Professional Standards Act 2005 (Tas)

Professional Standards Act 2005 An Act to provide for the limitation of liability of members of occupational associations in certain circumstances, to facilitate improvement in the standards of services provided by members of occupational associations and to provide for related matters [Royal Assent 24 June 2005] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Professional Standards Act 2005 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Objects of Act The objects of this Act are as follows: (a) to enable the creation of schemes to limit the civil liability of professionals and others; (b) to facilitate the improvement of occupational standards of professionals and others; (c) to protect the consumers of the services provided by professionals and others; (d) to establish the Professional Standards Council to supervise the preparation and approval of schemes and to assist in the improvement of occupational standards and protection of consumers. 4. Interpretation (1) In this Act, unless the contrary intention appears – another jurisdiction means any State or Territory, other than this jurisdiction; appropriate council, in relation to another jurisdiction, means the authority that, under the corresponding law of that jurisdiction, has functions that are substantially the same as the Council's functions under this Act; business assets means the property of a person that is used in the performance of the person's occupation and that is able to be taken in proceedings to enforce a judgment of a court; corresponding law means – (a) a law of another jurisdiction that corresponds to this Act; and (b) a law of another jurisdiction that is prescribed by the regulations to be a corresponding law; costs includes fees, charges, disbursements and expenses; Council means the Professional Standards Council established by this Act; court includes a tribunal and an arbitrator; damages means – (a) damages awarded in respect of a claim or counter-claim or by way of set-off; and (b) costs in or in relation to the proceedings ordered to be paid in connection with such an award (other than costs incurred in enforcing a judgement or incurred on an appeal made by a defendant); and (c) any interest payable on the amount of those damages or costs; exercise of a function includes, where the function is a duty, the performance of the duty; function includes a power, authority and duty; interstate scheme means a scheme that – (a) has been prepared under a corresponding law; and (b) operates, or indicates an intention to operate, as a scheme of Tasmania; judgment includes – (a) a judgment given by consent; and (b) an award of an arbitrator; occupational association means a body corporate – (a) which represents the interests of persons who are members of the same occupational group or related occupational groups; and (b) the membership of which is limited principally to members of that occupational group or those occupational groups; occupational group includes a professional group and a trade group; occupational liability means civil liability arising (in tort, contract or otherwise) directly or vicariously from anything done or omitted to be done by a member of an occupational association acting in the performance of his or her occupation; partner means a person who has entered into a partnership, within the meaning of the Partnership Act 1891 , with another person; scheme means a scheme for limiting the occupational liability of members of an occupational association, whether prepared under this Act or a corresponding law; subordinate legislation has the same meaning as in the Subordinate Legislation Act 1992 . (2) A reference in this Act to the amount payable under an insurance policy in respect of an occupational liability includes a reference to – (a) defence costs payable in respect of a claim, or notification that may lead to a claim (other than reimbursement of the defendant for time spent in relation to the claim), but only if those costs are payable out of the one sum insured under the policy in respect of the occupational liability; and (b) the amount payable under or in relation to the policy by way or excess. 5. Application of Act (1) This Act does not apply to liability for damages arising from any of the following: (a) the death of, or personal injury to, a person; (b) any negligence or other fault of an Australian legal practitioner in acting for a client in a personal injury claim; (c) a breach of trust; (d) fraud or dishonesty; (e) an intentional tort. (2) This Act does not apply to liability which may be the subject of proceedings under Division 2 of Part XI of the Land Titles Act 1980 . (3) This Act does not apply to any cause of action arising under, or with respect to, a contract, or contractual relations, entered into before the commencement of this Act (whether or not the action lies in contract) unless the parties, after the commencement of this Act, vary the relevant contract so as to make express provision for the application of this Act. (4) This Act does not apply to any cause of action (whether or not the action lies in contract) arising under, or with respect to, a contract, or contractual relations – (a) entered into by a member of a scheme approved under section 8 if that member entered into the contract or contractual relations after the commencement of this Act but before that scheme commenced; or (b) entered into by a person before that person became a member of a scheme that, at the time the person became a member, had commenced – unless the parties, after the commencement of the scheme, vary the relevant contract, or relevant contractual relations, so as to make express provision for the application of this Act. (5) This section applies to an interstate scheme in its operation in Tasmania despite a corresponding law that applies to the interstate scheme in another jurisdiction stating that the corresponding law does apply to a liability of a kind referred to in subsection (1) or (2) . 