Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulation 2015

Administered by Department of the Treasury

Legislation au F2015L01262 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Select Legislative Instrument No 134, 2015

Issued by authority of the Assistant Treasurer

Corporations Act 2001; Competition and Consumer Act 2010; and the

Australian Securities and Investments Commission Act 2001

Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulation 2015

 

Section 1364(1) of the Corporations Act 2001 (Corporations Act), section 172 of the Competition and Consumer Act 2010 (CCA) and section 251(1) of the Australian Securities and Investments Commission Act 2001 (ASIC Act) each provide that the Governor‑General may make regulations prescribing matters required or permitted by the Acts to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Acts.

The Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulation 2015 (Regulation) makes various amendments to the Corporations Regulations 2001, the Competition and Consumer Regulations 2010 and the Australian Securities and Investments Commission Regulations 2001 principally to prescribe new professional standards schemes at the Commonwealth level.

Professional Standards legislation in each state and territory operates, where applicable, to limit the civil liability of professionals and others while still maintaining appropriate protection for consumers of professional services through such measures as compulsory insurance cover and complaints procedures. 

Provision is made in the ASIC Act, the Corporations Act, and the CCA for the prescription of state and territory schemes. The effect of prescription is to limit occupational liability under certain federal legislation in the same way it is limited under relevant state legislation.  

The Regulation amends the Competition and Consumer Regulations 2010, to prescribe the following professional standards scheme:

•                 The New South Wales Bar Association Scheme.

The prescription of the schemes has the effect of limiting the occupational liability of members of the schemes relating to an action for contravention of section 18 of the Australian Consumer Law (Schedule 2 to the CCA) in the same way as occupational liability is limited under state and territory laws. 

•                 Section 18 of the Australian Consumer Law (Schedule 2 to the CCA) prohibits misleading and deceptive conduct by persons in trade or commerce. 

The Regulation also amends the Australian Securities and Investments Commission Regulations 2001 and the Corporations Regulations 2001 to prescribe the following professional standards scheme:

•                 The New South Wales Bar Association Scheme.

The prescription of the scheme has the effect of limiting the occupational liability of members of the scheme relating to an action for contravention of section 12DA of the ASIC Act, or section 1041H of the Corporations Act in the same way as occupational liability is limited under state and territory laws. 

Section 12DA of the ASIC Act deals with misleading or deceptive conduct in relation to financial services; and part 7.10 of the Corporations Act deals with market misconduct and other misconduct relating to financial products and financial services. 

The Commonwealth has not consulted on this measure. The Professional Standards Council seeks the opinion of independent actuarial consultants and calls for public comment on professional standards schemes via public notification in major newspapers circulating throughout the relevant jurisdictions prior to approving schemes. Further consultation was not considered necessary. 

Details of the Regulation are included in the Attachment.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

There are no statutory pre-conditions that need to be satisfied before the power to make the Regulation may be exercised.  

The Regulation commences on the day after it is registered.

ATTACHMENT

Details of the Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulation 2015

Section 1 — Name of Regulation

This section provides that the title of the Regulation is the Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulation 2015 (Regulation).

Section 2 — Commencement

This section provides that the Regulation commences the day after it is registered.

Section 3 — Authority

This section provides that the Regulation is made under the Corporations Act 2001 (the Corporations Act), the Competition and Consumer Act 2010 (CCA) and the Australian Securities and Investments Commission Act 2001 (ASIC Act).

Section 4 — Schedules

This section provides that each instrument that is specified in a Schedule to the Regulation is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Amendments

Schedule 1 — Amendments

The overarching aim of professional standards schemes and liability caps is to maintain affordable levels of professional indemnity insurance, as well as to improve professional standards and consumer protection. 

Professionals who are members of approved schemes are provided with an incentive (capped liability) to lift their standards and better manage their risks through a requirement to hold adequate levels of insurance and undertake risk management practices and professional development. Consumers are intended to benefit from schemes because they put downward pressure on insurance premiums, by limiting the liability of professionals and their insurers and, in the event of a claim, the prospects of recovery may be enhanced because the professional is required to hold insurance at levels that they otherwise may not have taken out in the absence of a scheme. 

Generally, civil liability claims against professionals are governed by state and territory law. All states and territories have specific legislation which governs the prescription of professional standards schemes. 

Each state and territory has established a council to assess and approve state and territory scheme applications. Each council has common membership and sits simultaneously; subsequently the councils are identified as one entity, the ‘Professional Standards Council’ (Council). Occupational associations, for example

barristers, make an application to the Council for approval of schemes. Once approved by the Council the schemes are published by the relevant state in their Government Gazette. 

The Regulation amends the Competition and Consumer Regulations 2010, to prescribe the following professional standards scheme:

•                 The New South Wales Bar Association Scheme.

