Footnotes

CHAPTER 1 - Introduction

[1]        Attorney-General's Department, Submission 8, p. 19.

CHAPTER 2 - Overview of the exposure draft bill

[1]        Attorney-General's Department, Submission 8, p 17.

[2]        Attorney-General's Department, Submission 8, p 17.

[3]        Speech by Mr Ian Govey, Deputy Secretary, Attorney-General's Department, to the Personal Property Securities Consultative Group on 16 May 2008, p. 1.

[4]        Attorney-General's Department, Submission 8, pp 19 and 20.

[5]        Mr Craig Wappett, Piper Alderman, Committee Hansard, 22 January 2009, p. 14.

[6]        Ms Angela Flannery, Clayton Utz, Committee Hansard,  22 January 2009, p. 26.

[7]        Attorney-General's Department, Submission 8, p. 20.

[8]        Attorney-General's Department, Submission 8, p. 18.

[9]        Submission 30, pp 3 and 4.

[10]      Mr David East representing DLA Phillips Fox, Committee Hansard, 22 January 2009  p. 41, Australian Financial Markets Association, Submission 23, p. 2, and Mr David C. Turner, Submission 33, p. 1.

[11]      Ms Rich, Committee Hansard, 6 February 2009, p. 36.

[12]      Mr Gilbert, Committee Hansard, 22 January 2009, p. 56. Some additional examples of general support for the reform are found in the following submissions: Piper Alderman, Submission 12, p. 1; Australian Institute of Credit Management, Submission 14, p. 3 and Motor Trades Association of Australia, Committee Hansard, 6 February 2009, p. 38.

[13]      For example Craig Wappett of Piper Alderman, Submission 12.

[14]      Consumer Action Law Centre, Submission 20, p. 1.

[15]      Professor Anthony Duggan, Submission 1, pp 2 and 3.

[16]      Council of Australian Governments, Communique, 2 October 2008.

[17]      Dr James Popple, Attorney-General's Department, Committee Hansard, 6 February 2009, p. 59.

[18]      Dr Popple and Mr Glenn, Committee Hansard, 6 February 2009, p. 61.

[19]      DLA Phillips Fox, Submission 2, pp 2 and 3.

[20]      Attorney-General's Department, Submission 8, p. 18. The primary documents and further information can be found on the Department's personal property securities website at: http://www.ag.gov.au/www/agd/agd.nsf/Page/Consultationsreformsandreviews_personalpropertysecuritiesreform_Personalpropertysecurities.

[21]      Appendix B to the Attorney-General's Department submission summarises the key changes made to the bill between the May and November drafts, Submission 8, pp159 to 163. Ms Flannery, Clayton Utz, Committee Hansard, 22 January 2009, at p. 26 identified the changes between the drafts as being substantial.

[22]      Attorney-General's Department, Submission 8, p 18. A list of the participants can be found at Additional Information, Item 3 at: https://www.aph.gov.au/senate/committee/legcon_ctte/personal_property/add_info/index.htm.

[23]      Allens Arthur Robinson, Blake Dawson, Freehills and Mallesons Stephen Jacques, Submission 30, p. 4.

[24]      Ms Lang Thai, Submission 29. pp 1 and 2.

[25]      Allens Arthur Robinson, Blake Dawson, Freehills and Mallesons Stephen Jacques, Submission 30, p. 2. Other examples of concern that the project is being rushed or the implementation target is too soon were also expressed by the Australian Financial Markets Association, Submission 23, p. 2 and the Australian Bankers' Association, Submission 24, pp 3 and 5.

[26]      Craig Wappett, Laurie Mayne, Professor Tony Duggan, Review of the law on personal property securities An international comparison, July 2006, p. 9. The paper can be found at http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(427A90835BD17F8C477D6585272A27DB)~PPS+-+International+Comparison+Paper+-+July+2006.pdf/$file/PPS+-+International+Comparison+Paper+-+July+2006.pdf.

[27]      Craig Wappett, Laurie Mayne, Professor Tony Duggan, Review of the law on personal property securities An international comparison, July 2006, p. 9.

[28]      Craig Wappett, Laurie Mayne, Professor Tony Duggan, Review of the law on personal property securities An international comparison, July 2006, p. 10.

[29]      Craig Wappett, Laurie Mayne, Professor Tony Duggan, Review of the law on personal property securities An international comparison, July 2006, p. 45..

[30]      Attorney-General's Department, Submission 8, p. 20.

