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This is a Bill, not an Act. For current law, see the Acts databases.
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2011
New South Wales
Courts and Other Legislation
Amendment Bill 2011
Act No , 2011
An Act to make miscellaneous amendments to certain legislation with respect to
courts and certain other legislation administered by the Attorney General.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Courts and Other Legislation Amendment Bill 2011
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Courts and Other Legislation Amendment Act 2011.
2 Commencement
This Act commences on the date of assent to this Act.
3 Explanatory notes
The matter appearing under the heading "Explanatory note" in
Schedule 1 does not form part of this Act.
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Courts and Other Legislation Amendment Bill 2011
Amendment of legislation Schedule 1
Schedule 1 Amendment of legislation
1.1 Crimes (Sentencing Procedure) Act 1999 No 92
[1] Section 100I Constitution of New South Wales Sentencing Council
Omit "15" from section 100I (2). Insert instead "16".
[2] Section 100I (2) (a) and (a1)
Omit section 100I (2) (a). Insert instead:
(a) one is to be a retired judicial officer (not being a retired
Magistrate), and
(a1) one is to be a retired Magistrate, and
[3] Schedule 1A Provisions relating to membership and procedure of New
South Wales Sentencing Council
Omit "8 members" from clause 10.
Insert instead "a majority of its members for the time being".
[4] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Courts and Other Legislation Amendment Act 2011 (but only to
the extent that it amends this Act)
[5] Schedule 2
Insert at the end of the Schedule (with appropriate Part and clause numbers):
Part Provisions consequent on enactment of
Courts and Other Legislation Amendment
Act 2011
Effect of amendments
Without limiting section 53 of the Interpretation Act 1987, the
amendment of section 100I by the Courts and Other Legislation
Amendment Act 2011 does not affect the appointment of any
existing member of the Sentencing Council (including the
appointment of the existing Chairperson of the Council).
Explanatory note
Item [2] of the proposed amendments to the Crimes (Sentencing Procedure) Act 1999
(the Act) will require a retired Magistrate to be appointed as a member of the New
South Wales Sentencing Council. Items [1] and [3] of the proposed amendments to the
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Courts and Other Legislation Amendment Bill 2011
Schedule 1 Amendment of legislation
Act makes consequential amendments to reflect the increased membership of the
Council.
Item [4] of the proposed amendments to the Act enables the Governor to make
regulations of a savings or transitional nature consequent on the enactment of the
proposed amendments to the Act.
Item [5] of the proposed amendments to the Act confirms existing appointments to the
Sentencing Council despite the proposed amendments.
1.2 Director of Public Prosecutions Act 1986 No 207
[1] Section 36 Savings and transitional provisions
Insert after section 36 (4):
(5) Clause 10 of Schedule 1 (as amended by the Courts and Other
Legislation Amendment Act 2011) extends to any appointment to
the office of Director made on or after the day on which the Bill
for that Act was first introduced into Parliament.
[2] Schedule 1 Provisions relating to Senior Officers
Omit clause 10 (2). Insert instead:
(2) The following provisions apply if a person who is or was a judge
becomes Director or a person who is or was Director becomes a
judge:
(a) in the case of a Director or former Director who becomes
a judge (whether or not for the first time):
(i) any period served by that person as Director is, for
the purposes of the Judges' Pensions Act 1953, to be
computed as portion of the person's service as a
judge in the judicial office that the person holds
immediately before the person's retirement as a
judge or death before such retirement (as the case
may be), and
(ii) the right to any pension that the person is receiving,
or is entitled to receive, under the Judges' Pensions
Act 1953 (as applied by this clause) in his or her
capacity as Director or a former Director ceases,
(b) in the case of a judge or former judge who becomes
Director:
(i) any period served by that person as a judge is, for
the purposes of the Judges' Pensions Act 1953 as
applied by this clause, to be computed as portion of
the person's service as Director where the person
holds that office immediately before the person's
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Courts and Other Legislation Amendment Bill 2011
Amendment of legislation Schedule 1
retirement as Director or death before such
retirement (as the case may be), and
(ii) the right to any pension that the person is receiving,
or is entitled to receive, under the Judges' Pensions
Act 1953 in his or her capacity as a judge or former
judge ceases.
