HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-10 Daily Xml
Contents
Pdf Xml

STATUTES AMENDMENT (PERSONAL PROPERTY SECURITIES) BILL

Second Reading

Second reading.

The Hon. B.V. FINNIGAN (Minister for Industrial Relations, Minister for State/Local Government Relations, Minister for Gambling) (16:02): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill makes amendments to various State laws consequent upon the enactment of the Commonwealth Personal Property Securities Act 2009.

In October 2008 the State agreed to a National Partnership to Deliver a Seamless National Economy. The PPS scheme is one of the priority items on the Council of Australian Government's business regulation reform agenda. In accordance with the Agreement, South Australia, along with several other States, introduced referral legislation last year that would allow the Commonwealth to establish a national Personal Property Securities scheme under which there would be one set of laws and a single, nationally accessible register. The Commonwealth Personal Property Securities Act 2009, known as the PPS Act, will replace around 70 Acts regulating personal property securities. The single 24 hour online register will replace 40 separate electronic and paper-based registers throughout the States and Territories. On commencement of the scheme the State registers held under the Goods Securities Act 1986, the Bills of Sale Act 1886, the Co-operatives Act 1997, the Liens on Fruit Act 1923 and the Stock Mortgages and Wool Liens Act 1924 will no longer register personal property securities. The data contained on them will be transferred to the national register which is scheduled to go live in October 2011.

Broadly speaking, this Bill will facilitate the establishment of the national register by amending States Acts to:

Provide for closure of State registers of security interests;

Allow data on the Registers to be migrated to the national Register;

Repeal provisions in State Acts that are inconsistent with the PPS Act, and

Repeal Acts once the national system is fully functional and the State Registers and registry functions are no longer required.

The Bill will provide for petroleum, mining, fishing and aquaculture licences to be excluded from the PPS scheme. These licences are covered by industry specific regimes so it is appropriate and convenient for them to remain on State registers where other relevant information about the licences is also recorded. There are currently a number of registered Bills of Sale over fishing, aquaculture and water licences and irrigation rights. Arrangements are being made to provide for these interests to be registered on the Fishing, Aquaculture and Water registers and it is anticipated that these will be in place when the PPS register commences operating. However, as a precaution, the Bill provides for transitional regulations to be made so that, if necessary, Bills of Sale over excluded licences can be retained on the Bills of Sale Register until they can be transferred to the appropriate State registers. All other registered interests will be migrated to the PPS Register. Gas and electricity services are also to be excluded from the PPS scheme as they are currently subject to COAG national energy market reforms. The Bill will amend the National Parks and Wildlife Act 1972 to clarify that certain permits and licences are not transferable and therefore do not fall into the category of 'personal property' for the purposes of the PPS Act. These amendments have been the subject of consultation with relevant Departments and are consistent with consequential amendments made by the other States and Territories.

Although section 73 of the PPS Act allows State law to determine the priority between security interests in personal property to which that Act applies and interests in the property created under a law of the State, the Bill also amends the Criminal Assets Confiscation Act 2005 to remove any doubt about the operation of State laws relating to forfeiture and disposal of criminal assets and proceeds and the operation of the PPS scheme.

Personal property does not include land, water or fixtures. Whether fixtures will be included at some point is currently being considered by the States and the Commonwealth. Further consequential amendments may be required.

These amendments will clarify the interaction of State law with the PPS Act and will facilitate the move to a more consistent, less complex national scheme for persons and businesses involved in personal property transactions.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

Operation of the measure is to commence on a day to be fixed by proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Aquaculture Act 2001

4—Insertion of section 6A

This clause inserts a new section into the Aquaculture Act 2001.

6A—Licence or other right is not personal property for the purposes of Commonwealth Act

The definition of personal property under the Personal Property Securities Act 2009 of the Commonwealth excludes any right, entitlement or authority that is granted by or under a law of the State and declared by that law not to be personal property for the purposes of the Act. Proposed section 6A states that a right, entitlement or authority granted by or under the Aquaculture Act 2001 is not personal property for the purposes of the Personal Property Securities Act 2009. This means that licences and other rights, entitlements or authorities granted under the Act will not be personal property for the purposes of the Commonwealth Act.

