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Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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.
- Area of Law
- Commercial Law
- Instrument
- Act
- Concepts
- Definitions & Interpretation
- Limitation of Liability
- Regulatory Standards
