Statute Law (Miscellaneous Provisions) Act (No 2) 1995 (NSW)

New South Wales

Page

1 Name of Act 2
2 Commencement 2
3 Amendments 2
4 Repeals 2
5 General savings, transitional and other provisions 2
6 Explanatory notes 2
Schedules

Schedule 1 Minor amendments
Australian Jockey Club Act 1873
Biological Control Act 1985 No 199
Catchment Management Act 1989 No 235
Clean Air Act 1961 No 69
Commercial Arbitration Act 1984 No 160

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Contents

Page

Dangerous Goods Act 1975 No 68 6
Environmental Offences and Penalties Act 1989
No 150 7
Freedom of Information Act 1989 No 5 9
Independent Commission Against Corruption Act
1988 No 35 10
Interpretation Act 1987 No 15 11
Justices Act 1902 No 27 13
Maritime Services Act 1935 No 47 13
Marketing of Primary Products Act 1983 No i 7 6 15
Mental Health Act 1990 No 9 16
Motor Accidents Act 1988 No 102 17
Ombudsman Act 1974 No 68 17
Parliamentary Contributory Superannuation Act 1971
No 53 18
Protection of the Environment Administration Act
1991 No 60 21
Radiation Control Act 1990 No 13 23
Roman Catholic Church Trust Property Act 1936
No 24 23
Rural Lands Protection Act 1989 No 197 25
Soccer Football Pools Act 1975 No 45 26
Statutory a n d Other Offices Remuneration Act 1975
(1976 No 4) 26

Schedule 2	Amendments by way of statute law revision	27
Schedule 3	Amendments replacing gender-specific language	37
Schedule 4	Amendments transferring provisions	82
Schedule 5	Repeals	93
Schedule 6	General savings, transitional and other provisions	98
Notes	100
Contents page 2

New South Wales
Act N o 99 , 1995
An Act to repeal certain Acts and to amend certain other Acts in various respects and for the purpose of effecting statute law revision; and to make certain savings. [Assented to 21 December 1995]

Section 1

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

The Legislature of New South Wales enacts:

This Act is the Statute Law (Miscellaneous Provisions) Act
(No 2) 1995.

(1) This Act commences on the date of assent, except as provided by
subsections (2) and (3).

(2)

The amendments made by Schedule 1 or 2 commence on the dates specified in that Schedule in relation to the amendments concerned. If a commencement date is not specified, the amendments commence on the date of assent.

(3)

The amendments made by Schedule 3 commence the date that is 3 months after the date of assent, or on such earlier day or days as may be appointed by proclamation.

Each Act specified in Schedules 1–4 is amended as set out in those Schedules.

4 Repeals

Each Act specified in Schedule 5 is repealed.

5 General savings, transitional and other provisions
Schedule 6 has effect.

6 Explanatory notes

The matter appearing under the heading “Explanatory note” in any of the Schedules does not form part of this Act.

Statute Law (Miscellaneous Provisions) Act (No 2) No 99

Minor amendments Schedule 1

(Section 3)

Section 2 Interpretation clause
Omit the definition of Minister.
Explanatory note
At present, section 2 provides (among other things) that, in the Act, the term “Minister” means “the Minister of the Crown for the time being administering the Australian Jockey Club (Amendment) Act 1935”. However, the latter Act was repealed by the Statute Law (Miscellaneous Provisions) Act 1985.
The proposed amendment removes the definition of the term Minister. The effect of this is that the ordinary rules relating to the interpretation of the term “the Minister” will apply. By virtue of section 15 (2) of the Interpretation Act 1987, references in the Act to ‘‘the Minister” are references to the Minister administering the Act.

1.2 Biological Control Act 1995 No 1
[ 1 ] Section 3 Definitions
Omit the definition of Council from section 3 (1). Insert instead:
Council means the body known as the Agricultural and
Resource Management Council of Australia and New
Zealand.

[2] Section 8 New South Wales Biological Control Authority
Omit subsection (2). Insert instead:

(2)

The Authority shall be the Minister of the Crown of the State of New South Wales who is for the time being:

(a) a member of the Council, and
(b) the Minister administering this Act.

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule 1

Minor amendments

Explanatory note the Australian Agricultural Council.
Name change
Constitution of New South Wales Biological Control Authority change of name), there is more than one such Minister among its membership. Item [2] of the proposed amendments makes clear which of those Ministers constitutes the Authority.
At present, section 8 (2) is to the effect that the New South Wales Minister who is
for the time being a member of the Australian Agricultural Council constitutes the
New South Wales Biological Control Authority established by section 8 (1).
Schedule 2 Urban Area
Insert “Rockdale,” after “Randwick,” in paragraph (a).
Insert “Pittwater,” after “North Sydney,” in paragraph (b).

Omit “Rockdale,” from paragraph (b).

Schedule 2

Schedule 2 to the Catchment Management Act 1989 lists the cities (in paragraph
(a)) and local government areas (in paragraph (b)) that constitute “urban areas”
for the purposes of that Act.

Explanatory note government area of Rockdale as a City and the division of the Warringah local government area into the local government areas of Warringah and Pittwater. Items [1] and [3] of the proposed amendments insert a reference to Rockdale in the list of cities and remove it from the list of other local government areas. Item [2] inserts a reference to Pittwater in the list of local government areas. (There is already a reference to Warringah in that list.)

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Minor amendments Schedule 1
Clean Air Act 1961 No 69
Section 5 Definitions
Insert in alphabetical order in section 5 (1):
open fire means any fire (whether or not constituting, or occurring in connection with the operation of, any fuel burning equipment) in which the products of combustion are not directed to the open air by means of a stack or chimney.