Part 3—Amendment of Bills of Sale Act 1886

5—Amendment of section 2—Interpretation

The clauses of this Part amend the Bills of Sale Act 1886 so that certain provisions of the Act will cease to have effect on the commencement of the operation of provisions of the Commonwealth Act relating to registration of securities.

This clause inserts a number of necessary definitions. The PPS Act is the Personal Property Securities Act 2009 of the Commonwealth. Registration commencement time has the same meaning as in that Act. That is, the registration commencement time is at—

the start of the first day of the month that is 26 months after the month on which the PPS Act is given the Royal Assent; or

an earlier time determined by the Commonwealth Minister.

6—Amendment of section 10A—Assignment of future crops

Section 10A is amended so that it only applies in relation to bills of sale executed before the registration commencement time.

7—Amendment of section 11—Covenants and powers implied in bills of sale

Section 11, which sets out certain covenants and powers implied in bills of sale, is amended so that it only applies in relation to bills of sale executed before the registration commencement time.

8—Amendment of section 11A—Standard terms and conditions in bills of sale

Section 11A allows people to deposit terms and conditions for incorporation as standard terms and conditions of bills of sale in the General Registry Office. New subsection (1a) will provide that such documents cannot be accepted by the Registrar-General following the registration commencement time.

9—Amendment of section 12—Implication of certain words

10—Amendment of section 12A—Joint and several liability under bill of sale

11—Amendment of section 12B—Joint and several entitlement of grantees

These sections are amended so that they only operate in relation to bills of sale executed before the registration commencement time.

12—Amendment of section 15—Bills of sale to be registered in General Registry Office

Section 15 provides that all bills of sale, and every subsequent dealing capable of being registered, must be registered in the General Registry Office. The section as amended will provide that a bill of sale or subsequent dealing is not to be registered following the last business day before the registration commencement time.

13—Amendment of section 19A—Renewal of registration of bills of sale

Section 19A provides for the renewal of bills of sale registered under the Act. Under the section as amended, renewal of a bill of sale will not be permitted under the Act after the registration commencement time.

14—Amendment of section 21—Bills of sale may be extended, varied or corrected

Section 21 provides for an extension of time for the repayment of money secured by a bill of sale. The section also allows other variations or corrections to bills of sale. The amended section will only allow extensions, variations of corrections of bills of sale executed before the registration commencement time. An extension of time, or any other variation, or any correction, will continue to have effect after the registration commencement time.

15—Amendment of section 23—Registration of dealings with registered bills of sale

The Registrar-General is required under section 23 to register any dealing with a bill of sale on the application of a party or holder of the bill of sale or any other person. As amended, the section will provide that a dealing is not to be registered following the registration commencement time.

16—Amendment of section 38B—Minister may discharge bill of sale in certain circumstances

Section 38B authorises the Minister to execute a discharge of a bill of sale in certain circumstances (e.g. the grantee is dead or cannot be found). Under the section as amended, the Minister will not be able to execute a discharge of a bill of sale after the registration commencement time.

17—Insertion of Parts 7 and 8

This clause inserts two new Parts into the Bills of Sale Act 1886. Part 7 includes provisions necessary to give effect to the registration scheme under the Commonwealth Act.

Part 7—Provisions relating to PPS Act

42—Certain provisions of Act to cease to have effect

This proposed section lists a number of provisions of the Act that are to cease to have effect at the registration commencement time.

43—Provision of information to Commonwealth

Section 43 authorises the Registrar to provide information concerning bills of sale registered under the Act, and other information recorded by the Registrar in connection with registration, to the Registrar of Personal Property Securities in order to assist the Commonwealth in establishing the Register of Personal Property Securities under the PPS Act.

44—Immunity

This section provides that liability is not incurred by the State, or an officer, employee or agent of the State, for anything done or omitted to be done in good faith—

in the exercise of a power or the discharge of a duty under section 43; or

in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under section 43.

45—Registrar may refuse to exercise functions

Section 45 permits the Registrar to refuse to exercise functions under the Act during the pre-PPS transitional period. This is the period commencing at the migration time (unless an earlier time is prescribed by the regulations) and ending at the registration commencement time. Migration time is defined in section 306 of the PPS Act as the start of the first day of the month that is 25 months after the month on which the Act is given the Royal Assent (or an earlier time determined by the Commonwealth Minister). This is one month before the registration commencement time.

