Simmonds, Ralph --- "The PPSA Cometh to Australia? An Introduction to the Current State of Play" [2002] MurdochUeJlLaw 33; (2002) 9(3) Murdoch University Electronic Journal of Law

The PPSA Cometh to Australia? An Introduction to the Current State of Play

Author:	Ralph Simmonds LL.B. Hons (UWA), LL.M. (U Toronto) Professor of Law, School of Law, Murdoch University
Issue:	Volume 9, Number 3 (September 2002)

A paper for the Commercial Law Interest Group for presentation at the 2002 Conference of the Australasian Law Teachers Association Murdoch University, Perth, WA, 29 September to 2 October 2002. This paper is very much based on two earlier ones of mine. One, "A User's Guide to Australian Secured Transactions Law Reform" was originally prepared for the Seminar "Round-up of Current Law", Financial Services Committee (Perth) of the Business Law Section, Law Council of Australia, 9 November 2001 Perth, and was made available for distribution at the Workshop in the text at and of note 41 below: in a modified form, it will be published as part of the proceedings of that Workshop. The other, "A Short Update on an Australian PPSA", was presented at a meeting of the PPSA Committee of the Uniform Law Conference of Canada, Toronto, 9 March 2002. The latter and this paper draw heavily on advice from and recent work of Professor David Allan of Bond University, Queensland Australia. Any one working in the area of personal property security law reform in Australia owes a considerable debt to Professor Allan for his tireless work keeping the case for and forms of reform before all of us.

Contents

• The Story So Far
• The Background to the Bill
• The Bill and the Current Case for Reform in Australia
• What Would Reform Along Article 9 Lines Look Like?
• Scope of the Legislation
• Effect of security agreements
• Enforcement of security agreements
• Priority of security interests under security agreements
• The Next Steps: Advancing to Implementation
• Where to from here?
• Notes

The Story So Far

1. Australia's arrangements for security over personal property are a rich mixture of common law devices with statutory overlays, both state and federal. Scholars here have often drawn comparisons between these arrangements and the rather less chaotic arrangements for the same subject matter under US law, in the form of the implementations by the various states of Article 9 of the Uniform Commercial Code.[1] Article 9 has inspired adaptations in Canada, in that country's provincial Personal Property Security Acts (PPSAs),[2] and, through one strain of those PPSAs, the recently enacted New Zealand Personal Property Security Act 1999, which came into force on 1 May 2002.[3]

2. Australia has had a fairly lengthy history of considering reform in this area of law, including reform along the lines of Article 9 and the Canadian PPSAs.[4] Most recently, we have seen the widespread distribution, since late 2001, of a draft Personal Property Security Bill for Australia.[5] This brief paper will describe the orgins of this draft, its content, the support it has attracted and its possible future. The table of contents of the Bill is set out in the Appendix.[6]

   The Background to the Bill

3. The Bill can be traced directly back to a Workshop at Bond University held in 1995. This Workshop discussed moves to revive interest the Australian Law Reform Commission's draft Bill based on the "Art[icle] 9 approach".[7] Various stakeholders were brought together, including representatives from the Attorney-General's departments of all of the Australian states as well as of the Commonwealth, the banking and financial services sectors, consumer groups and the legal profession, as well experts from the US, Canada and Europe.[8]

4. A wide measure of support for reform, although not necessarily for that draft Bill, emerged from the Workshop and led to the formation of a Committee to prepare a new draft. The Committee was established with, and still features membership from, all of the stakeholders referred to as well as academic lawyers with a particular interest in the area.[9]

5. The Committee has produced two major drafts. The first was particularly heavily influenced by the form as well as the substance of the then recently revised Article 9. It was the subject of sessions at the Annual Conference of the Australia/New Zealand Banking Law Association on the Gold Coast in 2000. A consensus emerged from this Conference that there was a continuing need for early reform, although with stronger recognition of that need from the financial services sector than from the banks, many of whose representatives expressed significant reservations.[10]

6. It was also felt that the reforming legislation needed to be redrafted in terms that resonated better with Australian practice and drafting styles. This led to further work by the Committee on a new draft. The second major product of the Committee's work is the current draft Bill.

