An Act to amend regulatory and other Acts and instruments; and to repeal certain Acts and instruments for the purpose of statute law revision.
1 Name of Act
This Act is the Regulatory and Other Legislation (Amendments and Repeals) Act 2016.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as otherwise provided by this section.(2) Schedules 1 and 2 (except for items [1], [2], [4], [6] and [8]–[16] of Schedule 2.4) and clause 1 of Schedule 3 commence on a day or days to be appointed by proclamation.
Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):regulated functions means the functions of a real estate agent, stock and station agent, business agent, strata managing agent, community managing agent or on-site residential property manager.
[2] Section 10 Salespersons and managers require certificate of registration
Omit “in the employment of a person licensed (or required to be licensed) under this Act” from section 10 (1) (b).
[3] Section 11 Registered salespersons and managers required to be employed and supervised by licensee
Insert after section 11 (2):Note—See Division 2 of Part 3 for requirements for a place at which a business is carried on under a licence to be in the charge of a licensee and for staff to be properly supervised.
[4] Section 11 (3A)
Insert after section 11 (3):(3A) A person carrying on business as an auctioneer must ensure that the holder of a certificate of registration does not act for or on behalf of the person as an auctioneer, except as permitted by subsection (4).
[5] Section 11A
Insert after section 11:11A Person carrying on business of agent to ensure staff exercising regulated functions hold licence or certificateA person carrying on the business of an agent must not make use of the services of another person (a service provider) to exercise any regulated functions in the course of the business unless:(a) the person is the holder of a licence that authorises the regulated functions concerned to be exercised by the person, and(b) the service provider is the holder of a licence or a certificate of registration that authorises the service provider to exercise the regulated functions concerned, and(c) in the case of a service provider required to hold a certificate of registration to exercise the regulated functions concerned—the service provider is an employee of the person.Maximum penalty: 100 penalty units.
[6] Section 32 Duty of licensee and person in charge to properly supervise business
Omit “employees” from section 32 (3) (a). Insert instead “persons”.
[7] Section 32 (5)
Insert after section 32 (4):(5) A reference in this section to a person who is engaged in a business carried on by a licensee is a reference to a person:(a) who is engaged in the business as an employee of the licensee, or(b) who is engaged by the licensee, other than as an employee of the licensee, to provide services in the course of the business, or(c) whose services are provided to the licensee in the course of the business, other than as an employee of the licensee, under an arrangement entered into by the licensee with another person.
[8] Part 3, Division 3, heading
Insert “and others” after “Employees”.
[9] Section 40A
Insert before section 41:40A Interpretation—persons engaged by licenseesWithout limiting the circumstances in which a person is to be regarded, for the purposes of this Division, as being engaged by a licensee to exercise regulatory functions in the course of the business conducted by the licensee, a person is taken to be so engaged if:(a) the services of the person are provided to the licensee under an arrangement entered into by the licensee with another person, and(b) the services are or include exercising regulated functions in the course of the business.
[10] Section 43 Duty of licensee not to engage certain persons
Insert “, or engage a person to exercise any regulated functions in the course of the business,” after “the licensee” in section 43 (1).
[11] Section 43 (2)
Insert “or engagement” after “employment”.
[12] Sections 44 and 45
Omit the sections. Insert instead:44 Duty of licensee to notify disqualification of employees and othersA licensee must notify the Secretary in writing within 7 days after becoming aware that any of the following persons has become a disqualified person:(a) a person employed by the licensee (other than a person whose disqualification is on a ground that does not disqualify the person from eligibility to hold a certificate of registration),(b) a person engaged by the licensee, other than as an employee of the licensee, to exercise regulated functions in the course of the business conducted by the licensee.Maximum penalty: 50 penalty units.45 Employees and others required to notify disqualificationA person must notify a licensee within 7 days after the person becomes a disqualified person if the person is:(a) employed by the licensee (except where the person’s disqualification is on a ground that does not disqualify the person from eligibility to hold a certificate of registration), or(b) engaged by the licensee, other than as an employee of the licensee, to exercise regulated functions in the course of the business conducted by the licensee.Maximum penalty: 50 penalty units.