[3] Schedule 1, clause 10 (6)
Omit the subclause. Insert instead:
(6) In this clause:
judge has the same meaning as in the Judges' Pensions Act 1953.
spouse has the same meaning as in the Judges' Pensions Act
1953.
Explanatory note
Item [2] of the proposed amendments to the Director of Public Prosecutions Act 1986
(the Act) makes it clear that if a judge or former judge is appointed as Director, then
his or her prior judicial service counts towards any judicial pension to which the Director
would be entitled under the Act. Item [3] of the proposed amendments to the Act makes
a consequential amendment.
Item [1] of the proposed amendments to the Act extends the new superannuation
provisions to any appointment to the office of Director made on or after the day on
which the Bill for the proposed Act is first introduced into Parliament.
1.3 Environmental Planning and Assessment Regulation 2000
Schedule 7 Savings and transitional provisions
Omit clause 23.
Explanatory note
The proposed amendment to the Environmental Planning and Assessment Regulation
2000 is consequential on the amendment made by Schedule 1.4 [1].
1.4 Land and Environment Court Act 1979 No 204
[1] Section 17 Class 1--environmental planning and protection appeals
Omit "96, 96AA, 96A, 97," from section 17 (d).
Insert instead "96A, 97, 97AA,".
[2] Section 20 Class 4--environmental planning and protection and
development contract civil enforcement
Insert after section 20 (1) (cia):
(cj) proceedings that have been transferred to the Court under
section 149B of the Civil Procedure Act 2005 (transferred
civil proceedings),
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Courts and Other Legislation Amendment Bill 2011
Schedule 1 Amendment of legislation
[3] Section 20 (3A)
Insert after section 20 (3):
(3A) The Court (constituted by a Judge) may, by order, declare that
any proceedings in the Court that it considers to be related or
ancillary to transferred civil proceedings are to be dealt with
together with the transferred civil proceedings. In the event of
such an order being made, the proceedings that are the subject of
the declaration may be dealt with under this Act as if they
belonged to Class 4 of the Court's jurisdiction even if they belong
to a different class of the Court's jurisdiction.
[4] Section 34A Proceedings to which on-site hearing procedures apply
Omit section 34A (1) (a) and (b).
[5] Section 34A (1) (c1)
Insert after section 34A (1) (c):
(c1) proceedings in Class 1 of the Court's jurisdiction that are
brought under section 97AA of the Environmental
Planning and Assessment Act 1979,
[6] Section 34A (1) (g)
Insert after section 34A (1) (f):
(g) proceedings in Class 2 of the Court's jurisdiction that are
brought under section 14B of the Trees (Disputes Between
Neighbours) Act 2006.
[7] Schedule 3 Savings, transitional and other provisions
Insert at the end of the Schedule (with appropriate clause numbering):
Provisions consequent on enactment of Courts and Other
Legislation Amendment Act 2011
(1) The amendment of section 17 (d) by the amending Act does not
affect the continued allocation of proceedings brought under
repealed section 96 or 96AA of the Environmental Planning and
Assessment Act 1979 (as in force before the commencement of
section 97AA of that Act) to Class 1 of the Court's jurisdiction.
(2) Section 34A (as amended by the amending Act) extends to:
(a) appeals under section 97AA of the Environmental
Planning and Assessment Act 1979 lodged (but not yet
heard) before the commencement of section 34A (1) (c1),
and
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Courts and Other Legislation Amendment Bill 2011
Amendment of legislation Schedule 1
(b) applications under section 14B of the Trees (Disputes
Between Neighbours) Act 2006 made (but not yet heard)
before the commencement of section 34 (1) (g).
