NSW Reconstruction Authority Act 2022 (NSW)

NSW Reconstruction Authority Act 2022 No 80 An Act to establish the NSW Reconstruction Authority; to provide for the Authority's functions and powers; to provide for other matters to assist NSW communities to recover from disasters and improve resilience for potential disasters; to make related amendments to the Environmental Planning and Assessment Act 1979, the Government Sector Employment Act 2013 and the State Emergency and Rescue Management Act 1989; and for related purposes. Part 1 Preliminary Division 1 Introduction 1 Name of Act This Act is the NSW Reconstruction Authority Act 2022. 2 Commencement This Act commences as follows— (a) the following provisions commence on the date of assent to this Act— (i) Part 1, (ii) Part 2, Divisions 1 and 3–6, (iii) section 10, other than section 10(1)(a)–(m) and (q)–(s), (iv) Part 3, (v) sections 87, 89 and 94, (vi) Schedule 1, (vii) Schedule 3, section 1, (viii) Schedule 4, (ix) Schedules 5.1[3] and [4] and 5.2, (b) otherwise—on a day or days to be appointed by proclamation. 3 Primary object The primary object of this Act is to promote community resilience to the impact of disasters in New South Wales through— (a) disaster prevention, preparedness and adaptation, and (b) recovery and reconstruction following disasters. 4 How primary object is to be achieved The primary object is to be achieved by— (a) establishing the NSW Reconstruction Authority to facilitate community resilience to the impact of disasters in New South Wales through prevention, preparedness and adaptation, and (b) providing for the functions and powers of the NSW Reconstruction Authority, including functions and powers to— (i) facilitate the protection, recovery and reconstruction of affected communities, and (ii) mitigate against the impact of potential disasters on communities, and (iii) improve the resilience and adaptability of affected communities in relation to potential disasters, including, for example, by the betterment of affected communities, and (c) providing for the exercise of functions by the chief executive officer of the NSW Reconstruction Authority, subject to the Minister's control and direction, including ensuring the Authority exercises its functions effectively and efficiently. Division 2 Interpretation 5 Definitions The Dictionary in Schedule 4 defines certain terms used in this Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. 6 Meaning of "disaster" In this Act, disaster includes the following— (a) natural disasters, including, for example, bushfires, coastal hazards, cyclones, earthquakes, floods, heatwaves, landslides, severe thunderstorms, tornadoes and tsunamis, (b) hazards caused by natural disasters including air pollution, water and soil contamination and water insecurity, (c) other emergencies in relation to which the Minister has requested assistance from the Authority, (d) other emergencies in relation to which— (i) a public authority, including a Minister other than the Minister administering this Act, has requested assistance from the Authority, and (ii) the Authority has agreed to provide assistance, (e) events, incidents or matters, or classes of events, incidents or matters, prescribed by the regulations. Part 2 NSW Reconstruction Authority Division 1 Establishment and status of Authority 7 Establishment The NSW Reconstruction Authority is established. 8 Status of Authority The Authority is— (a) a corporation, and (b) a NSW Government agency. Note— See the Interpretation Act 1987, section 13A, which provides that a NSW Government agency has the status, privileges and immunities of the Crown. 9 Ministerial control The Authority is subject to the control and direction of the Minister in the exercise of the Authority's functions. Division 2 Functions of Authority 10 Functions (1) The Authority's functions are as follows— (a) disaster prevention and preparedness, including— (i) identifying, assessing and managing the risks from disasters, and (ii) leading disaster resilience, adaptation and mitigation activities, and (iii) building community capacity and resilience to disasters, and (iv) developing and implementing methodologies for disaster resilience, adaptation and mitigation activities, (b) reconstruction and recovery following disasters and other emergencies, including— (i) assisting the Minister administering the State Emergency and Rescue Management Act 1989 and the State Emergency Recovery Controller to exercise the Minister's and Controller's functions in relation to recovery under that Act, and (ii) facilitating, coordinating and directing the recovery, planning and rebuilding of affected communities, including repairing and rebuilding land and infrastructure and other development, and (iii) balancing constraints to enable a focused, timely and expedited recovery of affected communities, (c) information provision and exchange and community engagement, including— (i) supporting