Statute Law (Miscellaneous Provisions) Act 2009 No 56



An Act to repeal certain Acts and to amend certain other Acts and instruments in various respects and for the purpose of effecting statute law revision; and to make certain savings.
1   Name of Act
This Act is the Statute Law (Miscellaneous Provisions) Act 2009.
2   Commencement
(1)  This Act commences on 17 July 2009, except as provided by this section.
(2)  The amendments made by Schedules 1 and 2 commence on the day or days specified in those Schedules in relation to the amendments concerned.
3   Repeal of provisions of Act
(1)  A subschedule of Schedule 1, 2, 3 or 4 is repealed on the day following the day on which all of the provisions of the subschedule have commenced.
(2)  The repeal of any such subschedule does not, because of the operation of section 30 of the Interpretation Act 1987, affect any amendment made by those subschedules.
4   Explanatory notes
The matter appearing under the heading “Explanatory note” in any of the Schedules does not form part of this Act.
Schedule 1 Minor amendments
1.1–1.12
  (Repealed)
[1]   Section 72I Application of Division
Insert after section 72I (2):
  
(3)  A reference in this Division to the appropriate amendment of an environmental planning instrument includes a reference to the making of an appropriate principal environmental planning instrument.
[2]   Section 72K Joint exhibition of instrument and advertising of application
Insert “if that is practicable or, if that is not practicable, as closely together as is practicable” after “same notice” in section 72K (1).
[3]   Section 72K (2)
Insert “the subject of the same notice” after “development application”.
[4]   Section 94EC Contributions plans—complying development
Insert after section 94EC (1):
  
(1A)  The imposition of a condition by an accredited certifier as authorised by a contributions plan is subject to compliance with any directions given under section 94E (1) (a), (b) or (d) with which a council would be required to comply if issuing the complying development certificate concerned.
[5]   Section 94EE Minister to determine development contributions
Insert at the end of the section:
  
(7)  Subsection (3A) does not limit any payments being made out of the Fund to a council or the Department under section 94EL (1) (a).
[6]   Section 109H Restrictions on issue of occupation certificates
Insert “, or any requirements of a planning agreement referred to in section 93F that, by its terms, are required to be complied with before such a certificate is issued,” after “complying development certificate” in section 109H (2).
[7]   Sections 109H and 109J
Omit “section 93F” wherever occurring. Insert instead “section 116T”.
[8]   Section 109J Restriction on issue of subdivision certificates
Insert after section 109J (1) (c):
  
(c1)  in the case of subdivision of land to which a planning agreement referred to in section 93F applies, all the requirements of the agreement that, by its terms, are required to be complied with before a subdivision certificate is issued in relation to the plan of subdivision have been complied with, and
[9]   Schedule 6 Savings, transitional and other provisions
Insert at the end of the Schedule with appropriate Part and clause numbering:
  