46—Registrar may dispose of certain documents

If the Registrar is of the opinion that the retention of a bill of sale or other document or record kept in connection with a bill of sale would serve no useful purpose, the Registrar may, following the registration commencement time, destroy or otherwise dispose of the bill of sale or document or record.

47—Regulations

Under proposed section 47, the Governor may make regulations containing provisions of a savings or transitional nature related to the enactment of the PPS Act and the Personal Property Securities (Commonwealth Powers) Act 2009.

Under this section, the Governor may, by regulation, provide that the Act is to apply to certain bills of sale as if it had not been amended by the Statutes Amendment (Personal Property Securities) Act 2010. This provision also authorises the Registrar to provide information concerning bills of sale to persons responsible for other registers so long as the information is provided in accordance with an arrangement entered into by the relevant Ministers.

Part 8—Repeal of Act

48—Repeal of Act

This section provides for the repeal of the Bills of Sale Act 1886 by proclamation following the registration commencement time.

Part 4—Amendment of Coast Protection Act 1972

18—Amendment of section 24—Temporary occupation

Section 24(1) of the Coast Protection Act 1972 provides that a person authorised in writing by the Coast Protection Board may occupy and use land that is part of the coast. The amendment made to that section by this clause makes it clear that an authorisation is not transferable (which means that the authorisation does not fall within the definition of personal property in the PPS Act).

Part 5—Amendment of Co-operatives Act 1997

19—Amendment of section 9—Exclusion of operation of Corporations Act

Section 9 of the Co-operatives Act 1997 declares a co-operative to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth. Some exceptions to this exclusion are listed in section 9(2). The exceptions currently include provisions that relate to securities of a co-operative and provisions relating to registers of interests in securities. This clause amends section 9 to remove both of those exceptions.

20—Amendment of section 46—Lodgment of documents not to constitute constructive knowledge

Under section 46(1) of the Co-operatives Act 1997, a person is not to be considered to have knowledge of a co-operative's rules or another document merely because the rules or document have been lodged with the Corporate Affairs Commission or are referred to in a document lodged with the Commission.

Subsection (2) currently provides that subsection (1) does not apply in relation to a document lodged under Part 10 Division 2 to the extent that the document relates to a charge that is registrable under that Division. The consequential amendment made by this clause is necessary because documents will no longer be registered under Division 2 of Part 10 (which states that Schedule 3 has effect). Charges will be registered under the PPS Act rather than Schedule 3 of the Co-operatives Act 1997. New subsection (2) will therefore provide that the principle set out in subsection (1) of section 46 does not apply to a document filed under the PPS Act to the extent that the document relates to a charge that may be the subject of registration under that Act.

21—Amendment of section 239—Registers to be kept by co-operatives

The amendment made by this clause is consequential.

22—Amendment of Schedule 3—Registration etc of charges

Schedule 3 of the Co-operatives Act 1997 deals with the registration of, and the priorities of, charges. This clause amends Schedule 3 by inserting two new Parts containing a number of provisions relating to the PPS Act. Under proposed clause 50, a number of clauses in Schedule 3 will cease to have effect at the registration commencement time because from that time charges will be registered under the PPS Act, which will also deal with priorities. Clause 51 authorises the Corporate Affairs Commission to provide information concerning charges registered under Schedule 3 to the Commonwealth. Other clauses in the new Part deal with matters such as the liability of the State and officers and employees of the State, the ability of the Commission to refuse to exercise a function under Schedule 3 during the pre-PPS transitional period and the making of regulations of a transitional nature. Part 5, which is also inserted by this clause, provides for the repeal of Schedule 3 by proclamation after the registration commencement time. Part 10 Division 2 of the Act, which provides that Schedule 3 has effect, will also be repealed on the same date.

Part 6—Amendment of Criminal Assets Confiscation Act 2005

23—Insertion of section 11A

Under section 73(2) of the PPS Act, the priority between an interest in collateral that arises by being created, arising or being provided for under a law of the State and a security interest in the same collateral is to be determined in accordance with that law of the State only if the law declares that section 73(2) applies to interests of that kind. This clause therefore inserts a new section into the Criminal Assets Confiscation Act 2005 to ensure that the priority between an interest in collateral that arises under that Act and a security interest in the same collateral is determined in accordance with that Act.