collaboration and coordination between government agencies, local councils, service providers and communities to improve disaster prevention, preparedness, recovery, reconstruction and adaptation, and (ii) increasing the flow of information and enabling community participation to support the development of strategies for disaster prevention, preparedness, recovery, reconstruction and adaptation, (d) to coordinate the development and implementation of whole-of-government policies for— (i) managing the risk of disasters in the State, and (ii) ensuring communities can recover, reconstruct and adapt effectively and efficiently following disasters, and (iii) improving the preparedness and resilience of communities for potential disasters, (e) to prepare and implement a State disaster mitigation plan for disasters in the State, (f) to provide advice and support to local councils to help maximise the effectiveness of councils' disaster preparedness and reconstruction programs, (g) to provide advice and assistance to local councils and relevant strategic planning authorities under the Environmental Planning and Assessment Act 1979 to ensure strategic plans prepared under that Act, Division 3.1 and the State disaster mitigation plan align, (h) to lead the management and coordination of housing and infrastructure renewal and recovery within affected communities, (i) to work closely with affected communities to ensure the needs of each community are recognised in the recovery and reconstruction of the community, and to improve the disaster preparedness and resilience of communities, (j) to lead public education on disaster risks and certain disaster preparations, (k) to carry out research, and provide advice, proposals, recommendations and reports to the Minister, about— (i) disaster prevention and preparedness, and (ii) recovery and reconstruction following disasters, (l) to enter into joint ventures, project delivery agreements and other arrangements with landowners, developers, State and Commonwealth government agencies and local councils in relation to disaster prevention, recovery and reconstruction, (m) to implement funding schemes to provide financial support in relation to disaster prevention, recovery and reconstruction, (n) to carry out rezoning and land use planning, including exercising the functions of local councils for the purpose of land use planning in relation to disasters, (o) to carry out flood modelling and the determination of flood planning levels, particularly in relation to high risk catchments, (p) to assist with the development of flood plans, (q) to monitor the cumulative impact of disasters on the State, including by collecting and storing data about the impact, or likely impact, of disasters across the State, (r) to exercise other functions conferred or imposed on the Authority by or under this Act or another Act, (s) to do anything supplementary, incidental or consequential on the exercise of the Authority's functions under paragraphs (a)–(r). (2) To avoid doubt— (a) the functions of the Authority are not intended to limit functions given to agencies by the State Emergency Management Plan under the State Emergency and Rescue Management Act 1989, and (b) to the extent of any inconsistency between a direction given by the Authority or chief executive officer in exercising functions under this Act and a direction given by the State Emergency Recovery Controller in exercising functions under the State Emergency and Rescue Management Act 1989, the direction given by the State Emergency Recovery Controller under the State Emergency and Rescue Management Act 1989 prevails. (3) In this section— State Emergency Recovery Controller means the State Emergency Recovery Controller appointed under the State Emergency and Rescue Management Act 1989. 11 Authority's powers (1) The Authority has all the powers of an individual and may, for example— (a) enter into contracts, and (b) acquire, hold, deal with and dispose of property, and (c) appoint agents and attorneys, and (d) engage consultants, and (e) do anything else necessary or convenient to be done in the exercise of the Authority's functions. (2) Without limiting subsection (1), the Authority has the powers given to it under this Act or another Act. 12 Authority may carry out development on certain land in particular circumstances (1) Subject to subsection (2), the Authority may carry out development on land (specified land) if— (a) the Authority is satisfied— (i) the specified land is in a part of the State that has been, or is likely to be, directly or indirectly affected by a disaster, and (ii) the development is necessary to give effect to the primary object of this Act, and (iii) given the nature of the disaster or likely disaster, and its direct or indirect effect on the specified land, carrying out the development immediately is appropriate in the circumstances, and (iv) the development