[31]      Attorney-General's Department, Submission 8, p. 20.

[32]      For example, Independent Film and Television Alliance, Submission 22, p. 1;  Mr Loxton, Allens Arthur Robinson, Committee Hansard, 23 January 2009, p. 33, and Mr Love, Australian Financial Markets Association, Committee Hansard, 22 January 2009, pp 7 and 8.

[33]      Professor Anthony Duggan, Submission 1, p. 6.

[34]      This section is based on information in the Attorney-General's Department, Submission No. 8, pp 11 to 16.

[35]      Attorney-General's Department, Submission No. 8, p. 29.

[36]      Attorney-General's Department, Submission No. 8, pp 11 to 16.

[37]      Attorney-General's Department, Submission No. 8, pp 21 to 27.

[38]      A copy of the draft regulations can be found at Item 2 on the Additional Information page of the Senate Legal and Constitutional Affairs website: https://www.aph.gov.au/senate/committee/legcon_ctte/personal_property/add_info/index.htm

CHAPTER 3 - What reform is needed?

[1]        Mr Gilbert, Australian Bankers' Association, Committee Hansard, 22 January 2009, p. 53.

[2]        Mr Love, Australian Financial Markets Association, Committee Hansard, 22 January 2009, p. 6. Similar evidence from other submitters about the significance of the reform is outlined in chapter 2 in the section titled Purpose and objectives of the exposure draft bill.

[3]        For example, see Piper Alderman, Submission 12, pp 1 and 2.

[4]        Allens Arthur Robinson, Blake Dawson, Freehills and Mallesons Stephen Jacques, Submission 30, p. 2.

[5]        Mr David C. Turner, Submission 33, p. 1.

[6]        Ms Flannery, Clayton Utz, Committee Hansard, 22 January 2009, p. 26.

[7]        Ms Flannery, Clayton Utz, Committee Hansard, 22 January 2009, p. 30.

[8]        Mr Wappett, Piper Alderman, Committee Hansard, 22 January 2009, p. 11.

[9]        Mr Wappett, Piper Alderman, Committee Hansard, 22 January 2009, p. 12.

[10]      Mr Bills, Committee Hansard, 23 January 2009, p. 47.

[11]      Institute for Factors and Discounters, Submission 4, p. 8.

[12]      Australian Finance Conference, Submission 9, p. 2.

[13]      Mr Gilbert, Australian Bankers' Association, Committee Hansard, 22 January 2009, p. 56 also referred to at chapter 2, footnote 12.

[14]      The Department has advised it is planning to recommend some relatively minor modifications that submitters have raised. For details see the Committee Hansard, Friday 6 February, pp 45 to 49, but its argument in support of the bill is not affected by these changes.

[15]      Mr Patch, Committee Hansard, Friday 6 February 2009, p. 56.

[16]      Mr Patch, Committee Hansard, Friday 6 February 2009, p. 58.

[17]      For example, see Professor Anthony Duggan, Submission 1, p. 3 and Committee Hansard, 23 January 2009, p. 2; and Mr David C. Turner, Submission 33, p. 3.

[18]      For example, Mr Loxton, Allens Arthur Robinson, Committee Hansard, 23 January 2009, p. 28.

[19]      Professor Anthony Duggan, Committee Hansard, 23 January 2009, p. 2.

[20]      Drafting issues are discussed in detail in chapter 4.

[21]      For example, see Professor Anthony Duggan, Submission 1, pp 5 and 6, Allens Arthur Robinson, Blake Dawson, Freehills and Mallesons Stephen Jacques, Submission 30, p. 2 and Mr David C. Turner, Submission 33, p. 2.

[22]      Mr Wappett, Piper Alderman, Committee Hansard, 22 January 2009, p. 14.

[23]      See Professor Duggan's written submission for more details of his relevant experience: Submission 1, p. 1.

[24]      Professor Duggan, Committee Hansard, 23 January 2009, p. 2.

[25]      Professor Anthony Duggan, Submission 1, p. 3.

[26]      Professor Anthony Duggan, Submission 1, pp 3 to 5.

[27]      Professor Duggan, Committee Hansard, 23 January 2009, p. 2.

[28]      For example see Allens Arthur Robinson, Blake Dawson, Freehills and Mallesons Stephen Jacques, Submission 30, pp 15 and 16.

[29]      Professor Duggan, Committee Hansard, 23 January 2009, p. 2

[30]      Professor Duggan, Committee Hansard, 23 January 2009, p. 4.