11A—Application of Personal Property Securities Act

Proposed section 11A provides that section 73(2) of the PPS Act applies to an interest in property that arises by being created, arising or being provided for under the Act.

Part 7—Amendment of Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007

24—Amendment of section 7—Extension of clamping period

25—Amendment of section 12—Court order for impounding or forfeiture on conviction of prescribed offence

26—Amendment of section 20—Disposal of vehicles

27—Amendment of section 21—Credit provider may apply to Magistrates Court for relief

The amendments made by these clauses are consequential. The amended provisions of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 currently refer to holders of registered security interests under the Goods Securities Act 1986. These clauses amend the provisions so that reference is made instead to persons registered under the Personal Property Securities Act 2009 of the Commonwealth as secured parties in relation to a security interest.

Part 8—Amendment of Electricity Act 1996

28—Insertion of section 30A

This clause inserts a new section into the Electricity Act 1996.

30A—Licence is not personal property for the purposes of Commonwealth Act

The definition of personal property under the Personal Property Securities Act 2009 of the Commonwealth excludes any right, entitlement or authority that is granted by or under a law of the State and declared by that law not to be personal property for the purposes of the Act. Proposed section 30A states that a licence under Part 3 of the Electricity Act 1996 is not personal property for the purposes of the Personal Property Securities Act 2009. This means that licences granted under the Part will not be personal property for the purposes of the Commonwealth Act.

Part 9—Amendment of Fisheries Management Act 2007

29—Insertion of section 5A

This clause inserts a new section into the Fisheries Management Act 2007.

5A—Licence or other right is not personal property for the purposes of Commonwealth Act

The definition of personal property under the Personal Property Securities Act 2009 of the Commonwealth excludes any right, entitlement or authority that is granted by or under a law of the State and declared by that law not to be personal property for the purposes of the Act. Proposed section 5A states that an authority granted under the Fisheries Management Act 2007 is not personal property for the purposes of the Personal Property Securities Act 2009. This means that authorities granted under the Act (such as licences) will not be personal property for the purposes of the Commonwealth Act.

Part 10—Amendment of Gas Act 1997

30—Insertion of section 32A

This clause inserts a new section into the Gas Act 1997.

32A—Licence is not personal property for the purposes of Commonwealth Act

The definition of personal property under the Personal Property Securities Act 2009 of the Commonwealth excludes any right, entitlement or authority that is granted by or under a law of the State and declared by that law not to be personal property for the purposes of the Act. Proposed section 32A states that a licence under Part 3 of the Gas Act 1997 is not personal property for the purposes of the Personal Property Securities Act 2009. This means that licences granted under the Part will not be personal property for the purposes of the Commonwealth Act.

Part 11—Amendment of Goods Securities Act 1986

31—Amendment of section 3—Interpretation

The clauses of this Part amend the Goods Securities Act 1986 so that certain provisions of the Act will cease to have effect on the commencement of the operation of provisions of the Commonwealth Act relating to registration of securities.

This clause inserts a number of necessary definitions. The PPS Act is the Personal Property Securities Act 2009 of the Commonwealth. Registration commencement time has the same meaning as in that Act. That is, the registration commencement time is at—

the start of the first day of the month that is 26 months after the month on which the PPS Act is given the Royal Assent; or

an earlier time determined by the Commonwealth Minister.

32—Amendment of section 4—The register

Section 4 of the Goods Securities Act 1986 as amended by this section will provide that no information is to be added to the register of security interests in prescribed goods kept under the section following the last business day before the registration commencement time.

33—Amendment of section 5—Application for registration

Under section 5 as amended, an application for registration of a security interest in a prescribed good will not be permitted following the last business day before the registration commencement time.

34—Amendment of section 6—Change of particulars

Section 6 as amended by this clause will not permit an application for variation of the particulars of registration following the last business day before the registration commencement time.

35—Amendment of section 7—Cancellation of registration

Under section 7 as amended, the holder of a registered security interest will not be permitted to apply for cancellation of the registration following the last business day before the registration commencement time.