will not involve clearing native vegetation or will involve clearing native vegetation only to the minimum extent necessary, or (b) the Authority is satisfied— (i) the specified land is not in a part of the State that has been, or is likely to be, directly affected by a disaster but the development is a direct response to the disaster or likely disaster, and Example— development for the purposes of residential accommodation to house residents who have been displaced by a disaster (ii) the development is necessary to give effect to the primary object of this Act, and (iii) that, given the nature of the disaster or likely disaster and its impact, carrying out the development immediately is appropriate in the circumstances, and (iv) the development will not involve clearing native vegetation or will involve clearing native vegetation only to the minimum extent necessary. (2) The Authority may carry out development under subsection (1)(a)(i) on specified land that is likely to be affected by a disaster, or development under subsection (1)(b)(i) that is a direct response to a likely disaster, only if the Premier has made a declaration under subsection (3) authorising the proposed development. (3) The Premier may, by written order given to the Authority (a proposed development declaration), declare that proposed development is authorised to be carried out under this section if— (a) the Authority has asked that the proposed development declaration be made, and (b) the specified land is likely to be directly or indirectly affected by a disaster or the development is a direct response to a likely disaster, and (c) the development is necessary to give effect to the primary object of this Act, and (d) carrying out the development immediately is appropriate in the circumstances given— (i) for development mentioned in subsection (1)(a)—the nature of the likely disaster and its direct or indirect effect on the specified land, or (ii) for development mentioned in subsection (1)(b)—the nature of the likely disaster and its impact. (4) The proposed development declaration must specify the period during which development may be carried out under the declaration. (5) The Authority must, by Gazette notice— (a) give notice of development being carried out under subsection (1), within 14 days after the development starts, and (b) give notice of the making of a proposed development declaration under subsection (3), within 14 days after the declaration is made. (6) A Gazette notice under subsection (5)(a) must specify the date, not later than the end of the period during which development may be carried out under the proposed development declaration, that is— (a) the day on which the Gazette notice expires, and (b) the last day on which development on the specified land may be carried out under this section. (7) Failure to publish a notice as required by subsection (5)(a) or (b) does not affect— (a) the power of the Authority to carry out, or to continue to carry out, the development on the specified land, or (b) the validity of the proposed development declaration. (8) This section applies despite— (a) another provision of this Act, or (b) a provision of the Environmental Planning and Assessment Act 1979 or an instrument made under that Act. 13 Authority may direct relevant entities (1) The Authority may, by written notice given to a relevant entity, direct the relevant entity to take any of the following actions (a relevant action)— (a) to provide assistance to the Authority in the exercise of the Authority's functions under this Act or another Act, (b) for a local council—to take certain action in the exercise of— (i) the council's functions under the Environmental Planning and Assessment Act 1979, or (ii) other functions of the council as prescribed by the regulations, (c) for another planning authority—to take certain action in the exercise of the planning authority's functions as prescribed by the regulations, (d) for another relevant entity—to take certain action in the exercise of the relevant entity's functions as prescribed by the regulations. (2) The Authority may give a direction to a relevant entity under subsection (1) only if the Authority is satisfied— (a) the relevant action relates to a disaster or likely disaster, and (b) the relevant action is necessary to give effect to the primary object of this Act, and (c) given the nature of the disaster or likely disaster, and its direct or indirect effect on a part of the State, directing the relevant entity to take the relevant action immediately is appropriate in the circumstances. (3) A relevant entity given a direction under subsection (1) must comply with the direction unless the entity has a reasonable excuse. Maximum penalty—200 penalty units. 