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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Stronger Communities Legislation
Amendment (Courts and Civil) Bill 2020
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Explanatory notes 2
4 Repeal 2
Schedule 1 Amendments 3
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2020
New South Wales
Stronger Communities Legislation
Amendment (Courts and Civil) Bill 2020
Act No , 2020
An Act to amend various Acts and regulations relating to courts and to other Communities and
Justice portfolio matters.
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.
Stronger Communities Legislation Amendment (Courts and Civil) Bill 2020 [NSW]
The Legislature of New South Wales enacts--
1 Name of Act
This Act is the Stronger Communities Legislation Amendment (Courts and Civil)
Act 2020.
2 Commencement
(1) This Act commences on the date of assent to this Act except as provided for in
subsection (2).
(2) Schedule 1.1[11]-[20] commences on the expiry of Schedule 4, clause 2 to the
Children's Guardian Act 2019.
3 Explanatory notes
The matter appearing under the heading "Explanatory note" in Schedule 1 does not
form part of this Act.
4 Repeal
The Courts Legislation Amendment Act 2004 is repealed.
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Schedule 1 Amendments
Schedule 1 Amendments
1.1 Children's Guardian Act 2019 No 25
[1] Section 10 Definitions
Insert at the end of the definition of contractor--
, and
(c) an employee of, or volunteer for, a third party employer.
[2] Section 10, definition of "third party employer"
Insert in alphabetical order--
third party employer means a person, other than a relevant entity, who
engages another person to provide services to children on behalf of a relevant
entity, including as a contractor.
[3] Section 16 Meaning of "employee"
Insert "employer" after "third party" wherever occurring in section 16(1)(a) and (b).
[4] Section 16(1)(a)(iv)
Insert at the end of the paragraph--
or
(v) if an individual is the head of a third party employer contracted
to provide services to children on behalf of a Schedule 1 entity
and the individual holds, or is required to hold, a working with
children check clearance--the individual,
[5] Section 16(1)(b)(v)
Insert after section 16(1)(b)(iv)--
(v) if an individual is the head of a third party employer contracted
to provide services to children on behalf of a public authority and
the individual holds, or is required to hold, a working with
children check clearance--the individual,
[6] Section 16(1), example
Insert at the end of section 16(1)--
Example for paragraph (b)(iv)-- a dance teacher is employed as a contractor by a
dance school. The dance school leases the dance school premises from a local council
and is conducting dance classes on behalf of the council. As the dance teacher teaches
children, the dance teacher is required to hold a working with children check clearance.
The dance teacher is taken to be an employee of the local council for the purposes of
this Part.
[7] Section 27 Who must give report of reportable allegation or conviction
Insert "or a third party employer," after "employee of the relevant entity" wherever
occurring in section 27(2) and (3).
[8] Section 63 Retribution by employer
Omit "Ombudsman" wherever occurring in section 63(3)(a) and (c).
Insert instead "Children's Guardian".
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[9] Section 72, heading
Omit the heading. Insert instead--
72 Designated agencies--general
[10] Section 72(3)-(6)
Insert after section 72(2)--
(3) Also, the regulations may make provision for the following--
(a) the surrender of a designated agency's accreditation,
(b) the withdrawal of an application for accreditation.
(4) The Children's Guardian may, if in the Children's Guardian's opinion it is
necessary to protect the safety, welfare or wellbeing of a child or class of
children, decide the date on which the surrender of a designated agency's
accreditation takes effect.
(5) The date decided by the Children's Guardian must be no more than 6 months
after the designated agency notifies the Children's Guardian of the agency's
intention to surrender its accreditation.
(6) The regulations may--
(a) treat a designated agency's failure to renew its accreditation as the
surrender of the agency's accreditation, and
(b) make savings and transitional provisions to provide for the accreditation
to remain in force until the surrender takes effect.
[11] Part 5 Out-of-home care matters regulated by Children's Guardian
Insert after Division 2--
Division 2A Accreditation of designated agencies
80A Conditions of accreditation
A designated agency's accreditation is subject to a condition prescribed by the
regulations--
(a) for all designated agencies, or
(b) for a class of designated agency to which the agency belongs.
80B Conditions imposed by Children's Guardian on accreditation and process of
accreditation
(1) The Children's Guardian may impose a condition on--
(a) the accreditation of a designated agency, or
(b) the process of accreditation of a designated agency.
(2) The Children's Guardian may vary or revoke a condition imposed under
subsection (1).
(3) If the designated agency is a government sector agency or part of a
government sector agency, the Children's Guardian must report to the
Minister on the need for a condition before imposing the condition under
subsection (1)(a).
(4) If the Children's Guardian decides to impose, vary or revoke a condition under
this section, the Children's Guardian must give the designated agency written
notice of the decision, including--
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(a) the condition to be imposed, varied or revoked, and
(b) the reason for the decision, and
(c) the way the agency may apply for a review of the decision.