Section 24 Power to prohibit use of fuel, fuel burning equipment or industrial plant in certain areas or to prohibit open burning
Omit section 24 (3).
Section 32 Penalties
Omit “or an order given under section 33A” from subsection (2).
Explanatory note
Item [2] of the proposed amendments repeals a subsection that defines open fire for the purposes of that particular section only. Item [1 ] inserts the definition in section 5 (1) of the Act, so that the term will have the same meaning wherever it is used in the Act.
Item [3] of the proposed amendments removes a reference to a repealed section.

Commercial Arbitration Act 1984 No 160
Section 17 Parties may obtain subpoenas
Omit section 17 (1). Insert instead:

(1)

The Court may, on the application of any party to an arbitration agreement, and subject to and in accordance with rules of court, issue a subpoena requiring a person:

(a)

to attend for examination before the arbitrator or umpire, or

(b)

to produce to the arbitrator or umpire the documents specified in the subpoena, or
(c) to do both of those things.

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Schedule 1

Minor amendments

Section 18 Refusal or failure to attend before arbitrator or
umpire or to produce document
Insert after section 18 (1) (a):

(ba) refuses or fails to produce a document that the

person is required under a subpoena or by the
arbitrator or umpire to produce, or

Section 18 (1) (b) (iii)
Omit the subparagraph.
Section 21 Effect of appointment of new arbitrator or umpire on evidence previously given and awards and determinations
previously made
Insert “, or for the purposes of,” after “in the course of” wherever
occurring in paragraph (a).

At present, section 17 (1) provides for the issue of 2 types of subpoenas: those
requiring a person to attend for examination before the arbitrator or umpire and
those requiring a person both to attend for examination and to produce
documents.

Explanatory note to provide for the issue of a third type of subpoena: that requiring the production
of documents only (that is, without also requiring attendance).

Items [2], [3] and [4] make consequential amendments.
Section 11 Offence of unlicensed conveyance
Insert “or a Territory” after “another State” in section 11 (3).

Explanatory note dangerous goods in any container that is in or on, or forms part of, a vehicle or vessel unless the person is authorised by section 10 (3) to do so. However, section 11 (2) provides that the person is not guilty of the offence if (among other things) the person (or the person’s employer) is authorised to carry the goods in
Statute Law (Miscellaneous Provisions) Act (NO 2) 1995 No 99

Minor amendments Schedule 1
the container under a law “which has been declared to be a corresponding law for the purposes of this section”. Section 11 (3) empowers the Governor to declare “a law of another State” to be such a corresponding law.
The proposed amendment enables the Governor to make the same declaration in respect of the law of a Territory.
Environmental Offences and Penalties Act 1989 No 150
Section 8A Offences under the Clean Air Act 1961
Insert “If Part 1 of the Schedule indicates that the maximum penalty varies according to whether the offender is an individual or a corporation, the penalty is to be imposed accordingly.” after “subsection (l).” in section 8A (2).
Section 8B Offences under the Clean Waters Act 1970
Insert “If the Schedule indicates that the maximum penalty varies according to whether the offender is an individual or a corporation, the penalty is to be imposed accordingly.” after “subsection (l).” in section 8B (2).

Omit “Section 21G (3) (a)” from Column 1 of Part 1.

Insert instead “Section 21G (l)”.
Schedule 1
Omit “Section 21G (3) (b)” from Column 1 of Part 1.
Insert instead “Section 21G (1)”.

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Schedule 1

Minor amendments

Schedule 1
Omit “Section 23 (3) (a)” from Column 1 of Part 1.
Insert instead “Section 23 (l)”.
Schedule 1
Omit “Section 23 (3) (b)” from Column 1 of Part 1.
Insert instead “Section 23 (l)”.
Schedule 1
Omit “Section 23A (4) (a)” from Column 1 of Part 1.
Insert instead “Section 23A (l)”.
Schedule 1
Omit “Section 23A (4) (b)” from Column 1 of Part I.
Insert instead “Section 23A (l)”.
Schedule 1
Omit “Section 27 (5) (d)” from Column 1 of Part I.
Insert instead “Section 27 (5)”.

Schedule 1
Omit “Section 27 (5) (e)” from Column 1 of Part 1.
Insert instead “Section 27 (5)”.
Schedule 1
Omit “Section 28 (2) (a)” from Column l of Part 2.
Insert instead “Section 28 (2)”.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Minor amendments Schedule 1
[ 1 2 ] Schedule 1

Omit “Section 28 (2) (b)” from Column 1 of Part 2.
Insert instead “Section 28 (2)”.
Explanatory note

The Environmental Offences and Penalties (Amendment) Act 1990, among other things, amended certain individual Acts such as the Clean Air Act 1961 and the Clean Waters Act 1970 (the individual Acts) so as to make offences arising under those Acts offences against the Environmental Offences and Penalties Act 1989 (the Principal Act). The provisions of the individual Acts creating the offences as offences against the individual Acts were repealed.

The Environmental Offences and Penalties (Amendment) Act 1990 also provided for a uniform scale of penalties within the Principal Act, and inserted a Schedule (Schedule 1) of lesser penalties for particular offences arising under the individual Acts. Schedule 1 refers to the relevant provisions of the individual Acts. However, some of the references in that Schedule are to the repealed provisions of the individual Acts.

Items [3]–[12] of the proposed amendments correct those references. items [1 ] and [2] clarify the way in which a penalty is to be imposed in relation to offences for which the Schedule specifies a maximum penalty that varies according to whether the offender is an individual or a corporation.

Section 52A
Insert after section 52:
52A Redetermination of applications following action by the
Ombudsman

( 1) An agency may, under this section, review a
determination:

(a)

in accordance with a written suggestion made by the Ombudsman in the course of a preliminary inquiry referred to in section 13AA of the Ombudsman Act 1974, being an inquiry that is undertaken as the result of a complaint, or

(b)

as a result of a written undertaking given in a conciliation under section 13A of that Act, or

(c)

in accordance with a recommendation given by the Ombudsman in accordance with that Act.