(3) Section 34A (as in force immediately before the repeal of
section 34A (1) (a) and (b) by the amending Act) continues to
apply in relation to appeals made under repealed section 96 or
96AA of the Environmental Planning and Assessment Act 1979
(as in force before the commencement of section 97AA of that
Act).
(4) In this clause:
amending Act means the Courts and Other Legislation
Amendment Act 2011.
Explanatory note
Item [1] of the proposed amendments to the Land and Environment Court Act 1979 (the
Act) expressly provides for appeals against modifications of development consents
made under section 97AA of the Environmental Planning and Assessment Act 1979 to
be dealt with as part of the Court's Class 1 jurisdiction. The proposed amendment
recognises what is already the position by virtue of the updating of references effected
by clause 23 of Schedule 7 to the Environmental Planning and Assessment Regulation
2000 (which is to be repealed by Schedule 1.3).
Item [2] of the proposed amendments to the Act provides for civil proceedings that have
been transferred to the Court from the Supreme Court under section 149B of the Civil
Procedure Act 2005 to be dealt with as part of the Court's Class 4 jurisdiction. Item [3]
of the proposed amendments to the Act enables the Court to deal with proceedings in
the Court that are related or ancillary to the transferred proceedings as Class 4 matters.
Item [5] of the proposed amendments to the Act enables appeals under section 97AA
of the Environmental Planning and Assessment Act 1979 to be dealt with by means of
on-site hearings. Section 97AA of the Environmental Planning and Assessment Act
1979 enables an applicant for a modification of a development consent to appeal to the
Court against the determination of the application by the consent authority. Item [4] of
the proposed amendments repeals provisions that are now outdated because of the
enactment of section 97AA.
Item [6] of the proposed amendments to the Act enables proceedings on applications
made to the Court under section 14B of the Trees (Disputes Between Neighbours) Act
2006 to be dealt with by means of on-site hearings. Section 14B of the Trees (Disputes
Between Neighbours) Act 2006 enables an owner of land to apply to the Court for an
order to remedy, restrain or prevent a severe obstruction of sunlight or views by high
hedges.
Item [7] of the proposed amendments allows appeals under section 97AA of the
Environmental Planning and Assessment Act 1979 and applications under section 14B
of the Trees (Disputes Between Neighbours) Act 2006 that have been lodged or made
(but not yet heard) to be dealt with by means of on-site hearings. The item also deals
with other matters of a savings or transitional nature.
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Courts and Other Legislation Amendment Bill 2011
Schedule 1 Amendment of legislation
1.5 Law Reform Commission Act 1967 No 39
Section 13 Reports
Omit "Minister for tabling in Parliament" from section 13 (5).
Insert instead "Minister. Any report furnished to the Minister must be tabled
in each House of Parliament within 14 sitting days after the Minister receives
the report."
Explanatory note
The proposed amendment to the Law Reform Commission Act 1967 will require any
report provided to the Minister by the Commission to be tabled in each House of
Parliament within 14 sitting days of its receipt by the Minister.
1.6 NSW Trustee and Guardian Act 2009 No 49
[1] Section 35 Reciprocal arrangements for intestacy
Omit the definition of reciprocating State from section 35 (1). Insert instead:
reciprocating State means:
(a) any other State or a Territory of Australia, or
(b) any country prescribed by the regulations as a
reciprocating State for the purposes of this section.
[2] Section 81 Reciprocal arrangements for management of estates
Omit the definition of reciprocating State from section 81 (1). Insert instead:
reciprocating State means:
(a) any other State or a Territory of Australia, or
(b) any country prescribed by the regulations as a
reciprocating State for the purposes of this section.
Explanatory note
The amendments to the NSW Trustee and Guardian Act 2009 confirm that other States
and the Territories are reciprocating States for the purposes of the making of reciprocal
arrangements in relation to an intestacy or the management of an estate.