14 Cooperation with other agencies (1) In exercising its functions, the Authority may work in cooperation with other government agencies, and other persons and bodies, the Authority thinks appropriate, whether or not the agencies, persons or bodies are in or of the State. (2) Without limiting subsection (1), the Authority may, if asked by a public authority, including a Minister, assist the public authority to respond to issues that impact on the safety or wellbeing of an affected community or members of an affected community. (3) The Authority may consult with, and disseminate information to, other government agencies, and other persons and bodies, the Authority thinks appropriate, whether or not the agencies, persons or bodies are in or of the State. (4) Each relevant entity is under a duty to cooperate with the Authority in the exercise of the Authority's functions. 15 Delegation (1) The Authority may delegate the exercise of a function of the Authority under this Act or another Act, other than this power of delegation, to an authorised person. (2) A person to whom the exercise of a function is delegated under subsection (1) may subdelegate the exercise of the function to an authorised person if authorised by the Authority to subdelegate the exercise of the function. (3) In this section— authorised person means— (a) a member of staff of the Authority, or (b) a person, or a class of persons, prescribed by the regulations for this section. Division 3 Staff of Authority 16 Staff (1) The staff of the Authority consist of— (a) a chief executive officer, who is the person who is employed in the Public Service as the chief executive officer of the Authority, and (b) the other members of the staff of the Authority. (2) (Repealed) Division 4 Chief executive officer 17 Role (1) The chief executive officer is responsible for the day-to-day operations of the Authority. (2) An act, matter or thing done in the name of, or on behalf of, the Authority by the chief executive officer is taken to have been done by the Authority. (3) The chief executive officer is entitled to attend and participate in discussions at meetings of the Advisory Board but is not entitled to vote at the meetings. 18 Functions (1) The main functions of the chief executive officer are as follows— (a) to ensure the Authority exercises its functions effectively and efficiently, (b) to carry out or commission investigations, prepare plans or take steps the Minister directs, or the chief executive officer considers necessary or desirable, to ensure proper planning, preparation, coordination and control of development for the protection, rebuilding and recovery of affected communities, (c) to make recommendations to the Minister about a matter that— (i) relates to the performance or exercise of the chief executive officer's or Authority's functions or powers, and (ii) may help the Minister with the proper administration of this Act. (2) The chief executive officer's functions also include other functions given to the chief executive officer under this Act or another Act. 19 Delegation (1) The chief executive officer may delegate the exercise of a function of the chief executive officer under this Act or another Act, other than the following powers, to an authorised person— (a) the power to give a direction under section 13, (b) this power of delegation. (2) In this section— authorised person means— (a) a member of staff of the Authority, or (b) a person, or a class of persons, prescribed by the regulations for this section. Division 5 Other members of staff 20 Staff Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Authority to exercise its functions. Note— The Government Sector Employment Act 2013, section 59 provides that the persons so employed, or whose services the Authority makes use of, may be referred to as officers or employees, or members of staff, of the Authority. The Constitution Act 1902, section 47A precludes the Authority from employing staff. Division 6 Other assistance 21 Alternative staffing, facilities and other resources The chief executive officer may arrange for the use of the services of any members of staff, by secondment or otherwise, or facilities or other resources, of— (a) a Public Service agency, or (b) a public authority or local authority. Division 7 Financial matters 22 NSW Reconstruction Authority Fund (1) There is to be established in the Special Deposits Account a NSW Reconstruction Authority Fund (the Fund). (2) The following amounts may be paid into the Fund— (a) money advanced to the Authority by the Treasurer or the Commonwealth, or appropriated by Parliament for the purposes of the Authority, (b) money directed or authorised to be paid into the Fund by or under this Act or another Act, (c) the proceeds of the investment of money in the Fund, (d) money received by the Authority from another source, including money received from a funding scheme implemented by the Authority or donations and philanthropic contributions, (e) an amount, or an amount of a class, prescribed by the regulations. (3) The following amounts may be paid from the Fund— (a) amounts required to meet expenditure incurred by the Authority, (b) amounts required to be paid by the Authority in accordance with a funding scheme implemented by the Authority, (c) other payments required by this Act or another Act to be paid from the Fund, (d) an amount, or an amount of a class, prescribed by the regulations. (4) To avoid doubt, the Authority may spend money mentioned in subsection (2)(d) for any purpose that will assist the Authority to achieve the primary object of this Act. (5) The Fund is to be administered by the Authority. (6) The Authority may invest money in the Fund— (a) if the Authority is a GSF agency for the Government Sector Finance Act 2018, Part 6—in any way the Authority is permitted to invest money under that Part, or (b) if the Authority is not a GSF agency for the Government Sector Finance Act 2018, Part 6—in any way approved by the Minister with the concurrence of the Treasurer. (7) The Authority must, if asked by the Treasurer, repay money advanced to the Authority by the Treasurer. 23 Payments out of Consolidated Fund for exigencies (1) This section applies if the annual Appropriation Act for an annual reporting period for the NSW Government has already been enacted. (2) The Treasurer may, with the concurrence of the Minister, determine that additional money is to be paid out of the Consolidated Fund during the annual reporting period for the NSW Government, in anticipation of appropriation by Parliament, if the money is required to meet exigencies of the Authority during the annual reporting period. (3) The Treasurer must ensure details of the payments of money under subsection (2) are included in the Budget Papers for the next annual reporting period for the Authority. (4) In this section— annual Appropriation Act has the same meaning as in the Government Sector Finance Act 2018. annual reporting period has the same meaning as in the Government Sector Finance Act 2018. Budget Papers has the same meaning as in the Government Sector Finance Act 2018. Consolidated Fund has the same meaning as in the Government Sector Finance Act 2018. Part 3 NSW Reconstruction Authority Advisory Board Division 1 Establishment and functions 24 The Advisory Board The Authority has an advisory board known as the NSW Reconstruction Authority Advisory Board (the Advisory Board). 25 Functions of Advisory Board The functions of the Advisory Board are as follows— (a) to provide advice to the chief executive officer about the Authority's strategic priorities, (b) to make recommendations to the chief executive officer about— (i) priorities for community infrastructure, other property and community services needed for the protection, rebuilding and recovery of affected communities, and (ii) the need for the declaration of declared projects, reconstruction areas and disaster prevention areas, (c) to provide advice to the Minister and chief executive officer in relation to the Authority's functions, including— (i) whether the Authority is exercising the Authority's functions in an appropriate, effective and efficient way, and (ii) any other matter requested by the Minister or chief executive officer. Division 2 Members 26 Membership of Advisory Board (1) The Advisory Board consists of the following members appointed by the Governor— (a) a Chairperson nominated by the Minister, (b) 4 other members nominated by the Minister, (c) 2 members nominated by the Commonwealth. (2) Each member of the Advisory Board must be a person who, in the opinion of the person nominating the person for appointment, has skills, knowledge and experience relevant to the Authority's functions, including skills, knowledge and experience relevant to assessing whether the Authority is exercising its functions in an appropriate, effective and efficient way. (2A) Also, at least one of the members of the Advisory Board must be a person who, in the Minister's opinion, has considerable experience in a senior role with a local council. Example— experience as a senior manager of a local council (3) If the office of a member mentioned in subsection (1)(a) or (b) becomes vacant, the Minister must nominate a new member for appointment by the Governor within 3 months after the vacancy occurs. (4) If the office of a member mentioned in subsection (1)(c) becomes vacant and the Commonwealth does not nominate a new member within 3 months after the vacancy occurs, the Minister may nominate a person for appointment to the office. (5) Schedule 1 has effect in relation to the Advisory Board. 27 Conditions of appointment (1) A member of the Advisory Board is to be paid the remuneration and allowances decided by the Governor. (2) A member of the Advisory Board holds office on the terms and conditions, not provided by this Act, that are decided by the Governor. Division 3 Chairperson 28 Role of Chairperson The Chairperson of the Advisory Board is responsible for leading and directing the activities of the Board to ensure the Board exercises its functions appropriately. Division 4 Other matters 29 Reports (1) The Chairperson of the Advisory Board must, as soon as practicable after the end of each quarter, give the Minister a report about the exercise of the Authority's functions during the quarter. (2) The Chairperson of the Advisory Board must ensure that a copy of each report under subsection (1) is published on an appropriate website within 14 days after the report is given to the Minister. (3) In this section— appropriate website means— (a) the Authority's website, or (b) another appropriate government website. quarter means the following periods in each year— (a) 1 January to 31 March, (b) 1 April to 30 June, (c) 1 July to 30 September, (d) 1 October to 31 December. Part 4 State disaster mitigation plan and disaster adaptation plans Division 1 State disaster mitigation plan 30 Requirement to have State disaster mitigation plan The Authority must have a disaster mitigation plan (a State disaster mitigation plan), approved by the Minister, for the State. 31 Purpose of State disaster mitigation plan (1) The purpose of the State disaster mitigation plan is to provide guidance about the mitigation of disasters across the State, including setting priorities for action to be taken under— (a) the plan, and (b) disaster adaptation plans, and (c) strategic plans under the Environmental Planning and Assessment Act 1979. (2) The State disaster mitigation plan must include or identify the following matters— (a) potential strategies and actions for mitigating the impact of disasters on the State, (b) an assessment, and consideration, of the impacts of climate change on disasters, (c) priority areas or regions for projects to mitigate the impact of disasters, (d) the basis on which the Authority will monitor and report on the implementation of the strategies and actions mentioned in paragraph (a), (e) other matters prescribed by the regulations. (3) In preparing the State disaster mitigation plan, the Authority must have regard to any matters— (a) prescribed by the regulations, and (b) the Minister directs the Authority to have regard to, and (c) the Authority considers relevant. 32 Preparation of State disaster mitigation plan (1) The Authority must— (a) prepare a draft State disaster mitigation plan, and (b) submit the draft plan to the Minister for approval. (2) After reviewing the draft State disaster mitigation plan, the Minister must— (a) approve the draft plan, or (b) approve the draft plan with changes the Minister considers necessary or appropriate. 33 Review and update of State disaster mitigation plan (1) The Authority must review and update the State disaster mitigation plan— (a) at least once every 5 years, or (b) as otherwise directed by the Minister. (2) In reviewing and updating the State disaster mitigation plan, the Authority must have regard to any disaster adaptation plans. (3) The regulations may provide for further matters in relation to reviewing and updating the State disaster mitigation plan. 34 Report about implementation of State disaster mitigation plan (1) The Authority must prepare a report about the implementation of the State disaster mitigation plan. (2) The Authority must give a report prepared under subsection (1) to the Minister within 5 years after the commencement of this Division. Division 2 Disaster adaptation plans 35 Requirement to prepare disaster adaptation plans (1) The Authority may, by written notice given to a relevant entity, require the relevant entity to prepare a disaster adaptation plan. (2) The Authority may also, on its own initiative or as directed by the Minister, prepare a disaster adaptation plan. 36 Content of disaster adaptation plans (1) A disaster adaptation plan must provide for the following— (a) for a plan prepared by a relevant entity—the specific projects, strategies or actions the relevant entity will undertake to prevent or minimise the impact of disasters, (b) for a plan prepared by the Authority—the specific projects, strategies or actions the Authority will undertake to prevent or minimise the impact of disasters. (2) A disaster adaptation plan must— (a) be developed having regard to the guidance about the mitigation of disasters included in the State disaster mitigation plan, including priorities for action to be taken under disaster adaptation plans, and (b) include or identify the following— (i) relevant priority areas or regions for projects to mitigate the impact of disasters identified in the State disaster mitigation plan, (ii) relevant strategies and actions for mitigating the impact of disasters identified in the State disaster mitigation plan, (iii) actions required to support the relevant strategies and actions for mitigating the impact of disasters, (iv) an assessment, and consideration, of the impacts of climate change on disasters, (v) other matters the Authority directs the relevant entity to include or i