Restrictions on the issue of occupation or subdivision certificate
The amendments made by Schedule 1.13 [6] and [8] to the Statute Law (Miscellaneous Provisions) Act 2009 apply only in relation to an application for an occupation certificate or a subdivision certificate made on or after the commencement of those amendments.
Explanatory note
Development applications and new or amending environmental planning instruments
Sections 72I–72K of the Environmental Planning and Assessment Act 1979 (the EP&A Act) allow for the making, and consideration by a consent authority, of development applications related to development that may only be carried out if an environmental planning instrument applying to the land is appropriately amended, and require the joint notification of such a development application and the draft environmental planning instrument allowing the development.
The effect of item [1] of the proposed amendments to the EP&A Act is to allow these provisions to operate where the development will be allowed by a principal (and not just an amending) environmental planning instrument.
The effect of item [2] of the proposed amendments is to require joint notification of the relevant development application and environmental planning instrument only if that is practicable and, if that is not practicable, to require the separate notification of each to be given as closely together as is practicable. Item [3] makes a consequential amendment.
Ministerial directions to accredited certifiers about development contributions
Under the EP&A Act, both local councils and accredited certifiers may, when issuing complying development certificates, impose conditions requiring contributions for local infrastructure. Section 94E of the EP&A Act authorises the Minister to direct a consent authority (which is defined to include a local council in this context, but not an accredited certifier) as to various matters in relation to such contributions, including the matters in relation to which they may be imposed and the maximum amount of any such contribution.
The effect of item [4] of the proposed amendments is to extend the application of the Minister’s directions under section 94E that are relevant to accredited certifiers and that relate to complying development, to accredited certifiers.
Special infrastructure contributions
The EP&A Act enables the State to require development contributions for the provision of infrastructure in relation to development on land within a special contributions area. In determining the level and nature of such a contribution, the Minister is required by section 94EE (3A) of the EP&A Act to identify what part (if any) of the contribution is for the provision of infrastructure by a local council or for the provision of certain infrastructure by the Minister, the Department or the Director-General. Those parts that are so identified are not required to be paid into the Special Contributions Areas Infrastructure Fund (the Fund) established under the Act and are instead to be paid to the local council or the Department as the case requires.
Item [5] of the proposed amendments inserts a provision to clarify that section 94EE (3A) does not limit any payments being made out of the Fund to a local council or the Department for the provision of infrastructure in relation to development.
Prerequisites to issue of subdivision or occupation certificates
The EP&A Act provides for voluntary agreements between planning authorities and developers (planning agreements), under which the developer is required to provide a development contribution for a public purpose.
Section 109J of the EP&A Act sets out requirements that must be satisfied before a subdivision certificate may be issued. Item [8] of the proposed amendments includes a requirement that all the requirements of a planning agreement that, by its terms, are required to be complied with before such a certificate is issued, have been met. Item [6] of the proposed amendments makes a parallel amendment to section 109H of the EP&A Act, which provides for requirements that must be satisfied before an occupation certificate may be issued. (Similar requirements exist in relation to conditions of a development consent (including any condition requiring a development contribution to be made) that are required to be met before a subdivision or occupation certificate may be issued.) Item [9] inserts a consequential savings and transitional provision.
Updating references
Item [7] of the proposed amendments updates a cross-reference as a consequence of (uncommenced) amendments to the EP&A Act by the Environmental Planning and Assessment Amendment Act 2008.
1.14–1.44
  (Repealed)
schs 1–4: Am 2009 No 56, sec 3 (1).
Schedule 2 Amendments by way of statute law revision
2.1–2.78
  (Repealed)
schs 1–4: Am 2009 No 56, sec 3 (1).
Schedule 3 Amendments consequential on enactment of Legal Profession Act 2004
Explanatory note
The Legal Profession Act 2004 introduced new terms to distinguish between different types of lawyers. In particular, the Act introduced the concept of an Australian lawyer (a person who is admitted to the legal profession under the Act or a corresponding law) and an Australian legal practitioner (an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate). Currently, the meanings of Australian legal practitioner and Australian lawyer are contained in the Interpretation Act 1987 for ease of reference in other Acts.
3.1–3.7
  (Repealed)
schs 1–4: Am 2009 No 56, sec 3 (1).
Schedule 4 On-line notification of the making of statutory instruments
Explanatory note
This Schedule contains amendments that relate to the official notification of the making of certain statutory instruments on the NSW legislation website that is maintained by the Parliamentary Counsel.
Generally, the amendments require that certain statutory instruments such as proclamations, orders and notices that directly amend Acts be published on the NSW legislation website instead of in the Gazette.
Subschedules 4.25 and 4.38 confirm that the rules of the Guardianship Tribunal and the Medical Tribunal are rules of court for the purposes of the Interpretation Act 1987 and are therefore required to be published on the NSW legislation website rather than in the Gazette.
In addition, some amendments (Subschedules 4.2, 4.11, 4.14, 4.32–4.35, 4.50–4.53, 4.69, 4.71 and 4.74) confirm that court practice notes and certain other instruments, which apply the statutory rule provisions of the Interpretation Act 1987 relating to parliamentary tabling and disallowance, continue to be required to be published in the Gazette.
4.1–4.84
  (Repealed)
schs 1–4: Am 2009 No 56, sec 3 (1).
Schedule 5 Repeals
2   Redundant provisions of Acts
The following provisions of the following Acts are repealed:
  
