Personal Property Securities (Commonwealth Powers) Act 2009 (NSW)

Personal Property Securities (Commonwealth Powers) Act 2009 No 35 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. 1 Name and purpose of Act (1) This Act is 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) This Act commences on the date of assent to this Act, except as provided by subsection (2). (2) Section 6 (2), (3) and (4) commence on a day or days to be appointed by proclamation. 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 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 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. 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, by or on behalf of the Minister introducing the Bill for this Act, in the Legislative Assembly of New South Wales on 16 June 2009. 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 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 matters" (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 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 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: (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. (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 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 (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 may, at any time, by proclamation published on the NSW legislation website, 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 may, by proclamation published on the NSW legislation website, 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 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 (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 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. Schedule 1 Savings, transitional and other provisions consequent on enactment of Personal Property Securities Act 2009 of the Commonwealth Part 1 Preliminary 1 Definitions (1) In this Schedule: Director-General means the Director-General within the meaning of the Registration of Interests in Goods Act 1986. exercise a function includes perform a duty. function includes a power, authority or duty. General Register of Deeds means the General Register of Deeds kept under Division 1 of Part 23 of the Conveyancing Act 1919. matter includes act, omission, body, person and thing. migration time has the same meaning as in the PPS Act. PPS Act means the Personal Property Securities Act 2009 of the Commonwealth. PPS Register means the Personal Property Securities Register established under the PPS Act. PPS Registrar means the Registrar of Personal Property Securities under the PPS Act. registration commencement time has the same meaning as in the PPS Act. REVS means the Register maintained under the Registration of Interests in Goods Act 1986. the 2009 amending Act means the Personal Property Securities (Commonwealth Powers) Amendment Act 2009. transitional security interest has the same meaning as in the PPS Act. (2) A reference in this Schedule to an Act or statutory rule that is repealed by the 2009 amending Act is, on and from the day on which the Act or statutory rule is repealed, a reference to the Act or statutory rule as in force immediately before that day. (3) Notes included in this Schedule do not form part of this Act. Part 2 Savings and transitional provisions relating to transfer of functions to Commonwealth Division 1 General 2 Provision of information to the Commonwealth (1) The Director-General is specifically authorised to provide the Commonwealth, the PPS Registrar or any other officer of the Commonwealth with such information recorded in, or concerning the use of, REVS as the Director-General considers appropriate in order to assist the Commonwealth in establishing the PPS Register. (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) For the purposes of subclause (1), information recorded in REVS on behalf of another State or a Territory pursuant to an agreement under section 15A of the Registration of Interests in Goods Act 1986 may be provided to the Commonwealth, the PPS Registrar or any other officer of the Commonwealth only if the Director-General has been requested to do so by or on behalf of the State or Territory concerned. (3) The Registrar-General is specifically authorised to provide the Commonwealth, the PPS Registrar or any other officer of the Commonwealth with such information recorded in, or concerning the use of, the General Register of Deeds for the purposes of the Security Interests in Goods Act 2005 as the Registrar-General considers appropriate in order to assist the Commonwealth in establishing the PPS Register. (4) The Director-General and Registrar-General may provide the information that they are authorised to provide under this clause in whatever form (including by means of electronic data or in a form approved for the purposes of the PPS Act) as they consider appropriate. (5) Subject to subclause (6), the provisions of this clause prevail to the extent of any inconsistency with the provisions of any other Act or statutory rule. (6) The provisions of this clause are in addition to, and do not derogate from, the provisions of section 9A of the Fair Trading Act 1987. Division 2 Interests to which Registration of Interests in Goods Act 1986 applies 3 Interpretation In this Division: existing Act means the Registration of Interests in Goods Act 1986. post-PPS transitional period means the period of 7 years commencing at the registration commencement time. pre-PPS transitional period means the period: (a) commencing at the migration time or such earlier time as may be prescribed by the regulations, and (b) ending at the registration commencement time. prescribed goods has the same meaning as in the existing Act. the Minister means the Minister administering the Fair Trading Act 1987. 