   The Bill and the Current Case for Reform in Australia

7. The case for the Bill is the notion of facilitating "cheaper, faster, easier, simpler and safer" transactions.[11] This is through the Bill's implementation of the familiar organising ideas of Article 9 and PPSA constructs, functional treatment of secured transactions ("uniformity") and reasonable allowance for supple design of them ("flexibility").[12]

8. The uniformity principle is one of bringing greater order to the chaos of current secured transactions law by providing for modernised, simplified, largely uniform and much easier to apply rules for the creation, enforcement and priority position of consensual security interests. In accordance with this principle, the Bill would replace both the current legislative jungle of state[13] and federal law[14] and the varied and difficult to apply common law.[15] It does involve bringing under the legislation a number of transactions that our law largely - but not entirely - does not deal with as secured transactions. The major example in practice will be the retention of title transactions of the Romalpa sort.[16] But there are compensations. They lie principally in the flexibility principle.

9. The flexibility principle is one of making the life of the drafter of secured transactions easier by making the enforceable effect of commercially realistic arrangements easier to predict. This should be of special interest to lawyers left uncertain about the effect of fixed and floating charge arrangements over such things as book debts[17] and attempts to extend retention of title clauses into manufactured products and proceeds.[18]

10. The Bill is firmly based on Canadian PPSAs, as is the Personal Property Security Act 1999 (NZ).[19] In particular, the Australian Bill is based on the BC and Saskatchewan forms.[20] Its drafting departs at a number of points from each, to ensure it reflects Australian practice "in style, language and concepts", although the intention is to make it "compatible" with both the newer Canadian forms, with the New Zealand legislation and with UCC Article 9 in its recently revised form.[21] This North American model is also influencing deliberations in the United Kingdom on reform there,[22] and on international conventions on secured financing law.[23]

11. By doing this, the Bill gives direct access to a sizeable body of case-law and commentary, both Canadian and US,[24] and opens up the prospect of access to other overseas precedents as these develop in both common law and civil law jurisdictions.

    What Would Reform Along Article 9 Lines Look Like?

12. I will take some of the major provisions of the current Bill, and the corresponding provisions of the Personal Property Security Acts of Saskatchewan and of New Zealand, to give the flavour of this sort of law. This helps one appreciate the simplicity, coherence and comprehensiveness of the proposed legislation.

    Scope of the Legislation

13. It applies to any transaction that in substance, regardless of its form, creates a security interest,[25] Such transactions are called security agreements. This includes such things as conditional sale agreements. There is also an extension to assignments of book debts, but only for the purposes of the priority rules.

    Effect of security agreements

14. Generally, they are to take effect according to their terms, subject to contrary specified law,[26] Thus, the old precedents may continue to be used. But major issues in drafting are specifically addressed. Thus, security interests extend to identifiable proceeds without the need for a fiduciary relationship,[27] Security interests may extend to after-acquired property without specific appropriation by the debtor,[28] and they may secure further advances,[29] if the security agreement so provides. Security interests in raw materials that lose their identity upon incorporation into a product or mass continue in the product or mass in the same proportions as the obligations they secure,[30]

    Enforcement of security agreements

15. The secured creditor has the rights and remedies provided for in the legislation as well as any provided for in the security agreement. Those rights and remedies are principally to take possession as the collateral permits;[31] to sell in a commercially reasonable manner;[32] or to foreclose.[33] There are, however, provisions to protect the interests of the debtor in respect of any equity it has left in the collateral.[34]

    Priority of security interests under security agreements

16. The base priority rule as between competing secured parties is the first to register or take possession, which applies unless another priority rule governs.[35] A security interest in any collateral may be registered,[36] and registration is by the filing of a notice of the security interest on a single electronic register.[37]

17. There are special priority rules for such matters as purchase money security interests, to protect such as the supplier of goods on Romalpa terms, but generally speaking only on the basis that such supplier has registered.[38] Security interests that have been registered are good against purchasers of the collateral subject to exceptions such as for purchasers of inventory.[39] The location or character of title, whether legal or equitable, is irrelevant to any of these rules. So too is notice. And in any event registration is not notice.[40]

    The Next Steps: Advancing to Implementation

18. To date, the Bill, or at least the reforming enterprise on which it rests, appears to have attracted in-principle support from members of the banking, financial services, legal and consumer communities. This was expressed most recently at a further workshop at Bond University, in late April 2002. The Workshop[41] brought together all of the relevant stakeholders, including representatives from the banking, financial services, legal and consumer communities, and featured presentations or interventions on behalf of the Australian Banking Association, and the Australian Finance Conference as well as the commercial lawyer and consumer communities. The Workshop also included representatives of state and Commonwealth governments, including the Australian law reform agencies, as observers.

