Explanatory Memorandum
Circulated By the Authority of the Attorney-General, the Honourable Robert Mcclelland MPSCHEDULE 3
11. AMENDMENT OF OTHER ACTS
Amendment of Designs Act 2003
Item 1
11.1 This item would amend the definition of a PPS Act security interest in section 5 of the Designs Act. A PPS Act security interest would be a security interest to which the PPS Act applies other than a transitional security interest within the meaning of the PPS Act.
11.2 This amendment would replace the definition of PPS security interest inserted by Item 1 of Schedule 2 of the Personal Property Securities (Consequential Amendments) Act 2009 (PPS (Consequential Amendments) Act) and commence immediately after that definition takes effect.
Amendment of Fisheries Management Act 1991
Item 2
11.3 This item would amend the definition of a PPS Act security interest in section 4(1)) of the Fisheries Management Act. A PPSA security interest would be a security interest to which the PPS Act applies other than a transitional security interest within the meaning of the PPS Act.
11.4 This amendment would replace the definition of PPS security interest inserted by Item 1 of Schedule 1 of the PPS (Consequential Amendments) Act) and commences immediately after that definition takes effect.
Amendment of Navigation Act 1912
Item 5
11.5 This item would amend the definition of a PPSA security interest in section 6(1) of the Navigation Act. A PPSA security interest would be a security interest to which the PPS Act applies other than a transitional security interest within the meaning of the Act.
11.6 This amendment would replace the definition of PPS security interest inserted by Item 6 of Schedule 3 of the PPS (Consequential Amendments) Act and commence immediately after that definition takes effect.
Amendment of Patents Act 1990
Item 16
11.7 This item would amend the definition of a PPSA security interest , listed as an expression in section 3 and defined in the Dictionary in Schedule 1 of the Patents Act. A PPSA security interest would be a security interest to which the PPS Act applies other than a transitional security interest within the meaning of that Act.
11.8 This amendment would replace the definition of PPSA security interest inserted by Item 14 of Schedule 2 of the PPS (Consequential Amendments) Act and this would commence immediately after that definition takes effect.
Amendment of PPS Act ( Consequential Amendments ) Act 2009
Item 17
11.9 This item would repeal item 17 of the PPS (Consequential Amendments) Act because it would be redundant as a result of the amendment to the definition of PPS Act security interest in the Fisheries Management Act in item 2. This item would commence immediately after the commencement of item 17.
Amendment of Proceeds of Crime Act 2002
Items 18 - 28
11.10 This item would make various amendments to the Proceeds of Crime Act to ensure consistency in its operation with the PPS Act.
11.11 Sections 142, 169 302, 302C and 307 of the Proceeds of Crime Act provide that amounts owing to the Commonwealth related to action to recover proceeds of crime are secured by a charge.
11.12 The amendments would apply subsection 73(2) of the PPS Act to these charges. This would ensure that the priority between a charge created under the Proceeds of Crime Act and a security interest in the same property is determined in accordance with the Proceeds of Crime Act after the registration commencement time. The amendments clarify that PPSA, subsection 73(2) does not apply to Proceeds of Crime Act charges over real property.
11.13 Sections 133, 143 and 170 of the Proceeds of Crime Act provide for the Commonwealth Director of Public Prosecutions to register charges created under the Proceeds of Crime Act. The amendments would ensure that the Director's power to register is properly aligned with the PPS Act which provides for regulations to be made to enable charges created under the Proceeds of Crime Act (among other things) to be registered on the PPS Register (section 148(c)). Related amendments to section 338 of the Proceeds of Crime Act would ensure that the definition of registration authority is broad enough to include the Registrar of Personal Property Securities.
Amendment of Torres Strait Fisheries Act 1984
Item 29
11.14 This item would amend the definition of a PPSA security interest in section 3(1) of the Torres Strait Fisheries Act. A PPSA security interest would be a security interest to which the PPS Act applies other than a transitional security interest within the meaning of the Act.
11.15 This amendment would replace the definition of PPSA security interest inserted by Item 19 of Schedule 1 of the PPS (Consequential Amendments) Act and commence immediately after that definition takes effect.
Amendment of Trade Marks Act 1995
Item 30
11.16 This item would amend the definition of a PPSA security interest in section 6 of the Trade Marks Act. A PPSA security interest would be a security interest to which the PPS Act applies other than a transitional security interest within the meaning of the Act.
11.17 This amendment would replace the definition of PPS security interest inserted by Item 18 of Schedule 2 of the PPS (Consequential Amendments) Act and commence immediately after that definition takes effect.
Amendment of Mutual Assistance in Criminal Matters Act 1987
Items 3 & 4
11.18 These items make amendments to the Mutual Assistance in Criminal Matters Act to clarify how it operates in relation to the PPS Act.
11.19 Section 35J of the Mutual Assistance in Criminal Matters Act provides that amounts owing to the Commonwealth by virtue of certain foreign actions to recover proceeds of crime are secured by a charge.
11.20 Item 3 would apply subsection 73(2) of the PPS Act to charges created by section 35J. This would ensure that the priority between a charge created under section 35J and a security interest in the same property is determined in accordance with the Mutual Assistance in Criminal Matters Act after the PPS Act registration commencement time. The amendments are clarify that subsection 73(2) would not apply to charges over real property.
11.21 Section 35L of the Mutual Assistance in Criminal Matters Act provides for the Commonwealth Director of Public Prosecutions to register charges created under section 35J. Item 4 would amend section 35L to ensure that it is aligned with the PPS Act regulation-making power to include these charges on the PPS Register (subsection 148(c) of the PPS Act).
Amendment of Offshore Petroleum and Greenhouse Gas Storage Act 2006
Item 6
11.22 The OPGGS Act makes reference to charges and debentures under Chapter 2K of the Corporations Act. The Bill would repeal Chapter 2K and therefore this item would delete the definition of charge as it is defined by reference to Chapter 2K of the Corporations Act.
Item 7
11.23 This item would delete the definition of debenture which is defined by reference to Chapter 2K of the Corporations Act. In future, debenture , would have its ordinary meaning. The effect this might have on the registration of dealings would be dealt with by a transitional provision (item 15) clarifying that the new definition would only apply to dealings that occur after the commencement of the amendment, that is after the registration commencement time.
Item 15
11.24 Because sections 468 and 520 (which refer to dealings which form part of the issue of a series of debentures) would be retained but debenture would be undefined, debenture in these provisions would have its ordinary meaning. This item would clarify that the new definition of debenture will only occur at the registration commencement time (the amendments to the Corporations Act will also occur at this time).
Item 8, 11 and 14
11.25 These items would repeal subsections 489(5)-(6); 499(5)-(6); 540(5) and 549(5) which specify that the registration of dealings which create charges require the documents specified under section 263 of the Corporations Act. The lodgement of applications will now be governed by the OPGGS Regulations.
Item 10 and 13
11.26 This item would repeal subsections 490(2)(d) and 500(2)(d), which require that the registration of charges and provisional charges in respect of referable titles, are to be made to the responsible Commonwealth Minister.
11.27 These amendments would only provide consequential amendments to the repeal of Chapter 2K in Schedule 1 and would not affect the existing requirements in the OPGGS Act for the validity of dealings.