6. Relationship of Act to other laws (1) If a provision made by or under Part 3 , 4 or 5 or Schedule 1 is inconsistent with a provision made by or under any other Act, that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect. (2) Except as provided by subsection (1) , this Act has effect despite any law to the contrary. 7. Act binds Crown (1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. (2) Nothing in this Act makes the Crown in any of its capacities liable to be prosecuted for an offence. PART 2 - Limitation of liability Division 1 - Making, amendment and revocation of schemes 8. Preparation and approval of schemes (1) An occupational association may prepare a scheme. (1A) A scheme prepared under this section may indicate an intention to operate as a scheme – (a) of Tasmania only; or (b) of Tasmania and another jurisdiction. (2) The Council may, on the application of an occupational association, approve a scheme prepared under this section. 9. Public notification of schemes (1) Before deciding whether to approve a scheme, the Council must publish a notice in all daily newspapers published in Tasmania – (a) explaining the nature and significance of the scheme; and (b) advising where a copy of the scheme may be obtained or inspected; and (c) inviting comments and submissions within a specified time, but not less than 28 days after publication of the notice. (2) If a scheme indicates an intention to operate as a scheme of both Tasmania and another jurisdiction, the Council must also publish a similar notice in the other jurisdiction in accordance with the corresponding law of that jurisdiction that relates to approval of a scheme prepared in that jurisdiction. 10. Making of comments and submissions concerning schemes (1) Any person may make a comment or submission to the Council concerning a scheme of which notice has been published under section 9 . (2) A comment or submission must be made within the period specified for that purpose in the notice or within such further time as the Council may allow. 11. Consideration of comments, submissions and other matters (1) Before deciding whether to approve a scheme, the Council must consider the following: (a) all comments and submissions made to it in accordance with section 10 ; (b) the position of persons who may be affected by limiting the occupational liability of members of the occupational association concerned; (c) the nature and level of claims relating to occupational liability made against members of the occupational association concerned; (d) the risk management strategies of the occupational association concerned; (e) the means by which those strategies are intended to be implemented; (f) the cost and availability of insurance against occupational liability for members of the occupational association concerned; (g) the standards (referred to in section 30 ) determined by the occupational association concerned in relation to insurance policies; (h) the provisions contained in the proposed scheme or under statute for the making and determination of complaints and the imposition and enforcement of disciplinary measures against members of the occupational association concerned. (2) If a scheme indicates an intention to operate as a scheme of both Tasmania and another jurisdiction – (a) the Council must also consider any matter that the appropriate council for that other jurisdiction would have to consider under the provisions of the corresponding law of that jurisdiction that relate to the approval of a scheme prepared in that other jurisdiction; and (b) the matters to be considered by the Council, whether under subsection (1) or under paragraph (a) of this subsection, are to be considered in the context of each jurisdiction concerned. 12. Public hearings (1) The Council may conduct a public hearing concerning a scheme if the Council thinks it appropriate. (2) A public hearing may be conducted in such manner as the Council determines. 13. Submission of schemes to Minister (1) The Council may submit a scheme approved by it to the Minister. (2) At the same time as the Council submits a scheme to the Minister, the Council is to provide the Minister with a summary of the Council's reasons for approving the scheme. (3) Paragraph (e) of item 2 of Schedule 1 to the Subordinate Legislation Act 1992 applies to a proposed scheme submitted to the Minister as if – (a) the proposed scheme were proposed subordinate legislation; and (b) the reference in that paragraph to any other subordinate legislation included a reference to any other existing or proposed scheme. (4) If the scheme indicates an intention to operate as a scheme of both Tasmania and another jurisdiction, the Council may also submit the scheme to the Minister administering the corresponding law of that other jurisdiction. 14. Gazettal, tabling and disallowance of schemes (1) The Minister, after carrying out any consultation required under section 13(3) , may authorise the publication in the Gazette of a scheme submitted to the Minister – (a) under section 13 by the Council; or (b) in the case of an interstate scheme, under a corresponding law by the appropriate council for the jurisdiction in which the scheme was prepared. (2) Section 47(3)(c) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 applies to a scheme in respect of which the Minister has authorised publication in the Gazette under subsection (1) as if the scheme were regulations and notice of the making of the regulations had been published in the Gazette when the scheme was published in the Gazette. (3) Section 7(4) and section 8 of the Subordinate Legislation Committee Act 1969 apply to a scheme in respect of which the Minister has authorised publication in the Gazette under subsection (1) as if – (a) the scheme were a regulation; and (b) notice of the making of the regulation had been published in the Gazette when the scheme was published in the Gazette; and (c) section 8(1)(ab) of that Act included a reference to compliance with the provisions of this Act. (3A) In subsection (1) , a reference to an interstate scheme includes a reference to an instrument amending an interstate scheme. (4) The Minister does not incur any liability for or in respect of a scheme in consequence of its authorisation, commencement, continued operation, amendment or revocation. 