19. The support[42] for the enterprise on which the Bill rests from the private sector representatives was uniform. Support for the Bill itself varied. The non-bank financial services industry representatives appeared to be quite strongly in favour, particularly to the extent the reform would yield a single national electronic register of security interests to overcome the problems of using the existing registers and of coping with the gaps in their coverage.

20. The lawyers noted the way the Bill offered the prospect of the rationalisation of the documentation involved in taking security and the resolution of some significant uncertainties in current law as to the effect and priority of a number of current arrangements. They saw the national register as offering a simpler way of perfecting a security interest, against a backdrop of a much clearer system for resolving priority disputes. The net effect of all of these was seen as likely to be an improvement in access to finance for borrowers.

21. Those at the Workshop with particular interests in the position of consumers saw the Bill as enhancing the intelligibility and therefore the accessiblity of the law in this area. For the benefit of small businesses particularly, they noted an enhancement in the array of assets over which security could be taken with confidence, which might help reduce the cost of borrowing. However, it was also noted that consumers would need to be educated about the new system. And the privacy and security issues in the design of a national electronic register of security interests would need particular attention.

22. Those from the major banks were rather more nuanced in their view of the Bill. While some banks appear to welcome the proposals, others are not yet convinced that the net commercial benefits of the changes the Bill would produce have been demonstrated sufficiently. There was in particular a sense that current law was in fact reasonably well understood and that a new system might produce unanticipated adverse changes. There was also a sense that it might be appropriate to see how the reforms in New Zealand worked out before proceeding along similar lines in this country.

23. Beyond the matter of the support for the Bill, a particular feature of the Workshop was the devotion of a substantial portion of it to a discussion of models for implementation. There appear to be three basic choices - as a model law, as uniform or commonly "applied" law, or as federal law.

24. The emerging preference appears to be for federal law, given the potential for drift from legislative models, and the problems of coordination and constitutional uncertainty thrown up by recent experience with the "applied" law approach.[43] Federal law also can provide more readily for singular administration, and in particular for a national electronic register.

25. A federal statute has a further advantage, in relation to security interests in intellectual property rights.[44] In effect, the area currently is a microcosm of the disorder in current law, and its uncertainties or impenetrability as to the effect of taking security in some of these sorts of collateral. The Bill would seem to bring much greater order and certainty to this area, and to unlock the potential of many of these forms of asset to serve as collateral.

26. Given the Commonwealth's limited powers in the area of personal property security law,[45] a federal law would be achieved either by virtue of a constitutional amendment, or by virtue of the reference power in the Australian Constitution. This latter device has of course recently been used to enable the Commonwealth to pass the Corporations Act 2001 and associated legislation.[46] The reference allows for further amendments to this legislation, and in fact further amendments have been made, with more in prospect. It is possible - although in my view unlikely - that a federal PPSA might be made through this reference, with the appropriate level of consent from the body set up to consider amendments, a body that includes representatives of all of the states.[47] The existing reference is in my view unlikely to cover the matter because the reform the Bill would make of necessity goes well beyond corporate borrowers, let along the confines of the institution of the registration of company charges under the Corporations Act 2001.

    Where to from here?

27. Once the simplicity, coherence and comprehensiveness of the model, and its harmony with overseas law, are appreciated, the case for reform through an Australian PPSA is, for a lawyer, fairly easy to argue.[48] However, even if that case is accepted, such acceptance does not clinch the matter.[49] The Australian experience so far has indicated that what is necessary to complete the case is the demonstration of the tangible commercial and consumer benefits of the proposed reform.

28. Here of course New Zealand has done Australian an enormous favour. The coming into force of the New Zealand legislation will give us a demonstration of how the system works, particularly for the benefit of both the lenders and the borrowers that have operations on both sides of the Tasman. It should be possible to see the lower transaction costs of secured lending, of the sort the Bill promises, start to appear. In particular, we should see how a national electronic filing system, of the sort that has attracted many lenders and borrowers to the Australian Bill, is taken to in practice. What then are the tasks that need to be undertaken in Australia if reform of the Bill's sort is to occur?[50] Even before the returns from New Zealand are in, it should be possible to undertake a robust cost - benefit analysis of reform in this area. At the same time, the concerns, particularly of some of the banks will need to be addressed.