[31]      Professor Duggan, Committee Hansard, 23 January 2009, p. 2.

[32]      This aspect of the process is considered in more detail in the section titled Timing in chapter 4.

[33]      Mr Loxton, Allens Arthur Robinson, Committee Hansard, 23 January 2009, p. 27.

CHAPTER 4 - Consideration of broad issues

[1]        For example, see Professor Duggan, Submission 1, p. 6.

[2]        Dr Popple, Committee Hansard, 6 February 2009, p. 55, and Mr Patch, Committee Hansard, 6 February 2009, p. 58.

[3]        Mr Patch, Committee Hansard, 6 February 2009, p. 58. See also Professor Anthony Duggan, Submission 1, p. 4.

[4]        Dr Popple, Committee Hansard, 6 February 2009, p. 55.

[5]        For example, see Professor Anthony Duggan, Submission 1, pp 9 to 11 and Mr David C Turner, Submission 33, pp 3 to 6.

[6]        Professor Anthony Duggan, Submission 1, p. 9.

[7]        Mr Patch, Committee Hansard, p. 56. Interestingly, Mr David C. Turner notes that the draft bill fails 'to qualify goods as trees which have been severed and petroleum or minerals which have been extracted.  Growing trees, etc are not personal property until severed or extracted in Article 9, Canada and New Zealand (s16).' Submission 33, p. 6.

[8]        Professor Anthony Duggan, Submission 1, p. 9.

[9]        Mr Patch, Attorney-General's Department, Committee Hansard, 6 February 2009, p. 58.

[10]      Professor Anthony Duggan, Submission 1, p. 3, see also pp 6 to 8. See also DLA Phillips Fox, Submission 2, p 2.

[11]      Mr David C. Turner, Submission 33, p. 3. More details about Mr Turner's relevant experience can be found at page 1 of his submission and examples of the problem he cites are on pp 3 to 6.

[12]      Professor Anthony Duggan, Submission 1, pp 7 to 8.

[13]      Professor Anthony Duggan, Submission 1, p. 5.

[14]      Professor Anthony Duggan, Submission 1, p. 11.

[15]      Professor Anthony Duggan, Submission 1, pp 11 and 12. See also, Ms Lang Thai, Submission 29, p. 3; and Mr David C. Turner, Submission 33, p. 3.

[16]      Dr Popple, Committee Hansard, 6 February 2009, p. 55.

[17]      See the Process section in chapter 2 above for more detail.

[18]      For example, see Allens Arthur Robinson, Blake Dawson, Freehills and Mallesons Stephen Jacques, Submission 30, p. 4.

[19]      This was the date on which the Attorney-General's Department submission (Submission 8) which is in the form of the Revised Commentary, was received by the Senate Legal and Constitutional Affairs Committee secretariat.

[20]      Mr Glenn, Committee Hansard, 6 February 2009, p. 61. See also the section on Process  in Chapter 2 above.

[21]      The Australian Bankers' Association Inc supports the reform, but believes that the May 2010 commencement date is too soon: Mr Gilbert, Committee Hansard, 22 January 2009, p. 53. 

[22]      For example, Professor Anthony Duggan, Submission 1, p. 6.

[23]      Mr Love, Australian Financial Markets Association, Committee Hansard, 22 January 2009, p. 2.

[24]      For example, Mr Whittaker, Blake Dawson, Committee Hansard, 23 January 2009, p. 29.

[25]      For example, Ms Flannery, Clayton Utz, Committee Hansard, 22 January 2009, p. 31.

[26]      Mr Gilbert, Australian Bankers' Association, Committee Hansard, 22 January 2009, p. 57.

[27]      Mr Faludi, DLA Phillips Fox, Committee Hansard, 22 January 2009, p. 52.

[28]      Mr Gilbert, Australian Bankers' Association, Committee Hansard, 22 January 2009, p. 53.

[29]      Dr Popple, Committee Hansard, 6 February 2009, p. 59.

[30]      Mr Gilbert, Australian Bankers' Association, Committee Hansard, 22 January 2009, p. 58.

[31]      Professor Duggan, Committee Hansard, 22 January 2009, p. 2.

[32]      Mr Edwards, Committee Hansard, 23 January 2009, p. 42.

[33]      Dr Popple, Committee Hansard, 6 February 2009, p. 64.

[34]      Mr Glenn, Committee Hansard, 6 February 2009, p. 63.

