Personal Property Securities Act 2009 and the Admiralty Act 1988: Implications in matters maritime and reform

• Author: Alexander Street - Edward Cox
• Position: SC, Barrister: <www.sevenwentworth.com.au> - Barrister: <www.16wardell.com.au>
• Pages: 126-129

(2011) 25 A&NZ Mar LJ

NATIONAL ADMIRALTY SEMINAR 2010

PERSONAL PROPERTY SECURITIES ACT 2009 AND THE

ADMIRALTY ACT 1988

IMPLICATIONS IN MATTERS MARITIME AND REFORM

Ale xand e r Stree t∗ a nd Edw a rd Co x∗∗

Introduction

This paper seeks to identify some of the issues that are likely to arise in relation to the Personal Property

Securities Act 2009 (‘PPSA’) concerning matters maritime and seeks to identify some of the areas that might be

the subject of review by the Australian Law Reform Commission (‘ALRC’) of the Admiralty Act 1988. There is

scope to contend that the Admiralty Act 1988 is now substantially out of balance with Australia’s international

interests, outdated and needs review to maintain a modern and effective Admiralty jurisdiction that is

internationally competitive and internationally releva nt.

The incomplete tinkering that has occ urred in relation to maritime law through the PPSA is a timely reminder of

the need to more fully review the interaction of the PPSA with international maritime law. The oceans of

international maritime law were a topic not adequately add ressed at the time of drafting the initial PPSA. It

appears from the le gislative history of the PPSA and the secondary material giving rise t o the new legislation

that there has been inadequate consideration as to the implications of this reform in the sphere of maritime la w.

The belated patchwork that has occurred as a result of the 2009 amendment is a reflection of the inadequate

attention to reform in the broad ranging rami fications of the PPSA and its implications for the ongoing

importance of Australia’s international maritime jurisdiction.

The importance of the international maritime jurisdiction is central to an understanding of the consequences of

this type of domestic legislation on the wider unifor m codification that has been occurring in international

maritime trade and commerce. International codification of maritime trade and commerce has been developing a

uniformity of legal d octrine refined by the international stakeho lders and embodied in t reaties, protocols and

multi-lateral agreements. The worthy object of codification of personal property security interests at the

domestic level for consumer and revenue objects needs to be balanced against the international codification of

legal doctrine and advancement of economic interests in the increasingly accessible and contracting world

markets. Maritime trade and commerce for Australia given its geographic size and location could not be of

greater importance in the sphere of international economic interests. The international jurisdic tion exercised by

Federal Court of Australia in its exercise of Commonwealth judicial power in matters of maritime and

Admiralty jurisdiction under s 76(iii) of the Constitution has a global reach and vital significa nce for Australia.

The judicial determinations of the Fed eral Court of Australia not only quells the international maritime

controversy but also advances certainty within international maritime trade and commerce as a result of the

judgment having inter national authoritative guidance as a matter of judicial comity.

The PPSA does not reflect an international code or treaty and its potential impact within the sphere of

international maritime trade and commerce has not been fully addressed by the drafters. Nor has there been

adequate consultation with the international maritime stakeholders. Moreover the impact of the PPSA on the

international Admiralty and maritime jurisdiction conferred by the Constitution has not been the subject of

detailed analysis. It is essential from the viewpoint of international trade and commerce that these areas of

maritime interests affected by the PPSA are much more closely reviewed. This paper cannot fully address these

areas of maritime interest and all the maritime stakeholders need to input upon the consequenc es and constraints

of the proposed reform effected by the PPSA. The impact of the PPSA should be considered from the viewpoint

of Australia’s international maritime trade and commerce interests and t he potential ramifications in the exercise

of the Constitutional Admiralty and maritime jurisdiction.

This paper touches upon some of the pot ential inadequacies in relation to the PPSA, and the implications for

matters maritime, as well as addressing areas of potential focus for reform by the ALRC of the Admiralty Act

∗SC, Barrister: <www.sevenwentworth.com.au>.

∗∗ Barrister: <www.16wardell.com.au>.

[This paper was presented at the Federal Court of Australia National Admiralty Seminar in Sydney Australia on 9 November 2010 - Ed].

126