15. Commencement of schemes (1) A scheme published in the Gazette with the authorisation of the Minister commences – (a) on such day subsequent to the date of its publication as may be specified in the scheme; or (b) if no such day is specified, 2 months after the date of its publication. (2) This section is subject to any order of the Supreme Court under section 16 and any order made by the Supreme Court of another jurisdiction under the corresponding law of that jurisdiction. (3) In this section, a reference to a scheme includes, in the case of an interstate scheme, a reference to an instrument amending that scheme. 16. Challenges to schemes (1) A person who is, or is reasonably likely to be, affected by a scheme published as referred to in section 14 may, at any time before the scheme commences, apply to the Supreme Court for an order that the scheme is void for want of compliance with this Act. (2) The Court may, on or at any time after the making of the application, order that the commencement of the scheme be stayed until further order of the Court. (3) The Court, in relation to an application, may – (a) make an order that a scheme is void for want of compliance with this Act; or (b) decline to make such an order; or (c) give directions as to the things that are required to be done in order that a scheme, the commencement of which is stayed under this section, may commence; or (d) make any other order it thinks fit. (4) The Court may not make an order that an interstate scheme is void for want of compliance with this Act on the ground that the scheme fails to comply with Division 2 , but may do so on the ground that the scheme fails to comply with the provisions of the corresponding law of the jurisdiction in which the scheme was prepared that relate to the contents of schemes prepared in that jurisdiction. (5) In this section, a reference to a scheme includes, in the case of an interstate scheme, a reference to an instrument amending that scheme. 17. Review of schemes (1) The Minister may direct the Council to review the operation of a scheme and the Council must comply with any such direction. (2) The Council may on its own initiative at any time review the operation of a scheme. (3) A review may, but need not, be conducted in order to decide – (a) in the case of a scheme prepared under this Act, whether the scheme should be amended or revoked or whether a new scheme should be made; or (b) in the case of an interstate scheme, whether the operation of the scheme should be terminated in relation to Tasmania. (4) Without limiting subsection (2) , the Council may review the operation of a scheme that relates to the members of an occupational association if the association proposes under section 30 an alteration in the standards applying in relation to an insurance policy or kind of insurance policy that would, in the opinion of the Council, result in less stringent standards. (5) The Council may recover the cost of any review of a scheme under this section from the occupational association to whose members the scheme relates as a debt due to it from that occupational association. 18. Amendment of Tasmanian schemes (1) An occupational association may prepare an amendment to a scheme that relates to its members. (2) The Council may, on the application of an occupational association, approve an amendment to a scheme that relates to the members of the association. (3) The Minister may direct an occupational association to prepare an amendment to a scheme if the Minister considers that the scheme no longer meets the objects of this Act. (4) If the Minister directs an occupational association to prepare an amendment to a scheme under subsection (3) , the association must do so within a reasonable time. (5) If the Minister considers that the occupational association has not prepared an amendment to a scheme within a reasonable time, the Minister may revoke the scheme. (6) If an amendment to a scheme is prepared by an occupational association as a result of a direction from the Minister, the occupational association must submit the amendment to the Council for approval and the Council, if it is satisfied that the amendment complies with this Act and the Minister's direction, must approve the amendment. (7) The provisions of sections 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 and 16 apply, with any necessary modifications, to the amendment of a scheme as well as to the making of a scheme. (8) This section does not apply to an interstate scheme. 19. Revocation of Tasmanian schemes (1) An occupational association may prepare the revocation of a scheme that relates to its members. (2) The Council may, on the application of an occupational association, approve the revocation of a scheme that relates to the members of the association. (3) The Council may, on its own initiative, at any time while a scheme remains in force, prepare and approve the revocation of the scheme if satisfied that the scheme no longer meets the objects of this Act. (4) If a scheme prepared under this Act indicates an intention to operate in both Tasmania and another jurisdiction and is revoked under this section, the Council must give notice of the revocation to the Minister administering the corresponding law of that jurisdiction. (5) This section does not apply to an interstate scheme. 19A. Publication of revocation of interstate scheme under corresponding law If the Minister is notified that an interstate scheme has been revoked under the corresponding law of the jurisdiction in which the scheme was prepared, the Minister must cause notice of that revocation to be published in the Gazette. 