Chapter 5 - Consideration of more technical issues

[1]        Professor Anthony Duggan, Submission 1, pp 5 and 6.

[2]        Attorney-General's Department, Submission No. 8, p. 97.

[3]        Attorney-General's Department, Submission No. 8, p. 97.

[4]        Professor Duggan, Committee Hansard, 23 January 2009, p. 2.

[5]        Dr Popple, Committee Hansard, 6 February 2009, p. 59 and Mr Glenn, Committee Hansard, 6 February 2009, p. 60.

[6]        Dr Popple, Committee Hansard, 6 February 2009, p. 59.

[7]        Mr Glenn, Attorney-General's Department, Committee Hansard, 21 January 2009, pp 32 to 34.

[8]        Mr Glenn, Committee Hansard, 21 January 2009, p. 34.

[9]        Mr Glenn, Committee Hansard, 21 January 2009, pp 33 and 34.

[10]      Dr Popple, Committee Hansard, 6 February 2009, p. 59.

[11]      For example, Victorian Privacy Commissioner, Submission 3, Women's Legal Service Victoria on behalf of Women's Legal Service Australia, Submission 16, Australian Privacy Foundation, Submission 17 and the Consumer Action Law Centre, Submission 20.

[12]      Ms Flannery, Clayton Utz, Committee Hansard, 22 January 2009, p. 26.

[13]      For example, see the Women's Legal Service Victoria, Submission 16.

[14]      Ms Rich, Consumer Action Law Centre, Committee Hansard, 6 February 2009, p. 36 and Office of the Privacy Commissioner, Submission 25, p. 3.

[15]      Dr Michael, Australian Privacy Foundation, Committee Hansard, 22 January 2009, pp 39 and 40.

[16]      Mr Strassberg, Veda Advantage, Committee Hansard, 23 January 2009, p. 13.

[17]      Dr Popple, Committee Hansard, 6 February 2009, pp 49 to 52.

[18]      Ms Rich, Committee Hansard, 6 February 2009, p 37.

[19]      Dr Michael, Committee Hansard, 22 January 2009, pp 33 and 34, and Office of the Privacy Commissioner, Submission 25, pp 5 and 6.

[20]      Ms Rich, Committee Hansard, 6 February 2009, p. 37.

[21]      Office of the Privacy Commissioner, Submission 25, a summary of the issues is at p. 2.

[22]      Dr Popple, Committee Hansard, 6 February 2009, pp 45 to 49 advised that the particular amendments being considered are: an amendment to the table in section 227 so that it clarifies that a person may search on behalf of another person for any of the purposes listed in that table suggested by Veda Advantage, Submission 7, p. 3 and Office of the Privacy Commission suggestions relating to proposed section 228(6) and the privacy impact assessment, Submission 25, pp 2 and 10.

[23]      The Office of the Privacy Commissioner is also of the view that the use of regulations can be appropriate: Office of the Privacy Commissioner, Submission 25, p. 3.

[24]      For example, see Office of the Privacy Commissioner, Submission 25, p. 3.

[25]      Women's Legal Service Victoria, Submission 16.

[26]      Office of the Privacy Commissioner, Privacy Impact Assessment Guide August 2006, Additional Information 15, p. 4.

[27]      Office of the Privacy Commissioner, Privacy Impact Assessment Guide August 2006, Additional Information 15.

[28]      Dr Popple and Mr Glenn, Committee Hansard, 6 February 2009. pp 50 and 51.

[29]      Mr Pilgrim, Office of the Privacy Commissioner, Committee Hansard, 23 January 2009, p. 19.

[30]      For example, see Ms Flannery, Clayton Utz, Committee Hansard, 22 January 2009, p. 28.

[31]      Dr Popple, Committee Hansard, 6 February 2009, pp 53 and 54.

[32]      Ms Flannery, Committee Hansard, 22 January 2009, p. 27.

[33]      Professor Duggan, Committee Hansard, 23 January 2009, pp 6 and 7.

[34]      Dr Popple, Committee Hansard, 6 February 2009, p. 53.

[35]      Attorney-General's Department, answer to questions on notice dated 2 March 2009, Additional Information 22, pp 3 and 5.

[36]      Attorney-General's Department, answer to questions on notice dated 2 March 2009, Additional Information 22, p. 2.

[37]      Mr Patch, Committee Hansard, 21 January 2009, pp 27 and 28.

[38]      Mr Patch, Committee Hansard, 21 January 2009, pp 26 and 27.

