Additional comments from Liberal Senators
1.1
Liberal Senators agree with the
majority report's consideration of the evidence, and largely support the
majority report's conclusions and recommendation. Liberal Senators understand
the benefits and importance of establishing a simplified, national personal
property securities (PPS) regime. Liberal
Senators have made a significant contribution to the three previous inquiries
into the development of the PPS legislation. As noted in our comments to the
previous report, we do not intend to obstruct this worthwhile reform, but
merely wish to ensure that the Government 'gets it right'.[1]
Engagement with small business
1.2
Liberal Senators note the comments
of the majority in relation to the role of the Attorney-General's Department
(the Department), and also acknowledge the Department's role in the development
of the PPS Act and in assisting the committee and many stakeholders –
particularly those in the finance, legal, banking and credit management
industries – to better understand and contribute to the intended operation of
the new PPS regime. Liberal Senators
recognise that the Department continues to engage with relevant stakeholders
over the development and implementation of the PPS Register.
1.3
Notwithstanding this
acknowledgement of the Department's efforts, Liberal Senators remain concerned
that to date there has been insufficient engagement with the many small
businesses which will be affected when the PPS Act finally commences in May
2011. Some figures would suggest that there are approximately 2½ million small
businesses in Australia, with 700,000 of these being incorporated businesses. It
is imperative that this critical element of Australia's productive sector is
fully engaged with, and informed about, the new PPS regime. Liberal Senators
are not convinced that small business has had and will have the necessary
education, support and assistance to negotiate what is a wide-reaching reform
to Australia's current financial and legal settings in this area.
1.4
Liberal Senators note that they
have previously expressed concerns in relation to the extent and timing of the
consultations on the new PPS regime. Notably, a minority report and additional
comments to the past two inquiries (on the provisions of the Bill and related
consequential amendments respectively) both raised concerns in relation to the
inadequate amount of time allowed for the conduct of those inquiries. Although
the time allowed for the current inquiry was apparently sufficient – given the
relatively minor number and nature of issues that were raised in submissions – Liberal
Senators believe that the previous inquiries failed to sufficiently engage with
the small business sector. It is likely that many small-business people remain
uninformed about the pending changes, and are ill-prepared to successfully
negotiate the new regime on its commencement.
1.5
In light of these conclusions,
Liberal Senators consider that, in the lead up to the commencement of the PPS
Act in May 2011, it is vital that the Department pursues a comprehensive
implementation agenda which recognises the importance and particular needs of
the small business community, particularly in relation to education about
preparing for the changes and negotiating the new system on its commencement.
Equally, provision should be made for small businesses to receive ongoing
information and assistance in relation to the PPS Act system. Accordingly, the
Department should be required to publish an implementation plan covering the period
of approximately 12 months up to the commencement of the PPS Act in May 2011.
This plan should clearly set out a comprehensive strategy for engaging with and
educating all stakeholders, and particularly small businesses, about preparing
for the new PPS regime and negotiating the new system on its commencement.
1.6
In addition, Liberal Senators
consider that, in the three-month period prior to the commencement of the PPS
Act, the Minister should report to Parliament on the Department's preparations
for the commencement of the new scheme, and in particular the extent to which
it has met the benchmarks contained in its implementation plan with regard to
engagement with, and education of, the small business sector.
1.7
Finally, Liberal Senators note
with concern the issue, raised by the Senate Standing Committee (the scrutiny
committee) for the Scrutiny of Bills, in relation to the reliance of certain
provisions of the Bill on the element of constructive knowledge. Liberal
Senators support the scrutiny committee's calls for the Department to provide a
full explanation for each instance of a provision relying on the element of
constructive knowledge in the Bill. Any legislative approach that, prima facie,
might unduly impact on the rights and freedoms of individuals, must be
accompanied by sufficient justification for such an approach.
Recommendation 1
1.8
That the Department immediately
publish an implementation plan for the approximately 12-month period leading up
the commencement of the PPS Act; the plan should detail a comprehensive agenda
for engagement with and education of all key stakeholders, including the small
business sector, about the operation and potential impacts of the new PPS
regime.
Recommendation 2
1.9
That, in the three-month period
prior to the commencement of the PPS Act, the Minister report to Parliament on
the preparations for the commencement of the new scheme; the Minister's report
should address the extent to which key stakeholders, and specifically the small
business sector, have been assisted with and are prepared for the commencement
of the new PPS Act regime.
Senator Guy Barnett Senator
Stephen Parry
Deputy Chair
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