29. The design of the national electronic register represents a distinctive challenge, one that falls nicely into the move in this country to a "digital economy". This will entail extensive coordination with a number of initiatives to bring on that sort of economy at the governmental level.

30. As a related point, the Bill as a whole is relevant to a number of portfolios, including those of state and federal Attorneys General, particularly in the Standing Committee of them (SCAG), as well as at least the Commonwealth Treasury. There will thus need to be significant liaison work done on something approaching a whole of governments basis. None of this will be easy. The issues are significant, and the stakes are considerable. Present law, as many of the banks have said, is working, at least for the commoner sorts of secured transaction.

31. The case for reform that is likely to succeed will rest both in terms of significantly better rules and significantly lower transaction costs. The better rules will make it easier for lawyers to give reliable advice and for more straightforward secured transactions to be designed. At the same time, the reforms should make possible new sorts of secured transaction. From all of this, and from a national electronic register of security interests, should flow significantly reduced transaction costs for lenders and borrowers.

32. The reform should not be oversold. It will not easily solve all of the legal problems that might arise in this area. However, it would at least overhaul our current chaotic system, one that is hard to understand and therefore is hard to work with. The reform would give us a better system, one that has been tested or is being tested in other common law jurisdictions, including our closest neighbour. This new system would much better than current law enable us to grapple with the problems we will face in the future in the important area of secured transactions.

    APPENDIX
    Personal Property Security Bill (ref 5188772_4, 26 September 2001)
    (See text at and of note 6, above.)

    PART 1 - PRELIMINARY 4

    Section 1 Short title 4

    Section 2 Commencement date 4

    Section 3 Interpretation generally 4

    Section 4 Meaning of possession in certain cases 4

    Section 5 Meaning of “knowledge” 5

    Section 6 Filing of financing statement not notice 5

    Section 7 Application 5

    Section 8 Scope of Act: security interests 5

    Section 9 Scope of Act: security interests that do not secure payment or
    performance 6

    Section 10 Exclusions from scope of Act 6

    Section 11 Law applicable: general rules for goods and collateral in possession of
    secured party 7

    Section 12 Law applicable: mobile goods, intangibles, etc. 7

    Section 13 Law applicable: substance and procedure 8

    PART 2 - VALIDITY, ATTACHMENT, AND RIGHTS OF PARTIES TO A SECURITY AGREEMENT 8

    Section 14 Effectiveness of security agreement 8

    Section 15 Writing requirements for security agreements 9

    Section 16 Debtor to have copy of written agreement 9

    Section 17 Attachment of security interests 9

    Section 18 Security interests in after-acquired property 10

    Section 19 Future advances 10

    Section 20 Application of sale of goods law 10

    Section 21 Rights and obligations of secured parties in possession of collateral 11

    Section 22 Acquisition of information from secured parties 11

    PART 3 - PERFECTION AND PRIORITIES 14

    Section 23 When security interests are perfected 14

    Section 24 Subordination of unperfected security interests 14

    Section 25 Measure of damages suffered by lessor or consignor 15

    Section 26 Security interests in favour of certain persons void in certain cases 15

    Section 27 Perfection of purchase-money security interests 16

    Section 28 Continuity of perfection 17

    Section 29 Perfection by possession of the collateral 17

    Section 30 Perfection by registration 17

    Section 31 Temporary perfection 17

    Section 32 Perfection if goods in hands of bailees 18

    Section 33 Security interests in proceeds 18

    Section 34 Security interests in returned or repossessed goods 19

    Section 35 Protection of buyer or lessee of goods 20

    Section 36 Protection of transferees of negotiable and quasi-negotiable collateral 21

    Section 37 Priority of liens 22

    Section 38 Transfer of debtors’ rights in collateral 22

    Section 39 Purchase-money security interests 23

    Section 40 Residual priority rules 25

    Section 41 Security interests in fixtures 26

    Section 42 Security interests in crops 29

    Section 43 Security interests in accessions 29

    Section 44 Security interests in wool 32

    Section 45 Security interests in processed or commingled goods 32

    Section 46 Subordination or postponement of right to security interests 33

    Section 47 Assignments of intangibles or chattel paper and security interests in
    deposit accounts 34