(5) The decision takes effect on--
(a) the date stated in the notice, or
(b) if no date is stated in the notice--the day the notice is given to the
agency.
80C Shortening, suspension and cancellation of accreditation
(1) The Children's Guardian may, by written notice given to a designated
agency--
(a) shorten the agency's accreditation period to a date stated in the notice,
or
(b) suspend the agency's accreditation--
(i) for a period stated in the notice, or
(ii) until a specified matter stated in the notice has been completed, or
(c) cancel the agency's accreditation from a date stated in the notice.
(2) The Children's Guardian may give a notice under subsection (1) to a
designated agency only if the Children's Guardian is satisfied of one or more
of the following--
(a) the agency made a statement or gave information in connection with the
administration of this Act or the Children and Young Persons (Care and
Protection) Act 1998 that the agency knew to be false or misleading in
a material particular,
(b) the principal officer of the agency made a statement or gave information
in connection with the administration of this Act or the Children and
Young Persons (Care and Protection) Act 1998 that the principal officer
knew to be false or misleading in a material particular,
(c) the agency failed to comply with--
(i) a condition of accreditation prescribed by the regulations, or
(ii) a condition imposed by the Children's Guardian under section
80B(1)(a),
(d) the agency failed to comply with a requirement or prohibition imposed
on the agency under this Act or the Children and Young Persons (Care
and Protection) Act 1998,
(e) the principal officer of the agency failed to comply with a requirement
or prohibition imposed on the principal officer under this Act or the
Children and Young Persons (Care and Protection) Act 1998,
(f) the agency failed, while the agency had been accredited for less than 12
months, to substantially satisfy the accreditation criteria that applied to
the agency for its application for accreditation,
(g) the agency failed, after the agency had been accredited for at least 12
months, to satisfy the accreditation criteria that applied to the agency for
the agency's application for accreditation,
(h) any other ground prescribed by the regulations.
(3) However, the Children's Guardian must not take action under subsection (1)
if the Children's Guardian is satisfied the designated agency failed to comply
with--
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(a) a condition of accreditation that relates solely to the provision,
arrangement or supervision of voluntary out-of-home care, other than a
condition prohibiting the agency from providing, arranging or
supervising voluntary out-of-home care, or
(b) any other requirement or prohibition imposed on the agency under this
Act that relates solely to the provision, arrangement or supervision of
voluntary out-of-home care.
(4) As soon as practicable after making a decision to shorten, suspend or cancel
the accreditation of a designated agency, the Children's Guardian must, by
written notice given to the agency, inform the agency of the following--
(a) the decision,
(b) when the decision takes effect,
(c) the reasons for the decision,
(d) the way the agency may apply for a review of the decision.
(5) For a designated agency that is a government sector agency or part of a
government sector agency, the Children's Guardian must report to the
Minister before giving a notice under subsection (1).
(6) The regulations may prescribe the circumstances in which an agency's
accreditation may be extended despite any shortening of the accreditation
period under subsection (1).
80D Reinstating accreditation
(1) This section applies if--
(a) a designated agency given notice under section 80C(1) gives the
Children's Guardian information in support of the withdrawal of the
decision to shorten, suspend or cancel the agency's accreditation, and
(b) the Children's Guardian decides the designated agency's accreditation
should not have been shortened, suspended or cancelled.
(2) The Children's Guardian may, by written notice given to the designated
agency, withdraw the notice given and--
(a) if the accreditation period was shortened--
(i) reinstate the accreditation period of the agency, or
(ii) reduce the period by which the agency's accreditation period has
been shortened, or
(b) reinstate the accreditation.
(3) Subject to subsection (2)(b), if a designated agency's accreditation is
reinstated under subsection (2), the accreditation is taken to have continued as
if the notice under section 80C(1) had not been given.
80E Accreditation criteria
(1) On the recommendation of the Children's Guardian, the Minister may, from
time to time, approve standards and other criteria for use in determining--
(a) the requirements for accreditation as a designated agency, and
(b) the accreditation period to be granted.
(2) Without limiting subsection (1)--
(a) criteria may be approved for a class of applicants, and
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(b) criteria are to be integrated, to the greatest extent possible, with the
criteria for accreditation of an adoption service provider under this Act,
and
(c) the following matters must be addressed by the criteria--
(i) the assessment procedures for determining if a person is suitable
to be an authorised carer,
(ii) the training to be provided to authorised carers,
(iii) the supervision of authorised carers,
(iv) how the applicant will involve a child in the making of decisions
that affect the child,
(v) how the applicant will involve persons with parental
responsibility for a child immediately before the child enters
out-of-home care in the making of decisions that affect the child,
(vi) how the applicant will involve authorised carers in the making of
decisions concerning a child in the care of the authorised carer.