[13] Section 72 Definitions
Insert after section 72 (3):(4) A reference in this Division to a person who is engaged by a real estate agent or stock and station agent is a reference to a person who is:(a) an employee of the agent, or(b) engaged by the agent, other than as an employee of the agent, to provide services in the course of the business carried on by the agent, or(c) a person whose services are provided, other than as an employee of the agent, in the course of the business carried on by the agent under an arrangement entered into by the agent with another person.
[14] Section 73A Underquoting in representations by real estate agents
Omit section 73A (1) and the penalty to section 73A (1). Insert instead:(1) A real estate agent or any person engaged by a real estate agent must not, in the course of marketing a residential property, make any statement to any person that indicates or suggests that the property may be sold for a price that is less than the estimated selling price for the property.(1A) A real estate agent must ensure that any person engaged by the real estate agent does not, in the course of marketing a residential property, make any statement to any person that indicates or suggests that the property may be sold for a price that is less than the estimated selling price for the property.(1B) It is a defence to a prosecution for an offence under subsection (1A) if the real estate agent establishes that the real estate agent took all reasonable precautions against committing the offence.
[15] Section 73A (2)
Insert “, or the person engaged by the real estate agent,” after “agent”.
[16] Section 73A, penalty to section
Insert at the end of the section:Maximum penalty: 200 penalty units.
[17] Section 73B Real estate agents to keep records of quotes
Omit the penalty to section 73B (1).
[18] Section 73B (1A) and (1B)
Insert after section 73B (1):(1A) A real estate agent must ensure that any person engaged by the real estate agent who makes a statement, in the course of marketing a residential property, of a kind referred to in subsection (1) makes a written record in accordance with subsection (2).(1B) It is a defence to a prosecution for an offence under subsection (1A) if the real estate agent establishes that the real estate agent took all reasonable precautions against committing the offence.
[19] Section 73B, penalty to section
Insert at the end of the section:Maximum penalty: 200 penalty units.
[20] Section 76A Marketing statements about vendor bids when property passed in
Omit “an employee of” from section 76A (1). Insert instead “a person engaged by”.
[21] Section 115 Qualifications of auditors
Omit section 115 (2) (a). Insert instead:(a) has been, at any time within 2 years before the last day of the period in respect of which the audit is to be made, or is:(i) an employee or partner of the person whose records or documents are to be audited, or(ii) engaged in the business carried on by the person whose records or documents are to be audited, other than as an auditor for the purposes of this Division, or
[22] Section 115 (3)
Insert after section 115 (2):(3) A reference in this section to a person engaged in a business carried on by another person (a regulated person) is a reference to a person:(a) who is engaged by the regulated person, other than as an employee of the regulated person, to provide services in the course of the business conducted by the regulated person, or(b) whose services are or have been provided to the regulated person in the course of the business carried on by the regulated person, other than as an employee of the regulated person, under an arrangement entered into by the regulated person with another person.
[23] Section 118 Secretary may freeze licensee’s accounts in particular cases
Insert after section 118 (1) (c):(d) any other person connected or formerly connected with a licensee.
Schedule 2 Amendment of other Acts and regulations
[1] Section 17
Omit the section. Insert instead:17 Duration(1) A licence has effect for the term specified in the licence (not exceeding 3 years) unless it is sooner cancelled.(2) The suspension of a licence does not affect the term of the licence.
[2] Schedule 1 Savings and transitional provisions
Insert at the end of clause 2 (1):any other Act that amends this Act
[3] Schedule 1
Insert at the end of the Schedule, with appropriate Part and clause numbering:Part Provision consequent on enactment of Regulatory and Other Legislation (Amendments and Repeals) Act 2016Duration of licencesSection 17, as in force immediately before its substitution by the Regulatory and Other Legislation (Amendments and Repeals) Act 2016, continues to have effect in relation to a licence in force immediately before that substitution.
