committee strongly recommends that the Department reconsiders the balance
between certainty of the law and the accessibility of the provisions with a
- simplifying the
language of the exposure draft bill – for example, wording provisions clearly
and limiting them to deal only with common circumstances;
- simplifying the
structure of the exposure draft bill – to minimise the cross-referencing
- simplifying the
terms used - for example instead of 'tangible goods' use the term 'goods'
appropriately defined to ensure the full meaning needed for the reform is
ascribed to the term; and
- using overseas
provisions as often as possible to allow overseas experience to provide
guidance for the Australian model.
committee recommends that the commencement date for the scheme be extended by
at least 12 months to May 2011 for the committee's recommendations to be
implemented and for advice from stakeholders to be taken into account before
the content of the bill is finalised.
committee recommends that the bill include a requirement that the operation of
the bill be reviewed three years after it commences in a process that includes
extensive consultation with industry, governments, lawyers, consumers and
committee recommends that the primary legislation for the personal property
securities reform include the key privacy protections for individuals,
including a prohibition on making the address details of any individual public.
committee recommends that either:
- (a) a Privacy Impact
Assessment be undertaken by a person or organisation that is independent from
the government and who has experience in undertaking such assessments and the
results of the assessment are made public, or
- (b) the Department's
Privacy Impact Assessment is reviewed by a person or organisation that is
independent from the government and who has experience in undertaking such
assessments, and the results of the review are made public.
committee recommends that if any issues raised by the Office of the Privacy
Commission in its submission are not considered as part of the Privacy Impact
Assessment then these matters should be separately considered by the Attorney-General's
Department and a response to the issue be provided to the Office of the Privacy
Commission in writing or made public.
committee recommends retaining the requirement for rights and duties to be
exercised honestly and in a commercially reasonable manner. The intended scope
of these requirements should be explained in detail in the bill's explanatory
explanatory memorandum should particularly explain that the requirement to act
in a commercially reasonable manner should not fetter or undermine the ability of
parties with similar bargaining power to contractually agree about what
constitutes commercially reasonable behaviour.
committee recommends that the bill adopt existing international personal
property security conflict of laws provisions, such as the New Zealand conflict
of laws model, unless there is a particular reason to depart from those
committee recommends that the scope and content of the enforcement provisions
of the exposure draft bill be reviewed by the Department with particular
attention to ensuring that the provisions are comprehensive and adequate.
committee recommends that consideration be given to improving the priority of
an unperfected lessor as against unsecured or other unperfected interests in
committee recommends that the explanatory memorandum and the proposed education
campaign adequately explain the purpose and effect of the draft intellectual
property provisions, including disseminating the information to appropriately
targeted international industries, organisations and stakeholders.
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