(3) The Children's Guardian may decide an applicant satisfies a particular
accreditation criterion if a body or entity, recognised by the Children's
Guardian for the purposes of this subsection, has determined that the applicant
meets an equivalent standard or other criterion imposed by the body or entity.
(4) The Children's Guardian must do the following on the Office of the Children's
Guardian's website--
(a) publish standards and criteria approved under subsection (1),
(b) identify the body or entity recognised for the purposes of subsection (3).
(5) Failure to comply with subsection (4) does not affect the validity of a decision
of the Children's Guardian to accredit or not to accredit an applicant.
80F Transfer policies
(1) The Children's Guardian may issue policies in relation to the Children's
Guardian's function of transferring an accreditation from a designated agency
(the transferor) to another organisation that is not a designated agency (the
transferee).
(2) Without limiting subsection (1), the policies may be issued for--
(a) the granting of approvals to transfer an accreditation, and
(b) the imposition of conditions on the process of transferring an
accreditation and on transferred accreditations.
(3) The Children's Guardian must publish the policies on the Office of the
Children's Guardian's website.
(4) The Children's Guardian must refuse an application to transfer an
accreditation if the transferor and the transferee are in contravention of
published policies that apply to the application.
Division 2B Registration of registered agencies
80G Conditions of registration
A registered agency's registration is subject to the conditions prescribed by the
regulations for registered agencies.
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80H Conditions imposed by Children's Guardian on registration as registered
agency
(1) The Children's Guardian may impose a condition on the registration of a
registered agency.
(2) The Children's Guardian may vary or revoke a condition imposed under
subsection (1).
(3) If the Children's Guardian decides to impose, vary or revoke a condition under
this section, the Children's Guardian must give the registered agency written
notice of the decision, including--
(a) the condition to be imposed, varied or revoked, and
(b) the reason for the decision, and
(c) the way the agency may apply for a review of the decision.
(4) The decision takes effect on the date stated in the notice.
80I Cancellation of registration
(1) The Children's Guardian may cancel a registered agency's registration if the
Children's Guardian is satisfied of one or more of the following--
(a) the agency made a statement or gave information in connection with the
application for registration that the agency knew to be false or
misleading in a material particular,
(b) the agency failed to comply with a condition imposed by the regulations
or a condition imposed by the Children's Guardian under section
80H(1),
(c) the agency failed to comply with a prohibition or requirement imposed
on the agency under this Act,
(d) the agency failed to satisfy the registration criteria that applied to the
agency in respect of the agency's application for registration,
(e) the agency failed to comply with any other ground prescribed by the
regulations.
(2) As soon as practicable after making a decision to cancel the registration of a
registered agency, the Children's Guardian must, by written notice given to the
agency, inform the agency of the following--
(a) the decision,
(b) when the decision takes effect,
(c) the reasons for the decision,
(d) the way the agency may apply for a review of the decision.
80J Registration criteria
(1) On the recommendation of the Children's Guardian, the Minister may, from
time to time, approve criteria for use in deciding whether to grant an
application for registration as a registered agency.
(2) The Minister may approve different criteria for deciding applications relating
to different types of voluntary out-of-home care.
(3) The Children's Guardian must publish criteria approved under this section on
the Office of the Children's Guardian's website.
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[12] Section 85 Registers to be kept
Omit section 85(1)(a) and (b). Insert instead--
(a) a register (the authorised carer's register) for the following--
(i) authorised carers,
(ii) applicants for authorisation as authorised carers,
(iii) persons who, under section 10 of the Child Protection (Working
with Children) Act 2012, are required to hold a working with
children check clearance because the person resides on the same
property as an authorised carer for 3 weeks or more,
(b) a register for--
(i) residential care workers, and
(ii) applicants for employment as residential care workers,
[13] Section 85(1)(d)
Insert after section 85(1)(c)--
(d) a register for children in voluntary out-of-home care (the voluntary
out-of-home care register).
[14] Section 93 Exemptions from requirement to hold employer's authority
Insert at the end of the section--
(2) The regulations may prescribe conditions of an exemption from the
requirement to hold an employer's authority for the employment.
[15] Section 97 Conditions of authority
Insert after section 97(1)--
(1A) Without limiting subsection (1), the regulations, or the Children's Guardian,
may impose a condition making an employer's authority subject to the Code
of Practice.
(1B) The Code of Practice is--
(a) the Code of Practice prescribed by the regulations, or
(b) the Code of Practice, prescribed by the regulations and modified in the
way prescribed by the regulations for a class of employers' authority to
which the authority belongs, or
(c) if the holder of an employer's authority has applied to the Children's
Guardian to modify the Code of Practice prescribed by the
regulations--the modified Code of Practice, as approved by the
Children's Guardian.
[16] Section 98 Change in conditions
Insert after section 98(1)--
(1A) Also, the Children's Guardian may, on the Children's Guardian's own
initiative, change the conditions for a class of employers' authority by--
(a) revoking or varying a condition for the class of authority, or
(b) imposing a further condition on the class of authority.
