STATE EMERGENCY SERVICE ACT 1989 - SCHEDULE 1

STATE EMERGENCY SERVICE ACT 1989 - SCHEDULE 1

SCHEDULE 1 – Savings, transitional and other provisions

(Section 30)

Part 1 - General

1 Savings and transitional regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts--

this Act

State Emergency Service Amendment Act 2005

State Revenue and Other Legislation Amendment (Budget Measures) Act 2008 , but only to the extent that it amends this Act

Emergency Services Legislation Amendment (Finance) Act 2009 , but only to the extent it amends this Act.

State Emergency Service Amendment Act 2009

State Emergency Service Amendment (Volunteer Consultative Council) Act 2010

any other Act that amends this Act

(2) Any such provision may, if the regulations so provide, take effect on the date of assent to the Act concerned or a later date.

(3) To the extent to which any provision takes effect on a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as--

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

Part 2 - Provisions consequent on this Act

2 Superseded references

In any other Act, or in any instrument made under any Act or in any other instrument of any kind--

(a) a reference to State Emergency Services and Civil Defence is to be read as a reference to the State Emergency Service, and

(b) a reference to the Director or other officer or member of State Emergency Services and Civil Defence is to be read as a reference to the Director-General or other officer or member of the State Emergency Service.

3 Director, Deputy and other public service staff

The repeal of the State Emergency Services and Civil Defence Act 1972 does not affect the appointment of the person holding office as the Director or as the Deputy Director of the State Emergency Service at the time of that repeal or of other staff under the Public Sector Management Act 1988 .

4 Local controllers and other officers

A person holding office as a local controller, or holding any other office, under section 8 of the State Emergency Services and Civil Defence Act 1972 is to be taken to have been appointed to that office under this Act.

5 Division of State

The divisions established by an order in force under section 7 of the State Emergency Services and Civil Defence Act 1972 immediately before the repeal of that Act are to be taken to be divisions established under this Act until altered under this Act.

Part 3 - Provisions consequent on enactment of State Emergency Service Amendment Act 2005

6 Definition

In this Part--


"amending Act" means the State Emergency Service Amendment Act 2005 .

7 Construction of references to S.E.S. units

A reference in any other Act, or in any instrument, to an S.E.S. unit is taken to be a reference to an SES unit.

8 Continuation of regions and office of region controllers

(1) A division established under this Act (as in force immediately before the commencement of the amending Act) is taken to be a region established under section 14.

(2) A reference in any other Act, or in any instrument, to a division (within the meaning of this Act as in force immediately before the commencement of the amending Act) is taken to be a reference to a region.

(3) A reference in any other Act, or in any instrument, to a division controller (within the meaning of this Act as in force immediately before the commencement of the amending Act) is taken to be a reference to a region controller.

(4) A person holding office as a division controller under this Act (as in force immediately before the commencement of the amending Act)--

(a) is taken to be a region controller appointed under section 16, as substituted by the amending Act, and

(b) continues to hold office as a region controller.

(5) It does not matter that a person referred to in subclause (4) is not a member of staff of the State Emergency Service.

9 Continuation of office of unit controllers

A person holding office as a unit controller immediately before the repeal of the State Emergency Service Regulation 2001 continues to hold office as a unit controller for the balance of his or her term of office or until the person's appointment is revoked in accordance with this Act, whichever occurs first.

10 Continuation of office of deputy controllers

A person holding office as a deputy to a division controller, local controller or unit controller immediately before the repeal of the State Emergency Service Regulation 2001 continues to hold that office for the balance of his or her term of office or until the person's appointment is revoked in accordance with this Act, whichever occurs first.

Part 4 - Provisions consequent on State Revenue and Other Legislation Amendment (Budget Measures) Act 2008

11 Insurance contributions

(1) In this clause,
"amending Act" means the State Revenue and Other Legislation Amendment (Budget Measures) Act 2008 .

(2) For the purposes of calculating the advance payments under section 24M, as inserted by the amending Act, and the adjustments to be made under section 24O, as so inserted, in respect of an insurance company for the first financial year commencing on 1 July 2009--

(a) the Minister may have regard to the total amount of premiums received by or due to the company during the previous financial year, as disclosed under Part 5 of the Rural Fires Act 1997 , and

(b) any return furnished by an insurance company or person under that Part during the previous financial year may be taken into account for the purposes of those sections as if it were a return furnished under Part 5A of this Act, as inserted by the amending Act.