    PART 4 - REGISTRATION 36

    Section 48 Personal property registry 36

    Section 49 Registration of financing statements 36

    Section 50 Duration of and amendments to registrations 37

    Section 51 Registration of transfers of security interests 38

    Section 52 Registration documents 38

    Section 53 Registration not notice 38

    Section 54 Registry searches 39

    Section 55 Registration in Land Titles Office 39

    Section 56 Amendment or discharge of registrations 42

    Section 57 Transfer of debtors' interests in collateral or change of debtors 43

    Section 58 Recovery of loss caused by error in registry 45

    Section 59 General 45

    PART 5 - RIGHTS AND REMEDIES ON DEFAULT 46

    Section 60 Application and interpretation 46

    Section 61 Rights and remedies 47

    Section 62 Collection of payments under intangibles or chattel paper 47

    Section 63 Right of seizure or of repossession 48

    Section 64 Disposition of collateral 49

    Section 65 Distribution of amounts realized from disposition of collateral 51

    Section 66 Voluntary foreclosure 52

    Section 67 Rights of redemption and reinstatement 53

    Section 68 Supervisory jurisdiction of the court 53

    Section 69 Appointment and qualifications of receivers 54

    PART 6 - MISCELLANEOUS 54

    Section 70 Supplementary law 54

    Section 71 Consequences of non-compliance with the Act 55

    Section 72 Summary proceedings 55

    Section 73 Extension of time for compliance 55

    Section 74 Service of statements, notices, and demands 55

    Section 75 Conflicts with, and titles or consumer protection legislation 57

    Section 76 Power to make regulations 57

    PART 7 - TRANSITION 58

    Section 77 TRANSITION PROVISIONS 58

    SCHEDULE 1 - DEFINITIONS 59

---

Notes

[1] See the references in the sources in note 4 below.

[2] For the principal source on Canadian law, see McLaren, R, Secured Transactions In Personal Property In Canada, 2nd ed, looseleaf (Toronto : Carswell, 1989 -). The US parent recently underwent a round of changes: for a useful critical conspectus of the changes from a Canadian standpoint, see Cuming, R and Walsh, C, "Revised Article 9 of the Uniform Commercial Code: Implications for the Canadian Personal Property Security Acts" (2001) 16 Banking and Finance Law Review 339. This article is an excellent illustration of the sort of process that must be undertaken to adapt the undoubtedly successful US model to another common law jurisdiction. Note that some of the US modifications are reflected in the draft Australian legislation that is the focus of this paper.

[3] For access to this Act, see note 19 below. See on the Act Allan, Barry, Guidebook to New Zealand Personal Property Security Law (Auckland: CCH New Zealand, 2002).

[4] See the excellent reviews in Allan, D, "Personal Property Security - a Long Long Trail A-Winding" (1999) 11 Bond L. Rev. 178; and Duggan, A, "Globalization of Secured Lending Law: Australian Developments" (2000) 34 International Law. 1107 and (2001) 12 J. Banking Fin. L. Prac. 85. See for a very recent account the paper by Professor David Allan, "Personal Property Security Law Reform in Australia [:] Governance Issues and Possible Solutions", for the conference sponsored by the Law Commission of Canada, Leveraging Knowledge Assets Security Interests in Intellectual Property, University of Western Ontario, 16 - 17 November 2001.

[5] Australia / New Zealand Banking Law Association, Banking and Financial Services Law Reform Committee in collaboration with the Law Council of Australia and the Australian Law Reform Commission, Personal Property Security Bill (ref 5188772_4, 26 September 2001).

[6] I should indicate that I am a member of the group that drafted the Bill and have since become the group's Chair.

[7] See Allan (2001), supra note 4, at para 7; and see The [Australian] Law Reform Commission, Report No 64 Interim Personal Property Securities (Sydney: the Commission, 1993), Corporations and Other Legislation (Personal Property Securities) Bill 199?: the quotation is from para 4.1 of the Interim Report. For a critique of the Bill against the Article 9 model, see Simmonds, R, "Some Notes on the Reform of Personal Property Security Law in Australia", in Gillooly, M, ed, Securities over Personalty (Sydney: Federation Press, 1994).

[8] See Allan (2001), supra note 4, at para 8.

[9] See Allan (2001), supra note 4, at para 10. I have been a member of the Committee since 2000, in that last capacity.

[10] See Allan (2001), supra note 4, at para 11.

[11] Ibid, para 11.

[12] See my earlier statement of this case and those principles, in Simmonds, note 7, at 195 - 202.

[13] Including such as the Bills of Sale Act 1899 (WA), the Hire Purchase Act 1957 (WA), and the Chattel Securities Act 1987 (WA).

