Treasury Legislation Amendment (Professional Standards) Act 2004

Administered by Department of the Treasury

Legislation au C2004A01352 In force Act

Legislation content

 

 

 

 

 

 

Treasury Legislation Amendment (Professional Standards) Act 2004

 

No. 118, 2004

 

 

 

 

 

An Act to limit certain liabilities in accordance with laws of the States and Territories, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Limitation of liabilities

Australian Securities and Investments Commission Act 2001

Corporations Act 2001

Trade Practices Act 1974

 

 

 

Treasury Legislation Amendment (Professional Standards) Act 2004

No. 118, 2004

 

 

 

An Act to limit certain liabilities in accordance with laws of the States and Territories, and for related purposes

[Assented to 13 July 2004]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Treasury Legislation Amendment (Professional Standards) Act 2004.

2  Commencement

  This Act commences on the day on which it receives the Royal Assent.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


Schedule 1—Limitation of liabilities

 

Australian Securities and Investments Commission Act 2001

1A  After subsection 12ED(2)

Insert:

 (2A) If:

 (a) there is a breach of an implied warranty that exists because of this section in a contract made after the commencement of this subsection; and

 (b) the law of a State or Territory is the proper law of the contract;

the law of the State or Territory applies to limit or preclude liability for the breach, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of a liability, for breach of another term of the contract.

1  After subsection 12GF(1)

Insert:

 (1A) Subsection (1) has effect subject to section 12GNA.

Note: Section 12GNA may limit the amount that the person may recover for a contravention of section 12DA (Misleading or deceptive conduct) from the other person or from another person involved in the contravention.

2  After subsection 12GM(7)

Insert:

 (7A) Subsections (1) and (2) have effect subject to section 12GNA.

Note: Section 12GNA may limit the liability, under an order under subsection (1) or (2) of this section, of a person for his or her contravention of section 12DA (Misleading or deceptive conduct) or involvement in such a contravention.

3  After section 12GN

Insert:

12GNA  Limit on liability for misleading or deceptive conduct

State or Territory professional standards law limits liability

 (1) A professional standards law of a State, the Australian Capital Territory or the Northern Territory applies to limit occupational liability relating to an action for contravention of section 12DA in the same way as it limits occupational liability arising under a law of the State or Territory.

Note: Section 12DA prohibits misleading or deceptive conduct by a person in relation to financial services.

 (2) However, the professional standards law applies for that purpose:

 (a) only in relation to a scheme that was prescribed by the regulations at the time (the contravention time) of…

Overview

The Treasury Legislation Amendment (Professional Standards) Act 2004, enacted by the Parliament of Australia, was introduced to address the issue of limiting certain liabilities in accordance with the laws of the States and Territories. This legislation aims to ensure that liability limitations under professional standards laws of the States and Territories apply in the same manner as they would for other contractual breaches or torts. The Act amends the Australian Securities and Investments Commission Act 2001, Corporations Act 2001, and Trade Practices Act 1974 to incorporate these limitations. By doing so, it seeks to harmonise liability limitations across different jurisdictions, thereby providing a more consistent approach to professional standards and liability in financial services and related areas.

Scope and Application

The Treasury Legislation Amendment (Professional Standards) Act 2004 applies to certain Commonwealth legislation, specifically the Australian Securities and Investments Commission Act 2001, the Corporations Act 2001, and the Trade Practices Act 1974. The Act aims to limit occupational liabilities in accordance with the laws of the States and Territories, particularly in relation to misleading or deceptive conduct. It applies to members of occupational associations, including professions and trades, who may be liable for actions taken in the course of their occupation. The geographic and jurisdictional reach of the Act is national, as it applies to laws at the federal level and references the laws of the States and Territories. The Act allows for State or Territory professional standards laws to limit occupational liability, subject to certain conditions such as the applicability of prescribed schemes at the time of the contravention. The Act does not explicitly state exclusions or exemptions but allows for limitations through the application of State or Territory professional standards laws. The Act may extend its application through subordinate instruments, such as regulations, which can prescribe schemes for limiting liability.

Key Provisions

  • The Treasury Legislation Amendment (Professional Standards) Act 2004 (No. 118, 2004) makes specific amendments to the Australian Securities and Investments Commission Act 2001, the Corporations Act 2001, and the Trade Practices Act 1974. The primary amendments pertain to the limitation of liability for misleading or deceptive conduct as outlined in sections 12DA, 1041H, and 52 of these respective Acts. The Act inserts provisions that subject the liability for such conduct to professional standards laws of the States and Territories, provided that these laws are applicable at the time of the alleged contravention.
  • Entities and individuals governed by these Acts are required to adhere to the limitations on liability as specified by the relevant State or Territory professional standards laws. For instance, in the case of the Australian Securities and Investments Commission Act 2001, subsection 12ED(2A) and subsequent sections clarify that if a contract is governed by State or Territory law, the liability for breach of an implied warranty due to misleading or deceptive conduct will be limited according to the professional standards law of that jurisdiction. Similar provisions apply to the Corporations Act 2001 and the Trade Practices Act 1974.
  • Failure to comply with the limitations on liability as set out in the Act may result in civil consequences for the entities or individuals involved. While the Act itself does not explicitly detail specific penalties or criminal consequences for breaches, the implications of non-compliance would likely be determined by the professional standards laws of the relevant State or Territory. These laws may impose various sanctions, including financial penalties, sanctions against professional licenses, or other regulatory actions, depending on the nature and severity of the breach. However, the exact penalties and consequences would be governed by the respective State or Territory's professional standards laws.

Legal classification tags

Area of Law
Commercial Law
Instrument
Act
Concepts
Definitions & Interpretation
Limitation of Liability
Regulatory Standards
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.