[1] Clause 5A
Insert after clause 5:5A Refund of application fees for certain 3-year licences(1) This clause applies to an application fee paid by or on behalf of a person who has surrendered a licence granted under the Act or has died, but only if the term of the licence was 3 years.(2) A person may apply to the Secretary for a refund of an application fee to which this clause applies if the person:(a) paid the application fee, or(b) is the legal representative of a deceased person who paid the application fee, or(c) is applying for or on behalf of the person who paid the application fee.(3) A person who makes an application under subclause (2) is:(a) if the surrender or death occurred not more than one year after the date of the grant, renewal or restoration of the licence—to be refunded two-thirds of the application fee (excluding the processing component) so paid, or(b) if the surrender or death occurred more than one year but not more than 2 years after the date of the grant, renewal or restoration of the licence—to be refunded one-third of the application fee (excluding the processing component) so paid.(4) In this clause:application fee means any of the following:(a) an application fee for the grant of a new licence,(b) an application fee for the renewal of a licence,(c) an application fee for the restoration of a licence.processing component of an application fee is the amount set out in Column 3 of Schedule 2 in relation to the fee.
[2] Schedule 2 Fees
Omit the table to the Schedule. Insert instead:
[1] Section 58 Scheme for publication of service station fuel prices
Insert after paragraph (e) of the definition of prescribed fuel in section 58 (6):(e1) hydrogen,
[2] Section 58 (6), definition of “prescribed fuel”
Insert after paragraph (f) of the definition:(g) electricity.
[3] Section 58 (6), definition of “service station”
Insert “by a person operating or controlling the operation of the building or place” after “prescribed fuel”.
[4] Section 58 (6), definition of “standard retail price”
Insert “(or, if the fuel is hydrogen or electricity, the price per kilogram or kilowatt hour)” after “litre”.
[5] Section 58 (7)
Insert after section 58 (6):(7) A reference in this section to the fuelling of a motor vehicle includes a reference to the charging of a battery, or other energy storage device, used to power the motor of an electric motor vehicle.
[1] Section 4 Definitions
Omit “16C” from paragraph (b) of the definition of funeral contribution fund in section 4 (1).Insert instead “16B”.
[2] Section 4 (1), definition of “pre-paid funeral fund”, paragraph (b)
Omit “39B”. Insert instead “39A”.
[3] Section 11 Contributory funeral benefit business to be carried on only by companies registered under this Act
Insert after section 11 (2):(3) A person is exempt from the application of subsection (1) if the person is a friendly society within the meaning of the Life Insurance Act 1995 of the Commonwealth.
[4] Part 3, Division 1A
Omit the Division. Insert instead:Division 1A Persons registered as funeral contribution funds on or after 30 November 2004 who were previously exempt16B Provisions applying to previously exempt persons who are registered to carry on contributory funeral benefit business(1) This section applies to a person (whether an individual or corporation) who, immediately before the repeal of section 16C by the Regulatory and Other Legislation (Amendments and Repeals) Act 2016 (the Amendments and Repeals Act), was registered under that section to carry on contributory funeral benefit business.(2) The following provisions apply in relation to a person to whom this section applies:(a) the person continues to be registered to carry on contributory funeral benefit business (except if the person’s registration is cancelled or during any period in which the person’s registration is suspended),(b) the person’s registration continues to be subject to any conditions to which it was subject immediately before the repeal of section 16C by the Amendments and Repeals Act,(c) if the person was exempt from complying with one or more provisions of this Act or the regulations because of an exemption granted by the Secretary, that exemption continues in force,(d) if the person is an individual, this Act continues to apply to that person in the same way as it applies to a funeral contribution fund that is a company, with any necessary changes.(3) The Secretary may exempt a person registered under this section from complying with such of the provisions of this Act or the regulations as the Secretary considers appropriate having regard to all of the circumstances in which the person carries on contributory funeral benefit business.