(3) This clause is subject to the regulations.

Part 5 - Provisions consequent on enactment of State Emergency Service Amendment Act 2009

12 Definition

In this Part--


"amending Act" means the State Emergency Service Amendment Act 2009 .

Part 6 - Provisions consequent on enactment of Fire and Emergency Services Levy Act 2017

13 Definitions

In this Part--


"amending Act" means the Fire and Emergency Services Levy Act 2017 .


"final contribution" --see clause 16.


"final return" --see clause 15.


"final year of the scheme" means the financial year commencing on 1 July 2016.


"insurance company" means any body corporate, partnership, association, underwriter or person that or who--

(a) issues or undertakes liability under policies of insurance against loss of or damage to any property situated in New South Wales, or

(b) receives premiums in respect of such policies of insurance on behalf of or for transmission to any body corporate, partnership, association, underwriter or person outside New South Wales.

(a) the premiums, or

(b) bonuses or return premiums allowed in respect of policies of insurance the subject of the premiums, or

(c) such part of the premiums received by or due to the company as is paid or due to be paid by way of reinsurance by the company to another insurance company in the State,

14 Amendments have effect from 1 July 2017

(1) The amendments to Part 5A of this Act made by the amending Act apply in respect of the financial year commencing on 1 July 2017 and subsequent financial years.

(2) Subject to this Part, the amendments do not affect any liability for a SES contribution for a financial year commencing before 1 July 2017 and Part 5A, and Schedule 2, as in force immediately before the amendments made to this Act by the amending Act, continue to apply in respect of any such financial year as if the amendments had not been made.

15 Final returns to be provided by insurance companies

(1) An insurance company must, by 30 September 2017 or another date specified by the Commissioner by notice published in the Gazette, give to the Commissioner--

(a) a return in the form approved by the Commissioner showing the total amount of premiums received by or due to the company for the previous financial year for relevant insurance (a
"final return" ), and

(b) a certificate from an auditor that relates to the return and complies with subclause (2).

(2) The certificate from the auditor must--

(a) be in the form approved by the Commissioner, and

(b) be from an auditor who is--

(i) a registered company auditor within the meaning of the Corporations Act 2001 of the Commonwealth, or

(ii) a person not resident in the State who has qualifications that, in the Commissioner's opinion, are appropriate for the giving of the certificate.

(3) An insurance company is guilty of an offence if it--

(a) fails to give the Commissioner a return and certificate as required by this clause, or

(b) gives the Commissioner a return that is false or misleading in a material particular.

: Maximum penalty--20 penalty units.

16 Calculation of final contribution

(1) The Commissioner must, by the end of 30 November 2017, calculate a final contribution for each liable insurance company.

(2) A
"final contribution" is the total SES contribution that would have been payable by the insurance company for the final year of the scheme if the contribution had been calculated on the basis of--

(a) the premium total provided by the insurance company in its final return, and

(b) the premium totals provided by all insurance companies in their final returns.

(3) If an insurance company fails to provide a final return to the Commissioner within the time required under clause 15, or any further time (not exceeding 30 days) allowed by the Commissioner--

(a) the Commissioner may estimate the premium total for that insurance company using any information available to the Commissioner (including information from previous returns, if any), and

(b) that estimate is taken to be the premium total provided by the insurance company in its final return.

(4) If the Commissioner estimates the premium total for an insurance company under subclause (3), the final contribution payable by that insurance company is that estimate plus an insurer loading of 50% of that estimate.

(5) In this clause--


"liable insurance company" means an insurance company liable for a SES contribution in the final year of the scheme.


"premium total" means the total amount of premiums of an insurance company that are subject to an SES contribution.

17 Final assessment

(1) The Commissioner must give to each insurance company that made or is required to make a SES contribution for the final year of the scheme a final assessment notice for that year.

(2) The final assessment notice must state the following--

(a) the final contribution payable by the insurance company for the final year of the scheme,

(b) the amount of any SES contribution already paid by the insurance company for that financial year including, if paid in instalments, the total of all instalments already paid (the
"total contribution already paid" ),

(c) if the final contribution payable by the insurance company exceeds the total contribution already paid--

(i) the difference between those amounts (a
"contribution deficit" ), and

(ii) the date by which the contribution deficit must be paid to the Commissioner (being a date that is no earlier than 30 days after the assessment notice is given to the insurance company),

(d) if the total contribution already paid exceeds the final contribution payable by the insurance company, the difference between those amounts (a
"contribution surplus" ).

