If NCAT took a more proactive approach to invalidating those by-laws (a task which it is best placed to do), then there would be no ambiguity about whether or not they are enforceable and valid, as opposed to simply being ‘on the books’ despite an incompatibility with the relevant legislation.
You’re right, except that there are 80,000 strata schemes in NSW alone, each potentially with its own by-laws. So being “pro-active” would demand a lot of sifting, sorting and assessing.
Perhaps a system whereby every new by-law had to be approved by Fair Trading before it was registered could work, provided they were still subject to a test at the Tribunal if it was challenged.
But let’s not forget that in the famous Jo Cooper “no pets” by-law case, the original tribunal overturned the pet by-law, the Appeals Board overturned the tribunal finding and the Court of Appeal reinstated the original verdict.
And let’s not fall into the trap of assuming that by-laws written by lawyers and strata managers are going to be correct every time.
I also think it would help if every new by-law had a summary of intent attached to it. E.g, “the intention of this by-law is to prevent owners from using visitor parking for their own purposes”. Then we could by-pass the weasel words and bush-lawyering and ask pertinent questions about whether the by-law was permitted in the first place and whether it achieved its purpose at all.