Outline of the Personal Property Securities Act 2009 (Cth)

Australia has new national legislation - the Personal Property Securities Act 2009 (Cth) and the Personal Property Securities Regulations 2010 – which commenced operation on 30 January 2012. The policy objectives of the new legislation are to increase certainty and consistency and to reduce complexity and cost. To achieve this, the legislation treats like transactions alike, by focusing on substance over form, and so removes distinctions between security interests which have been based on their structure. Differences based on the location or nature of the secured property and the debtor’s legal form, as an individual or company, have also disappeared. We now have one single national scheme and one national electronic registration system for all security interests throughout Australia. The Act applies to security interests in tangible and intangible personal property, including those based on some form of title retention which are not security interests under the general law. This legislation rationalises previous laws and bring about substantial changes to this area of law. This paper seeks to explain the principal changes and their implications.

Queensland property legislation update

This article discusses the legislative changes introduced by the new Government in Queensland in 2012 and their impact on property transactions. The changes generally relate to the government’s mandate to reduce red tape in property transactions as well as election promises to reintroduce the stamp duty reduction for the purchase of a home and wind back the previous government’s changes to the lot entitlement provisions of the Body Corporate and Community Management Act 1997.

When should private property rights give way to the public interest?

Since Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177 it has been recognised that corporations with substantial market power are subject to special responsibilities and restraints that corporations without market power are not. In NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 McHugh A-CJ, Gummow, Callinan and Heydon JJ in their joint reasons stated (at [76]), that s 46 of the Competition and Consumer Act 2010 (Cth) (CCA) can operate not only to prevent firms with substantial market power from doing prohibited things, but also compel them positively to do things they do not want to do. Their Honours also stated (at [126]) that the proposition that a private property owner who declines to permit competitors to use the property is immune from s 46 is “intrinsically unsound”. However, the circumstances in which a firm with substantial power must accommodate competitors, and private property rights give way to the public interest are uncertain. The purpose of this Note is to consider recent developments in two areas of the CCA where the law requires private property rights to give way to the public interest. The first part of the Note considers two recent cases which clarify the circumstances in which s 46 of the CCA can be used to compel a firm with substantial market power to accommodate a competitor and allow the competitor to make use of private property rights in the public interest. Secondly, on 12 February 2014 the Minister for Small Business, the Hon Bruce Billson,released the Productivity Commission’s Final Report, on the National Access Regime in Pt IIIA of the CCA (National Access Regime, Inquiry Report No 66, Canberra). Pt IIIA provides for the processes by which third parties may obtain access to infrastructure owned by others in the public interest. The Report recommends that Pt IIIA be retained but makes a number of suggestions for its reform, some of which will be briefly considered.

The human embryo as property? Cryopreservation and the challenges for law

The development of the new reproductive technologies has presented significant challenges for policy makers and law reformers. This article focuses on the particular challenges posed by cryopreservation of embryos. These issues are analysed through discussion of relevant Australian statutory provisions and United States case law. The article concludes with a consideration of whether the property model provides an appropriate framework for reproductive material.

New sale and leasing requirements for owners of swimming pools and their application to strata schemes

This article considers the changes to the Swimming Pools Act 1992 (NSW)(Act) which established a State-wide online register of all private swimming pools in NSW requiring pool owners to register their pools by 19 November 2013. Amendments to the Act introduced changes to the conveyancing and residential tenancy regulations to require vendors and landlords to have a valid Compliance Certificate issued for their swimming pool before offering the property for sale or lease. This article provides a brief overview of the new sale and leasing requirements effective from 29 April 2014, focusing on its application to lot owners within strata and community title schemes and other owners of water front properties with pools on Crown Land Reserves.

Balancing information disclosure and “Red Tape” : Queensland’s proposal of seller disclosure

The Queensland Property Law Review is currently reviewing seller disclosure laws in Queensland. The review will consider if the desire to provide consumers of real estate with valuable timely information about a property offered for sale can be effectively delivered with a minimum of red tape. This article examines the principles proposed by the first discussion paper on seller disclosure and their likely effect in practice.

Breaches of lease between exercise of option to renew and expiry of lease in Queensland

The decision of Greppo v Jam-Cal Bundaberg Pty Ltd [2015] QCA 131 illustrates a defect in s 128 of the Property Law Act 1974(Qld) which gives a right to a lessee to apply for relief against forfeiture against loss of a right to exercise an option to renew. The defect arises because the legislation does not adequately deal with breaches that occur after the exercise of the option but before the expiry of the lease. Most commercial leases of all kinds have a standard provisions, as the lease in this case, as a conditions of the exercise of the option to renew that the lessee will have given notice of exercise within the time specified to the lessor and will have up to the date of expiry of the lease paid all rent and observed all lessee’s covenants. The difficulties occur because invariably an option must be exercised before the expiry of the lease when a lessee may not be in breach of the lease but may later prior to the expiry of the lease fall into breach. As this decision indicates,at least in Queensland, that the lessee who desires to challenge the lessor’s right to enforce those conditions can neither seek relief under s 128 against forfeiture of the right to exercise the option ,or indeed, under s 124 of the Property Law Act 1974 to preserve the agreement for lease brought about by the otherwise regular exercise of the option to renew. The decision cries out for legislative reform along the lines of s 133E of the Conveyancing Act 1919(NSW) which was amended in 2001 to meet this contingency.