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule 1

Minor amendments

(2)	The review is to be conducted under section 34 or 47, as the case requires, as if the suggestion, undertaking or recommendation were an application referred to in that section.
(3)	Despite any other provision of this Act, there is no right to complain to the Ombudsman in respect of any determination arising out of a review under this section.

Explanatory note
The proposed amendment allows an agency (within the meaning of the Freedom of lnformation Act 1989) to review its determination of an application for access to the agency’s documents, or for the amendment of an agency’s records, in accordance with a suggestion or recommendation of the Ombudsman or as a result of an undertaking given during the course of a conciliation of a complaint made to the Ombudsman in connection with that determination. There is no right to complain to the Ombudsman in respect of the result of a review. A person aggrieved by a determination arising out of a review has a right of appeal (conferred by section 53 of the Freedom of lnformation Act 1989) to the District Court.
Independent Commission Against Corruption Act 1988 No 35
Omit “Within 12 months after the commencement of this Division, ”
from subsection (5).
Insert instead “‘No later than 31 July 1996,”.

Section 72E Functions

Omit “Within 12 months after the commencement of this Division,”

from subsection (5).
Insert instead “No later than 31 July 1996,”.

Explanatory note

Section 72C deals with the functions of the committee of the Legislative Council designated under section 72B. One of the functions of that committee is to prepare for consideration by the Legislative Council draft codes of conduct for members of the Legislative Council. Section 72C (5) requires the committee to present a draft code “[w]ithin 12 months after the commencement” of the Division in which the section is located (Division 1 of Part 7A—Parliamentary Ethical Standards).

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Minor amendments Schedule 1
Section 72E is a similar provision relating to the Standing Ethics Committee of
the Legislative Assembly constituted by Division 2 of Part 7A.
Both Divisions commenced on 20 January 1995. Accordingly, each draft code of
conduct must be presented to the relevant House by 20 January 1996.
The proposed amendments extend that deadline to 31 July 1996.

Insert in alphabetical order in subsection (1):
local council means a council within the meaning of the
Local Government Act 1993.

[2] Section 30 Effect of amendment or repeal of Acts and statutory rules
Omit section 30 (1). Insert instead:

(1) The amendment or repeal of an Act or statutory rule does
not:

(a)

revive anything not in force or existing at the time at which the amendment or repeal takes effect, or

(b) affect the previous operation of the Act or
statutory rule or anything duly suffered, done or
commenced under the Act or statutory rule, or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or
(d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,
and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

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Schedule 1

Minor amendments

[ 3 ] Section 30 (2) (a)

Insert “or” after “thing;”.

Section 30 (2) (d)

Insert at the end of paragraph (c):

(d)

the operation of any savings or transitional provision contained in the Act or statutory rule.

Explanatory note
Meaning of "local council"
( i tem [1]) the purposes of New South Wales legislation generally. It does this by inserting a definition in a section that usually applies to all Acts and instruments.

Section 30 (items [2]–[4])
Section 30 deals with the effect of the amendment or repeal of an Act or statutory repeal of an Act or statutory rule does not affect the continuing operation (if any) of a provision of a savings or transitional nature that is contained in the Act or statutory rule. The insertion of this provision enables the repeal of otherwise obsolete legislation that contains unincorporable transitional provisions. Item [3] is a consequential amendment.
instrument.
Item [2] of the proposed amendments to that section replaces existing subsection
(1) and inserts an additional paragraph, as paragraph (a). This paragraph
expressly negates the old common law rule that, in the absence of a contrary
intention, the repeal of an Act revives (among other things) the common law that it
displaced. (Section 28 of the Interpretation Act 1987 precludes the revival of
repealed legislation on the repeal or amendment of the Act or statutory rule that
repealed the legislation.) A similar provision to the inserted paragraph (a) is
contained in the Acts interpretation legislation of all other Australian jurisdictions
and the substituted subsection conforms to, and is consistent with, that
legislation.
The proposed amendment to the Marketing of Primary Products Act 1983
referred to elsewhere in this Schedule, is consequential on the amendment made
by item [2].
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Minor amendments Schedule 1
Justices Act 1902 No 27 Section 100I Interpretation
Insert “or (1 A)” after “section 30D (l)” in the matter relating to the Maritime Services Act 1935 in the definition of penalty notice in subsection (l).
Explanatory note
The proposed amendment is consequential on an amendment to the Maritime
Services Act 1935 proposed to be made elsewhere in this Schedule.
Maritime Services Act 1935 No 47

Omit section 30D (1). Insert instead:
Section 30D Penalty notices for certain offences

(1)

A police officer or a prescribed officer may serve a penalty notice on a person if it appears to the police officer or the prescribed officer that the person has committed:

(a) an offence under section 13SA, or
(b) a prescribed offence under any regulation, or
(c) a prescribed offence under the Commercial Vessels

Act 1979 or a regulation under that Act, or

(d)

a prescribed offence under the Navigation Act 1901, being an offence arising under the Navigation (Collision) Regulations 1983 that is committed by the owner or master of:

(i)

a vessel to or in relation to which the Commercial Vessels Act 1979 applies, or

(ii)

a vessel referred to in section 4A (2) of that Act, or

(iii)

a vessel the subject of an exemption under section 48 of that Act, or

(iv)

a recreational vessel (within the meaning of the Ports Corporatisation and Waterways Management Act 1995).

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule 1

Minor amendments

(1A)	A police officer or a prescribed officer may also serve a penalty notice on a person if it appears to the police officer or the prescribed officer that the person is, by virtue of section 30C, guilty of a parking offence (within the meaning of that section) that is a prescribed offence.

(1B) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.

Insert “or (1A)” after “subsection (l)”.
Explanatory note
Section 30D allows penalty notices (“on-the-spot” fines) to be issued under the
Maritime Services Act 1935 for the following offences:

• an offence under section 13SA (Speed limits of vessels within navigable waters) of that Act
• prescribed offences under a regulation made under that Act
• prescribed offences under the Commercial Vessels Act 1979 or a regulation made under that Act.
Item [1] of the proposed amendments adds another category of offences to that list. It will enable the issue of penalty notices for prescribed offences under the Navigation Act 1901 arising under the Navigation (Collision) Regulations 1983. However, the penalty notices will be able to be issued in relation to recreational vessels and commercial vessels only.
The proposed amendment repeals and re-enacts section 30D (1) in a more modern style (as section 30D (1), (1A) and (1 B)). In so doing, it transfers a reference to section 30C (which is concerned only with the liability of vehicle owners for parking offences under any regulation made under the Act) to subsection (1 A), separating that reference from the references in subsection (1) to more general offences.
Item [2] of the proposed amendments makes a consequential amendment.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Minor amendments Schedule 1
Section 84 Provisions relating to marketing orders
Omit section 84 (4). Insert instead:

(4) The rescission, revocation, amendment or alteration, whether in whole or in part, of any marketing order does not:
revive anything not in force or existing at the time at which the rescission, revocation, amendment or alteration takes effect, or
affect the previous operation of the order or any thing duly suffered, done or commenced under the order, or
affect any right, privilege, obligation or liability acquired, accrued or incurred under the order, or
affect any penalty, forfeiture or punishment incurred in respect of any offence against the order, or

affect any investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or
punishment,
and any such penalty, forfeiture or punishment may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the rescission, revocation, amendment or variation had not occurred.

Explanatory note
The proposed amendment is consequential on the amendment contained in item [2] of the amendments to the lnterpretation Act 1987 set out elsewhere in this Schedule and makes section 84 (4) consistent with section 30 (1) of that Act.

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule 1 Minor amendments

1.14	Mental Health Act 1990 No 9
Schedule 6 Provisions relatim to members of the Tribunal
Omit clause 4. Insert instead:

emuneration and allowances for members

(1) The President and a Deputy President are entitled to be
paid:

(a)

remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and

(b)

such travelling and subsistence allowances as the Minister may from time to time determine in respect of the President and a Deputy President, respectively.

(2)

A member, other than the President or a Deputy President, is entitled to be paid such remuneration (including travel and subsistence allowances) as the Minister may from time to time determine in respect of the member.

Explanatory note
At present, clause 4 provides that the President, a Deputy President (of whom there may be more than one) and other full-time members of the Mental Health Review Tribunal are entitled to be paid such remuneration as the Governor may from time to time determine in respect of the member. The travelling and subsistence allowance entitlements of those members, and the remuneration and allowance entitlements of the part-time members, are such as the Minister may from time to time determine in respect of the member.
The proposed amendment provides, instead, that the remuneration and allowances of the President and a Deputy President are to be determined in accordance with the Statutory and Other Offices Remuneration Act 1975. The remuneration and allowances of all other members (both full-time and part-time) are to be determined by the Minister.
The proposed amendment reinstates the position that existed under the repealed
Mental Health Act 1983.
A consequential amendment to the Statutory and Other Offices Remuneration Act
1975 is proposed to be made elsewhere in this Schedule.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Minor amendments Schedule 1
Section 73 Payment of interest
Omit subsection (6). Insert instead:

(6)

Rate of interest. The rate of interest to be used in any such calculation is three-quarters of the rate prescribed for the purposes of section 95 of the Supreme Court Act 1970 for the period concerned.

At present, section 73 (6) provides that the rate of interest to be used in any
calculation of interest payable on damages in relation to a motor accident is
“three-quarters of the rate that would otherwise be applicable under the rules of
court”. The Supreme Court Rules 1970 do not specifically provide a rate of
interest for the purposes of section 73 of the Motor Accidents Act 1988, but do
prescribe a rate of interest for the purposes of section 95 (Interest on debt under
judgment or order) of the Supreme Court Act 1970.

Explanatory note section 73 of the Motor Accidents Act 1988 is to be calculated by providing that the rate to be used is three-quarters of the rate so prescribed.

Section 13AA
Insert after section 13:
13AA Preliminary inquiries

(1) The Ombudsman may make preliminary inquiries for the purpose of deciding whether to make particular conduct of a public authority the subject of an investigation under this Act.
(2) The inquiries may be made whether or not any person has complained to the Ombudsman about the conduct under section 12.

Explanatory note make preliminary inquiries to determine whether to make particular conduct of a public authority the subject of an investigation under the Act.

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Schedule 1

Minor amendments

1.17 Parliamentary Contributory Superannuation Act 1971

No 53

Insert in alphabetical order in section 3 (1):
federal member means a member of either House of the
Parliament of the Commonwealth.

[2] Section 22B Preservation of minimum benefits superannuation guarantee legislation
Insert after section 22B (5):

(6) Payment for purposes of Commonwealth law
Nothing in this section prevents payment, in pursuance of an election under section 26A, of the whole or part of a benefit preserved under this section to the Parliamentary Retiring Allowances Trust established under the Parliamentary Contributory Superannuation Act 1948 of the Commonwealth, for the purposes of section 22Q of that Act.

[3] Section 26 Suspension of pension where another parliamentary pension received
Insert after section 26 (3):

(4)

This section does not apply so as to suspend a person’s rights under this Part on account of the person’s entitlement to a pension under the Parliamentary Contributory Superannuation Act 1948 of the Commonwealth if the person (or the person’s spouse, in a case where the entitlement concerned is that of a spouse):

(a)

made an election under section 20A (1AC) of that Act, or
(b) became a federal member on or after 1 July 1994.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Minor amendments Schedule 1
[ 4 ] Section 26A
Insert after section 26:
26A Arrangements for transfer to Commonwealth scheme

(1) Election to pay transfer value to Commonwealth

A former member who was a federal member as at 1 July 1994 or who afterwards becomes a federal member may elect to pay to the Commonwealth the amount of the transfer value payable to or in respect of the former member under this Act in relation to the period during which the former member served as a member.
(2) Provisions relating to election
The election must be in writing and given to the trustees.

The trustees may decline to accept an election if it appears that the payment of the transfer value will not be effective for the purposes of the Parliamentary Contributory Superannuation Act 1948 of the Commonwealth.
(3) Nature of transfer value
The transfer value is:

(a)

in the case of a former member who has been entitled to salary for a period of at least 7 years, the actuarially assessed future benefits (as determined by the trustees after receiving actuarial advice) that would, but for the election under this section, be payable under this Act in respect of the former member’s past service as a member, and

(b)

in the case of a former member who has been entitled to salary for a period of less than 7 years, the amount (as determined by the trustees) that would, but for the election under this section, be payable under section 22A.

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Schedule 1

Minor amendments

(4)	Payment of transfer value

The trustees are authorised to pay as a lump sum from the Fund an amount equal to the transfer value to the Commonwealth in accordance with the election.

(5) Consequences of payment of transfer value
When the amount equal to the transfer value is paid to the commonwealth, the former member ceases to be entitled to any rights or benefits (present or future) under this Act in respect of any period of past service as a member to which the transfer value relates. However, the former member can become entitled to rights or benefits in respect of any future period of service as a member.

Commencement taken to have commenced on 1 July 1995.
Explanatory note

Reduction of State scheme benefits by other benefit entitlements
Section 26 of the Act currently provides that the rights of a person to be paid a
pension under Part 3 of the Act are suspended when the person becomes entitled
to a pension under another scheme arising from membership of another
Parliament. While the suspension is in force, the trustees of the fund established
under the Act may nevertheless, at their discretion, pay benefits to the person
from the fund, but only to, the extent that those benefits, when added to the
person’s pension entitlements from service with the other Parliament, do not
exceed the amount of the person’s pension entitlements under Part 3 of the Act.
Historically the Trustees’ preference has been to exercise their discretion in
favour of the former member and so the section, in effect, has operated to reduce
benefits under the Act by an amount equal to the benefits being received by the
former member from elsewhere.

Former members who become members of Commonwealth Parliament- which governs benefits under the scheme established for Commonwealth Parliamentarians, used to contain similar provisions that reduced a Commonwealth Parliamentary pension by amounts equal to the benefits being received from other Parliamentary schemes. With effect from 1 July 1994, however, Commonwealth law has been amended so that the reduction provisions do not apply to persons becoming Commonwealth Parliamentarians on or after that date. Moreover, a person who was a Commonwealth Parliamentarian on 1 July 1994 may, by election in writing, declare himself or herself exempt from those provisions. This, in effect, allows every person who is now a member of the Parliament of the Commonwealth and was a member of another Parliament to
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Minor amendments Schedule 1
receive his or her full entitlements under the Commonwealth scheme based on Commonwealth Parliamentary service, regardless of benefits received from service with the other Parliament.
Item [3] amends section 26 in line with the Commonwealth law, by providing that suspension of benefit entitlements in terms of the section will not apply to persons who are not subject to similar benefit-reduction provisions under the Commonwealth law. The two cases are:

(a) where the person became a federal member on or after 1 July 1994, and
(b) where the person (having been a member of the Commonwealth Parliament on 1 July 1994) made an election under section 20A (1AC) of the Parliamentary Contributory Superannuation Act 1948 of the Commonwealth (as a result of which he or she is no longer subject to Commonwealth benefit-reduction provisions).
Transfer values member who also served in another Parliament, at the member's option, to have additional service, represented by a benefit payable from another Parliamentary superannuation scheme (following cessation of membership of the other Parliament), regarded as service with the Commonwealth Parliament for the purposes of the Commonwealth scheme. This is achieved by paying to the administrators of the Commonwealth scheme an amount of money (called a transfer value) actuarially calculated to represent future benefit payments from that other scheme forgone by the member. Item [4] inserts a new section 26A, the effect of which is to allow a Commonwealth Parliamentarian who was a member of the New South Wales Parliament, at his or her option, to have the trustees of the State scheme pay any benefits to which the former member is entitled under the State scheme to the administrators of the Commonwealth scheme as a transfer value for the purposes of that scheme.
Minor amendments
Item [1] provides 'a definition of federal member for the purposes of the
provisions inserted by the Bill.
Item [2] makes a consequential amendment.

1.18 Protection of the Environment Administration Act 1991
No 60
[1] Section 21 Delegation of functions
Insert after section 21 (1):
(1A) The Director-General may delegate to an authorised person any of the functions (other than this power of delegation) conferred or imposed on the Director-General by or under the environment protection legislation or any other legislation.

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule 1

Minor amendments

Section 21 (2)
Omit the subsection. Insert instead:

(2) A delegate may sub-delegate to an authorised person any
function delegated:

(a) by the Authority, if the delegate is authorised in writing to do so by the Authority, or
(b) by the Director-General, if the delegate is authorised in writing to do so by the Director-General.

[3] Section 21 (3) (c) and (d)
Omit paragraph (c). Insert instead:

(c) a council (within the meaning of the Local Government Act 1993, or
(d) a person of a class prescribed by the regulations for the purposes of delegations from the Authority or the Director-General or both.

Explanatory note as that Authority may delegate its functions.
Delegation of functions (item [1] )
Item [1 ] of the proposed amendments enables the Director-General of the
Sub-delegation (item [2])
At present, section 21 (2) allows a delegate of the Environment Protection Authority to sub-delegate. Item [2] of the proposed amendments confers the same power on a delegate of the Director-General of that Authority.
Meaning of “authorised person” (item [3])
Functions of the Environment Protection Authority and the Director-General of that Authority may be delegated only to an authorised person as defined in section 21 (3). Item [3] of the proposed amendments brings an additional category of persons (local councils) within the meaning of that term.
Item [3] of the proposed amendments also enables the making of regulations that prescribe different classes of persons as authorised persons for the purposes of delegations from the Environment Protection Authority on the one hand and the Director-General of that Authority on the other. However, a class of persons may also be prescribed as authorised persons for the purposes of delegations from both the Authority and the Director-General.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Minor amendments Schedule 1
Section 39A
Insert after section 39:
39A Personal liability
A matter or thing done or omitted by:

(a) the Council or a member of the Council, or
(b) a member of a committee of the Council, or
(c) an inspector, or
(d) a person acting under the direction of the Council, does not subject a member, inspector or person so acting personally to any action, liability, claim or demand if the matter or thing was done or omitted in good faith for the purposes of executing this Act.

Explanatory note
The proposed amendment provides protection from personal liability for members of the Radiation Advisory Council, members of committees of that Council and inspectors appointed under the Act in relation to things done (or omitted to be done) in good faith for the purposes of executing the Radiation Control Act 1990.

Section 5A
Insert after section 5:
5A Change of name of diocese

(1) If the name of a diocese is changed, the Bishop of the

diocese concerned is, by notification signed by the Bishop and published in the Gazette, to announce the change of name of the diocese and of the body corporate consisting of the trustees of Church trust property for the diocese.

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule l

Minor amendments

A printed paper purporting to be a copy of the Gazette
and to have been printed by the Government Printer and containing what purports to be a copy of a notification published under subsection (1) is conclusive evidence of the statements so published.
The body corporate of the diocese concerned continues
in existence under its new name so that its identity is not
affected.
A reference in any Act or instrument, or in any other document, to the diocese (or body corporate) under its former name is to be read (except in relation to matters that occurred before the change took place) as a reference to the diocese (or body corporate) under its new name.

Maitland-Newcastle (and the corresponding change of
the Diocese of Maitland to the Diocese of Subsections (3) and (4) apply to the change of name of
name of the body corporate of that Diocese) as if the change of name had been announced in accordance with subsection (1).

Explanatory note
Section 3 of the Act provides for trustees of Church trust property for each diocese of the Roman Catholic Church. Section 4 constitutes those trustees as bodies corporate and specifies the corporate names of the trustees for the various dioceses existing at the commencement of the Act (1 August 1936). Section 5 provides for the creation of new dioceses and for the naming of the bodies corporate for those dioceses.
However, the Act does not make provision for the alteration of any of those names. Consequently, when the name of the Diocese of Goulburn was changed to “the Archdiocese of Canberra and Goulburn”, it was necessary to amend the Act by means of the Roman Catholic Church Trust Property (Amendment) Act 1950 (which inserted section 4A into the Act).
The proposed amendment removes the necessity for legislative amendment to the Act in the case of such changes in the future by providing for the way in which such changes are to be announced and specifying the effect of the changes. The proposed amendment also deals with the recent change of name of the Diocese of Maitland (which, like the Diocese of Goulburn, was in existence at the commencement of the Act) to “the Diocese of Maitland-Newcastle”.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Minor amendments Schedule 1

clause 2 (IA) of Schedule 1
Omit “The secretary” wherever occurring.
Insert instead “The Administrative Officer”.
Sections 19 (5) and 24 (1)

Omit “a secretary” wherever occurring.
Insert instead “an Administrative Officer”.
[3] Sections 19 (5) and 180 (paragraph (a) of definition of “‘district registrar”) and clauses 2 (1) (c) and (IA) of Schedule 1 and 39 (1) (b) of Schedule 5
Omit “the secretary” wherever occurring.
Insert instead “the Administrative Officer”.
[4] Sections 212 (2) (d) and (3) (b) and 214
Omit “secretary” wherever occurring.
Insert instead “Administrative Officer”.
[5] Section 217 (2) (i)
Omit “secretaries”. Insert instead “Administrative Officers”.
Explanatory note
The proposed amendments are consequential on a change of name made by the Rural Lands Protection Boards Conditions (State) Award handed down by the Industrial Relations Commission of New South Wales on 3 April 1995.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule 1

Minor amendments

[ 1 ] Section 15 Prize fund
Insert at the end of section 15 (3) (c):
, and

(d) towards the payment of unclaimed prizes or disputed money in accordance with regulations under subsection (4).

[2] Section 15 (4)
Insert after section 15 (3):

(4)

The regulations may make provision for or with respect to the disposal of unclaimed prizes or of money as to which any dispute has arisen.

Explanatory note
Item [2] of the proposed amendments enables the making of regulations under the Act with respect to unclaimed prizes and disputed money. There is an identical provision in the Lotto Act 1979
Item [1] makes a consequential amendment.

1.23	Statutory and Other Offices Remuneration Act 1975 (1976 No 4)
Schedule 2 Public offices
Insert at the end of Part 1:

President of the Mental Health Review Tribunal.
Deputy President of the Mental Health Review Tribunal.

Explanatory note
The proposed amendment is consequential on an amendment to the Mental
Health Act 1990 proposed to be made elsewhere in this Schedule.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Amendments by way of statute law revision Schedule 2

revision

(Section 3)

2.1
Section 49ZYS Superannuation
Omit “and (e)” from subsection (3).
Explanatory note
The proposed amendment removes a reference to a repealed paragraph.
2.2
[ 1 ] Section 3 Definitions

Insert “a day of” after “beginning of” where firstly occurring in the definition of month in subsection (1) .
[ 2 ] Section 15 Activities that are not business
Omit “an authority of the Commonwealth or” from section 15 ( l )
(c) (i).
[ 3 ] Section 15 (1) (c) (ii), (iv) and (vi)
Omit the subparagraphs.
[4] Section 15 (1) (c) (iii), (v) and (vii)
Renumber the subparagraphs as subparagraphs (ii), (iii) and (iv).
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule 2

Amendments by way of statute law revision

Section 15 (3), definition of “government body”
Omit “the Commonwealth,” and “, an authority of the
Commonwealth”.
Section 15 (4)
Omit “an authority of the Commonwealth or”.
Section 38 Regulations
Omit “Government”. Insert instead “Governor”.
Section 42 Section 51 exceptions
Omit “section 29” from subsection (2). Insert instead “section 33”.
Explanatory note
Item [1] of the proposed amendments brings the definition of month into line with
the definition of that word as contained in the Acts lnterpretation Act 1901 of the
Commonwealth, on which it is based.
Items [2]–[6] bring section 15 into line with uniform legislation of the States, by
removing unnecessary references to the Commonwealth, which appear
appropriately in the corresponding legislation of the Commonwealth.
Item [7] corrects a typographical error.
Item [8] corrects a cross-reference to the corresponding Act of the
Commonwealth, which was amended in committee in the Senate, resulting in a

renumbering of provisions of the Commonwealth Act.

Courts Legislation

ent Act 1995

Schedule 5 Amendments relating to Deputy
Compensation Court
Insert “where firstly occurring” after ‘ ‘ ‘omitted by’ ’ ’ in item [6 ] .
Explanatory note
The proposed amendment clarifies an incorporating direction.

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Amendments by way of statute law revision Schedule 2
[ 1 ] Section 407AA Compellability of spouses to give evidence in certain proceedings

Omit “apprehended domestic violence order” from subsection
(1) (b) and (d) wherever occurring.
Insert instead “apprehended violence order”.
[2] Section 577A Disclosure of address or telephone number of witness
Renumber the last 2 subsections as subsections (7) and (8).
Explanatory note

Cross-references (item [1])
Item [ 1 ] of the proposed amendments corrects cross-references that are incorrect as a consequence of the change of name of the orders with which Part 15A of the Crimes Act 1900 is concerned from “apprehended domestic violence” orders to “apprehended violence” orders.
Renumbering (item [2])
Item [2] of the proposed amendments corrects duplicated numbering.

2.5 Crimes Amendment (Child Pornography) Act 1995
No 49
Schedule 3 Certain other amendments relating to age
Omit “1985” from the heading to item 3.2. Insert instead “1984”.
Explanatory note
The proposed amendment corrects an incorrect citation.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule 2

Amendments by way of statute law revision

Section 128 Privilege in respect of self-incrimination in other
Omit “an Australian court” from section 128 (7).
Insert instead “a NSW court”.
Explanatory note
The proposed amendment corrects an incorrect reference.

Factories, Shops and Industries Act 1962 No 43
Section 89B Exemption of holiday resorts
Omit “the area of” wherever occurring in section 89B (1).
Explanatory note
At present, section 89B (1) of the Factories, Shops and Industries Act 1962 refers to “an area (within the meaning of the Local Government Act 1993) outside the County of Cumberland, the area of the City of Newcastle and the area of the City of Wollongong”. The Local Government Act 1993 defines area as “an area constituted under Division 1 of Part 1 of Chapter 9” (that is, sections 204–213). The Governor may, by proclamation, constitute any part of New South Wales as an area (section 204 of that Act), and may in the same way constitute an area as a city (section 206). Accordingly, it is not necessary to refer to “the area of” a city. The proposed amendment omits the superfluous words.
Irrigation Corporations Act 1994 No 41

Section 4 Definitions
Omit “Part 1 of” from the definition of class 1 irrigation corporation.
Section 6 Establishment of corporations as SOCs
Omit “Part 1 of” from section 6 (1) and (5) wherever occurring.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Amendments by way of statute law revision Schedule 2
Commencement
The proposed amendments are taken to have commenced on 1 July 1995.
Explanatory note
The proposed amendments are consequential on amendments made to the Bill for the State Owned Corporations Amendment Act 1995 in the committee stage of its passage through Parliament. They are taken to have commenced on the Commencement of that Act.
Land Tax Management Act 1 9 5 6 No 26
Section 21B Joint owners of block of flats deemed to be owners of strata lots
Omit “considered” wherever occurring. Insert instead “deemed”.
Section 21C Liability of l e s s e e s of land owned by Crown or council
Omit “to be considered” where firstly occurring in section 21C (2).
Insert instead “deemed to be”.
Section 21C (3)
Omit “to be considered”. Insert instead “deemed”.

Section 46A Collection of land tax from persons owing money
to taxpayer
Omit “the money’s becoming or being held” from section 46A (1).
Insert instead “the money’s becoming due or being held”.
Explanatory note
Meaning of “deemed to be” and “considered to be” (items [1]–[3]) persons who, “by virtue of this Act”, are “deemed to be” joint owners or owners.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule 2

Amendments by way of statute law revision

Various sections of the Act “deem” persons accordingly. However, sections 21 B and 21C, which were inserted in 1991, avoid the word “deemed”, providing instead that certain persons are “considered” to be the joint owners or owners of the property concerned. Section 21C also provides that particular parts of buildings are “considered” to be strata lots in certain circumstances.
Items [1]–[3] of the proposed amendments replace “considered” with “deemed” in sections 21B and (where appropriate) 21C to avoid any suggestion that “considered” is intended to carry a different meaning from “deemed” in those contexts.
Missing word (item [4])
Item [4] of the proposed amendments inserts a missing word.

0 Liquor Act 1982 No 147

Section 116D Offence by adult accompanying minor
Omit paragraph (b). Insert instead:

(b)

leaves the minor on the licensed premises deprived of the company and immediate presence of the adult without first informing the licensee or an employee of the licensee,
the adult is guilty of an offence against this Act.

Explanatory note
The proposed amendment corrects incorrect ranging.

2.11

Lotto Act 1979 No 53

[ 1 ] Section 14 Prize funds

section 14 (2) (b).

Omit “unclaimed money in accordance with subsection (8)” from with regulations under subsection (8)”.

Statute Law (Miscellaneous Provisions) Act (NO 2) 1995 No 99

Amendments by way of statute law revision Schedule 2
[ 2 ] Section 14 (3) (c)

Omit “unclaimed money, in accordance with subsection (8)”.
Insert instead “unclaimed prizes or disputed money, in accordance
with regulations under subsection (8)”.
[3] Section 14 (7) (b)
Omit “section 6 (n)”. Insert instead “section 6 (1) (n)”.
Explanatory note
Items [1] and [2] of the proposed amendments ensure that cross-references in section 14 (2) and (3) to “subsection (8)” (of section 14) accurately reflect the substance of that subsection.
Item [3] corrects an incomplete cross-reference.

2.12 Olympic Co-ordination Authority Act 1995 No 10
Section 2 Commencement
Omit “a day or days to be appointed by proclamation”.
Insert instead “30 June 1995”.
Explanatory note

The proposed amendment confirms the commencement of the Act on 30 June 1995 in accordance with a proclamation to that effect that was not published until

21 July 1995.
2.13 Pay-roll Tax Act 1971 No 22

Section 10 Exemption from pay-roll tax
Omit “patriotic work of the charity” from section 10 (2).
Insert instead “patiotic work of the non-profit organisation”.
Explanatory note
The proposed amendment renders the language of section 10 (2) consistent
with that of section 10 (1) (j), (j1) and (k).

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule 2	Amendments by way of statute law revision
2.14	Ports Corporation and Waterways Management Act
2.14 rporatisation and aterways Mana
1995 No 13
Section 6 Establishment of Newcastle Port Corporation as statutory SOC
Omit “Part 1 of” from section 6 (2).
Section 7 Establishment of Port Kembla Port Corporation as statutory SOC
Omit “Part 1 of” from section 7 (2).
Omit “Part 1 of” from section 8 (2).
Schedule 4 Amendment of Acts
Omit item [14] of Schedule 4.19. Insert instead:
[14] Section 50 Disclosure of confidential information
Omit “Board, an approved contractor” from the definition of confidential report in subsection (2). Insert instead “Minister, the pilotage service provider”.
Commencement
The amendments to the Ports Corporatisation and Waterways Management Act 1995 are taken to have, commenced on 1 July 1995.
Explanatory note
Items [1]–[3] of the proposed amendments are consequential on amendments made to the Bill for the State Owned Corporations Amendment Act 1995 in the committee stage of its passage through Parliament.
Item [4] repeals an unincorporable amendment to the Marine Pilotage Licensing Act 1971 and re-enacts that amendment in the correct form.

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Amendments by way of statute law revision Schedule 2
2.15 Public Sector Management Amendment Act 1995 No 36
Section 2 Commencement
Omit “a day or days to be appointed by proclamation”.

Insert instead “ 1 3 October 1995”.
Explanatory note
with the proclamation published in the Gazette on that date.

2.16 Roads Act 1993 No 33
Schedule 2 Savings, transitional and other provisions
Omit “it” from clause 61.
Explanatory note
The proposed amendment omits an unnecessary word.
Section 14A No prohibition against Royal Commission
Omit the section.
Explanatory note Section 14A relies on section 210 (2) of the Companies Act 1936. That Act has been repealed, and the Corporations Law does not contain an equivalent provision.

2.18 Sporting Injuries Insurance Act 1978 No 141
Omit “non-reimbursment” from section 31 (1) (f) .
Insert instead “non-reimbursement”.
Explanatory note
The proposed amendment corrects incorrect spelling.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule 2	Amendments by way of statute law revision
2.19	Traffic Act 1909 No 5
Section 3 Regulations
Omit “radar speed measuring devices” from section 3 (1) (p2). Insert instead “speed measuring devices”.
Explanatory note
The Motor Traffic (Radar Detected Offences) Amendment Act 1987 inserted section 4AB, relating to approved radar speed measuring devices, into the Traffic Act 1909. It also provided, in the new section 3 (1) (p2), a regulation-making power with respect to those devices.
The Traffic (Photographic Evidence) Amendment Act 1990 amended section 4AB by (among other things) replacing references to “radar speed measuring device” with references to “speed measuring device”.
The proposed amendment is consequential on the latter amendment.
2.20	Workers Compensation Legislation Amendment Act 1995 No 30
Section 5 Amendment of Workers’ Compensation (Dust Diseases) Act 1942 No 14
Omit “1987”. Insert instead “1942”.
Explanatory note
The proposed amendment corrects an incorrect citation.

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Amendments replacing gender-specific language Schedule 3

Amendments replacing
gender-specific language

(Section 3)

Explanatory note
The amendments proposed to be made by this Schedule replace gender-specific language with gender-neutral language.
Annual Holidays Act 1944 No 31
Section 2 (1) definition of “ordinary pay”
Insert “or her” after “his”.
Section 2 (1) definition of “worker”
Omit “salesman”. Insert instead “the person”.
Sections 2 (1) definition of “worker” and 11 (2) (a)
Omit “he” wherever occurring. Insert instead “the salesperson”.
Sections 2 (2) and (3), 3, 4, 4A (4) and 7 (2)
Omit “his” wherever occurring. Insert instead “the worker’s’’.
Sections 2 (2), (3), (4) and (5), 4, 4A (3), (4), (5), (6) and (7), 7 (1) and 13 (2)
Omit “he” wherever occurring. Insert instead “the worker”.
Sections 2 (2), (3) and (4), 4 (3) and 7 (1)
Omit “him” wherever occurring. Insert instead “the worker”.
Section 3 (4)
Omit “him”. Insert instead “such Registrar”.
Section 3 (4)
Insert “or she” after “he”.
Section 4A (2)
Omit “his”. Insert instead “the employer’s’’.
Section 4A (3)
Omit “his” wherever occurring.

Insert “or her” after “his” wherever occurring. Section 4A (6)
Section 10 (1) (a)
Omit “he”. Insert instead “the inspector”.
Section 10A (1)
Omit “him”. Insert instead “the person”.
Section 10A (3)
Omit “he”. Insert instead “the Minister”.
Statute Law (Miscellaneous Provisions) Act (No 2) 1995 No 99

Schedule 3