[17] Section 102 Exemption by Children's Guardian
Insert after section 102(4)--
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(5) The regulations may prescribe conditions of an exemption granted by the
Children's Guardian.
[18] Section 112 Accreditation and review of adoption service providers
Insert after section 112(2)--
(2A) An accredited adoption service provider's accreditation is subject to a
condition prescribed by the regulations--
(a) for all accredited adoption service providers, or
(b) for a class of accredited adoption service providers to which the
provider belongs.
[19] Section 113 Accreditation criteria
Insert after section 113(2)--
(2A) The Children's Guardian may decide an applicant for accreditation as an
accredited adoption service provider satisfies a particular accreditation
criterion if a body or entity, recognised by the Children's Guardian for the
purposes of this subsection, has determined that the applicant meets an
equivalent standard or other criterion imposed by the body or entity.
(2B) The Children's Guardian must identify the body or entity recognised for the
purposes of subsection (2A) on the Office of the Children's Guardian's
website.
[20] Sections 113A-113C
Insert after section 113--
113A Conditions imposed by Children's Guardian on accreditation and process of
accreditation as accredited adoption service provider
(1) The Children's Guardian may impose a condition on--
(a) the accreditation of an accredited adoption service provider, or
(b) the process of accreditation of an accredited adoption service provider.
(2) The Children's Guardian may vary or revoke a condition imposed under
subsection (1).
(3) The Children's Guardian must give written notice to the accredited adoption
service provider of--
(a) the condition to be imposed, varied or revoked, and
(b) the reason for the decision to impose, vary or revoke the condition, and
(c) the way the provider may apply for a review of the decision.
(4) The condition, or variation or revocation of a condition, takes effect on the
date stated in the notice.
113B Shortening, suspension and cancellation of accreditation
(1) The Children's Guardian may, by written notice given to an accredited
adoption service provider--
(a) shorten the provider's accreditation period to a date stated in the notice,
or
(b) suspend the provider's accreditation--
(i) for a period stated in the notice, or
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(ii) until a specified matter stated in the notice has been completed, or
(c) cancel the provider's accreditation from a date stated in the notice.
(2) The Children's Guardian may give a notice under subsection (1) to an
accredited adoption service provider if the Children's Guardian is satisfied of
one or more of the following--
(a) the provider made a statement or gave information in connection with
the administration of this Act that the provider knew to be false or
misleading in a material particular,
(b) the provider failed to comply with--
(i) a condition of accreditation prescribed by the regulations, or
(ii) a condition imposed by the Children's Guardian under section
113A(1)(a),
(c) the provider failed to comply with a requirement or prohibition imposed
on the provider under this Act,
(d) the principal officer of the provider failed to comply with standards or
criteria approved by the Minister under section 113,
(e) the provider failed, while the provider had been accredited for less than
12 months, to substantially satisfy the accreditation criteria that applied
to the provider for its application for accreditation,
(f) the provider failed, after the provider had been accredited for at least 12
months, to satisfy the accreditation criteria that applied to the provider
for the agency's accreditation,
(g) any other ground prescribed by the regulations.
(3) As soon as practicable after making a decision to shorten, suspend or cancel
the accreditation of an accredited adoption service provider, the Children's
Guardian must, by written notice given to the provider, inform the provider of
the following--
(a) the decision,
(b) when the decision takes effect,
(c) the reasons for the decision,
(d) the way the provider may apply for a review of the decision.
(4) The Children's Guardian may, by further written notice given to the
provider--
(a) withdraw the notice given under subsection (1) and reinstate the
accreditation, or
(b) if the accreditation period has been shortened under subsection (1)(a)--
(i) reinstate the accreditation period of the accredited adoption
service provider, or
(ii) reduce the period by which the provider's accreditation period
has been shortened.
(5) Subject to subsection (4)(b), the accreditation is taken to have continued as if
the notice under subsection (1) had not been given.
(6) The regulations may prescribe the circumstances in which an accreditation
may be extended despite any shortening of the accreditation period under
subsection (1).
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113C Transfer of accreditation policies
(1) The Children's Guardian may issue policies in relation to the Children's
Guardian's function of transferring an accreditation from an accredited
adoption service provider (the transferor) to another organisation that is not
an accredited adoption service provider (the transferee).
(2) Without limiting subsection (1), the policies may be issued for--
(a) the granting of approvals to transfer an accreditation, and
(b) the imposition of conditions on the process of transferring an
accreditation and on transferred accreditations.
(3) The Children's Guardian must publish the policies on the Office of the
Children's Guardian's website.
(4) The Children's Guardian must refuse an application to transfer accreditation if
the transferor and the transferee are in contravention of published policies that
apply to the application.
[21] Schedule 6 Dictionary
Omit "section 72" from the definition of designated agency. Insert instead "section 72(1)".