3A Effect of abolition of Administrative Decisions Tribunal (1) The functions of the Administrative Decisions Tribunal under this Division become, on and from the establishment day, the functions of the Civil and Administrative Tribunal. (2) Accordingly, a reference in another provision of this Division that confers or imposes a function on the Administrative Decisions Tribunal is to be read, on and after the establishment day, as being a reference to the Civil and Administrative Tribunal. (3) The provisions of this clause are in addition to, and do not derogate from, the provisions of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013. (4) In this clause: establishment day has the same meaning as in the Civil and Administrative Tribunal Act 2013. 4 Existing Act ceases to have effect at registration commencement time (1) The existing Act ceases to have effect in relation to prescribed goods at the registration commencement time, except as otherwise provided by this Division. (2) If a provision of the existing Act (the primary provision) is continued in effect by this Division: (a) any other provision of the existing Act (a related provision) that is referred to in the primary provision is also continued in effect to the extent necessary for the purposes of the continued application of the primary provision, and (b) any power to make regulations in respect of a matter that is conferred by the primary provision or a related provision is taken to include a power for the matter to be prescribed by regulations made under this Act after the registration commencement time. (3) The regulations under the existing Act as in force immediately before the registration commencement time continue to apply for the purposes of a primary provision or related provision that confers a regulation-making power for a matter under the existing Act until regulations are made under this Act for that matter. (4) This Division has effect: (a) despite anything to the contrary in the existing Act, and (b) in relation to provisions of the existing Act that this Division continues in effect after the registration commencement time even after the existing Act is repealed by the 2009 amending Act. Note— Section 3 of the 2009 amending Act provides for the repeal of the existing Act on a day appointed by proclamation (being a day that is not earlier than the day on which the registration commencement time occurs). 5 Director-General may refuse to exercise registration functions (1) Subject to clause 6, the Director-General may refuse to exercise a registration function during the pre-PPS transitional period. (2) Without limiting subclause (1), the Director-General may refuse to exercise a registration function during the pre-PPS transitional period in relation to a matter that was not finally determined or concluded immediately before the commencement of that period. (3) In this clause: registration function means any function conferred or imposed on the Director-General by or under: (a) section 5, 6, 7, 8 or 16A of the existing Act, or (b) any other provision of the existing Act concerning registration or REVS as may be prescribed by the regulations. 6 Show cause proceedings under section 7 of existing Act (1) This clause applies to the following matters: (a) a notice given to a person by the Director-General under section 7 (3) of the existing Act that is in force immediately before the registration commencement time if the period specified in the notice had not yet expired by that time (an existing show cause notice), (b) the cancellation of the registration of an interest by the Director-General following the giving of a notice to a person under section 7 (3) of the existing Act if the person has a right to apply to the Administrative Decisions Tribunal for a review of the cancellation immediately before the registration commencement time (an existing reviewable cancellation decision), (c) an application to the Administrative Decisions Tribunal for the review of a decision of the Director-General following the giving of a notice under section 7 (3) of the existing Act to cancel the registration of an interest if the application is pending, but not finally determined, immediately before the registration commencement time (an existing review application). (2) An existing show cause notice may be dealt with under the existing Act as if the power of the Director-General under section 7 (4) of that Act to decide whether to cancel the registration of the interest were a power to decide whether the registration should have been cancelled had the Act continued in effect. (3) An existing reviewable cancellation decision may be the subject of an application for review to the Administrative Decisions Tribunal, and may be dealt with by the Tribunal, under the existing Act as if the right to seek the review of the decision of the Director-General to cancel the registration of the interest were a right to seek a review of a decision of the Director-General that the registration should have been cancelled had the Act continued in effect. (4) An existing review application may be determined by the Administrative Decisions Tribunal under the existing Act as if the jurisdiction of the Tribunal to review the decision of the Director-General to cancel the registration of the interest were jurisdiction to review a decision of the Director-General that the registration should have been cancelled had the Act continued in effect. (5) The Director-General may, if satisfied that a matter to which this clause applies has been finalised, provide the PPS Registrar with a written notice (based on the results of the finalisation of the matter) stating the following: (a) the nature of the matter that has been finalised, (b) whether or not the interest to which the matter related should have been registered in REVS, (c) whether or not the interest should be treated as a migrated security interest for the purposes of the PPS Act. Note— The PPS Registrar has power under the PPS Act to remove migrated data that has mistakenly been included in the PPS Register. 