Page 1235 - Week 04 - Tuesday, 23 March 2010
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Second, the bill gives the executive a regulation-making power to enable modifications to the ACT law during the transitionary phase of the project.
Third, the bill amends the ACT’s personal property securities law, in accordance with the commonwealth law, to allow the ACT to exclude certain types of property from the new scheme. Examples are liquor licences and permits that are not intended to be used for securing financing. Another is minerals licences, which operate in conjunction with territory leases.
The fourth change that this bill introduces, again allowed by a commonwealth law, is provisions that enable the ACT to declare certain statutory interests, such as statutory liens, as having special priorities.
This bill is drafted in concert with all states and territories and the commonwealth under the terms of the intergovernmental agreement on personal property securities. All jurisdictions are signatories to that agreement.
Importantly, this bill does not impact on real property, such as land and houses. The current system of registering financing interests in which those kinds of assets are offered as security will continue. But it does mean that all of the personal property security registers maintained by the states and territories will be merged into a single, national, online register. This includes bills of sale and similar instruments.
It is worth noting that the ACT currently has an agreement with the New South Wales government to list all encumbered ACT vehicles on the New South Wales register. This means that the listing process for this register will transfer relatively simply to the commonwealth’s system and may even save the territory some money.
Normally, with reforms of this nature, there are a range of transitional provisions. For example, finance agreements executed before the new national law comes into effect will continue to be governed by ACT law. This will continue, even after the commonwealth law comes into effect, so that the law governing finance agreements remains unchanged during the life of those agreements.
I earlier mentioned that one of the elements of this bill is the provision that hands to the executive the transitional regulation-making powers. These powers, which are quite broad, go to the level of, in effect, amending ACT laws.
The scrutiny of bills committee went further, noting that the effect is to “restrain the power of the Assembly to enact laws”. Notwithstanding that regulations are disallowable, there is some merit in its caution. The disallowable nature of regulations is, to all intents and purposes, changing a law after it comes into effect—that is, after the regulation has been made and introduced. The power of the Assembly to enact laws is exactly that: the power to bring laws into being. That is what good governance of the territory should entail. To hand that power to the executive is to strip the Assembly of its reason for being.
In his response to the scrutiny committee, the attorney said that the regulation-making power is “to allow the ACT to participate meaningfully in the national reform project”.
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