Explanatory note
Item [1] of the proposed amendments extends the definition of contractor for the purposes of Part 4
of the Children's Guardian Act 2019 (the Act) to include an employee of, or volunteer for, a third party
employer. Item [2] defines third party employer. Item [3] makes a consequential amendment.
Items [4] and [5] extend the definition of employee for the purposes of Part 4 of the Act to an individual
who is the head of a third party employer contracted to provide services on behalf of a Schedule 1
entity or public authority and if the individual is required to hold a working with children check
clearance. Item [6] provides an example of the definition of employee in section 16(1)(b)(iv) of the Act.
Item [7] extends reporting requirements to third party employers.
Item [8] updates references to the Children's Guardian as a consequence of the transfer of the
reportable conduct scheme from the Ombudsman to the Children's Guardian.
Item [10] provides for the surrender of a designated agency's accreditation and the withdrawal of an
application for accreditation as a designated agency. Items [9] and [21] make consequential
amendments.
Item [11] provides for the accreditation of designated agencies and the registration of registered
agencies by the Children's Guardian.
Item [12] provides for certain information to be kept on the authorised carer's register and the register
for residential care workers. Item [13] enables the Children's Guardian to keep a register for children
in voluntary out-of-home care.
Item [14] provides for the regulations to prescribe conditions of an exemption from the requirement to
hold an employer's authority for the employment.
Item [15] provides for the regulations, or the Children's Guardian, to impose a condition to comply with
a Code of Practice on an employer's authority to employ children.
Item [16] enables the Children's Guardian to change the conditions for a class of employers' authority
by revoking or varying a condition for the class of authority or imposing a further condition on the
class.
Item [17] provides that the regulations may prescribe conditions of an exemption from the requirement
to hold an employer's authority granted by the Children's Guardian.
Items [18]-[20] provide for the accreditation of accredited adoption service providers.
1.2 Court Security Act 2005 No 1
Section 9B
Insert after section 9A--
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9B Prohibition on unauthorised distribution of court recording
(1) A person must not transmit or distribute a recording of sounds or images (or
both) of court proceedings, including part of a recording, by any means.
Maximum penalty--200 penalty units or imprisonment for 12 months, or
both.
(2) Subsection (1) does not apply unless the person knows or suspects, or ought
reasonably to know or suspect, that none of the following apply--
(a) the transmission or distribution of the recording has been expressly
approved by a judicial officer,
(b) the transmission or distribution of the recording is for the purpose of
transcribing court proceedings for the court,
(c) the transmission or distribution of the recording occurred in any other
circumstances prescribed by the regulations.
Explanatory note
The proposed amendment creates an offence of transmitting or distributing a recording of court
proceedings unless it is done for the purpose of transcribing court proceedings for the court or is
otherwise permitted by a judicial officer or the regulations.
1.3 Criminal Records Act 1991 No 8
Section 15 Employment in certain occupations
Insert "or the Office of the Sheriff, Department of Communities and Justice," after "1999),"
in section 15(1).
Explanatory note
The amendment to the Criminal Records Act 1991 provides that the right of an applicant for
appointment or employment to withhold information concerning the applicant's spent convictions does
not apply in relation to employment as a member of staff of the Office of the Sheriff of NSW.
1.4 District Court Act 1973 No 9
[1] Section 152 Unclaimed money
Omit "and placed to the credit of the Special Deposits Account in the Treasury" from
section 152(1).
Insert instead "for payment to the Consolidated Fund".
[2] Section 152(2)
Omit the subsection.
Explanatory note
The proposed amendments require unclaimed money in the District Court to be treated in the same
manner as fees and fines by being paid into the Consolidated Fund.
1.5 Electronic Transactions Act 2000 No 8
Part 2B
Insert after Part 2A--
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Part 2B Remote witnessing pilot scheme
Division 1 Witnessing and attestation
14F Definitions
In this Division--
audio visual link means technology that enables continuous and
contemporaneous audio and visual communication between persons at
different places, including video conferencing.
document includes the following--
(a) a will,
(b) a power of attorney or an enduring power of attorney,
(c) a deed or agreement,
(d) an enduring guardianship appointment,
(e) an affidavit, including an annexure or exhibit to the affidavit,
(f) a statutory declaration.
14G Witnessing and attestation of documents by audio visual link
(1) Despite any other Act or law--
(a) if the signature of a document is required under an Act or another law
to be witnessed, the signature may be witnessed by audio visual link,
and
(b) arrangements in relation to witnessing signatures and the attestation of
documents may be performed by audio visual link.
(2) A person witnessing the signing of a document by audio visual link (the
witness) must--
(a) observe the person signing the document (the signatory) sign the
document in real time, and
(b) attest or otherwise confirm the signature was witnessed by signing the
document or a copy of the document, and
(c) be reasonably satisfied the document the witness signs is the same
document, or a copy of the document signed by the signatory, and
(d) endorse the document, or the copy of the document, with a statement--
(i) specifying the method used to witness the signature of the
signatory, and
(ii) that the document was witnessed in accordance with this section.
