Mark McKillop Barrister

In December 2023 I presented a paper with my colleague, Ned Marlow-Weir, on the Commonwealth response to Whittaker. Hit the download button below for a copy of the paper and accompanying powerpoint.

The review was conducted by Bruce Whittaker, an expert on the PPSA closely involved in its creation and a long time partner of Ashurst.  His appointment was to conduct review of the PPSA.   The review was mandated by s343 of the PPSA, which required it be completed within 3 years of the commencement of the register (30 January 2015).   An interim report was provided on 31 July 2014 and a final report on 15 February 2015 (Whittaker Report).

The Whittaker Report found that many small businesses were failing to comply with the act due to the complexity of the rules. Stakeholders contributing to the review said the act had actually increased the cost of obtaining finance for small businesses despite the legislation attempting to achieve the opposite.

The Whittaker Report found that while the PPSA “has improved consistency in Australia’s secured transactions laws”, many submissions to the review described the Act and the Register as being far too complex, with meaning that is often unclear, and that “the resultant uncertainty has not allowed the Act to reach its potential”.

Whittaker made 394 recommendations for reform, of which the Commonwealth has accepted 345. The Attorney-General’s department has assembled an exposure draft of amending legislation to the Act and new regulations, a draft consolidated amended PPSA, a public consultation paper and an index of the response to each recommendation.  That material can be found here:  https://consultations.ag.gov.au/legal-system/government-response-to-pps-review/. The Commonwealth called for public consultation on the exposure drafts.

The recommendations are incremental, not revolutionary. Whittaker described them as lacking any magic bullet.

Our paper and seminar reviewed some of the more interesting recommendations by Whittaker and the government response to them, namely:

• Changes surrounding PPS Leases;
• Changes to the registration process – key highlights;
• Simplified collateral classes;
• Changes to PMSI’s;
• Registering trusts – the ABN/ACN dilemma resolved
• Further foreshadowed reforms to registration of fixtures

Ned and I, along with a team of other members of the Commercial Bar Association of the Victorian Bar (known as Commbar), also wrote Commbar’s submission to the Commonwealth on its response.

A copy of the Commbar submission can be downloaded by clicking below:

At this stage the Commonwealth has not further responded with final legislation.