The Regulation has the effect of limiting the occupational liability of members of the schemes relating to an action for contravention of section 18 of the Australian Consumer Law (Schedule 2 to the CCA).

•                 Section 18 of the Australian Consumer Law (Schedule 2 to the CCA) prohibits misleading and deceptive conduct by persons in trade or commerce.

The Regulation also amends the Australian Securities and Investments Commission Regulations 2001 and Corporations Regulations 2001 to prescribe the following professional standards scheme:

•                 The New South Wales Bar Association Scheme.

The Regulation has the effect of limiting the occupational liability of members of the schemes relating to an action for contravention of section 12DA of the ASIC Act which deals with misleading or deceptive conduct in relation to financial services and section 1041H of the Corporations Act which deals with market misconduct and other misconduct relating to financial products and financial services.

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulation 2015

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The purpose of the Regulation is to: 

•                 prescribe new professional standards schemes at the Commonwealth level.

Human rights implications

The measure in this Legislative Instrument does not engage any of the applicable human rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights because, to the extent that it may limit those rights, it does so where justified by legitimate reasons and only to the extent required by those reasons as well as subject to a range of appropriate protections.

Overview

The Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulation 2015 was issued under the authority of the Assistant Treasurer and made pursuant to sections 1364(1) of the Corporations Act 2001, section 172 of the Competition and Consumer Act 2010, and section 251(1) of the Australian Securities and Investments Commission Act 2001. This legislative instrument was introduced to address the need for new professional standards schemes at the Commonwealth level, complementing the existing state and territory schemes. These schemes aim to limit the occupational liability of professionals while ensuring adequate consumer protection through measures such as compulsory insurance and complaints procedures. The overarching policy objective is to maintain affordable levels of professional indemnity insurance, improve professional standards, and enhance consumer protection by incentivising professionals to uphold higher standards through approved schemes.

Scope and Application

The Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulation 2015 applies to the Corporations Act 2001, the Competition and Consumer Act 2010, and the Australian Securities and Investments Commission Act 2001. It pertains specifically to the New South Wales Bar Association Scheme, which is prescribed as a professional standards scheme under these Acts. The primary effect of this prescription is to limit the occupational liability of members of the New South Wales Bar Association concerning actions for contraventions of certain sections, including section 18 of the Australian Consumer Law, section 12DA of the ASIC Act, and section 1041H of the Corporations Act. This limitation is consistent with how such liability is managed under state and territory laws, thereby maintaining a uniform approach across jurisdictions. The Regulation operates nationally, given its basis in Commonwealth legislation. There are no explicit exclusions or thresholds mentioned within the provided text, but the scope is confined to the prescribed professional standards scheme. The Regulation is a legislative instrument and comes into effect the day after it is registered.

Key Provisions

The Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulation 2015 makes amendments to the Competition and Consumer Regulations 2010, the Australian Securities and Investments Commission Regulations 2001, and the Corporations Regulations 2001. These amendments prescribe the New South Wales Bar Association Scheme under each of these Regulations (sections 4 and 5). The overarching aim of professional standards schemes is to maintain affordable levels of professional indemnity insurance and to improve professional standards and consumer protection (section 1). By limiting the occupational liability of professionals in certain circumstances, these schemes provide incentives for professionals to better manage their risks through adequate insurance and risk management practices. This, in turn, benefits consumers by potentially lowering insurance premiums and enhancing recovery prospects in the event of a claim. The Regulation imposes specific obligations on members of the prescribed schemes, such as holding adequate levels of professional indemnity insurance and complying with risk management practices and professional development requirements. These obligations are designed to ensure that members maintain high professional standards and adequately protect consumers from the risks associated with professional services. By prescribing the New South Wales Bar Association Scheme, the Regulation effectively limits the occupational liability of its members in actions for contravention of certain sections of federal legislation, aligning these with the liability caps under state and territory laws. There are no explicit offences or penalties mentioned in the Regulation itself. However, breaches of the professional standards schemes or failure to comply with the prescribed obligations could potentially lead to civil or administrative consequences under the relevant federal legislation. For example, under the Competition and Consumer Act 2010, misleading or deceptive conduct by persons in trade or commerce is prohibited, and under the Australian Securities and Investments Commission Act 2001, misleading or deceptive conduct in relation to financial services is dealt with. Similarly, under the Corporations Act 2001, market misconduct and other misconduct relating to financial products and services are addressed. Professionals found in breach of these provisions could face legal action or regulatory sanctions, although the specific penalties would depend on the nature and severity of the breach.

Legal classification tags

Area of Law
Professional Standards Schemes
Instrument
Regulation
Concepts
Regulatory Standards
Professional Standards Schemes
Limitation of Liability
Catchwords
Professional Standards
Liability Caps
Scheme Prescription

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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.