Note. A document may be endorsed under paragraph (d) with a statement, for
example, that the document was signed in counterpart and witnessed over
audio visual link in accordance with section 14G of the Electronic Transactions
Act 2000.
(3) Without limiting the ways a witness may confirm the signature was witnessed,
the witness may--
(a) sign a counterpart of the document as soon as practicable after
witnessing the signing of the document, or
(b) if the signatory scans and sends a copy of the signed document
electronically--countersign the document as soon as practicable after
witnessing the signing of the document.
(4) Without limiting subclause (1)(b)--
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(a) arrangements in relation to witnessing signatures by audio visual link
include the following--
(i) certification of matters required by an Act or another law,
(ii) confirming or verifying the identity of the signatory to a
document,
(iii) attestation of a signature,
(iv) swearing or affirming the contents of an affidavit,
(v) seeing the face of the signatory, and
(b) a requirement in an Act or another law for the presence of a witness,
signatory or other person is taken to be satisfied if the witness, signatory
or other person is present by audio visual link.
Division 2 Oaths and declarations
14H Affidavits and declarations made under Oaths Act 1900
A document that is an oath, declaration or affidavit required for a purpose
specified in section 26 of the Oaths Act 1900 may be taken or made before an
Australian legal practitioner as if the practitioner were a justice of the peace.
14I Certain persons before whom statutory declarations may be made
A statutory declaration may be made before a person before whom a statutory
declaration under the Statutory Declarations Act 1959 of the Commonwealth
may be made.
Division 3 Savings and repeal
14J Savings
An endorsement that would have been satisfactory for the purposes of clause
2(2)(d)(ii) of Schedule 1 to the Electronic Transactions Regulation 2017 had
that paragraph not been repealed is taken to be satisfactory for the purposes of
section 14G(2)(d)(ii).
14K Repeal of Part
This Part is repealed on 1 January 2022.
Explanatory note
The proposed amendment transfers the provisions of Schedule 1 to the Electronic Transactions
Regulation 2017 as a pilot scheme under the Electronic Transactions Act 2000. The pilot scheme will
have effect until the end of 2021.
1.6 Electronic Transactions Regulation 2017
[1] Clause 8A COVID-19 response
Omit the clause.
[2] Schedule 1 Response to COVID-19 pandemic
Omit the Schedule.
Explanatory note
The proposed amendments omit provisions from the Electronic Transactions Regulation 2017 that
are being transferred to the Electronic Transactions Act 2000 by Schedule 1.6. The transferred
provisions will continue to have effect until the end of 2021.
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1.7 Imperial Acts Application Act 1969 No 30
Part 3, Division 1 Administration of Estates
Omit the Division.
Explanatory note
The proposed amendment repeals a Division of the Imperial Acts Application Act 1969 that contains
an obsolete provision and provisions proposed to be re-enacted in the Probate and Administration Act
1898 elsewhere in this Schedule.
1.8 Judicial Officers Act 1986 No 100
[1] Section 13 The Conduct Division
Omit "The" from section 13(3). Insert instead "Subject to subsection (3A), the".
[2] Section 13(3A)
Insert after section 13(3)--
(3A) The following functions of the Conduct Division under Part 6 may be
exercised by the Chairperson alone--
(a) giving directions,
(b) making determinations as to procedural matters.
[3] Section 40 Suspension of judicial officers
Omit "offence," from section 40(1)(b)(ii). Insert instead--
offence, or
(c) a formal request, within the meaning of Part 6A, has been made in
respect of a judicial officer,
[4] Schedule 3 Provisions relating to the procedure of the Conduct Division
Omit "All" from clause 2. Insert instead "Subject to subclause (2), all".
[5] Schedule 3, clause 2
Insert at the end of the clause--
(2) This clause applies if the Conduct Division must be constituted by all 3
members.
[6] Schedule 3, clause 3
Omit "The".
Insert instead "If the Conduct Division must be constituted by all 3 members, the".
[7] Schedule 3, clause 3
Omit "a meeting of the Conduct Division". Insert instead "the meeting of the Division".
[8] Schedule 3, clause 7
Insert after clause 6--
7 Use of audio and audio visual links
The following functions of the Conduct Division under Part 6 may be
exercised by way of audio or audio visual link--
(a) giving directions,
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(b) making determinations as to procedural matters.
Explanatory note
Item [2] of the proposed amendments enables the Chairperson of the Conduct Division of the Judicial
Commission of NSW to exercise certain procedural functions alone. Currently, all functions of the
Conduct Division must be exercised by the 3 members of the Division.
Items [1] and [4]-[7] make consequential amendments.
Item [3] enables the head of jurisdiction of a court to suspend a judicial officer of the court if of the
opinion that a judicial officer may have an impairment that affects the officer's performance of judicial
or official duties.