36—Amendment of section 8A—Interstate arrangements and registration of security interests under corresponding law

Section 8A requires the Registrar to enter into the register particulars of security interests registered under corresponding laws. Under this section as amended, no information is to be added to the register following the last business day before the registration commencement time.

37—Amendment of section 9—Certificate of registered security interests

Under section 9 as amended, an application for a certificate of registered security interests will not be permitted following the last business day before the registration commencement time.

38—Repeal of section 19

This clause repeals section 19, which makes it an offence for a person to sell or purport to sell prescribed goods that are subject to a security interest without the consent of the holder of the security interest.

39—Insertion of Parts 6 and 7

This clause amends the Goods Securities Act 1986 by inserting new Parts containing a number of provisions relating to the PPS Act.

Part 6—Provisions relating to PPS Act

23—Certain provisions of Act to cease to have effect

Under proposed section 23, a number of provisions of the Goods Securities Act 1986 will cease to have effect at the registration commencement time because from that time charges will be registered under the PPS Act, which will also deal with priorities

24—Provision of information to Commonwealth

Section 24 authorises the Registrar to provide information concerning security interests registered under the Act to the Commonwealth for the purposes of assisting in the establishment of the PPS Register.

25—Immunity

This section provides that liability is not incurred by the State, or an officer, employee or agent of the State, for anything done or omitted to be done in good faith—

in the exercise of a power or the discharge of a duty under section 24; or

in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under section 24.

26—Registrar may refuse to exercise functions

Section 26 permits the Registrar to refuse to exercise functions under the Act during the pre-PPS transitional period. This is the period commencing at the migration time (unless an earlier time is prescribed by the regulations) and ending at the registration commencement time. Migration time is defined in section 306 of the PPS Act as the start of the first day of the month that is 25 months after the month on which the Act is given the Royal Assent (or an earlier time determined by the Commonwealth Minister). This is one month before the registration commencement time.

27—Cancellation of registration 7 years after registration commencement time

This section provides that the registration all registered security interests will expire on 1 May 2018.

28—Regulations

Under proposed section 28, the Governor may make regulations containing provisions of a savings or transitional nature related to the enactment of the PPS Act and the Personal Property Securities (Commonwealth Powers) Act 2009.

Part 7—Expiry of Act

29—Expiry of Act

This section provides for the expiry of the Goods Securities Act 1986 on the third anniversary of the day on which the section comes into operation. However, the Act may expire on an earlier day fixed by proclamation following the registration commencement time.

Part 12—Amendment of Historic Shipwrecks Act 1981

40—Insertion of section 15A

This clause inserts a new section into the Historic Shipwrecks Act 1981.

15A—Permits not transferable

Proposed section 15A makes it clear that a permit granted under the Act is not transferable (which means that the permit does not fall within the definition of personal property in the PPS Act).

Part 13—Amendment of Legal Practitioners Act 1981

41—Amendment of section 21—Entitlement to practise

Section 21(1) of the Legal Practitioners Act 1981 prohibits a person from practising the profession of the law unless the person is a local or interstate legal practitioner, or unless the person is a company holding a practising certificate. Subsection (3) makes it clear that the prohibition in subsection (1) does not prevent certain activities. One of those activities is the preparation by a conveyancer of an instrument registrable under various Acts, including the Bills of Sale Act 1886, the Stock Mortgages and Wool Liens Act 1924 and the Liens on Fruit Act 1923. As instruments will not be registrable under those Acts following the registration commencement time, this clause substitutes a new paragraph that refers instead to the preparation by a conveyancer of a bill of sale, stock mortgage or lien over wool or fruit.

Part 14—Amendment of Liens on Fruit Act 1923

42—Amendment of section 2—Interpretation

The clauses of this Part amend the Liens on Fruit Act 1923 so that certain provisions of the Act will cease to have effect on the commencement of the operation of provisions of the Commonwealth Act relating to registration of securities.

This clause inserts a number of necessary definitions. The PPS Act is the Personal Property Securities Act 2009 of the Commonwealth. Registration commencement time has the same meaning as in that Act. That is, the registration commencement time is at—

the start of the first day of the month that is 26 months after the month on which the PPS Act is given the Royal Assent; or

an earlier time determined by the Commonwealth Minister.