[5] Section 34 Trustee under pre-arranged contract to be registered under this Act
Insert after section 34 (1):(2) A person is exempt from the application of subsection (1) if:(a) the person is a friendly society within the meaning of the Life Insurance Act 1995 of the Commonwealth, or(b) the person is a Crown cemetery trust within the meaning of the Cemeteries and Crematoria Act 2013.
[6] Part 4, Division 1A
Omit the Division. Insert instead:Division 1A Persons registered as pre-paid funeral funds on or after 30 November 2004 who were previously exempt39A Provisions applying to previously exempt persons who are registered to act as trustees under pre-paid contracts(1) This section applies to a person who, immediately before the repeal of section 39B by the Regulatory and Other Legislation (Amendments and Repeals) Act 2016 (the Amendments and Repeals Act), was registered under that section to act as trustee of trust funds under a pre-paid contract.(2) The following provisions apply in relation to a person to whom this section applies:(a) the person continues to be registered to act as trustee of trust funds under a pre-paid contract (except if the person’s registration is cancelled or during any period in which the person’s registration is suspended),(b) the person’s registration continues to be subject to any conditions to which it was subject immediately before the repeal of section 39B by the Amendments and Repeals Act,(c) if the person was exempt from complying with one or more provisions of this Act or the regulations because of an exemption granted by the Secretary, that exemption continues in force.(3) The Secretary may exempt a person registered under this section from complying with such of the provisions of this Act or the regulations as the Secretary considers appropriate having regard to all of the circumstances in which the person acts as trustee of trust funds under a pre-paid contract.
[7] Section 40 Payment of money and giving of consideration under pre-paid contract to pre-paid funeral fund
Insert after section 40 (3):(4) This section does not apply to a Crown cemetery trust that agrees to supply a funeral service under a pre-paid contract.
[8] Section 66A Notices to show cause
Omit “39B” from section 66A (1) (b) (ii). Insert instead “39A”.
[9] Section 75 Appeal against refusal to register funeral contribution fund or to approve alteration or addition of rules
Omit “or a person to carry on contributory funeral benefit business under section 16B” from section 75 (1) (a).
[10] Section 75 (1) (c)
Omit “16C (5)”. Insert instead “16B (3)”.
[11] Section 77 Appeal against refusal to register pre-arranged funeral fund or decision to cancel that registration etc
Omit “or section 39B” from section 77 (1) (a).
[12] Section 77 (1) (ba)
Omit “39B (5)”. Insert instead “39A (3)”.
[13] Section 82 Failure of Secretary to act on application deemed refusal
Omit “(other than on application under section 16B)” from section 82 (1) (a).
[14] Section 82 (1) (d)
Omit “(other than on application under section 39A)”.
[15] Section 82 (2)
Omit the subsection.
[16] Sections 125 and 126
Omit the sections.
[1] Section 10
Omit the section. Insert instead:10 Duration of licence(1) A licence has effect for the term specified in the licence (not exceeding 3 years) unless it is sooner cancelled.(2) The suspension of a licence does not affect the term of the licence.
[2] Section 43 Regulations
Insert after section 43 (1) (g):(g1) the waiver or refund of the whole or any part of a fee chargeable for any service provided by the Secretary under this Act or the regulations,
[3] Schedule 2 Savings and transitional provisions
Insert at the end of clause 2 (1):any other Act that amends this Act
[4] Schedule 2
Insert at the end of the Schedule, with appropriate Part and clause numbering:Part Provision consequent on enactment of Regulatory and Other Legislation (Amendments and Repeals) Act 2016Duration of licencesSection 10, as in force immediately before its substitution by the Regulatory and Other Legislation (Amendments and Repeals) Act 2016, continues to have effect in relation to a licence in force immediately before that substitution.
