New South Wales Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [History] [Help]

NSW TRUSTEE AND GUARDIAN ACT 2009 - SCHEDULE 1

SCHEDULE 1 – Savings, transitional and other provisions

(Section 127)

Part 1 - General

1 Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts--
this Act
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned 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.

Part 2 - Provisions consequent on enactment of this Act

Division 1 - Preliminary

2 Definitions

In this Part--

"appointed day" , in its application to any act, matter, thing or circumstance referred to in this Part means--

(a) in relation to a provision of a former Act that is repealed by this Act, the day on which the provision is repealed, or
(b) in relation to a provision of this Act, the day on which the provision commences.

"existing common fund" means--
(a) a common fund established under the Public Trustee Act and in existence immediately before the commencement of Part 5.2 of this Act, or
(b) an investment fund established under the Protected Estates Act and in existence immediately before that commencement.

"existing reserve fund" means--
(a) the Estates Guarantee and Reserve Account established under section 36B of the Public Trustee Act, or
(b) the reserve fund established under Part 4 of the Protected Estates Act.

"Interest Suspense Account" means the Account of that name established under section 36A of the Public Trustee Act.

"Protective Commissioner" means the Protective Commissioner under the Protected Estates Act.

"Public Trustee" means the Public Trustee under the Public Trustee Act.

"the former Acts" means the Protected Estates Act and the Public Trustee Act.

"the former corporations" means the corporations sole constituted under section 7 of the Public Trustee Act and section 5B of the Protected Estates Act.

"the Protected Estates Act" means the Protected Estates Act 1983 , as in force immediately before its repeal by this Act.

"the Public Trustee Act" means the Public Trustee Act 1913 , as in force immediately before its repeal by this Act.

Division 2 - General provisions

3 Construction of references

(1) Subject to this Schedule and the regulations, in any Act or instrument (whether enacted or made before or after the commencement of this clause)--
(a) a reference to a provision of the former Acts for which there is a corresponding provision in this Act extends to the corresponding provision of this Act, whether or not in identical terms, and
(b) a reference to any act, matter or thing referred to in a provision of the former Acts for which there is a corresponding provision in this Act (including anything arising under paragraph (a)) is taken to have been done or omitted under the corresponding provision of this Act, and
(c) a reference (however expressed) to a protected person or a protected missing person under the Protected Estates Act is to be read as a protected person or managed missing person within the meaning of this Act, and
(d) a reference to the Public Trustee or Protective Commissioner is to be read as a reference to the NSW Trustee, and
(e) a reference to anything being done under the seal or hand of the Public Trustee or the Protective Commissioner is taken to be a reference to its being done under the seal of the NSW Trustee.
(2) The regulations may contain provisions that deal, among other things, with the interpretation of references (however expressed) to an Act repealed or amended by this Act or a provision of an Act repealed or amended by this Act.

4 General saving

Subject to this Schedule and the regulations--

(a) anything begun before the appointed day under a provision of the former Acts for which there is a corresponding provision in this Act extends to the corresponding provision of this Act, and
(b) subject to paragraph (a), any act, matter or thing done or omitted under a provision of the former Acts for which there is a corresponding provision in this Act (including anything arising under paragraph (a)) is taken to have been done or omitted under the corresponding provision of this Act.

5 NSW Trustee to exercise existing functions and responsibilities of Public Trustee and Protective Commissioner

(1) Subject to this Schedule and the regulations--
(a) any act, matter or thing done or omitted by, to or in relation to the Public Trustee or the Protective Commissioner before the commencement of this clause is taken to have been done or omitted by, to or in relation to the NSW Trustee, and
(b) without limiting paragraph (a), anything commenced to be done by, to or in relation to the Public Trustee or the Protective Commissioner in an official capacity before that commencement is taken to have been commenced to have been done by, to or in relation to the NSW Trustee.
(2) Subject to this Act and the regulations--
(a) this Act and the regulations extend to and in relation to acts, matters and things occurring before the commencement of this Act, and
(b) without limiting paragraph (a), this Act extends to and in relation to--
(i) trust instruments and other documents made or executed before as well as on or after that commencement, and
(ii) persons who died before as well as to persons who die on or after that commencement.