7 Search certificates and notices (1) The provisions of section 8 of the existing Act continue to apply after the registration commencement time in relation to any certificate issued under that section before that time. (2) The Director-General may continue to issue certificates under section 8 (5) of the existing Act during the post-PPS transitional period as to the state of REVS in relation to goods at any time in the 7 years before the registration commencement time. (3) The provisions of section 8 (6)–(9) of the existing Act, in their application to certificates under section 8 (5), continue to apply to certificates issued as provided by subclause (2). (4) The regulations may make provision for or with respect to the issue of certificates under section 8 (1) of the existing Act during the pre-PPS transitional period. (5) Regulations made for the purposes of subclause (4) prevail to the extent of any inconsistency with the provisions of the existing Act. (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. 8 Enforcement of interests in prescribed goods (1) Subject to Chapter 9 (Transitional provisions) of the PPS Act and subclause (2): (a) sections 9 and 10 of the existing Act continue to apply to purchases that occurred before the registration commencement time, and (b) sections 3B, 10A and 11 of the existing Act continue to apply in relation to: (i) transitional security interests in prescribed goods, and (ii) any other interests in prescribed goods that arose before the registration commencement time. Note— Chapter 9 of the PPS Act makes provision for matters of a transitional nature in relation to the commencement of the provisions of that Act. The PPS Act will start to apply to security interests in personal property (including transitional security interests) at the registration commencement time. Section 308 of the PPS Act defines a transitional security interest to be a security interest provided for by a transitional security agreement if: (a) in the case of a security interest arising before the registration commencement time—the PPS Act would have applied in relation to the security interest immediately before the registration commencement time, but for section 310 (which provides for the Act to start to apply at that time), or (b) in the case of a security interest arising at or after the registration commencement time: (i) the transitional security agreement as in force immediately before the registration commencement time provides for the granting of the security interest, and (ii) the PPS Act applies in relation to the security interest. A transitional security agreement is an agreement or act by which a security interest of a kind to which the PPS Act applies is created, arises or is provided for and that was in force immediately before the registration commencement time. (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. 9 Compensation provisions under existing Act (1) The provisions of sections 13 and 14 of the existing Act continue to apply after the registration commencement time in relation to the determination of compensation for loss sustained in connection with an application for registration of a registrable interest (within the meaning of that Act) that was made before that time. (2) The provisions of section 15 of the existing Act continue to apply in relation to decisions of the Director-General made before the registration commencement time. 10 Offences under existing Act The provisions of the existing Act continue to apply after the registration commencement time in relation to offences committed, or alleged to have been committed, before that time. 11 Fees and charges payable under existing Act (1) The following fees and charges remain recoverable by the Director-General in a court of competent jurisdiction after the registration commencement time: (a) any fees or charges that were payable under the existing Act immediately before that time, (b) any fees or charges for which the Director-General may require payment under subclause (2). (2) After the registration commencement time, the Director-General may require payment by an account customer (within the meaning of section 16A of the existing Act) of any fees and charges that would have been payable under arrangements made under the existing Act for a matter arising before that time had the Act continued in effect. 12 Agreements under section 15A of existing Act (1) Any agreement in force under section 15A of the existing Act immediately before the registration commencement time continues to have effect after that time in respect of matters arising before that time. (2) Section 15A (2) of the existing Act continues to have effect for this purpose. 13 Funding arrangements (1) The Registration of Interests in Goods Account established under section 11 of the existing Act is abolished at the registration commencement time. (2) The Director-General may, by order in writing, direct that any money standing to the credit of t