[1] Clause 8A
Insert after clause 8:8A Refund of application fees for certain 3-year licences(1) This clause applies to an application fee paid by or on behalf of a person who has surrendered a licence granted under the Act or has died, but only if the term of the licence was 3 years.(2) A person may apply to the Secretary for a refund of an application fee to which this clause applies if the person:(a) paid the application fee, or(b) is the legal representative of a deceased person who paid the application fee, or(c) is applying for or on behalf of the person who paid the application fee.(3) A person who makes an application under subclause (2) is:(a) if the surrender or death occurred not more than one year after the date of the grant, renewal or restoration of the licence—to be refunded two-thirds of the application fee (excluding the processing component) so paid, or(b) if the surrender or death occurred more than one year but not more than 2 years after the date of the grant, renewal or restoration of the licence—to be refunded one-third of the application fee (excluding the processing component) so paid.(4) In this clause:application fee means any of the following:(a) an application fee for the grant of a new licence,(b) an application fee for the renewal of a licence,(c) an application fee for the restoration of a licence.processing component of an application fee is the amount set out in Column 3 of Schedule 3 in relation to the fee.
[2] Schedule 3
Omit the table to the Schedule. Insert instead:
Section 159 Payment of bonds
Insert after section 159 (1):(1A) A landlord, landlord’s agent or any other person must not require or receive from a tenant a rental bond unless:(a) the landlord or landlord’s agent is registered as a user of the online rental bond service established under section 157A, and(b) the tenant has been invited by the landlord or the landlord’s agent to provide an address that can be used to invite the tenant (using the online service) to use the online service to deposit the rental bond with the Secretary, and(c) if the tenant has provided such an address:(i) the landlord or landlord’s agent has invited the tenant (using the online service) to use the online service to deposit the rental bond with the Secretary, and(ii) the tenant has been given a reasonable opportunity to use the online service to deposit the rental bond with the Secretary or has declined the invitation.
Schedule 3 Repeals
1 Repeals by way of regulatory reform
The following Acts or instruments, or provisions of Acts or instruments, are repealed:
2 Repeal of redundant Acts, instruments and provisions
The following Acts or instruments, or provisions of Acts or instruments, are repealed:
3 Repeal of uncommenced amending Acts and amending provisions that are no longer required because they have been superseded or for other reasons
The following Acts or provisions of Acts are repealed:
Schedule 4 Amendments consequent on other repeals and on the abolition of the Compensation Court
[1] Part 3, Division 8A, heading
Omit “Residual jurisdiction”. Insert instead “Compensation jurisdiction”.
[2] Section 142G Definition
Omit the definition of residual jurisdiction and the note to the definition. Insert instead:compensation jurisdiction means the following jurisdiction conferred on the Court:(a) jurisdiction to examine, hear and determine all coal miner matters (within the meaning of the Workplace Injury Management and Workers Compensation Act 1998) except matters arising under Part 5 of the Workers Compensation Act 1987,(b) jurisdiction to make determinations under section 216A of the Police Act 1990,(c) jurisdiction to make determinations under section 21 of the Police Regulation (Superannuation) Act 1906,(d) jurisdiction to make determinations under section 29 of the Sporting Injuries Insurance Act 1978,(e) jurisdiction to make determinations under section 16 or 30 of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987,(f) jurisdiction to hear and determine appeals under section 8I of the Workers’ Compensation (Dust Diseases) Act 1942.
[3] Section 142H Non-application of other Divisions
Omit “(except for Subdivisions 6 and 7 of Division 3), and nothing in Division 9 or 9A,”.
[4] Part 3, Division 8A, Subdivision 2, heading
Omit “residual jurisdiction”. Insert instead “compensation jurisdiction”.
[5] Section 142I Powers of Court when exercising residual jurisdiction
Omit the section.
[6] Sections 142J (1) and (2), 142K, 142L, 142N (1) and (2) and 142P (1) and (2) (a)
Omit “residual jurisdiction” wherever occurring.Insert instead “compensation jurisdiction”.
