PERSONAL PROPERTY SECURITIES LEGISLATION

Last updated 25/10/2019

Personal property is any form of property other than land or buildings and fixtures which form part of that land. It can include tangibles such cars, boats, machinery, crops; as well as intangibles such as shares, intellectual property and contract rights.

The Personal Property Securities Act 2009 (the "Act") revolutionised the law and practice of secured transactions in Australia, when it commenced practical operation on 30 January 2012.  The Act replaced the previous fragmented and confusing sets of overlapping regimes for secured transactions with a single set of rules that apply to security interests in personal property regardless of their form, the location or nature of the grantor or the location or nature of the collateral.

The Personal Property Securities (PPS) reform also introduced an online PPS Register.

Useful Publications on PPS Laws

• An introduction to the Personal Property Securities Act 2009 Cth. (‘PPSA’) by Bartier Perry (September 2011)

• PPSA - Carson, in the matter of Hastie Group Limited by Bartier Perry (August 2012 )

• Fact Sheet for Commonwealth agencies by Australian Government Solicitor (September 2012)

• PPSA update - new definition of ‘motor vehicle’ applies from 1 July 2014 by Bartier Perry (July 2014 )

• Statutory review of the Personal Property Securities Act 2009 - Attorney-General's Department website (current)

Extracts from Interim Report of Statutory Review into PPS Act (July 2014)

"The Act rewrote the rules that regulate a critical set of functions in our economy. Those functions traverse all areas of economic activity, and manifest themselves in different sectors of the economy in very different ways. For that reason, the review has received submissions from a wide range of businesses and industry organisations representing financial institutions, other participants in the credit sector, hiring businesses, and small businesses generally. The submissions expressed a range of views on the operation of the Act, but the clear underlying theme from the submissions is that much can be done to help the Act to better achieve its objectives....

"The submissions that were provided for the purposes of this interim report reveal that much can and should be done to enable the Act to realise its goals.  While the submissions largely (but not universally) support the overall framework of the Act, they identify a number of high-level policy questions and a wide range of more technical issues that are worthy of further examination.  The submissions indicate in particular that:

·         the Act and the Personal Property Securities Register (the “register”) are too complex; and

·         despite Government's efforts to raise awareness of the Act and its implications, both in the lead-up to the commencement date and subsequently, many businesses are still unaware of the Act, or do not appreciate the extent to which the Act can impact on their activities.

"These concerns have been particularly acute for small businesses.  Small businesses typically do not have the resources to be able to access detailed advice on how to manage the complexities of the Act and the register.  This exposes them, more than larger organisations, to the risk that they might not satisfy the Act's requirements in relation to their assets, and so to the risk that they could lose those assets to a third party, or on the insolvency of a customer.  A failure to follow the rules set out in the Act can also have a disproportionately large effect on a small business, by virtue of the very fact that they are small.

"The clear message from the submissions is that if the Act is to achieve its potential, it needs to be clarified and simplified.  Many of the specific suggestions for change in the submissions are directed at this goal. 

"While much can be done to simplify and improve the Act, it will always be complex – in the concepts that it deals with, in the detail of its language, and in the interlocking and interdependent nature of its content.  For these reasons, it will be important to ensure that proposals for change are assessed against a structured and policy-based set of criteria that take into account both the merits of the proposed changes, and the impact that they might have on the Act more broadly.  The conclusions and recommendations in Part 7 provide a framework for undertaking this assessment process, and a pathway for conducting a considered and principled analysis of potential changes.  This process will provide both the framework and the material for the content of the specific recommendations that will be included in the final report."

Legislation

Personal Properties Securities Act 2009 (current) Act No. 130 of 2009 as amended.  This compilation was prepared on 12 July 2010 taking into account amendments up to Act No. 96 of 2010.