Trade Practices Amendment Regulations 2008 (No. 2)

Overview

The Trade Practices Amendment Regulations 2008 (No. 2) were enacted to amend the Trade Practices Act 1974, addressing the gap in the application of state and territory professional standards laws to limit occupational liability for actions involving misleading or deceptive conduct under section 52 of the Trade Practices Act. This was achieved by prescribing additional professional standards schemes, thereby ensuring that the civil liability of professionals is limited in a manner consistent with the relevant state and territory laws, such as the Professional Standards Act 2003 (Vic) and the Civil Law (Wrongs) Act 2002 (ACT). The regulations were issued under the authority of the Assistant Treasurer and are intended to provide a uniform approach to professional liability across different jurisdictions. The policy objective was to maintain consumer protection while allowing professionals to be governed by their respective professional standards schemes.

Scope and Application

The Trade Practices Amendment Regulations 2008 (No. 2) pertains to the Trade Practices Act 1974 (TP Act) and extends its application to various professional standards schemes across different states and territories. The Act applies to members of the prescribed professional schemes, including the Institute of Chartered Accountants in Australia and CPA Australia in various jurisdictions, as well as the Professional Surveyors Occupational Association (NSW) and the Victorian Bar Incorporated. These schemes are recognised under section 87AB of the TP Act to limit occupational liability in actions for contravention of section 52, which pertains to misleading and deceptive conduct. The prescribed schemes are intended to provide protection for consumers of professional services by ensuring that professionals adhere to certain standards, including compulsory insurance cover, continual education and training, and formalised complaint procedures. The scope of the Act is national, with the specific schemes applying to different states and territories in Australia. The Act does not specify any exclusions or thresholds, and the regulations are effective until 12 June 2009, as the relevant policy is currently under consideration. The application of the Act can be extended or restricted through subordinate instruments as deemed necessary by the relevant authorities.

Key Provisions

The Trade Practices Amendment Regulations 2008 (No. 2) amend the Trade Practices Act 1974 (TP Act) by adding several professional standards schemes to the list of those that limit occupational liability under section 87AB. These schemes include the Institute of Chartered Accountants in Australia from various states and territories, as well as CPA Australia from several states and territories, the Professional Surveyors Occupational Association in New South Wales, and the Victorian Bar Incorporated. The inclusion of these schemes means that members of these organisations will have their occupational liability limited in a similar way to the existing schemes that are already covered under state and territory laws (section 87AB). The addition of these professional standards schemes to the TP Act is intended to ensure that the civil liability of professionals is appropriately limited while still providing adequate protection for consumers of professional services. This is achieved through measures such as compulsory insurance cover, continual education and training, and formalised complaint procedures. The schemes must have been approved by the relevant Professional Standards Councils and gazetted in the appropriate states and territories before they can be added to the regulations. Additionally, the Professional Standards Council sought the opinion of an independent actuarial consultant and called for public comment on the schemes via public notification in major metropolitan newspapers in the relevant jurisdictions prior to approving the professional standards schemes. Under the TP Act, certain parties or entities are subject to specific obligations and requirements. For example, professionals who are members of the prescribed schemes are required to adhere to the standards set out by their respective professional bodies. This includes maintaining appropriate insurance cover, engaging in continual education and training, and following formalised complaint procedures. Additionally, the professional bodies themselves are required to ensure that their members are complying with these obligations and requirements. Failure to do so could result in the professional body being held liable under the TP Act. Failure to comply with the provisions of the TP Act or the Trade Practices Amendment Regulations 2008 (No. 2) may result in civil or criminal consequences, depending on the nature and severity of the breach. For example, individuals who engage in misleading or deceptive conduct in contravention of section 52 of the TP Act may be subject to civil penalties, such as fines or compensation payments. In more serious cases, criminal penalties, such as imprisonment, may also apply. Similarly, professional bodies that fail to ensure that their members are complying with the relevant obligations and requirements may also be subject to civil or criminal penalties. The maximum penalties for breaches of the TP Act vary depending on the specific provision that has been contravened.