[39]      Mr Patch, Committee Hansard, 6 February 2009, p. 47.

[40]      Attorney-General's Department, Submission No. 8. The invitation to consider the content of Appendix A is at p. 17 and Appendix A is at pp143 to 154.

[41]      Mr Gilbert, Australian Bankers' Association, Committee Hansard, 22 January 2009, p. 55.

[42]      The committee inferred this from evidence to it, including the additional information provided by Professor Anthony Duggan, Additional Information 13, pp 1 and 2.

[43]      Mr Wappett, Piper Alderman, Committee Hansard, 22 January 2009, p. 13.

[44]      Mr Loxton, Allens Arthur Robinson, Committee Hansard, 23 January 2009, p. 39.

[45]      Professor Duggan, Committee Hansard, 23 January 2009, p. 3.

[46]      For example, Mr Love, Australian Financial Markets Association, Committee Hansard, 22 January 2009, pp 2, 9 and 10.

[47]      Mr Love, Committee Hansard, 22 January 2009, p. 10.

[48]      Ms Rich, Consumer Action Law Centre, Committee Hansard, 6 February 2009, p. 38.

[49]      Office of the Privacy Commissioner, Submission 25, pp 8 and 9.

[50]      Attorney-General's Department, Submission No. 8, p. 14.

[51]      Mr David C. Turner, Submission 33, p. 4.

[52]      Ms Flannery, Clayton Utz, Committee Hansard, 22 January 2009, p. 24.

[53]      Mr Bills, Institute for Factors and Discounters, Committee Hansard, 23 January 2009, p. 44.

[54]      Mr Bills, Institute for Factors and Discounters, Committee Hansard, 23 January 2009, p. 44.

[55]      Mr Edwards, Australian Finance Conference, Committee Hansard, 23 January 2009, p. 44.

[56]      Clayton Utz, Submission 27, pp 2 and 8 to 10.

[57]      Mr Patch, Committee Hansard, 6 February 2009, p. 65.

[58]      The Queensland Law Society, Submission 19, and the Law Council of Australia Intellectual Property Committee of the Business Law Section, Submission 32 are the Australian submissions. The two United States based organisations who made submissions were the International Trademark Association, Submission 21, and the International Film and Television Alliance, Submission 22.

[59]      Mr Patch, Committee Hansard, 6 February 2009, p. 64.

[60]      For example, the Queensland Law Society, Submission 19, pp 5 and 6 raises a concern about proposed section 38.

[61]      International Film and Television Alliance, Submission 22.

[62]      International Film and Television Alliance, Submission 22, p. 1.

[63]      Mr Patch, Committee Hansard, 6 February 2009, p. 49.

[64]      Dr Popple, Committee Hansard, 6 February 2009, p. 62.

[65]      Ms Flannery, Clayton Utz, Committee Hansard, 22 January 2009, p. 31.

[66]      Submission No. 8, p. 11.

[67]      Mr Canning, Mallesons Stephen Jacques, Committee Hansard, 23 January 2009, p. 34.

[68]      Ms Flannery, Clayton Utz, Committee Hansard, 22 January 2009, p. 31.

[69]      Mr Wappett, Piper Alderman, Committee Hansard, 22 January 2009, p. 18.

CHAPTER 6 - Other technical matters

[1]        Dr Popple, Committee Hansard, 6 February 2009, p. 62.

Liberal Senators' Dissenting Report

[1]        For example, Mr Loxton, Allens Arthur Robinson, Committee Hansard, 23 January 2009, p. 28.

[2]        Drafting issues are discussed in detail in chapter 4.

[3]        For example, see Professor Duggan, Submission 1, p. 6.

[4]        Mr Faludi, Committee Hansard, 22 January 2009, p. 31.

[5]        Allens Arthur Robinson, Blake Dawson, Freehills and Mallesons Stephen Jacques, Submission 30, p. 14.

[6]        Professor Duggan, Committee Hansard, 23 January 2009, p. 7.

[7]        Clayton Utz, Submission 27, pp 1 and 2.

[8]        Attorney-General's Department, Submission 8, pp 143 to 163.

[9]        For example, see Mr Wappett, Piper Alderman, Committee Hansard, 22 January 2009, p. 13.

[10]      Ms Flannery, Committee Hansard, 22 January 2009, pp 25 and 26.

[11]      Mr Glenn, Committee Hansard, 21 January 2009, pp 14 to 16.