Owning the new economy: A guide to intellectual property management for Australia's clean technology sector

Australia's history of developing and managing the intellectual property rights of domestic innovations is – at best – mixed. The relevant immaturity of Australia's public sector commercialisation infrastructure has, over recent decades, been the subject of both stinging academic commentary and not insubstantial juridical disbelief. That said, improvements have been observed, and increasingly, private sector involvement in public sector innovation has allowed for a deepening refinement of domestic approaches to IP retention and ongoing management. Rather than a bare critique of Australia's IP management track-record, or a call for specific law reform, this manual engages at a more practical level some of the foundational questions that ought be asked by entities involved in the 'cleantech' industries. Beginning simply at what is IP and why it matters, this manual examines the models of IP management available to market participants around the world. The process of IP management is defined and assessed through a commercial lens; assessing the 'pros' and 'cons' of each management choice with a view to equipping the reader to determine which approach may be best adapted to their given clean tech project. The manual concludes with a brief survey of alternative models of Intellectual Property management, including relevant examples from overseas and prominent suggestions arising out of the academic discourse. It appears inevitable that the global warming challenge will prompt specific legislative, regulatory and multi-lateral responses by nation states, however, the ultimate form of any such response remains a highly contested political and social issue. Accordingly, the structure of this manual, and the discussion points raised herein, seek introduce the reader to some of the more contentious debates occurring around the world at the intersection between IP and climate change.

Accounting for risk: The advent of capped conveyancing title insurance

Title insurance companies originating from America, have, in the past 15 years become part of the Australian conveyancing landscape. However for most residential freehold owners, their activities would be a mystery. A purchaser does not routinely obtain title insurance, with the companies presently focussing on servicing the mortgagee sector. While the lack of penetration in the residential purchaser market may be attributed to the consumer’s lack of knowledge, evidence from Ontario and New Zealand illustrates that title insurance is likely to become an additional cost in the conveyancing process in Australia. In this article we highlight the reasons why, and demonstrate how title insurers have, by working with the legal profession been able to subtly move the risk of responsibility for compensation for loss, (at least in the first instance) from the state to the insurer, but with the added benefit for the state and the conveyancing agents that the cost of the insurance is ultimately borne by the consumer. In New Zealand this development is being accelerated by the introduction of capped conveyancing title insurance. Whether title insurance will become part of the conveyancing process is no longer the relevant question for Australia, (it undoubtedly will), but the unknown issue is just how title insurance companies will work with conveyancing agents to infiltrate the market, and what response this infiltration will have in terms of the state’s view as to their continued role in the provision of assurance. We suggest that developments from New Zealand in relation to capped conveyancing insurance are likely to be replicated in Australia in the near future, and that the state’s role in providing an assurance fund will continue, though the state may seek to expand the areas in which the right to compensation is restricted.

BOOK: Property Rights and Human Rights in a Global Context

Property as a human rights concern is manifested through its incorporation in international instruments and as a subject of the law through property-related cases considered by international human rights organs. Yet, for the most part, the relationship between property and human rights has been discussed in rather superficial terms, lacking a clear substantive connection or common language. That said, the currents of globalisation have witnessed a new era of interrelation between these two areas of the law, including the emergence of international intellectual property law and the recognition of indigenous claims, which, in fundamental ways, speak to an engagement with human rights law.

This collection starts the conversation between human rights lawyers and property lawyers and explores analytical approaches to the increasing relationship between property and human rights in a global context. The chapters engage with key theoretical and policy debates and range across three main themes: the re-evaluation of the public/private divide in the law; the tensions between the market and social justice in development and the balance between the rights of individuals and those of communities. The chapters adopt a global, comparative perspective and engage in case studies from countries including India, Philippines, Brazil, the United States, the United Kingdom and includes various regions of Africa and Europe.

Early land grants and reservations : Any lessons from the Queensland experience for the sustainability challenge to land ownership

Environmentalists have called for a new property paradigm premised on the idea of land ownership as a delegated responsibility to manage land and resources for the public benefit. An examination of Crown freehold grants from the beginnings of settlement until the 1890s in Queensland shows that fee simple titles were granted subject to express conditions and reservations designed to reserve useful natural resources to the Crown, and to promote public purposes. Over time, legislative regulation of landowner’s rights rendered obsolete the use of express conditions and reservations in grants. One result of this change was that the inherently limited nature of fee simple ownership, and the communal obligations to which it is subject, are less transparent than in colonial times.