EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 359
Issued by authority of the Minister for Revenue and Assistant Treasurer
Trade Practices Act 1974
Trade Practices Amendment Regulations 2007 (No. 6)
Section 172 of the Trade Practices Act 1974 (the TP Act) provides, in part, that the Governor-General may make regulations prescribing matters required or permitted by the TP Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the TP Act.
Section 87AB of the TP Act provides that the professional standards law of a state or territory applies to limit occupational liability relating to an action for contravention of section 52 of the TP Act. The relevant state and territory laws limit the civil liability of professionals and others while still maintaining appropriate protection for consumers of professional services through measures such as compulsory insurance cover, continual education and training and formalised complaint procedures.
Section 52 of the TP Act enables plaintiffs to take an action in certain circumstances where they have been the victim of misleading and deceptive conduct. This broad provision has been recognised as being a possible alternative cause of action to common law negligence.
Section 87AB also provides that a state or territory scheme only applies to professional schemes that have been prescribed.
The new Regulations prescribe for the purposes of section 87AB the CPA Australia (NSW), Institute of Chartered Accountants in Australia (NSW) and Institute of Chartered Accountants in Australia (WA) professional standards schemes. This has the effect of limiting the occupational liability of members of the schemes relating to an action for contravention of section 52 of the TP Act in the same way as occupational liability is limited under the Professional Standards Act 1994 (NSW) and the Professional Standards Act 1997 (WA).
The new Regulations add to the existing prescriptions of the New South Wales Bar Association Scheme, the Engineers Australia (NSW) Scheme, The Law Society of New South Wales Scheme, the Investigative and Remedial Engineers Scheme and the Australian Valuers Institute (NSW) Scheme.
The TP Act specifies no conditions that need to be met before the power to make the new Regulations may be exercised.
The Professional Standards Council sought the opinion of an independent actuarial consultant and called for public comment on the schemes via public notification in The Australian and The West Australian newspapers prior to approving the CPA Australia (NSW), Institute of Chartered Accountants in Australia (NSW) and Institute of Chartered Accountants in Australia (WA) professional standards schemes.
The new Regulations commence on 25 October 2007.