[14] At least Corporations Act 2001 (Cth) Part 2K, and probably also a range of other federal statutes, including the Air Navigation Act 1920 (Cth), the Designs Act 1906 (Cth), the Life Insurance Act 1995 (Cth), the Patents Act 1990, and the Trade Marks Act 1995. However, mortgages under the Shipping Registration Act 1981 (Cth) will not be covered.

[15] Most notably, the rule in Dearle v Hall (1828) 38 ER 495, which appears to have few friends. This is the rule that as between competing assignments of choses in action priority is to the first for which notice is given to the obligee, subject to certain qualifications.

[16] For their regulation as a secured transaction notwithstanding their form, see the Chattel Securities Act 1987 (WA), and, when they are not used as a inventory financing devices, the Hire Purchase Act 1957 (WA). For similar suggestions in a common law context (none yet acted on), see Esanda Finance Corp Ltd v Plessnig [1989] HCA 7; (1989) 63 ALJR 238, at 246 per Brennan J (on the protection of something akin to an equity of redemption).

[17] Thus, it is unclear whether or not the common law in Australia is as stated for common law New Zealand in Agnew v The Commissioner of Inland Revenue, decided 5 June 2001, http://www.privy-council.org.uk/files/pdf/2001_No.28.pdf (PC NZ). See on this Nash, L and Collier, B "Fixed Charges over Book Debts after Agnew v Commissioner of Inland Revenue" (2001) 9 Insolvency Law Journal 116.

[18] On those difficulties, see Associated Alloys Pty Ltd v Metropolitan Engineering and Fabrications Pty Ltd (2000) 171 ALR 568; [2000] HCA 25 (11 May 2000, HC, FC)

[19] Accessible at http://www.knowledge-basket.co.nz/ (accessed 7 November 2001): click on Databases, then on GP Legislation.

[20] In particular, the Personal Property Security Act RSBC 1996, C 359 as amended, accessible at http://www.qp.gov.bc.ca/statreg/stat/P/96359_01.htm (accessed 7 November 2001); the Personal Property Security Act S.S. Ch P-6.2 (Saskatechewan) as amended, accessible at http://www.qp.gov.sk.ca/publications/index.cfm?fuseaction=details&c=1885&id=2 (accessed 7 November 2001). See also the Personal Propety Security Act S.N.B. Ch P-7.1 (New Brunswick) as amended, accessible at http://www.gov.nb.ca/acts/acts/p-07-1.htm (accessed 7 November 2001).

[21] See Allan (2001), supra note 4, at paras 11 and 17, respectively.

[22] See Law Commission, Consultation Paper, "Registration of Security Interests: Company Charges and Property Other than Land" (June 2002), accessible from http://www.lawcom.gov.uk/library/lccp164/cp164.pdf (accessed 24 September 2002), which inter alia chronicles the history of the enterprise in that country.

[23] See on some of the international deliberations, Cuming, R, ""Hot Issues" in the Development of the (Draft) Convention on International Interests in Mobile Equipment and the (Draft) Aircraft Equipment Protocol" (2000) 34 International Lawyer 1093.

[24] For the principal source on Canadian law, see McLaren, R, Secured Transactions In Personal Property In Canada, 2nd ed, looseleaf (Toronto : Carswell, 1989 -). The US parent as noted in the text recently underwent a round of changes: for a useful critical conspectus of the changes from a Canadian standpoint, see Cuming, R and Walsh, C, "Revised Article 9 of the Uniform Commercial Code: Implications for the Canadian Personal Property Security Acts" (2001) 16 Banking and Finance Law Review 339. This article is an excellent illustration of the sort of process that must be undertaken to adapt the undoubtedly successful US model to another common law jurisdiction. Note that some of the US modifications are reflected in the draft Australian Bill.

[25] Draft Aust. Bill, note 5 above, s 8; Sask PPSA, note 20 above, s 3; and NZ PPSA, note 19 above, s 17.

[26] Draft Aust. Bill, note 5 above, s 14; Sask PPSA, note 20 above, s 9 (1); and NZ PPSA, note 19 above, s 35. There are some differences in the degree of specification here.

[27] Draft Aust. Bill, note 5 above, s 33; Sask PPSA, note 20 above, s 28; and NZ PPSA, note 19 above, s 45.

