Review of the Personal Property Securities Act: affecting small business?

THE FEDERAL Government is undertaking a review into the Personal Property Securities Act 2009 to consider its operation and effects, paying particular attention to the experience of small businesses.

Attorney-General George Brandis has appointed Bruce Whittaker, a partner with the law firm Ashurst, to lead the review.

“Mr Whittaker's extensive legal and industry experience make him an excellent choice for the review,” Mr Brandis said.

“This Act established a national regime for secured finance using personal property. It replaced a complex and costly patchwork of over 70 Commonwealth, State and Territory laws and 23 registers.

“Two years on from the Act’s commencement, it is timely to review its effect to ensure it is meeting its objective of providing greater certainty to lenders and helping business, especially small business, to access finance.

“The government is committed to reducing unnecessary burdens on small business. It is important that any problems or concerns with the Act are identified.

The government has already moved quickly to address some pressing concerns raised by the hire industry about the Act.”

Mr Whittaker has been asked to prepare an interim report by July 31 this year, with recommendations on priority actions for the Federal Government to consider. The interim report will focus on issues raised in relation to small businesses.

The final report is due on January 30, 2015 and is expected to make recommendations on how to improve the Act, including simplification where appropriate, Mr Brandis said.

The review focuses on the effects of the reforms introduced by the PPS Act, as requested by the Attorney-General, on:

• Australian businesses, particularly small business;
• Australian consumers;
• the market for business finance in Australia; and
• the market for consumer finance in Australia;
• the level of awareness and understanding of the PPS Act at all levels of business, particularly small business;
• the incidence and, where applicable, causes of non-compliance with the requirements of the PPS Act particularly among small businesses;
• opportunities for minimising regulatory and administrative burdens, including costs, on businesses, particularly small business, and consumers;
• opportunities for further efficiencies in the PPS Act regime including (but not limited to) simplification of the Personal Property Securities Register and its use;
• the scope and definitions of personal property covered by the PPS Act;
• the desirability of specifying thresholds for the operation of the PPS Act regime in respect of particular types of personal property;
• the interaction of the PPS Act with other legislation including the Corporations Act 2001;
• the review must include consultation with relevant stakeholders.

Mr Whittaker is a partner in Ashurst’s banking and finance group in Melbourne and leads the firm’s PPS practice. Mr Whittaker specialises in debt capital markets, acquisition and leveraged finance, project finance, asset finance and leasing, and banking.

Mr Whittaker has more than 30 years experience in private practice both in Australia and internationally and is recognised as one of the world’s most experienced structured finance lawyers.

Mr Whittaker is also an editor and contributing author of the LexisNexis looseleaf and online service Personal Property Securities Law in Australia, and joint PPS Specialist Editor for LexisNexis’s Australian Encyclopaedia of Forms and Precedents.

The Personal Property Securities Act 2009 (the PPS Act) provides a single national system for the creation, registration, priority and enforcement of security interests in personal property.   The PPS Act commenced on January 30, 2012.

www.attorneygeneral.gov.au

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