6 Certificate evidence

(1) This clause applies to a certificate issued before the commencement of this clause under--
(a) section 50 of the Public Trustee Act, or
(b) section 79A of the Protected Estates Act, or
(c) section 57 of the Confiscation of Proceeds of Crime Act 1989 .
(2) Neither the enactment of this Act nor its operation affects the existence, validity, admissibility or evidentiary value of such a certificate on or after the repeal or amendment of those provisions by this Act.

7 Continuation of Protected Estates Regulation 2003

(1) The Protected Estates Regulation 2003 , as in force immediately before the repeal of the Protected Estates Act, continues in force and is taken to be a regulation under this Act.
(2) The Regulation may be amended or repealed in the same way as any other regulation made under this Act.
(3) A reference in the Regulation to the Protective Commissioner is to be read as a reference to the NSW Trustee.

8 Continuation of Public Trustee Regulation 2008

(1) The Public Trustee Regulation 2008 , as in force immediately before the repeal of the Public Trustee Act, continues in force and is taken to be a regulation under this Act.
(2) The Regulation may be amended or repealed in the same way as any other regulation made under this Act.
(3) A reference in the Regulation to the Public Trustee is to be read as a reference to the NSW Trustee.

9 References to MHRT relating to mental health inquiries

(1) A reference in section 44 to the MHRT is to be read as a reference to a Magistrate who conducts a mental health inquiry under the Mental Health Act 2007 .
(2) A Magistrate may refer the question of a person's capability to manage his or her own affairs to the MHRT.
(3) If a Magistrate refers the question of a person's capability to manage his or her own affairs, the MHRT must consider the capability of the person to manage his or her own affairs and, if satisfied that the person is not capable of managing his or her own affairs, must order that the estate of the person be subject to management under this Act.
(4) An order by the MHRT has effect as if it were made under Part 4.3.
(5) Sections 47, 48, 49, 50 and 51 apply in respect of a Magistrate who conducts a mental health inquiry in the same way as they apply in respect of the MHRT.
(6) This clause ceases to have effect on the commencement of section 34 of the Mental Health Act 2007 , as inserted by Schedule 16 [6[#93] to the Courts and Crimes Legislation Further Amendment Act 2008 .

Division 3 - Dissolution of offices and corporations

10 Abolition of offices and dissolution of corporations sole

(1) The office of Public Trustee is abolished and the corporation sole constituted by section 7 of the Public Trustee Act is dissolved.
(2) The office of Protective Commissioner is abolished and the corporation sole constituted by section 5B of the Protected Estates Act is dissolved.

11 NSW Trustee to be same entity as former corporations sole

The NSW Trustee is taken, for all purposes, including the rules of private international law, to be a continuation of and the same legal entity as the former corporations.

12 Former Public Trustee and Protective Commissioner not entitled to compensation

(1) In this clause--

"former Protective Commissioner" means the person holding office as Protective Commissioner immediately before the abolition of the office of Protective Commissioner by this Act.

"former Public Trustee" means the person holding office as Public Trustee immediately before the abolition of the office of Public Trustee by this Act.
(2) The former Public Trustee and the former Protective Commissioner cease to hold office as Public Trustee and Protective Commissioner, respectively, on the abolition of those offices by this Act.
(3) The former Public Trustee and the former Protective Commissioner are not entitled to any compensation for loss of office.
(4) Subclause (3) does not affect any compensation that may be payable under the Public Sector Employment and Management Act 2002 .

13 No forced redundancies for permanent staff

(1) This clause applies to persons who were members of the Government Service and were employed (otherwise than on a temporary or casual basis) as members of staff of the Public Trustee's Office or the Office of the Protective Commissioner immediately before the dissolution of the offices of Public Trustee and Protective Commissioner.
(2) A person to whom this clause applies must not be removed from the Government Service (other than on disciplinary or incapacity grounds) within the period of 5 years commencing on the date of dissolution of those offices.
(3) This clause does not apply to the former Public Trustee or the former Protective Commissioner as referred to in clause 12.

