House of Representatives

Explanatory Memorandum

Circulated By the Authority of the Attorney-General, the Honourable Robert Mcclelland Mp

5. Schedule 1 - Fisheries legislation

Schedule 1 amends the Fisheries Management Act 1991 and the Torres Strait Fisheries Act 1984 to ensure that enforcement action taken under that legislation against goods would not be frustrated by a secured party enforcing against the same goods under the PPS Act. This will ensure that the PPS Act does not circumvent the seizure, detention or forfeiture of property by the Commonwealth as a result of contravention of the Fisheries Management Act or Torres Strait Fisheries Act. The amendments also set out the priority between statutory interests and PPS Act security interests. Interests currently registered under the Fisheries Management Act that are PPS Act security interests will be migrated to the PPS Register.

Commencement

5.1 Schedule 1 will commence on the registration commencement time (the PPS Act registration commencement time) within the meaning of the PPS Act. The PPS Act registration commencement time is the first day of the month that is 26 months after the month in which the PPS Bill is given Royal Assent, or an earlier time determined by the Minister. The Government expects the registration commencement time will be in May 2011.

Amendment of the Fisheries Management Act

Definition of PPSA security interest

Item 1

5.2 This item inserts a definition of a 'PPSA security interest' into the interpretation section (subsection 4(1)) of the Fisheries Management Act. A PPSA security interest is a security interest to which the PPS Act applies or a transitional security interest to which Division 4 of Part 9.4 of the PPS Act applies (being an interest subject to the PPS Act as a result of a bankruptcy or insolvency, or where an existing secured party has assented to the PPS Act by voluntarily registering their interest on the PPS Register).

5.3 The definition has been included to clarify references to 'PPSA security interests' in the amendments to the Fisheries Management Act.

Definition of statutory fishing rights option

Items 2-4

5.4 These items provide for technical amendments to the Fisheries Management Act to include a reference in the interpretation section (subsection 4(1)) to the definition of 'statutory fishing rights option' in section 31A.

Registration of PPSA security interests

Items 5, 10 and 17

5.5 These items recognise that from the PPS Act registration commencement time, PPSA security interests will be registered on the PPS Register.

5.6 The amendments will end the requirement for dealings giving rise to a PPSA security interest in a 'statutory fishing rights option' or a 'fishing right', to be registered on the Register of Statutory Fishing Rights, and will consequently mean that such dealings are effective despite not being registered on that register.

5.7 From the PPS Act registration commencement time, interests that are PPSA security interests can be registered on the PPS Register. The requirements to register under section 31F and section 46 of the Fisheries Management Act will cease to apply to PPSA security interests at the PPS Act registration commencement time.

Repeal of subsection 31F(9) and subsection 46(6)

Items 6 and 11

5.8 These items repeal subsection 31F(9) and subsection 46(6) of the Fisheries Management Act. These provisions allow a party to a dealing to lodge with AFMA the document relating to a charge over corporate property required to be lodged with ASIC under section 263 of the Corporations Act 2001, instead of the documents required under the Fisheries Management Act.

5.9 From the PPS Act registration commencement time, a charge over corporate property will be a PPSA security interest and these types of interests will no longer be required to be registered with ASIC.

Priority between statutory fishing rights options or fishing rights and PPSA security interests

Items 7 and 12

5.10 These items set out the priority between (i) section 31F interests in statutory fishing rights options or section 46 interests in fishing rights and (ii) PPSA security interests.

5.11 Interests under section 31F or section 46 will have priority over unperfected PPSA security interests in the same property.

5.12 Where an interest under section 31F or section 46 is registered on the Register of Statutory Fishing Rights before a PPSA security interest in the same property is perfected under the PPS Act, the interest under section 31F or section 46 will have priority over the PPSA security interest.

5.13 Where a PPSA security interest is perfected under the PPS Act before an interest under section 31F or section 46 is registered on the Register of Statutory Fishing Rights, the PPSA security interest will have priority over the interest under section 31F or section 46.

5.14 These items also apply subsection 73(2) of the PPS Act to interests under section 31F and section 46 of the Fisheries Management Act. Applying subsection 73(2) ensures the priority between a section 31F interest or section 46 interest and a security interest in the same property is determined in accordance with the Fisheries Management Act after the PPS Act registration commencement time (under the rules set out in these items).

Dealing with a statutory fishing rights option

Items 8-9

5.15 These items maintain current rights by ensuring that the holder of a statutory fishing rights option may deal with the option subject to any rights or interests in that option that are PPSA security interests or that appear on the Register of Statutory Fishing Rights.

Dealing with a fishing right

Items 13-14

5.16 These items maintain current rights by ensuring that, except where a condition of a fishing right provides otherwise, the holder of a fishing right may deal with the fishing right subject to any rights or interests in the fishing right that are PPSA security interests or that appear on the Register of Statutory Fishing Rights.

Repeal of subsection 50(3)

Items 15 and 18

5.17 These items remove the requirement that AFMA must notify parties with an interest in a fishing right under section 46 of the Fisheries Management Act when a notation is made on the Register of Statutory Fishing Rights in relation to the cancellation, suspension, revocation or rectification of a registration of a fishing right. This reflects the fact there is no similar requirement under the PPS Act.

5.18 The amendment will have a transitional effect to ensure that where the AFMA makes the notation giving rise to the requirement to notify parties before the PPS Act registration commencement time, AFMA must comply with the requirement to notify the relevant parties.

Enforcement

Item 16

5.19 This item ensures that the seizure, detention or forfeiture of a boat or any other property under the Fisheries Management Act has effect despite any enforcement action taken against the property under the PPS Act. Enforcement under the Fisheries Management Act will have effect regardless of whether the seizure, detention or forfeiture under that Act occurred before or after a secured party commences enforcement action under the PPS Act.

Amendment of the Torres Strait Fisheries Act

Definition of PPSA security interest

Item 19

5.20 This item inserts a definition of a 'PPSA security interest' into the interpretation section (subsection 3(1)) of the Torres Strait Fisheries Act. A PPSA security interest is a security interest to which the PPS Act applies or a transitional security interest to which Division 4 of Part 9.4 of the PPS Act applies (being an interest subject to the PPS Act as a result of a bankruptcy or insolvency, or where an existing secured party has assented to the PPS Act by voluntarily registering their interest on the PPS Register).

5.21 The definition has been included to clarify references to 'PPSA security interests' in the amendments to the Torres Strait Fisheries Act.

Enforcement

Item 20

5.22 This item ensures that the seizure, detention or forfeiture of a boat or any other property under the Torres Strait Fisheries Act has effect despite any enforcement action taken against the property under the PPS Act. Enforcement under the Torres Strait Fisheries Act will have effect regardless of whether the seizure, detention or forfeiture under that Act occurred before or after a secured party commences enforcement action under the PPS Act.

Explanation of items