doubt, it is the intention of
the Parliament of the State that
(a) the Commonwealth PPS Act may be
expressly amended, or have its operation
otherwise affected, at any time after the
commencement of subsection (1) by
provisions of Commonwealth Acts the
operation of which is based on legislative
powers that the Parliament of the
Commonwealth has apart from the
references under subsection (1), (2), (3)
or (4); and
(b) the Commonwealth PPS Act may have
its operation affected, otherwise than by
express amendment, at any time after the
commencement of subsection (1) by
provisions of a Commonwealth PPS
instrument.
(8) Despite any other provision of this section, a
reference under subsection (1), (2), (3) or (4) has
effect for a period
(a) beginning when the subsection under
which the reference is made commences;
and
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(b) ending at the end of the day fixed under
section 7 as the day on which the
reference is to terminate
but not longer.
7. Termination of references
(1) The Governor in Council may, at any time, by
proclamation published in the Gazette, fix a day
as the day on which
(a) all of the references that have effect are
to terminate; or
(b) any or all of the amendment references
that have effect are to terminate.
(2) A day fixed under subsection (1) must be no
earlier than the first day after the end of the
period of 12 months beginning with the day on
which the proclamation is published under that
subsection.
(3) The Governor in Council may, by proclamation
published in the Gazette, revoke a proclamation
published under subsection (1), in which case the
revoked proclamation is taken, for the purposes
of section 6, never to have been published.
(4) A revoking proclamation has effect only if
published before the day fixed under
subsection (1).
(5) The revocation of a proclamation published
under subsection (1) does not prevent
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publication of a further proclamation under that
subsection.
(6) If a proclamation terminating any amendment
reference (but not the initial reference) has been
published under subsection (1) and has not been
revoked, the expression "all of the references"
in subsection (1)(a) refers only to the initial
reference and such of the other amendment
references that have not yet been terminated.
8. Effect of termination of amendment references
before initial reference
(1) If an amendment reference terminates before the
initial reference terminates, the termination of
the amendment reference does not affect
(a) laws that were made under the
amendment reference before that
termination (whether or not they have
come into operation before that
termination); or
(b) the continued operation in the State of
the Commonwealth PPS Act as in
operation immediately before that
termination or as subsequently amended
or affected by
(i) laws referred to in paragraph (a)
that come into operation after that
termination; or
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(ii) provisions referred to in
section 6(7)(a) or (b).
(2) Accordingly, an amendment reference continues
to have effect for the purposes of subsection (1)
unless the initial reference is terminated.
(3) Subsection (1) does not apply to or in relation to
an amendment of the Commonwealth PPS Act
that is excluded from the operation of this
section by the proclamation that terminates the
amendment reference.
(4) For the purposes of subsection (1)
(a) the laws referred to in subsection (1)(a)
include Commonwealth PPS
instruments; and
(b) the reference in subsection (1)(b) to the
Commonwealth PPS Act as in operation
immediately before the termination of the
amendment reference includes that
legislation as affected by Commonwealth
PPS instruments that have come into
operation before that time.
9. Evidence of tabled text
(1) A certificate of the Clerk of the Legislative
Assembly of New South Wales certifying that a
document is an accurate copy of the tabled text,
or is an accurate copy of a particular part or of
particular provisions of the tabled text, is
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admissible in evidence in any proceedings and is
evidence
(a) of the matter certified; and
(b) that the text of the proposed
Commonwealth Bill was tabled in the
Legislative Assembly of New South
Wales as referred to in the definition of
"tabled text" in section 3.
(2) Subsection (1) does not affect any other way in
which the tabling or content of the tabled text, or
the accuracy of a copy of the tabled text or of a
part or provisions of the tabled text, may be
established.
10. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Justice; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
Government Printer, Tasmania 17