43—Amendment of section 3—Right of lienee to fruit crops

Under section 3 as amended by this clause, an agreement cannot be registered with the Registrar-General of Deeds following the last business day before the registration commencement time.

44—Repeal of section 9

This clause repeals section 9, which relates to frauds by lienors.

45—Insertion of sections 11 to 16

This clause amends the Liens on Fruit Act 1923 by inserting new provisions relating to the PPS Act.

11—Certain provisions of Act to cease to have effect

Under proposed section 11, a number of provisions of the Liens on Fruit Act 1923 will cease to have effect at the registration commencement time because from that time liens will be registered under the PPS Act, which will also deal with priorities

12—Provision of information to Commonwealth

Section 12 authorises the Registrar-General of Deeds to provide information concerning agreements registered under the Act to the Commonwealth for the purposes of assisting in the establishment of the PPS Register.

13—Immunity

This section provides that liability is not incurred by the State, or an officer, employee or agent of the State, for anything done or omitted to be done in good faith—

in the exercise of a power or the discharge of a duty under section 12; or

in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under section 12.

14—Registrar-General may refuse to exercise functions

This section permits the Registrar-General to refuse to exercise functions under the Act during the pre-PPS transitional period. This is the period commencing at the migration time (unless an earlier time is prescribed by the regulations) and ending at the registration commencement time. Migration time is defined in section 306 of the PPS Act as the start of the first day of the month that is 25 months after the month on which the Act is given the Royal Assent (or an earlier time determined by the Commonwealth Minister). This is one month before the registration commencement time.

15—Regulations

Under proposed section 15, the Governor may make regulations containing provisions of a savings or transitional nature related to the enactment of the PPS Act and the Personal Property Securities (Commonwealth Powers) Act 2009.

16—Repeal of Act

This section provides for the repeal of the Liens on Fruit Act 1923 on a date to be fixed by proclamation following the registration commencement time.

Part 15—Amendment of Marine Parks Act 2007

46—Amendment of section 19—Permits for activities

This clause amends section 19 of the Marine Parks Act 2007 to make it clear that a permit granted under the section is not transferable unless it is a permit for a prescribed activity or a permit of a prescribed class. The transfer may be subject to prescribed conditions. (A permit that is not transferable does not fall within the definition of personal property in the PPS Act).

Part 16—Amendment of Mercantile Law Act 1936

47—Amendment of section 4—Powers of mercantile agent with respect to disposition of goods

The amendments made by this clause are consequential. Section 4 of the Mercantile Law Act 1936 currently states that the section does not operate to defeat interests registered under the Goods Securities Act 1986. The amendment made by this clause removes the reference to that Act and substitutes a reference to security interests that are the subject of financing statements registered under the PPS Act.

Part 17—Amendment of Mining Act 1971

48—Insertion of section 83A

This clause inserts a new section into the Mining Act 1971.

83A—Licence or other right is not personal property for the purposes of Commonwealth Act

The definition of personal property under the Personal Property Securities Act 2009 of the Commonwealth excludes any right, entitlement or authority that is granted by or under a law of the State and declared by that law not to be personal property for the purposes of the Act. Proposed section 83A states that a right, entitlement or authority granted by or under the Mining Act 1971 is not personal property for the purposes of the Personal Property Securities Act 2009. This means that licences and other rights, entitlements or authorities granted under the Act will not be personal property for the purposes of the Commonwealth Act.

Part 18—Amendment of National Parks and Wildlife Act 1972

49—Amendment of section 35—Control of reserves

This clause amends section 35 of the National Parks and Wildlife Act 1972 to make it clear that a licence granted under the section can be transferred or otherwise dealt with only with the consent of the authority that granted the licence.

50—Amendment of section 69—Permits

This clause amends section 69 of the National Parks and Wildlife Act 1972 to make it clear that a permit granted under the Act is not transferable unless it is a permit for a prescribed activity or a permit of a prescribed class. The transfer may be subject to prescribed conditions. (A permit that is not transferable does not fall within the definition of personal property in the PPS Act.)

Part 19—Amendment of Offshore Minerals Act 2000

51—Insertion of section 5A

This clause inserts a new section into the Offshore Minerals Act 2000.

