The Australian Government has released the final report in relation to the statutory review of the Personal Property Securities Act 2009 (Cth) (PPSA).
The report is the product of a review process which started with a call for submissions by the Attorney General in April 2014 and included extensive consultation with a wide range of stakeholders. According to the author of the report who has also led the review, Mr Bruce Whittaker, the review received a total of 171 submissions and responses which played a key role in formulating his conclusions.
What does the final report cover?
The final report gives a comprehensive analysis of the PPSA and the operation of PPS register, in each case explaining the relevant issue or concern, discussing the feedback received as part of the consultation process and then making recommendations on how the issue can be addressed.
In most cases the recommendations include suggested changes to the PPSA or the functionality of the PPS register, whereas in other cases the author suggests other steps which the Government can follow to ultimately address the issue or concern.
By way of example, the report recommends that the concept "chattel paper" be deleted from the PPSA, whereas in the case of "fixtures", the report recommends that the Government explore with the States and Territories whether a regime can be developed that would allow fixtures to be brought within the PPSA.
The report is an excellent resource for anyone who wishes to understand the background and philosophy that underpins the PPSA and some of the difficulties that parties involved in secured financing transactions and their advisers face.
Next steps
The report and the author's recommendations are currently under consideration by the Government. Should the Government accept some or all of the recommendations, we can expect that the process of drafting a Bill which amends the PPSA will commence in the near future.
Given the complexity of personal property securities and the importance of finance to our economy, the author has urged the Government to diverge from its usual legislative drafting procedures in implementing the recommendations. In particular, the author has suggested a collaborative approach in drafting the amending Bill which should include participation by the Office of Parliamentary Counsel, the Attorney-General's Department and the private sector. Clayton Utz strongly agrees with this suggestion and we hope to play a key role in this process.
The report was tabled before the Commonwealth Parliament on 18 March 2015 and is currently scheduled to be discussed on Tuesday 24 March, after which we may have further guidance on the legislative timeframe and process. We will continue to monitor any developments flowing from the review process.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.