[28] Draft Aust. Bill, note 5 above, s 18; Sask PPSA, note 20 above, s 13; and NZ PPSA, note 19 above, ss 43, 44.

[29] Draft Aust. Bill, note 5 above, s 19; Sask. PPSA, note 20 above, s 14; and NZ PPSA, note 19 above, ss 71 and 72.

[30] Draft Aust. Bill, note 5 above, s 45; Sask PPSA, note 20 above, s 39; and NZ PPSA, note 19 above, ss 82 and 85.

[31] See Draft Aust. Bill, note 5 above, s 63; Sask PPSA, note 20 above, s 58; and NZ PPSA, note 19 above, s 109.

[32] Draft Aust. Bill, note 5 above, s 64 read with s 70; Sask PPSA, note 20 above, s 58; and NZ PPSA, note 19 above, s 109. There is some variation in the language here, and there are notice provisions and the like.

[33] Draft Aust. Bill, note 5 above, s 66; Sask PPSA, note 20 above, s 61; and NZ PPSA, note 19 above, s 120. There are provisions for notice of course to permit other parties to intervene.

[34] Draft Aust. Bill, note 5 above, s 65; Sask PPSA, note 20 above, s 60; and NZ PPSA, note 19 above, s 117.

[35] Draft Aust. Bill, note 5 above, s 40; Sask PPSA, note 20 above, s 35; and NZ PPSA, note 19 above, s 66.

[36] See Draft Aust. Bill, note 5 above, s 30; Sask PPSA, note 20 above, s 25; and NZ PPSA, note 19 above, s 141.

[37] Draft Aust. Bill, note 5 above, s 49; Sask PPSA, note 20 above, s 43; and NZ PPSA, note 19 above, s 142.

[38] Draft Aust. Bill, note 5 above, s 39; Sask PPSA, note 20 above, s 34; and NZ PPSA, note 19 above, ss 73 and 74.

[39] Draft Aust. Bill, note 5 above, s 35; Sask PPSA, note 20 above, ss 20 and 30; and NZ PPSA, note 19 above, ss 52 and 53.

[40] Draft Aust. Bill, note 5 above, s 53; Sask PPSA, note 20 above, s 47; and NZ PPSA, note 19 above, s 20.

[41] All of the papers from the Workshop, together with the Final Report by its Chairman, Professor David Allan, will be published in a special issue of the Bond Law Review. I will draw extensively on the Workshop Report in this paper.

[42] The material in this part of the paper draws heavily on the Workshop Report, note 7, above.

[43] See references in note 47, infra.

[44] See on these the Conference referred to in note 5 above. See further Workshop Report, note 5 above, on which this paragraph particularly draws.

[45] Principally, these rest on the power to make laws with respect to trading and financial corporations; with respect to copyright, inventions and designs; and with respect to external affairs. See for the first the references in note 47, infra; for the last two, see Allan, D, supra note 4, para 19.

[46] See Ford, HAJ and Austin, RP, Supplement to the Ford's Principles of Corporations Law 10th ed (Sydney: Butterworths, 2002), passim.

[47] See on this scheme, and that body, Tomasic, Roman et al, Corporations Law in Australia, 2nd ed (Sydney: Butterworths, 2002), Chapter 3. I have very recently considered the history and form of this scheme, for a Canadian audience, in Simmonds, R, "Australia's Transition to a National Corporations and Financial Products Regulator: Lessons for Canada?", for A Symposium On Canadian Securities Regulation: Harmonization Or Nationalization?, Toronto, 8 March 2002, accessible from http://www.rotman.utoronto.ca/cmi/news/march8_index.htm (accessed 25 September 2002).

[48] Of course, this does not mean that it is a case that then enjoys straightforward support among lawyers: see eg the nuanced view of the Law Society in the UK on Article 9 reform in that country: http://www.lawsoc.org.uk/dcs/fourth_tier.asp?section_id=4619&Caller_ID=NS75 (accessed 24 September 2002).

[49] For an extended discussion of the limitations of a case resting on analysis simply in terms of the simplicity, coherence and comprehensiveness of the reform model, notwithstanding the undoubted appeal of those attributes, see Michael G. Bridge, Roderick A. Macdonald, Ralph L. Simmonds and Catherine Walsh, "Formalism, Functionalism and Understanding the Law of Secured Transactions" (1999) 44 McGill L J 567.

[50] Here again I draw heavily on Workshop Report, note 41 above.