3   Provisions of Acts that contain only amendments that have commenced
The following provisions of the following Acts are repealed:
  
Act
Provisions repealed
Schedule 1 [1]–[21] and [32]–[34]
Schedule 1 [5], [10], [13], [27], [29]–[31], [34], [36], [37], [40], [42], [44], [45], [48]–[55] and [57]–[61]
Schedules 1–3, 5, 6, 7 [1]–[10] and [12], 8–15, 18–23 and 25–29
Schedules 1 [1]–[27] and [32]–[39] and 2
Sections 73 and 74 and Schedule 2
Schedules 1 [2], [9], [20], [24]–[28] and [34]–[36], 2.1, 2.2 [1]–[3] and [5]–[8], 2.3 and 2.4
Section 4 and Schedules 1 [1]–[3] and [5] and 2
Section 49 and Schedule 2
Section 178 and Schedule 4
Schedules 1–3, 4 [3], 5, 6.1 [2], [3] and [6], 6.2–6.18, 6.19 [3] and 6.20–6.34
Schedules 1 [4] and [11] and 2.2 [1] and [3]
Schedule 1 [1]–[6], [9], [12], [13] and [16]–[20]
Section 21 and Schedule 2
Section 9 and Schedule 2
Section 4 and Schedules 1–3 and 5–7
4   Repeal of amending SEPPs that have commenced
(1)  Each amending SEPP that was made before the commencement of this clause and that has fully commenced is repealed.
(2)  The repeal by this clause of an amending SEPP does not, because of the operation of section 30 of the Interpretation Act 1987, affect any amendment or repeal made by the amending SEPP or the operation of any savings or transitional provision in the amending SEPP.
(3)  In this clause:
amending SEPP means a State environmental planning policy (or deemed State environmental planning policy) that directly amends or repeals other environmental planning instruments and that contains no other provisions apart from ancillary provisions.
ancillary provision of an amending SEPP means any of the following:
(a)  a provision that specifies the name or citation of the amending SEPP,
(b)  a provision that provides for the commencement of the amending SEPP,
(c)  a provision that specifies the aims, objectives, objects, policies or strategies of the amending SEPP,
(d)  a provision that specifies the land to which the amending SEPP applies,
(e)  a provision that provides for the relationship between the amending SEPP and other environmental planning instruments,
(f)  a provision that declares that notes in the amending SEPP do not form part of the amending SEPP,
(g)  a provision that defines a word or expression used in the amending SEPP,
(h)  a savings or transitional provision consequent on the making of the amending SEPP,
(i)  a provision that amends or replaces maps adopted by another environmental planning instrument,
(j)  a provision that gives effect to or describes a schedule to the amending SEPP.
Explanatory note
Clause 1 repeals Acts and an instrument that are redundant.
Clause 2 repeals redundant provisions of Acts.
Clause 3 repeals provisions of Acts that contain only amendments to other Acts or instruments. All of the amendments have commenced.
Clause 4 repeals State environmental planning policies that contain only amendments and ancillary provisions.
In relation to the repeal of amending provisions, it should be noted that the provisions are repealed simply to rationalise the legislation in force and that the repeals have no substantive effect on the amendments made by the provisions, or any associated provisions. The Acts and instruments that were amended by the provisions being repealed are up-to-date on the NSW legislation website maintained by the Parliamentary Counsel’s Office (www.legislation.nsw.gov.au).
Section 30 (2) of the Interpretation Act 1987 ensures that the following matters are not affected when an Act or statutory rule is amended or repealed:
(a)  the proof of any past act or thing,
(b)  any right, privilege, obligation or liability saved by the operation of the Act or statutory rule,
(c)  any amendment or validation made by the Act or statutory rule,
(d)  the operation of any savings or transitional provision contained in the Act or statutory rule.
Section 5 (6) of the Interpretation Act 1987 provides that the provisions of section 30 that apply to a statutory rule also apply to an environmental planning instrument.
Schedule 6 General savings, transitional and other provisions
1   Effect of amendment of amending provisions
(1)  An amendment made by Schedule 1 or 2 to an amending provision contained in an Act is, if the amending provision has commenced before the Schedule 1 or 2 amendment concerned, taken to have effect as from the commencement of the amending provision (whether or not the amending provision has been repealed).