5A—Licence or other right is not personal property for the purposes of Commonwealth Act

The definition of personal property under the Personal Property Securities Act 2009 of the Commonwealth excludes any right, entitlement or authority that is granted by or under a law of the State and declared by that law not to be personal property for the purposes of the Act. Proposed section 5A states that a right, entitlement or authority granted by or under the Offshore Minerals Act 2000 is not personal property for the purposes of the Personal Property Securities Act 2009. This means that licences and other rights, entitlements or authorities granted under the Act will not be personal property for the purposes of the Commonwealth Act.

Part 20—Amendment of Petroleum and Geothermal Energy Act 2000

52—Insertion of section 13A

This clause inserts a new section into the Petroleum and Geothermal Energy Act 2000.

13A—Licence is not personal property for the purposes of Commonwealth Act

The definition of personal property under the Personal Property Securities Act 2009 of the Commonwealth excludes any right, entitlement or authority that is granted by or under a law of the State and declared by that law not to be personal property for the purposes of the Act. Proposed section 13A states that a licence under the Petroleum and Geothermal Energy Act 2000 is not personal property for the purposes of the Personal Property Securities Act 2009. This means that licences granted under the Act will not be personal property for the purposes of the Commonwealth Act.

Part 21—Amendment of Petroleum (Submerged Lands) Act 1982

53—Insertion of section 5B

This clause inserts a new section into the Petroleum (Submerged Lands) Act 1982.

5B—Licence or other right is not personal property for the purposes of Commonwealth Act

The definition of personal property under the Personal Property Securities Act 2009 of the Commonwealth excludes any right, entitlement or authority that is granted by or under a law of the State and declared by that law not to be personal property for the purposes of the Act. Proposed section 5B states that a right, entitlement or authority that is granted by or under the Petroleum (Submerged Lands) Act 1982 is not personal property for the purposes of the Personal Property Securities Act 2009. This means that licences and other rights and entitlements granted under the Act will not be personal property for the purposes of the Commonwealth Act.

Part 22—Amendment of Roxby Downs (Indenture Ratification) Act 1982

54—Insertion of section 5A

This clause inserts a new section into the Roxby Downs (Indenture Ratification) Act 1982.

5A—Certain rights etc are not personal property for the purposes of Commonwealth Act

The definition of personal property under the Personal Property Securities Act 2009 of the Commonwealth excludes any right, entitlement or authority that is granted by or under a law of the State and declared by that law not to be personal property for the purposes of the Act. Proposed section 5A states that a Special Tenement (within the meaning of the Roxby Downs Indenture) is not personal property for the purposes of the Personal Property Securities Act 2009. The section also provides for the exclusion by regulation of certain rights, entitlements and authorities granted by or under the Act from the Commonwealth definition of 'personal property'.

Part 23—Amendment of Stock Mortgages and Wool Liens Act 1924

55—Amendment of section 4—Interpretation

The clauses of this Part amend the Stock Mortgages and Wool Liens Act 1924 so that certain provisions of the Act will cease to have effect on the commencement of the operation of provisions of the Commonwealth Act relating to registration of securities.

This clause inserts a number of necessary definitions. The PPS Act is the Personal Property Securities Act 2009 of the Commonwealth. Registration commencement time has the same meaning as in that Act. That is, the registration commencement time is at—

the start of the first day of the month that is 26 months after the month on which the PPS Act is given the Royal Assent; or

an earlier time determined by the Commonwealth Minister.

56—Amendment of section 5—Stock mortgages

Under section 5 of the Stock Mortgages and Wool Liens Act 1924 as amended by this clause, a mortgage of stock cannot be registered following the last business day before the registration commencement time.

57—Amendment of section 14—Owner of sheep may grant preferable lien on wool

Under section 14 of the Stock Mortgages and Wool Liens Act 1924 as amended by this clause, an agreement conferring a preferable lien on wool cannot be registered following the last business day before the registration commencement time.

58—Amendment of section 19—Other implied covenants in stock mortgages and agreements for wool liens

59—Amendment of section 20—Meaning of abbreviated expressions

60—Amendment of section 21—Covenants to be several as well as joint

61—Amendment of section 22—Covenants to bind executors

The amendments made to these sections make it clear that the sections apply only to stock mortgages and agreements executed before the registration commencement time.

