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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Personal Property Securities (Commonwealth Powers) Bill
2009
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.
Contents
1 Name and purpose of
Act
2 Commencement
3 Definitions
4 Meaning of referred PPS
matters
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
The Parliament of South Australia enacts as
follows:
(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.
(1) Subject to subsection (2), this Act will come into operation on
the day on which it is assented to by the Governor.
(2) Section 6(2), (3) and (4) will come into operation on a day to be
fixed by proclamation.
(3) Section 7(5) of the Acts Interpretation Act 1915 does not
apply to this Act or to a provision of this Act.
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 1 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 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 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 1 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.
(1) The Governor 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 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 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.
(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.