Item [8] provides for the use of audio or audio visual link by the Conduct Division for the purpose of
exercising certain procedural functions.
1.9 Legal Profession Uniform Law Application Act 2014 No 16
[1] Section 28 Delegation of functions of NSW Commissioner
Omit section 28(2) but not the note. Insert instead--
(2) The NSW Commissioner may delegate the following functions to the Bar
Council or the Law Society Council--
(a) any function of the NSW Commissioner under section 137 or 144 of this
Act,
(b) any of the NSW Commissioner's Chapter 5 functions.
[2] Schedule 9 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering--
Part Provision consequent on enactment of Stronger
Communities Legislation Amendment (Courts and
Civil) Act 2020
Manager, Costs Assessment
(1) This clause applies to a Senior Deputy Registrar who assumed the role of
Manager, Costs Assessment on and from 20 June 2016 until appointed to the
position of Manager, Costs Assessment on 18 February 2020.
(2) To avoid doubt, for the purposes of the definition of Manager, Costs
Assessment in section 3(1) of this Act, the Senior Deputy Registrar is taken to
have acted as the Manager, Costs Assessment on and from 20 June 2016 until
18 February 2020.
Explanatory note
Item [1] of the proposed amendments enables the Legal Services Commissioner to delegate the
Commissioner's power to apply to the Tribunal for an extension of time for making a disciplinary
application, or to agree with a respondent lawyer on the terms of an instrument of consent, to the Bar
Council or Law Society Council.
Item [2] puts beyond doubt the status of the person the subject of the amendment as the Manager,
Costs Assessment, within the meaning of the Legal Profession Uniform Law Application Act 2014,
from the date on which the person assumed that role until the date on which the person was appointed
to that position.
1.10 NSW Trustee and Guardian Act 2009 No 49
[1] Section 120, heading
Omit the heading. Insert instead--
120 Payment of liabilities
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[2] Section 120(1)
Omit the subsection. Insert instead--
(1) If the NSW Trustee is required to pay an amount to discharge a liability that
the NSW Trustee would be personally liable to discharge if it were a private
trustee, the NSW Trustee may elect to make the payment from--
(a) the Reserve Fund, or
(b) the Consolidated Fund.
(1A) If the NSW Trustee elects to make the payment from the Consolidated Fund,
the Consolidated Fund is appropriated for that purpose.
Explanatory note
Item [2] of the proposed amendments enables the NSW Trustee to discharge certain liabilities by
payment from the Reserve Fund established under section 109 of the NSW Trustee and Guardian
Act 2009 or the Consolidated Fund. Item [1] makes a consequential amendment.
1.11 Oaths Act 1900 No 20
[1] Section 21 Declarations in cases not specifically provided for
Insert "a federal judicial officer," after "affidavit," in section 21(1).
[2] Section 21(3)
Insert after section 21(2)--
(3) In this section--
federal judicial officer means--
(a) a Judge of the Federal Court of Australia, or
(b) a Judge of the Federal Circuit Court of Australia, or
(c) a Judge of the Family Court of Australia.
Explanatory note
Item [1] of the proposed amendments authorises federal judicial officers to take and receive the
statutory declaration of any person voluntarily making the same before the officer.
Item [2] inserts a definition of federal judicial officer as a consequence.
1.12 Probate and Administration Act 1898 No 13
[1] Section 44A
Insert after section 44--
44A Executor of executor represents original testator
(1) An executor of a sole or last surviving executor of a testator is the executor by
representation of that testator.
(2) So long as the chain of executorial representation is unbroken, the last
executor in the chain is the executor of every preceding testator.
(3) The chain of executorial representation is broken by--
(a) an intestacy, or
(b) the failure of a testator to appoint an executor, or
(c) the failure to obtain probate of a will.
(4) The chain of executorial representation is not broken by a temporary grant of
administration if probate is subsequently granted.
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(5) This section does not apply to an executor who does not prove the will of his
or her testator.
(6) In the case of an executor who, on his or her death, leaves surviving some other
executor of his or her testator who afterwards proves the will of that testator,
this section ceases to apply on that probate being granted.
(7) Every person in the chain of representation to a testator--
(a) has the same rights in respect of the estate of that testator as the original
executor would have had if living, and
(b) is, to the extent to which the estate of that testator has come into his or
her hands, answerable as if he or she were an original executor.
(8) The provisions of this Act that apply to executors are modified to the extent
necessary to give effect to this section.
[2] Section 74A
Insert after section 74--
74A Rights and liabilities of administrators
(1) A person who is granted administration of the estate of a deceased person has
the same rights and liabilities, and is accountable in the same way, as if the
person were the executor of the deceased person.
(2) Subsection (1) is subject to the limitations, if any, contained in the grant of
administration.
