Statutory review of the Personal Property Securities Act
4 April 2014
The Government will undertake a review into the Personal Property Securities Act 2009 (the Act). The review will consider the operation and effects of the Act and will pay particular attention to the experience of small businesses.
Mr Bruce Whittaker, a partner with the law firm Ashurst, has been appointed to lead the review. Mr Whittaker's extensive legal and industry experience make him an excellent choice for the review.
This Act established a national regime for secured finance using personal property. It replaced a complex and costly patchwork of over 70 Commonwealth, State and Territory laws and 23 registers.
Two years on from the Act's commencement, it is timely to review its effect to ensure it is meeting its objective of providing greater certainty to lenders and helping business, especially small business, to access finance.
The Government is committed to reducing unnecessary burdens on small business. It is important that any problems or concerns with the Act are identified. The Government has already moved quickly to address some pressing concerns raised by the hire industry about the Act.
Mr Whittaker has been asked to prepare an interim report by 31 July 2014 with recommendations on priority actions for the Government to consider. The interim report will focus on issues raised in relation to small businesses.
The final report is due on 30 January 2015 and is expected to make recommendations on how to improve the Act, including simplification where appropriate.
The terms of reference, background information on the Act and a biography of Mr Whittaker are attached.
Terms of Reference - Review of the Personal Property Securities Act 2009
I, George Brandis QC, Attorney-General, request Mr Bruce Whittaker to undertake a review of the operation of the Personal Property Securities Act 2009 (PPS Act).
The review should consider:
- the effects of the reforms introduced by the PPS Act on:
- Australian businesses, particularly small business
- Australian consumers
- the market for business finance in Australia, and
- the market for consumer finance in Australia
- the level of awareness and understanding of the PPS Act at all levels of business, particularly small business
- the incidence and, where applicable, causes of non-compliance with the requirements of the PPS Act particularly among small businesses
- opportunities for minimising regulatory and administrative burdens, including costs, on businesses, particularly small business, and consumers
- opportunities for further efficiencies in the PPS Act regime including (but not limited to) simplification of the Personal Property Securities Register and its use
- the scope and definitions of personal property covered by the PPS Act
- the desirability of specifying thresholds for the operation of the PPS Act regime in respect of particular types of personal property
- the interaction of the PPS Act with other legislation including the Corporations Act 2001, and
- any other relevant matters.
The review must include consultation with relevant stakeholders.
An interim report is to be provided jointly to me and the Hon Josh Frydenberg MP, Parliamentary Secretary to the Prime Minister, by 31 July 2014 on the impact of the PPS Act on small businesses with recommendations on any priority actions (including legislative) that should be considered by Government in respect of issues raised in the review that concern small business stakeholders.
The final report on the review, which should include recommendations on how to improve the PPS Act, including simplification of the Act where appropriate, must be provided jointly to me and the Hon Josh Frydenberg MP, Parliamentary Secretary to the Prime Minister by 30 January 2015.
George Brandis QC
[Authority: Section 343 of the Personal Property Securities Act 2009]
Mr Bruce Whittaker
Mr Whittaker is a partner in Ashurst’s banking and finance group in Melbourne and leads the firm’s PPS practice. Mr Whittaker specialises in debt capital markets, acquisition and leveraged finance, project finance, asset finance and leasing, and banking. Mr Whittaker has over 30 years’ experience in private practice both in Australia and overseas and with strong industry experience is recognised as one of the world's leading structured finance lawyers.
Mr Whittaker is also an editor and contributing author of the LexisNexis looseleaf and online service Personal Property Securities Law in Australia, and joint PPS Specialist Editor for LexisNexis' Australian Encyclopaedia of Forms and Precedents.
Background to the PPS Act
The Personal Property Securities Act 2009 (the PPS Act) provides a single national system for the creation, registration, priority and enforcement of security interests in personal property. The PPS Act commenced on 30 January 2012.
The aim of the reform brought in by the PPS Act was to improve the ability of individuals and businesses, particularly small-to-medium size businesses, to use more of their property to secure lending. The reform follows the successful example of other countries – in particular, Canada and New Zealand.
The reform sought to dispense, so far as is possible, with considerations of the form of security interests (such as charges, mortgages and leases). Instead, the PPS Act defines a security interest as an interest in property which, in substance, secures payment or performance of an obligation. This has improved the consistency with which security interests are treated by the law.
This ‘functional definition’ of security interest also means the PPS Act covers other arrangements that were not traditionally considered to be security interests. In doing so, the PPS Act lends greater consistency to the treatment of many of these arrangements.
Prior to the reform, the rules for registering a security interest were different for the Commonwealth and for each state and territory. Each had their own personal property schemes with different laws and many separate registers. The PPS Register established by the PPS Act replaces the many states territories and Australian Government registers, and brings them together into one national system.
Using the previous system to register a security interest in personal property was costly depending on the type of personal property. The overlap between the many laws led to duplication and uncertainty. Whether a personal property security could, or needed to be, or should be registered, depended on the:
- type of interest
- class of debtor
- type of property
- location of the property, and
- type of transaction.
Some personal property security transactions had more than one registration requirement in the same jurisdiction or needed to be registered in more than one state or territory.
The reform created one system for the registration of all security interests in personal property, and a more streamlined and accessible system for consumer and business users through the establishment of the Personal Property Securities Register. The Register provides a single online place for people to record their security interests, to protect their priority, and to search for interests over personal property. The Register now contains in excess of 7 million registrations.
In the World Bank’s, Doing Business 2013 – Smarter Regulations for Small and Medium-Size Enterprises the PPS reform was key to Australia moving up to tenth place in the Bank’s ‘ease of doing business’ ratings.
What is personal property?
Personal property is any form of property other than land, buildings or fixtures that form part of it or a right, entitlement or authority.
The most common examples of personal property are:
- plant and machinery
Personal property also includes non-material items such as:
- intellectual property
- investment instruments, or