19B. Termination of operation of interstate scheme in Tasmania (1) On the application of an occupational association, the Council may prepare an instrument terminating the operation, in Tasmania, of an interstate scheme that relates to the members of the association. (2) The Minister may direct the Council to prepare an instrument terminating the operation, in Tasmania, of an interstate scheme. (3) The Council must comply with a direction under subsection (2) but may, on its own initiative at any time while an interstate scheme remains in force, prepare an instrument terminating the operation, in Tasmania, of the scheme. (4) The provisions of sections 9 , 10 , 11 , 12 , 13 , 14 , 15 and 16 apply, with any necessary modifications, to the termination, in relation to Tasmania, of an interstate scheme. (5) The operation of an interstate scheme in respect of which an instrument under this section is published under section 14 (as applied by subsection (4) ) is terminated, in relation to Tasmania – (a) on such day later than the publication of the instrument as may be specified in the instrument; or (b) if no such day is specified in the instrument, at the end of the period of 2 months commencing on the day of the publication of the instrument. Division 2 - Contents of schemes 20. Persons to whom scheme applies (1) A scheme may provide that it applies to – (a) all persons within an occupational association; or (b) a specified class or specified classes of persons within an occupational association; or (c) specified occupational associations within a specified industry. (2) A scheme may provide that the occupational association concerned may, on application by a person, exempt the person from the scheme. (3) If a person is exempted from a scheme, the person is exempted from the whole of the scheme. (4) A scheme ceases to apply to a person exempted from the scheme as referred to in subsection (2) – (a) on and from the date on which the exemption is granted; or (b) on and from a later date specified in the exemption. (5) Subsection (2) does not apply to a person to whom a scheme applies by virtue of section 21 , 22 or 23 . 21. Officers or partners of persons to whom scheme applies (1) If a scheme applies to a body corporate, the scheme also applies to each officer of the body corporate. (2) If a scheme applies to a person, the scheme also applies to each partner of the person. (3) In this section – officer – (a) in relation to a body corporate that is a corporation within the meaning of the Corporations Act, has the same meaning as in section 9 of that Act; and (b) in relation to a body corporate that is not a corporation within the meaning of that Act, means any person (by whatever name called) who is concerned in or takes part in the management of the body corporate. 22. Employees of persons to whom scheme applies If a scheme applies to a person, the scheme also applies to each employee of the person. 23. Other persons to whom scheme applies If persons are prescribed by the regulations for the purposes of section 32(4) as being associated with persons to whom a scheme applies, the scheme also applies to the prescribed persons. 24. Limitation of liability by insurance arrangements A scheme may provide that, if a person to whom the scheme applies and against whom a proceeding relating to occupational liability is brought is able to satisfy the court that – (a) the person has the benefit of an insurance policy insuring the person against the occupational liability to which the cause of action relates; and (b) the amount payable under the policy in respect of that occupational liability is not less than the amount of the monetary ceiling specified in the scheme in relation to the class of person and the kind of work to which the cause of action relates – the person is not liable in damages in relation to that cause of action above the amount of that monetary ceiling. 25. Limitation of liability by reference to amount of business assets A scheme may provide that, if a person to whom the scheme applies and against whom a proceeding relating to occupational liability is brought is able to satisfy the court – (a) that the person has business assets the net current market value of which is not less than the amount of the monetary ceiling specified in the scheme in relation to the class of person and the kind of work to which the cause of action relates; or (b) that – (i) the person has business assets and the benefit of an insurance policy that insures the person against that occupational liability; and (ii) the net current market value of the business assets and the amount payable under the policy in respect of that occupational liability, if combined, would total an amount that is not less than the amount of the monetary ceiling specified in the scheme in relation to the class of person and the kind of work to which the cause of action relates – the person is not liable in damages in relation to that cause of action above the amount of the monetary ceiling so specified. 26. Limitation of liability by multiple of charges (1) A scheme may provide that, if a person to whom the scheme applies and against whom a proceeding relating to occupational liability is brought is able to satisfy the court – (a) that the person has the benefit of an insurance policy – (i) that insures the person against that occupational liability; and (ii) under which the amount payable in respect of that occupational liability is not less than an amount (the "limitation amount"), being a reasonable charge for the services provided by the person, or which the person failed to provide, and to which the cause of action relates, multiplied by the multiple specified in the scheme in relation to the class of person and the kind of work to which the cause of action relates; or (b) that the person has business assets the net current market value of which is not less than the limitation amount; or (c) that – (i) the person has business assets and the benefit of an insurance policy that insures the person against that occupational liability; and (ii) the net current market value of the assets and the amount payable under the policy in respect of that occupational liability, if combined, would total an amount that is not less than the limitation amount – the person is not liable in damages in relation to that cause of action above the limitation amount or, if the scheme specifies a minimum cap determined by the Council for the purposes of the scheme that is higher than the limitation amount, above the amount of the minimum cap so specified. (2) In determining the amount of a reasonable charge for the purposes of a provision made under subsection (1) , a court is to have regard to any amount actually charged and to – (a) the amount that would ordinarily be charged in accordance with a scale of charges accepted by the occupational association of which the person is a member; or (b) if there is no such scale, the amount that a competent person of the same qualifications and experience as the person would be likely to charge in the same circumstances. (3) This section does not limit an amount of damages to which a person is liable if the amount is less than the amount specified for the purpose in the scheme in relation to the class of person and the kind of work concerned. 27. Specification of different limits of liability A scheme – (a) may specify the same maximum amount of liability in relation to all cases to which the scheme applies or different maximum amounts of liability for different cases or classes of case, or for the same case or class of case for different purposes; and (b) may confer a discretionary authority on an occupational association, on application by a person to whom the scheme applies, to specify in relation to the person a higher maximum amount of liability than would otherwise apply under the scheme in relation to the person either in all cases or a specified class of cases. (c) . . . . . . . . 28. Combination of provisions under sections 24 , 25 and 26 If, in a scheme, provisions of the kind referred to in section 26 and provisions of the kind referred to in section 24 or 25 (or both) apply to a person at the same time in respect of the same kind of work, the scheme must provide that the damages which may be awarded against the person are to be determined in accordance with section 26 but must not exceed the amount of the monetary ceiling specified in relation to the class of person and the kind of work in the provisions of the kind referred to in section 24 or 25 . 29. Liability that cannot be limited by scheme A scheme can only affect the liability for damages arising from a single cause of action to the extent to which the liability results in damages exceeding such amount (but not less than $500 000) as is specified in the scheme. 29A. Liability in damages not reduced to below relevant limit The liability in damages of a person to whom a scheme applies is not reduced below the relevant limitation imposed by a scheme in force under this Act because the amount required or available to be paid to the claimant under the insurance policy required for the purposes of this Act in respect of that liability is less than the relevant limitation. 30. Insurance to be of requisite standard (1) For the purposes of a scheme, an insurance policy must be a policy, or a policy of a kind, which complies with standards determined by the occupational association whose members may be insured under such a policy, or a policy of such a kind. (2) While a scheme remains in force relating to its members, if an occupational association proposes to alter the standards previously determined by it in relation to an insurance policy or a kind of insurance policy, it must do so by way of an amendment to the scheme in accordance with the provisions of section 18 . Division 3 - Effect of schemes 31. Limit of occupational liability by schemes (1) To the extent provided by this Act and the provisions of the scheme, a scheme limits the occupational liability, in respect of a cause of action founded on an act or omission occurring during the period when the scheme is in force, of any person to whom the scheme applied at the time when the act or omission occurred. (2) A scheme does not limit the liability of a person (the "professional") to another person (the "client") if, at no stage before the time of the relevant act or omission, did the professional – (a) give, or cause to be given, to the client a document that carried a statement of a kind referred to in section 36(1) ; or (b) otherwise inform the client, whether orally or in writing, that the professional's liability was limited in accordance with this Part. (3) Subsection (2) does not affect any limitation of the liability of a professional to a person other than the client. (4) The applicable limitation of liability is the limitation specified by the scheme as in force at the time of the relevant act or omission. (5) A limitation of liability that, in accordance with this section, applies in respect of an act or omission continues to apply to every cause of action founded on it, irrespective of when the cause of action arises or proceedings are brought in respect of it, and even if the scheme has been amended or has, in accordance with section 35 , ceased to be in force. (6) A person to whom a scheme applies cannot choose not to be subject to the scheme, except in accordance with provisions included in the scheme under section 20(2) . 32. Limitation of amount of damages (1) A limitation imposed by a scheme in force under this Act of an amount of damages is a limitation of the amount of damages that may be awarded for a single claim and is not a limitation of the amount of damages that may be awarded for all claims arising out of a single event. (2) Separate claims by two or more persons who have a joint interest in a cause of action founded