(2)  In this clause:
amending provision means a provision of an Act that makes a direct amendment to an Act by:
(a)  the repeal or omission of matter contained in the amended Act without the insertion of any matter instead of the repealed or omitted matter, or
(b)  the omission of matter contained in the amended Act and the insertion of matter instead of the omitted matter, or
(c)  the insertion into the amended Act of matter, not being matter inserted instead of matter omitted from the Act.
Explanatory note
This clause ensures that certain amendments, including amendments correcting errors in technical provisions (for example, headings indicating the section to be amended or directions as to where a new section is to be inserted) and rectifying minor drafting errors (for example, corrections in numbering of provisions, correction or insertion of cross-references, omission of unnecessary matter or insertion of omitted matter), will be taken to have commenced on the date the amendments to which they relate commenced.
2   Effect of amendment or repeal on acts done or decisions made
Except where it is expressly provided to the contrary, if this Act:
(a)  amends a provision of an Act or an instrument, or
(b)  repeals and re-enacts (with or without modification) a provision of an Act or an instrument,
any act done or decision made under the provision amended or repealed has effect after the amendment or repeal as if it had been done or made under the provision as so amended or repealed.
Explanatory note
This clause ensures that the amendment or repeal of a provision will not, unless expressly provided, vitiate any act done or decision made under the provision as in force before the amendment or repeal.
3   Effect of amendment on instruments
Except where expressly provided to the contrary, any instrument made under an Act amended by this Act, that is in force immediately before the commencement of the amendment, is taken to have been made under the Act as amended.
Explanatory note
This clause ensures that, unless expressly provided, any instrument that is in force and made under a provision of an Act that is amended or substituted by the proposed Act will be taken to have been made under the Act as amended.
4   Revocation of repeal
(1)  The Governor may by proclamation published on the NSW legislation website revoke the repeal of any Act or instrument effected by the following:
this Act
(2)  Any Act or instrument the subject of a proclamation under subclause (1) is taken not to be, and never to have been, repealed by any such Act.
(3)  Subclause (2) does not operate in respect of any Act or instrument 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 publication on the NSW legislation website of the proclamation under subclause (1) in respect of that Act or instrument, 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 publication of that proclamation.
(4)  A reference in this clause to an Act or instrument includes a reference to a provision of any Act or instrument.
Explanatory note
This clause enables the Governor, by proclamation, to revoke the repeal of any Act or instrument or the provision of any Act or instrument repealed by this Act or any of the other statute law revision Acts listed. The Act or instrument or provision of an Act or instrument the subject of the revocation of repeal is taken not to be, and never to have been, repealed.
5   Regulations
(1)  The Governor may make regulations containing provisions of a savings or transitional nature consequent on the enactment of this Act.
(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to this Act or a later date.
(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, 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.
Explanatory note
This clause enables the making of regulations of a savings or transitional nature having a short term effect and relating to incidental matters arising out of the proposed Act with regard to which no specific, or sufficient, provision has been made in the proposed Act.
1 Index of Acts and Instruments amended by Schedules 1–4
Aboriginal Land Rights Act 1983 No 42—Schedule 4
District Court Act 1973 No 9—Schedules 1 and 4
Fire Brigades Act 1989 No 192—Schedules 1 and 4
Interpretation Act 1987 No 15—Schedules 2 and 4
Local Courts Act 1982 No 164—Schedules 1 and 4
Plant Diseases Act 1924 No 38—Schedules 2 and 4
Supreme Court Act 1970 No 52—Schedules 1 and 4
Water Act 1912 No 44—Schedules 1 and 4