Division 4 - Investment and existing funds

14 Existing common funds

(1) The existing common funds are continued by this clause and are taken to be common funds established under this Act.
(2) The regulations may provide that an existing common fund forms part of another common fund established under this Act.
(3) The provisions of the Public Trustee Act and the Protected Estates Act, as in force immediately before the commencement of Chapter 5, continue to apply to and in respect of the existing common funds established under those Acts.
(4) Despite subclause (3)--
(a) interest from investments from the existing common fund established under the Public Trustee Act, or any other amount payable under that Act to the Interest Suspense Account or under section 36C of that Act, is to be paid to the existing common fund or the Reserve Fund in accordance with Chapter 5, and
(b) interest and other amounts must not be credited to the Interest Suspense Account, and
(c) amounts may be paid from the existing common fund for any purposes for which they can be paid under Chapter 5 (including, without limitation, for the costs incurred by the NSW Trustee in the exercise of the NSW Trustee's functions under this Act).
(5) Despite subclause (3)--
(a) section 36A (4) of the Public Trustee Act ceases to apply to the distribution of interest to accounts forming part of an existing common fund established under that Act at the end of the period of 12 months commencing on the commencement of section 106 of this Act, or at the end of such further period as may be prescribed by the regulations, and
(b) section 106 (2) of this Act applies on and from that date to the distribution of interest to accounts forming part of any such existing common fund.
(6) The provisions of Chapter 5 do not apply to and in respect of the existing common funds, except as provided by this Schedule.
(7) Policies may be determined under Chapter 5 with respect to the existing common funds.
(8) This clause is subject to the regulations.

15 Application of existing interest distribution provisions to new common funds

(1) This clause applies to a common fund established under this Act.
(2) Despite any other provision of this Act, interest may be distributed among accounts forming part of a common fund in the same manner as is permitted under clause 14 in respect of existing common funds established under the Public Trustee Act.
(3) This clause ceases to have effect on the date that section 36A (4) of the Public Trustee Act ceases to apply to an existing common fund.
(4) This clause is subject to the regulations.

16 Interest Suspense Account

(1) The NSW Trustee must, not later than 12 months after the commencement of Part 5.2, determine the following matters--
(a) the part of the Interest Suspense Account that should be allocated to the Reserve Fund for the purposes of that Fund,
(b) the part of the Interest Suspense Account that should be allocated to the existing common funds,
(c) the part of the Interest Suspense Account referred to in paragraph (b) that should be allocated for the current and future payment of the costs incurred by the NSW Trustee in the exercise of its functions under this Act.
(2) In making such a determination, the NSW Trustee is to have regard to the purposes for which the Interest Suspense Account would have been used if the Public Trustee Act had not been repealed and to the purposes for which the common funds under this Act and the Reserve Fund may be used.
(3) Any part of the Interest Suspense Account identified under subclause (1) (a) is taken to form part of the Reserve Fund and may be used for the purposes of the Reserve Fund.
(4) Any part of the Interest Suspense Account identified under subclause (1) (b) is taken to form part of the existing common funds and may be used for the purposes of the existing common funds.
(5) In addition, any part of the Interest Suspense Account identified under subclause (1) (c) may be applied, in accordance with Chapter 5, for the costs incurred by the NSW Trustee in the exercise of the NSW Trustee's functions under this Act.
(6) Payments for costs out of the part allocated under subclause (1) (c) must not exceed the amount approved by the Director-General.
(7) This clause is subject to the regulations.

17 Existing reserve funds

(1) The existing reserve funds are continued by this clause and are taken to form part of the Reserve Fund established under this Act.
(2) Any part of the existing reserve funds may be applied for the purposes for which the Reserve Fund may be used under this Act.
(3) The Reserve Fund may be applied for any purpose for which the existing reserve funds could have been used immediately before the commencement of Part 5.2.
(4) The provisions of Chapter 5 apply to and in respect of the existing reserve funds, except as provided by this Schedule.
(5) This clause is subject to the regulations.

Part 3 - Provision consequent on enactment of Courts and Crimes Legislation Amendment Act 2015

18 Revocation of order by MHRT

Section 88, as substituted by the Courts and Crimes Legislation Amendment Act 2015 , extends to--

(a) orders that the estate of any person be subject to management under this Act made before the substitution, and
(b) applications made under that section (but not finally determined) before the substitution.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback