New South Wales Consolidated Acts New South Wales Consolidated Acts
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of any of the following Acts--this Act or any other Act that amends this Actany other Act to the extent that it confers or imposes (or amends an Act or a statutory rule so as to confer or impose) jurisdiction or functions on the Tribunal or to alter or remove any of the jurisdiction or functions of the Tribunal
(2) If the regulations so provide, any such provision may--(a) have effect despite any specified provisions of this Act (including a provision of this Schedule), and(b) take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as--(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
(4) A regulation made for the purposes of this clause may make separate savings and transitional provisions or amend this Schedule to consolidate the savings and transitional provisions.
(1) In this Part--
"current tribunal member" of an existing tribunal means a person who, immediately before the establishment day, held office as--(a) the head of the tribunal or a division of the tribunal (however described), or(b) a deputy head of the tribunal (however described), or(c) any other kind of member of the tribunal.
"existing health practitioner tribunal" means each of the following Tribunals established under section 165 of the Health Practitioner Regulation National Law (NSW) --(a) the Aboriginal and Torres Strait Islander Health Practice Tribunal of New South Wales,(b) the Chinese Medicine Tribunal of New South Wales,(c) the Chiropractic Tribunal of New South Wales,(d) the Dental Tribunal of New South Wales,(e) the Medical Radiation Practice Tribunal of New South Wales,(f) the Medical Tribunal of New South Wales,(g) the Nursing and Midwifery Tribunal of New South Wales,(h) the Occupational Therapy Tribunal of New South Wales,(i) the Optometry Tribunal of New South Wales,(j) the Osteopathy Tribunal of New South Wales,(k) the Pharmacy Tribunal of New South Wales,(l) the Physiotherapy Tribunal of New South Wales,(m) the Podiatry Tribunal of New South Wales,(n) the Psychology Tribunal of New South Wales.
"existing tribunal" means any of the following tribunals--(a) the Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal established under the Aboriginal Land Rights Act 1983 ,(b) the Administrative Decisions Tribunal of New South Wales established under the Administrative Decisions Tribunal Act 1997 ,(c) the Charity Referees constituted as provided by section 5 of the Dormant Funds Act 1942 ,(d) the Consumer, Trader and Tenancy Tribunal of New South Wales established under the Consumer, Trader and Tenancy Tribunal Act 2001 ,(e) the Guardianship Tribunal constituted under the Guardianship Act 1987 ,(f) each existing health practitioner tribunal,(g) the Local Government Pecuniary Interest and Disciplinary Tribunal established under the Local Government Act 1993 ,(h) each local land board constituted under the Crown Lands Act 1989 ,(i) the Vocational Training Appeal Panel constituted by section 62 of the Apprenticeship and Traineeship Act 2001 .
"relevant amending Act" means each of the following Acts--(a) the Civil and Administrative Tribunal Amendment Act 2013 ,(b) the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 .
(2) If a provision of this Part provides for a matter or other thing to occur on a specified day, the matter or thing is taken to have occurred at the beginning of the specified day.
(3) For the purposes of this Part (except clause 5), proceedings are not finally determined if--(a) any period for bringing an appeal as of right in respect of the proceedings has not expired (ignoring any period that may be available by way of extension of time to appeal), or(b) any appeal in respect of the proceedings is pending (whether or not it is an appeal brought as of right).
Each existing tribunal is abolished on the establishment day.
(1) Each current tribunal member of an existing tribunal ceases to hold office as such on the establishment day.
(2) If a person ceases to hold an office by operation of this clause--(a) the person is not entitled to any remuneration or compensation because of the loss of that office, and(b) the person is appointed to the new office or position in NCAT (if any) specified in clause 5 for the kind of current tribunal member concerned or, if clause 5 does not operate to make an appointment, is eligible (if otherwise qualified) to be appointed as a member of NCAT.
(3) This clause has effect despite anything to the contrary in any other legislation concerning the circumstances or processes for the removal of (or the vacation of office by) a current tribunal member of an existing tribunal.
(1) A person who is a current tribunal member of an existing tribunal of a kind specified in Column 1 of the Table to this clause is taken, on and from the establishment day, to have been appointed under this Act to the kind of office or position in NCAT specified in Column 2 next to the kind of current tribunal member specified in Column 1.
(2) A current tribunal member of an existing tribunal who is appointed as a member of NCAT by operation of this clause is taken--(a) if the current tribunal member's current office was for a term or the member was entitled to hold his or her current office until a specified age--to have been appointed as a term member, or(b) if the current tribunal member held his or her current office only in relation to specified proceedings before the existing tribunal and those proceedings have been transferred to NCAT by clause 6--to have been appointed as an occasional member for the proceedings until the proceedings are finally determined (within the meaning of section 11).
(3) Despite clause 2 of Schedule 2, a current tribunal member of an existing tribunal who is appointed as a term member of NCAT by operation of this clause is taken to hold his or her new office in NCAT for--(a) if the current tribunal member's current office was for a term--the balance of that term, or(b) if the current tribunal member was entitled to hold his or her current office until a specified age--the period expiring on the day the person attains that age.
(4) A part-time current tribunal member who is appointed as a term member of NCAT by operation of this clause is taken to have been appointed as a part-time term member of NCAT.
(5) Clause 5 of Schedule 2 is taken to apply to a current tribunal member of an existing tribunal who is appointed as a term member of NCAT by operation of this clause as if the Minister had made a determination under that clause (on the establishment day) for the member's remuneration to be the same as the remuneration to which the current tribunal member was entitled immediately before the establishment day.Note--: Clause 5 of Schedule 2 provides that the remuneration of a term member cannot be reduced during the member's term of office. However, the clause also provides that a member who is a Judge of a New South Wales Court is not entitled to remuneration under this Act while receiving remuneration as a Judge.
(6) If a person is appointed as a member of NCAT by operation of this clause--(a) in the case of appointment as a presidential member--the Governor may issue an appropriate commission under the public seal of the State to the person, and(b) in the case of appointment as a non-presidential member--the Minister may issue an appropriate instrument of appointment to the person.
(7) A person's appointment as a member of NCAT is effective whether or not a commission or instrument of appointment is issued under subclause (6).
(8) This clause operates to appoint a person who holds office as a current tribunal member of more than one existing tribunal to only one office or position in NCAT. If there is a difference in seniority in the offices or positions in NCAT concerned, the person is taken to have been appointed to the most senior of the offices or positions in NCAT.Note--: Section 9(1) lists the classes of members of NCAT in order of seniority.
(9) This clause does not--(a) apply to a current tribunal member of an existing tribunal who is appointed under this Act to be a member of NCAT before the establishment day, or(b) prevent a current tribunal member who becomes a member of NCAT by operation of this clause from--(i) being appointed, with the consent of the person, to a different or additional office in NCAT under this Act, or(ii) vacating office, subject to subclauses (2) and (3), in accordance with the provisions of this Act.
(10) A reference in the Table to this clause to a
"professional non-judicial member" of the Administrative Decisions Tribunal is a reference to a non-judicial member of that Tribunal who--(a) is an architect within the meaning of the Architects Act 2003 , or(b) is a registered surveyor within the meaning of the Surveying and Spatial Information Act 2002 , or(c) is a registered health practitioner within the meaning of the Health Practitioner Regulation National Law (NSW) , or(d) is a veterinary practitioner within the meaning of the Veterinary Practice Act 2003 , or(e) has been appointed as a non-judicial member because he or she is a member of another particular profession or occupation.
Table
Column 1 Column 2 Current tribunal member New NCAT office or position Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal Member Senior member Administrative Decisions Tribunal President Deputy President Deputy President Principal member Non-presidential judicial member Senior member Professional non-judicial member Senior member Non-judicial member (other than a professional non-judicial member) General member Charity Referees under the Dormant Funds Act 1942 Chairperson of the Charity Referees Principal member Person appointed under section 5(1)-(3) of the Dormant Funds Act 1942 General member Consumer, Trader and Tenancy Tribunal Chairperson Deputy President Deputy Chairperson (Determinations) Principal member Deputy Chairperson (Registry and Administration) Non-principal registrar Senior member Senior member Other member General member Existing health practitioner tribunal Chairperson Principal member Deputy Chairperson Principal member Guardianship Tribunal President Deputy President Deputy President Principal member Legal member (other than the President or a Deputy President) Senior member Professional member Senior member Community member General member Local Government Pecuniary Interest and Disciplinary Tribunal Member Senior member Local land boards under the Crown Lands Act 1989 Chairperson Senior member Member (other than the Chairperson) General member
(1) In this Division--
"part heard proceedings" means pending proceedings where the court or existing tribunal in which the proceedings were instituted or commenced had begun to hear (but had not determined) the proceedings before the establishment day.
"pending proceedings" are proceedings (including appeals) that--(a) were instituted or commenced before the establishment day, and(b) have not been finally determined before that day by the court or existing tribunal in which the proceedings were instituted or commenced.Note--: See clause 2(3) as to the meaning of finally determined proceedings.
"unexercised right" means a right (including a right exercisable only with leave) that--(a) was available to be exercised immediately before the establishment day, and(b) had not yet been exercised before that day.
"unheard proceedings" means pending proceedings that had not been heard before the establishment day by the court or existing tribunal in which the proceedings were instituted or commenced.
(2) The provisions of this Division, in their application to local land boards constituted under the Crown Lands Act 1989 , extend only to those functions of such boards that will become the functions of NCAT on and from the establishment day.Note--: Certain non-adjudicative functions of local land boards will become functions of the Director-General (within the meaning of the Crown Lands Act 1989 ) instead of NCAT as a result of amendments made by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 .
(1) Unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT.
(2) In relation to part heard proceedings in an existing tribunal, the person or persons constituting the tribunal for those proceedings--(a) are to continue, on and from the establishment day, to hear the matter, and to determine the matter, sitting as NCAT, and(b) are taken to have been duly appointed as members of NCAT for the purposes of determining the matter even if the person or persons have not been appointed as members of NCAT by or under another provision of this Act, and(c) may have regard to any record of the proceedings before the existing tribunal, including a record of any evidence taken in the proceedings before the existing tribunal.
(3) For the purposes of subclauses (1) and (2)--(a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and(b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply.
(1) This clause applies to pending proceedings before a court on an appeal against, or for the judicial review of, a decision of an existing tribunal.
(2) A court in proceedings to which this clause applies may, on and from the establishment day, continue to deal with the proceedings until they are concluded.
(3) For this purpose--(a) the court continues to have and may exercise all the functions that the court had in relation to the proceedings immediately before the establishment day, and(b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply.
(4) Without limiting subclause (3), if the original powers of the court included the power to remit the proceedings to be heard and decided again by the existing tribunal concerned, the court may in determining the proceedings--(a) remit the proceedings instead to NCAT, and(b) make such other orders as it considers appropriate to facilitate the remitting of the proceedings to NCAT.
(1) This clause applies to each of the following unexercised rights (an
"existing unexercised application or appeal right" )--(a) an unexercised right to apply to an existing tribunal for it to make a decision at first instance concerning a matter,(b) an unexercised right to apply to an existing tribunal for a review of a decision of another person or body,(c) an unexercised right to appeal to an existing tribunal against a decision of another person or body.
(2) A person who has an existing unexercised application or appeal right may apply or appeal to NCAT for the exercise of the same functions that could have been exercised by the existing tribunal to which the right relates had the existing tribunal not been abolished.Note--: An application or appeal under this clause that would have required leave before the establishment day will still require such leave. Also, any time limits under existing law for making the application or appeal will continue to apply to applications or appeals under this clause. See subclause (3).
(3) For the purposes of subclause (2)--(a) NCAT has and may exercise all the functions that the relevant existing tribunal would have had in relation to the application or appeal if it had been made before the establishment day (including any functions relating to the granting of leave to apply or appeal), and(b) the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to apply or appeal) that would have applied to or in respect of the application or appeal had this Act and the relevant amending Acts not been enacted continue to apply.
(1) This clause applies to each of the following unexercised rights (an
"existing unexercised appeal right" )--(a) an unexercised right to appeal against a decision of the Administrative Decisions Tribunal or another tribunal or body to an Appeal Panel of that Tribunal,(b) an unexercised right to appeal against a decision of an existing tribunal to a court.
(2) A person who has an existing unexercised appeal right may appeal against the decision of an existing tribunal to which that right relates--(a) if the decision was originally appealable to an Appeal Panel of the Administrative Decisions Tribunal--to an Appeal Panel of NCAT, or(b) if it was originally appealable to a particular court--to that court.Note--: An appeal under this clause that would have required leave before the establishment day will still require such leave. Also, any time limits under existing law for appealing will continue to apply to appeals under this clause. See subclauses (3) and (4).
(3) For the purposes of an appeal made to an Appeal Panel of NCAT under this clause--(a) the Appeal Panel has and may exercise all the functions that an Appeal Panel of the Administrative Decisions Tribunal would have had in relation to the appeal if it had been made before the establishment day (including any functions relating to the granting of leave to appeal), and(b) the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to appeal) that would have applied to or in respect of the appeal had this Act and the relevant amending Acts not been enacted continue to apply.
(4) For the purposes of an appeal made to a court under this clause--(a) the court continues to have and may exercise all the functions that the court would have had if the appeal had been made to it before the establishment day (including any functions relating to the granting of leave to appeal), and(b) the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to appeal) that would have applied to or in respect of such an appeal had this Act and the relevant amending Acts not been enacted continue to apply.
(5) Without limiting subclauses (3) and (4), if the original powers of an Appeal Panel of the Administrative Decisions Tribunal or a court (as the case requires) would have included the power to remit the proceedings to be heard and decided again by the existing tribunal concerned, the Appeal Panel of NCAT or court may in determining an appeal under this clause--(a) remit the proceedings instead to NCAT, and(b) make such other orders as it considers appropriate to facilitate the remitting of the proceedings to NCAT.
(1) This clause applies to each of the following kinds of orders under the Guardianship Act 1987 --(a) a guardianship order,(b) a financial management order,(c) an order appointing a person as the manager of a protected person's estate.
(2) Without limiting clause 14, the provisions of the Guardianship Act 1987 that enable NCAT to make an order to which this clause applies are taken to extend to any such order made by the Guardianship Tribunal before the establishment day as if NCAT had made that order.
Without limiting clause 14, the provisions of clause 8 (Renewal of proceedings in respect of certain Division decisions) of Schedule 4 are taken to extend to an order made by the Consumer, Trader and Tenancy Tribunal before the establishment day as if the order had been made by NCAT in exercise of functions allocated to the Consumer and Commercial Division of NCAT.
(1) This clause applies to any proceedings (
"transitional proceedings" ) that--(a) are permitted or required to be determined by NCAT under this Division instead of an abolished existing tribunal, or(b) are remitted by a court or an Appeal Panel of NCAT under this Division to NCAT for reconsideration or redetermination.
(2) Unless the regulations provide otherwise, the function of determining transitional proceedings is allocated to the Divisions of the Tribunal as follows--(a) if NCAT is determining the proceedings instead of the Consumer, Trader and Tenancy Tribunal or is determining proceedings under the Dividing Fences Act 1991 or Retail Leases Act 1994 instead of a local land board or the Administrative Decisions Tribunal--the proceedings are allocated to the Consumer and Commercial Division,(b) if NCAT is determining the proceedings instead of the Guardianship Tribunal--the proceedings are allocated to the Guardianship Division,(c) if NCAT is determining the proceedings instead of an Appeal Panel of the Administrative Decisions Tribunal--the proceedings are not allocated to any particular Division of the Tribunal in accordance with section 16(4),(d) if NCAT, in determining the proceedings, would be required to exercise functions under legislation that correspond (or substantially correspond) to functions that are now allocated to the Occupational Division--the proceedings are allocated to the Occupational Division,(e) if NCAT is determining any other proceedings instead of an existing tribunal--the proceedings are allocated to the Administrative and Equal Opportunity Division.
(3) Despite anything to the contrary in this Act or other legislation, the President is, where practicable, to constitute NCAT for the purposes of transitional proceedings (other than part heard proceedings) in a manner that is consistent with the constitution requirements that would have been applicable for the kind of proceedings in the existing tribunal concerned.Note--: For constitution requirements in relation to part heard transitional proceedings, see clause 7(2).
(1) An existing order of an existing tribunal made under other legislation is taken, on and from the establishment day, to be an order made by NCAT under the corresponding provision of that legislation (as amended by a relevant amending Act) or this Act (as the case may be).
(2) This clause is subject to the other provisions of this Schedule.
(3) In this clause--
"existing order" of an existing tribunal is an order made by the tribunal before the establishment day, and includes an order that would have come into effect on or after the establishment day.
Part 2 of the Subordinate Legislation Act 1989 is taken to apply to the first principal regulation (within the meaning of that Act) that is made under this Act as if the Minister administering the Subordinate Legislation Act 1989 had given a certificate under section 6(1)(b) of that Act with respect to the regulation.
If, for any purpose, time had commenced to run under a provision of other legislation in relation to an existing tribunal (but had not expired) before the establishment day, it expires for the corresponding purpose under that legislation (as amended by a relevant amending Act) or this Act, as the case may be, at the time at which it would have expired if the tribunal had not been abolished.
(1) Legislative provisions to which clause applies This clause applies to a provision (an
"affected legislative provision" ) of any other Act or any instrument made under any other Act (whether enacted or made before or after the commencement of this clause) other than an excluded provision.
(2) Each of the following is an
"excluded provision" for the purposes of subclause (1)--(a) a provision of this Act or an instrument made under this Act,(b) a provision of the Administrative Decisions Review Act 1997 or an instrument made under that Act,(c) a provision of the Public Sector Employment and Management Act 2002 or Government Sector Employment Act 2013 or an instrument made under either Act,(d) a provision of a relevant amending Act,(e) a provision of any other Act or instrument made under any other Act that contains a reference to which this clause would otherwise have applied if that reference was inserted or substituted by, or retained despite, an amendment made to the provision by a relevant amending Act,(f) a spent savings or transitional provision of any other Act or an instrument made under any other Act,(g) a provision of an Act or instrument made under an Act (or a provision belonging to a class of such provisions) prescribed by the regulations.
(3) References to existing tribunals A reference in an affected legislative provision to an existing tribunal is to be read, on and from the applicable day, as a reference to NCAT.
(4) References to members of existing tribunals A reference in an affected legislative provision to a particular kind of member of an existing tribunal is to be read, on and from the applicable day, as a reference to the corresponding member, if any, of NCAT (as set out in the Table to clause 5).
(5) References to Administrative Decisions Tribunal Act 1997 A reference in an affected legislative provision to the Administrative Decisions Tribunal Act 1997 is to be read, on and from the applicable day, as a reference to the Administrative Decisions Review Act 1997 .
(6) References to renumbered, relocated or repealed provisions A reference in an affected legislative provision to a provision of legislation that is renumbered, relocated or repealed by a relevant amending Act is to be read, on and from the applicable day, as--(a) for a provision of legislation that is renumbered--a reference to the provision as renumbered, or(b) for a provision that is relocated or repealed--a provision (if any) of this Act, the Administrative Decisions Review Act 1997 or legislation amended by a relevant amending Act that corresponds, or substantially corresponds, to the provision.
(7) References to functions of existing tribunals Without limiting subclauses (2)-(6), an affected legislative provision that confers or imposes a function on an existing tribunal is to be read, on and from the applicable day, as conferring or imposing the function instead on NCAT.
(8) For the purposes of applying subclause (7), a reference to a review of a decision by the Administrative Decisions Tribunal is to be read as a reference to an administrative review of the decision by NCAT under the Administrative Decisions Review Act 1997 .
(9) Unless the regulations provide otherwise, the provisions of clause 13(2) and (3) apply to functions that are conferred or imposed on NCAT by operation of this clause in the same way as they apply to the function of determining transitional proceedings under clause 13.
(10) Regulation-making powers The regulations may--(a) make provision, despite this clause, for or with respect to the updating of references in any document (including a document containing an affected legislative provision) to an existing tribunal or its functions with references to NCAT and corresponding functions and provisions, or(b) declare whether a specified provision is, or is not, a corresponding provision for the purposes of subclause (6)(b), or(c) without limiting clause 1, make provision for savings or transitional matters consequent on the operation of this clause or a regulation made for the purposes of this clause (including the allocation of functions that are transferred to NCAT by operation of this clause to Divisions of NCAT).
(11) Definition In this clause--
"applicable day" means--(a) in relation to an affected legislative provision that is in force or effect on the establishment day--the establishment day, or(b) in relation to an affected legislative provision that comes into force or effect after the establishment day--the day on which the provision comes into force or effect.
The renaming of a Division of NCAT, or the substitution of a Division Schedule for a Division of NCAT, by a relevant amending Act does not affect the validity of any appointment, assignment or designation of a person made with respect to the Division before that renaming or substitution.
(1) If anything done, initiated or commenced under other legislation in relation to an existing tribunal before the establishment day and still having effect or not completed immediately before that day could have been done, initiated or commenced under that legislation (as amended by a relevant amending Act) or this Act if the relevant amending Act or this Act had been in force when the thing was done, initiated or commenced--(a) the thing done continues to have effect, or(b) the thing initiated or commenced may be completed as if it had been done, initiated or commenced under the other legislation (as amended) or this Act.
(2) This clause is subject to any express provision of this Act on the matter.
The renaming of the Health Practitioner Division List of the Occupational Division of the Tribunal by the Courts and Crimes Legislation Amendment Act 2015 as the Health Practitioner List does not affect the continuation of any proceedings entered in the List before its renaming or the appointment of the List Manager for the List.
A reference in this Act (where relevant) to--
(a) the Legal Profession Uniform Law (NSW) includes a reference to the Legal Profession Act 2004 , and
(b) a provision of the Legal Profession Uniform Law (NSW) includes a reference to the corresponding provision of the Legal Profession Act 2004 .
Anything done, or omitted to be done, during the period
starting on 25 March 2020 and ending on 26 March 2022 (the
"prescribed period" ) pursuant to a provision of this Part (or of a regulation
made for the purposes of this Part) remains as legally effective after the
prescribed period as it was during that period.
(1) A person selected before the commencement date by the relevant administrator to be a guardian ad litem in proceedings in the Tribunal is taken to have been validly appointed as a guardian ad litem if--(a) a request was made to the administrator by or on behalf of the Tribunal for a person to be selected as a guardian ad litem for--(i) a party in the proceedings, or(ii) a child affected by the proceedings, and(b) the administrator notified the Tribunal of the name of the person selected.
(2) In this clause--
"commencement date" means the date on which section 45(4C) and (4D) commenced.
"relevant administrator" , in relation to the selection of a guardian ad litem, means the person responsible at the time of the selection for administering the body known as the Guardian Ad Litem Panel, as constituted from time to time, before this Part commenced.