Explanatory note
The proposed amendments re-enact, with minor modifications, certain provisions in the Imperial Acts
Application Act 1969 relating to the administration of estates. Proposed section 44A provides for the
process by which the executor of a deceased executor's estate becomes the executor of the estates
of which the deceased executor was executor at his or her death (known as the 'chain of
representation'). Proposed section 74A confers on an administrator of the estate of a deceased
person the same rights, liabilities and accountabilities as an executor of the deceased person would
have, subject to any limitations contained in the grant of administration.
1.13 Supreme Court Act 1970 No 52
[1] Section 48 Assignment to the Court of Appeal
Insert "a person who is or has been" after "means" in the definition of judge or member in
section 48(1)(b).
[2] Section 48(1)(b)(iii)
Insert at the end of section 48(1)(b)(ii)--
, or
(iii) a Justice of the High Court or a Judge of the Federal Court of
Australia or a Supreme Court of another State or Territory.
Explanatory note
Item [2] of the proposed amendments provides for the assignment to the Court of Appeal of certain
proceedings involving a Justice of the High Court or a Judge of the Federal Court of Australia or a
Supreme Court of another State or Territory. Item [1] provides for the assignment to the Court of
Appeal of certain proceedings involving former Justices or Judges of those courts, as well as former
judges or members of the Supreme Court, Land and Environment Court, Dust Diseases Tribunal of
New South Wales or District Court and former associate Judges of the Supreme Court. At present,
these proceedings are assigned to the Common Law Division or the Equity Division of the Supreme
Court rather than the Court of Appeal.
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1.14 Trustee Act 1925 No 14
[1] Section 42A
Insert after section 42--
42A Maintenance for adult beneficiaries
(1) If property is held in trust for an adult beneficiary for any kind of interest,
whether vested or contingent or absolute or liable to be divested, the trustee
may pay the beneficiary, or otherwise apply the whole or any part of the
income of the property for or towards the maintenance, education or benefit of
the beneficiary.
(2) This section--
(a) applies only if and to the extent a contrary intention is not expressed in
the instrument, if any, creating the trust, and
(b) has effect subject to the terms and provisions of the instrument.
(3) This section extends to trusts created before the commencement of this
section.
(4) In this section--
adult beneficiary means a beneficiary who is not an infant.
Note. Sections 43 and 43A make provision for the payment or application of trust
income for or towards the maintenance or education of infant beneficiaries based on
when the instrument creating the trust came into operation.
[2] Sections 43 and 43A, headings
Insert "for infant beneficiaries" after "maintenance" wherever occurring.
[3] Section 44 Advancement
Omit section 44(1A).
[4] Part 3, Division 3A
Insert after section 86--
Division 3A Power of Court to vary trusts
86A Court order to approve arrangement
(1) If property is held in trust under any instrument creating the trust, the Court
may, if it thinks fit, by order approve any arrangement to--
(a) vary or revoke all or any of the trust, or
(b) enlarge the powers of the trustees for the purpose of managing or
administering any of the property subject to the purpose of the trust.
(2) An order under this section may be made by the Court only on behalf of--
(a) any person under the trust having an interest directly or indirectly, or
vested or contingent, who by reason of being a minor or other incapacity
is incapable of assenting, or
(b) any person who may become entitled, directly or indirectly, to an
interest under the trust, and the entitlement is contingent on a future date
or event that has not occurred at the time of application for an order
under this section, or
(c) any unborn person, or
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(d) any person in respect of any discretionary interest of the person under
protective trusts where the interest of the principal beneficiary has not
failed or determined.
(3) This section--
(a) extends to a trust created before the commencement of this section, and
(b) does not apply to trusts affecting property created by another Act, and
(c) does not limit the operation of section 81.
(4) In this section--
discretionary interest, in relation to protective trusts, means an interest arising
under section 45(6).
principal beneficiary has the same meaning as in section 45.
protective trusts has the same meaning as in section 45.
86B Court order to benefit person subject to application
(1) The Court must not approve an arrangement on behalf of any person under
section 86A unless the carrying out of the order would be for the benefit of that
person.
(2) Subsection (1) does not apply to an approval of an arrangement under
86A(2)(d).
86C Court may direct notice of application to certain persons
Notice of an application to the Court for an order under section 86A must be
given to any persons as the Court may direct.
Explanatory note
Item [1] of the proposed amendments allows a trustee to pay or apply income from trust property for
or towards an adult beneficiary's maintenance, education or benefit. Currently, this is permitted only
for infant beneficiaries. Item [2] makes consequential amendments to certain headings.
Item [3] removes a limitation on the use of trust capital money paid to an infant for the purposes of
maintenance or education where the infant's share of the trust property exceeds $4,000.
Item [4] aims to bring the State in line with other jurisdictions by allowing the Supreme Court to
approve an arrangement varying or revoking a trust where this is beneficial to the interests of the
beneficiaries or to the fulfilment of the trust purpose.
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