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Courts and Other Legislation Amendment Bill 2011
Amendment of legislation Schedule 1
1.7 Privacy and Personal Information Protection Act 1998
No 133
Section 3 Definitions
Insert after paragraph (g) of the definition of law enforcement agency in
section 3 (1):
(g1) the Office of the Sheriff of New South Wales,
Explanatory note
The proposed amendment to the Privacy and Personal Information Protection Act 1998
adds the Office of the Sheriff of New South Wales as a law enforcement agency for the
purposes of that Act.
1.8 Surrogacy Act 2010 No 102
[1] Section 38 Birth of child must be registered
Omit "notified or" wherever occurring.
[2] Schedule 1 Savings, transitional and other provisions
Insert at the end of the Schedule (with appropriate Part and clause numbers):
Part Provision consequent on enactment of
Courts and Other Legislation Amendment
Act 2011
Application of amendments
The amendments made to section 38 by the Courts and Other
Legislation Amendment Act 2011 apply in relation to the making
of parentage orders on or after the day on which the amendments
commence.
Explanatory note
Item [1] of the proposed amendments to the Surrogacy Act 2010 (the Act) will make
the registration of the birth of a child in an appropriate register of births, deaths and
marriages a precondition for the making of a parentage order under the Act. Currently,
it is sufficient if the birth has only been notified.
Item [2] of the proposed amendments to the Act makes it clear that the amendments
made to section 38 of the Act will only apply in relation to the making of parentage
orders on or after the commencement of the amendments.
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Courts and Other Legislation Amendment Bill 2011
Schedule 1 Amendment of legislation
1.9 Trustee Companies Act 1964 No 6
[1] Section 34A Transfer determinations
Omit section 34A (1) (a). Insert instead:
(a) the Australian Securities and Investments Commission
(ASIC) makes a determination under section 601WBA of
the Corporations Act 2001 of the Commonwealth that
there is to be a transfer of estate assets and liabilities from
a specified trustee company (the transferring company) to
another licensed trustee company (the receiving
company), and
[2] Section 34A (1)
Insert at the end of section 34A (1):
Note. Section 601WBA of the Corporations Act 2001 of the
Commonwealth enables ASIC to make a transfer determination if:
(a) ASIC has cancelled the licence of the transferring company (in
which case the determination is called a compulsory transfer
determination), or
(b) the transferring company has applied for such a determination (in
which case the determination is called a voluntary transfer
determination).
Explanatory note
Section 601WBA of the Corporations Act 2001 of the Commonwealth (as recently
amended by the Corporations and Other Legislation Amendment (Trustee Companies
and Other Measures) Act 2011 of the Commonwealth) enables the Australian
Securities and Investments Commission (ASIC) to make a determination that there is
to be a transfer of estate assets and liabilities from a trustee company (the transferring
company) to another licensed trustee company (the receiving company). To make
this determination, ASIC must be satisfied (amongst other things) that legislation to
facilitate the transfer that satisfies the requirements of section 601WBC of the
Corporations Act 2001 has been enacted in the State or Territory in which the
transferring company and receiving company are situated.
Prior to the recent amendments made to section 601WBA of the Corporations Act
2001, ASIC could only make a transfer determination if ASIC had cancelled the
transferring company's registration. These kinds of determinations are called
compulsory transfer determinations. Following the amendments, ASIC may also
make a transfer determination on the application of the transferring company. These
new kinds of determinations are called voluntary transfer determinations.
Section 34A of the Trustee Companies Act 1964 (the Act) was originally enacted to
satisfy the requirements of section 601WBC of the Corporations Act 2001 for New
South Wales legislation in relation to compulsory transfer determinations.
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Courts and Other Legislation Amendment Bill 2011
Amendment of legislation Schedule 1
The proposed amendments to section 34A of the Act ensure that the section will now
extend to voluntary transfer determinations made by ASIC as well as to compulsory
transfer determinations.
Page 11
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