[7] Schedule 3 Savings and transitional provisions consequent on amendments to this Act
Insert at the end of the Schedule, with appropriate Part and clause numbering:Part Provisions consequent on repeal of Compensation Court Repeal Act 2002 by Regulatory and Other Legislation (Amendments and Repeals) Act 2016Service and seniority of Judges(1) If a Judge of the Compensation Court is appointed as a Judge of the District Court, the Judge is to have seniority, rank and precedence as a Judge of the District Court as if the date of his or her commission as a Judge of the District Court were the date of his or her commission as a Judge of the Compensation Court.(2) Service as a Judge of the Compensation Court is to be reckoned for all purposes as service as a Judge of the District Court in the case of a Judge who is appointed as a Judge of the District Court.(3) In this clause, a reference to a Judge of the Compensation Court is a reference to a person appointed as a Judge of the District Court by section 5 (1) (a) of the Compensation Court Repeal Act 2002.(4) Subclauses (1) and (2) re-enact (with minor modifications) section 8 (2) and (4) of the Compensation Court Repeal Act 2002 and are transferred provisions to which section 30A of the Interpretation Act 1987 applies.
[1] Schedule 2A Transferred provisions—dissolution of energy services corporations
Insert after clause 1:2 Energy Services Corporations (Dissolution of Energy Distributors) Regulation 2001
[2] Schedule 2A, clause 2 (as inserted by item [1])
Transfer clause 7 (1)–(4) of the Energy Services Corporations (Dissolution of Energy Distributors) Regulation 2001 (which is repealed by clause 2 of Schedule 3 to this Act) to clause 2 of Schedule 2A, as clause 2 (1)–(4).
[3] Schedule 2A, clause 2 (1) (as inserted by item [2])
Insert “Essential Energy may act in own name or in name of Great Southern Energy or Advance Energy” as the heading to the subclause.
[4] Schedule 2A, clause 2 (5)
Transfer clause 8 of the Energy Services Corporations (Dissolution of Energy Distributors) Regulation 2001 to clause 2 of Schedule 2A as clause 2 (5), with the heading “References to Great Southern Energy and Advance Energy”.
[5] Schedule 2A, clause 2 (1) and (5) (as inserted by items [2] and [4])
Omit “the commencement of this Regulation” wherever occurring.Insert instead “5 July 2001”.
[6] Schedule 2A, clause 2 (1) and (3)–(5) (as inserted by items [2] and [4])
Omit “Country Energy” wherever occurring. Insert instead “Essential Energy”.
[7] Schedule 2A, clause 2 (6)
Transfer clause 7 (5) of the Energy Services Corporations (Dissolution of Energy Distributors) Regulation 2001 to clause 2 of Schedule 2A as clause 2 (6).
[8] Schedule 2A, clause 2 (6) (as inserted by item [7])
Omit “to the Act”.
[9] Schedule 2A, clause 2 (7)
Insert after clause 2 (6) (as inserted by item [7]):(7) Transferred provisions to which Interpretation Act 1987 applies Subclauses (1)–(6) re-enact (with minor modifications) clauses 7 and 8 of the Energy Services Corporations (Dissolution of Energy Distributors) Regulation 2001 and are transferred provisions to which section 30A of the Interpretation Act 1987 applies.
Section 44C Immunity of officers performing duties of judicial officers
Omit “a Commissioner of the Compensation Court,”.
[1] Section 46A Certain appeals may be heard by 2 Judges of Appeal
Omit section 46A (1) (b). Insert instead:(b) from the District Court (in respect of any matter dealt with in the compensation jurisdiction of that Court), where the appeal relates solely to the amount of compensation awarded by that Court, or
[2] Section 46A (8)
Insert after section 46A (7):(8) In this section:compensation jurisdiction of the District Court has the same meaning as in Division 8A of Part 3 of the District Court Act 1973.
[1] Schedule 6 Savings, transitional and other provisions
Omit “Registrar” wherever occurring in clause 3 (1) and (2) of Part 18D.Insert instead “Principal Registrar”.
[2] Schedule 6, Part 18D
Insert after clause 3 (3):(4) In this clause:Principal Registrar of the District Court means the registrar of the District Court for Sydney.