(3) If the assessment notice specifies a contribution deficit, the insurance company must pay the contribution deficit to the Commissioner.

(4) The contribution deficit is payable to the Commissioner by the date for payment specified in the assessment notice or any later date permitted by the Commissioner.

(5) If an insurance company fails to pay a contribution deficit in full by the date on which it is payable to the Commissioner, the applied provisions of the Taxation Administration Act 1996 apply to the unpaid amount as if the unpaid amount were a tax and this Act were a taxation law.

(6) The
"applied provisions" of the Taxation Administration Act 1996 are the following provisions of that Act--

(a) Division 1 (Interest) of Part 5,

(b) Division 2 (Penalty tax) of Part 5 (except sections 28- 30),

(c) any provisions that are relevant to the interpretation of the above provisions.

(7) For the purpose of the applied provisions of the Taxation Administration Act 1996 --

(a) a tax default is taken to occur if the contribution deficit is not paid in full by the date on which it is payable, and

(b) a reference to the Chief Commissioner is to be read as a reference to the Commissioner under this Act.

(8) If a contribution deficit, or any part of a contribution deficit, is not paid in full by an insurance company to the Commissioner by the date on which it is payable, the unpaid amount and any interest and penalty tax payable on the unpaid amount--

(a) constitutes a debt due and payable to the Commissioner, and

(b) may be recovered in a court of competent jurisdiction by the Commissioner.

(9) A contribution deficit is to be paid into the Fund.

(10) If the assessment notice specifies a contribution surplus, the Commissioner is to refund the amount of the contribution surplus to the insurance company no later than 30 June 2018.

(11) A refund is to be paid from the Fund.

18 Liability of owner where foreign insurer involved

(1) The Commissioner may notify a relevant owner that the owner is responsible for an appropriate proportion of any contribution deficit that is required to be paid by a foreign insurance company that holds a risk in respect of the owner's property.

(2) The appropriate proportion is the proportion that the premiums paid by the relevant owner for the final year of the scheme bears to the premium total provided (or taken under this Part to have been provided) by the insurance company in its final return.

(3) Any insurer loading is not to be included in the calculation of the contribution deficit under this clause.

(4) If the relevant owner fails to pay the appropriate proportion of the final contribution within 30 days after it is due, the owner is guilty of an offence.

: Maximum penalty--10 penalty units.

(5) An amount paid by a person under this clause may be deducted from any premium recoverable in the State by or on behalf of the foreign insurance company on the issue or renewal of an insurance policy on the property or may be recovered from the foreign insurance company as a debt by the person making the payment.

(6) This clause applies whether the premium concerned was received in or outside the State.

(7) In this clause--


"relevant owner" means a person who is the owner of property in respect of which a foreign insurance company has received a premium subject to a SES contribution.

19 Commissioner to make final 2-year assessment

(1) The Commissioner must make an assessment, in relation to each insurance company that was required to make SES contributions in the final year of the scheme or the previous financial year, of the total amount of SES contributions payable by the insurance company for the final 2 years of the scheme (a
"final 2-year assessment" ).

(2) The final 2-year assessment is to consist of the total of the following amounts, as assessed by the Commissioner--

(a) the final contribution payable by the insurance company for the final year of the scheme (excluding any insurer loading payable by the insurance company),

(b) the total of SES contributions payable by the insurance company for the financial year commencing on 1 July 2015.

(3) The Commissioner is to give the final 2-year assessment to the Monitor.

(4) The Commissioner must give to the Monitor a final 2-year assessment in relation to an insurance company within 30 days after making an assessment of the final contribution payable by the insurance company for the final year of the scheme.

20 Certificate evidence

A certificate signed by the Commissioner that states any of the following matters is admissible in proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate--

(a) the final contribution payable by an insurance company,

(b) the final 2-year assessment of an insurance company,

(c) the amount of any contribution deficit,

(d) the amount of any contribution surplus.

21 Transitional provision for adjusted estimates by Minister

A reference in Part 5A of this Act, as amended by the amending Act, to contributions made to the New South Wales State Emergency Service Fund by the Treasurer includes a reference to SES contributions made for the financial year commencing on 1 July 2016 or a previous financial year.