62—Amendment of section 25—Certain provisions of Bills of Sale Act to apply to mortgages and agreements for liens

This amendment makes it clear that provisions of the Bills of Sale Act 1886 that apply in relation to stock mortgages and agreements for liens on wool by virtue of this section and will cease to have effect in relation to bills of sale at the registration commencement time will also cease to have effect in relation to stock mortgages and wool liens at that time.

63—Insertion of Parts 5 and 6

This clause amends the Stock Mortgages and Wool Liens Act 1924 by inserting new provisions relating to the PPS Act.

Part 5—Provisions relating to PPS Act

26—Certain provisions of Act to cease to have effect

Under proposed section 26, a number of provisions of the Stock Mortgages and Wool Liens Act 1924 will cease to have effect at the registration commencement time because from that time mortgages and liens will be registered under the PPS Act, which will also deal with priorities

27—Provision of information to Commonwealth

Section 27 authorises the Registrar-General to provide information concerning agreements registered under the Act to the Commonwealth for the purposes of assisting in the establishment of the PPS Register.

28—Immunity

This section provides that liability is not incurred by the State, or an officer, employee or agent of the State, for anything done or omitted to be done in good faith—

in the exercise of a power or the discharge of a duty under section 27; or

in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under section 27.

29—Registrar-General may refuse to exercise functions

This section permits the Registrar-General to refuse to exercise functions under the Act during the pre-PPS transitional period. This is the period commencing at the migration time (unless an earlier time is prescribed by the regulations) and ending at the registration commencement time. Migration time is defined in section 306 of the PPS Act as the start of the first day of the month that is 25 months after the month on which the Act is given the Royal Assent (or an earlier time determined by the Commonwealth Minister). This is one month before the registration commencement time.

30—Registrar-General may dispose of certain documents

If the Registrar-General is of the opinion that retention of a mortgage, lien or other document or record would serve no useful purpose, the Registrar-General may, following the registration commencement time, destroy or otherwise dispose of the mortgage, lien or other document or record.

31—Regulations

Under proposed section 29, the Governor may make regulations containing provisions of a savings or transitional nature related to the enactment of the PPS Act and the Personal Property Securities (Commonwealth Powers) Act 2009.

Part 6—Repeal of Act

32—Repeal of Act

This section provides for the repeal of the Stock Mortgages and Wool Liens Act 1924 on a date to be fixed by proclamation following the registration commencement time.

Part 24—Amendment of Unclaimed Goods Act 1987

64—Amendment of section 8—Proceeds of sale

Section 8 of the Unclaimed Goods Act 1987 specifies how the proceeds of the sale of goods under the Act are to be dealt with. This clause amends section 8 because under the PPS Act, a person might have a security interest in money that has been deposited with the Treasurer under the section. The amendment ensures that the Treasurer can make payment of the money to a person with such an interest.

Part 25—Amendment of Wilderness Protection Act 1992

65—Amendment of section 28—Control and administration of wilderness protection areas and zones

This clause amends section 28 of the Wilderness Protection Act 1992 to make it clear that a licence granted under the section can be transferred or otherwise dealt with only with the consent of the Minister.

66—Amendment of section 33—Prohibited areas

This clause amends section 33 to make it clear that a permit issued under the section is not transferable (which means that the permit does not fall within the definition of personal property in the PPS Act).

Part 26—Amendment of Worker's Liens Act 1893

67—Insertion of section 9C

Under section 73(2) of the PPS Act, the priority between an interest in collateral that arises by being created, arising or being provided for under a law of the State and a security interest in the same collateral is to be determined in accordance with that law of the State only if that law declares that section 73(2) applies to interests of that kind. This clause therefore inserts a new section into the Worker's Liens Act 1893 to ensure that the priority between an interest in collateral that arises under that Act and a security interest in the same collateral is determined in accordance with that Act.

9C—Application of Personal Property Securities Act

Proposed section 9C provides that section 73(2) of the PPS Act applies to an interest in property that rises by being created, arising or being provided for under the Act.

Debate adjourned on motion of Hon. D.W. Ridgway.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT