Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulations 2021

Administered by Department of the Treasury

Legislation au F2021L01186 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by authority of the Assistant Treasurer, Minister for Housing and Minister for Homelessness, Social and Community Housing

Australian Securities and Investments Commission Act 2001

Competition and Consumer Act 2010

Corporations Act 2001

Treasury Laws Amendment (Professional Standards Schemes No. 2)
Regulations 2021

The Australian Securities and Investments Commission Act 2001 (the ASIC Act) provides for the Australian Securities and Investments Commission to administer the Corporations Act 2001 (the Corporations Act) and other prescribed laws of the Commonwealth.

The Corporations Act provides for the regulation of corporations and financial services.

The Competition and Consumer Act 2010 (the CCA) promotes competition and fair trading and provides for consumer protection.

Section 251 of the ASIC Act, section 172 of the CCA and section 1364 of the Corporations 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 intergovernmental Professional Standards Agreement 2011 provides for a national framework of professional standards legislation that provides professionals and members of occupational associations with capped civil liability. As part of this national framework, all states and territories have adopted legislation to establish a Professional Standards Council that can approve professional standards schemes in their respective jurisdictions. Members of professional groups that are part of these schemes are entitled to capped civil liability in return for raising industry service standards and having professional indemnity insurance up to the level of the prescribed liability cap.

As part of the national framework of professional standards legislation, the Commonwealth provides members of professional groups that are part of an approved professional standards scheme with capped civil liability in relation to misleading and deceptive conduct under the ASIC Act, the CCA and the Corporations Act to ensure that actions cannot be brought under these Acts to circumvent the cap on civil liability. This provides consistency across Commonwealth and state and territory laws.

All approved professional standards schemes are prescribed under the CCA. In addition, those schemes relating to financial services are also prescribed under the ASIC Act and Corporations Act.

 

 

Subsections 12GNA(2) of the ASIC Act, 137(2) of the CCA and 1044B(2) of the Corporations Act provide for capped civil liability for misleading and deceptive conduct for professional standards schemes that are prescribed in relevant regulations. Accordingly, regulation 3A of the Australian Securities and Investments Commission Regulations 2001, regulation 8A of the Competition and Consumer Regulations 2010 and regulation 7.10.02 of the Corporations Regulations 2001 prescribe a list of professional standards schemes that have capped civil liability for misleading and deceptive conduct under their respective principal acts.

The Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulations 2021 (the Regulations) updates the regulations to gives effect to decisions of the Professional Standards Councils to approve or amend professional standards schemes in their respective jurisdictions, as published in the relevant state Government gazette or on the relevant state Government legislation website. This includes prescribing new schemes (including new schemes which replace currently‑prescribed schemes) and extensions to currently-prescribed schemes.

Details of the currently approved schemes, as well as the expired schemes, are publicly available on the Professional Standards Councils website: www.psc.gov.au.

The Professional Standards Councils seek the opinion of independent actuarial consultants and call for public comment on professional standards schemes via public notification in major newspapers circulating throughout the relevant jurisdictions prior to approving schemes. Further consultation by the Commonwealth Government was not considered necessary.

As the Regulations prescribe or extend a number of schemes, the Regulations have incorporated by reference the relevant state Government gazette notices or legislative instruments. Gazette notice references include the state, gazette number and date the gazette was published; legislative instrument references include the title and date of making the instrument. Government gazette notices and legislative instruments can be accessed for free from the state government websites below, by searching the relevant gazette date/number or legislative instrument title. 

NSW https://legislation.nsw.gov.au/gazette

QLD    https://www.publications.qld.gov.au/group/gazettes-2021

Details of the Regulations are set out in the Attachment A.

The Acts do not specify any conditions that need to be met before the power to make the Regulations are exercised. 

The Office of Best Practice Regulation has advised that the amendments do not require a Regulatory Impact Statement.

A Statement of Compatibility with Human Rights is at Attachment B

The Regulations are a legislative instrument for the purposes of the Legislation
Act 2003.

The Regulations commence on the day after registration on the Federal Register of Legislation.

ATTACHMENT A

Details of the Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulations 2021

 

Section 1 - Name of Regulations

This section provides that the title of the Regulations is the Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulations 2021.

Section 2 - Commencement

This section provides that the Regulations commence on the day after they are registration on the Federal Register of Legislation.

Section 3 - Authority

This section provides that the Regulations are made under the ASIC Act, the CCA, and the Corporations Act.

Section 4 - Schedules

This section provides that each instrument that is specified in a Schedule to the Regulations 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.

 

Schedule 1 – Amendments

Items 1, 3, 6, 8, 9, 11 and 13 – consequential amendments

These items substitute references to ‘the day the Treasury Laws Amendment (Professional Standards Schemes) Regulations 2021 commence’ with ‘1 May 2021’ which is the date that instrument commenced.

Item 10 – prescription of the new scheme: The Australian Institute of Building Surveyors Professional Standards Scheme

This item prescribes the Australian Institute of Building Surveyors Professional Standards Scheme, as a professional standards scheme that has capped civil liability for misleading or deceptive conduct under ASIC Act, the CCA and the Corporations Act, as published in the NSW Government Gazette No 214 on 21 May 2021.

Items 4, 5 and 14 – prescription of the new scheme: The Australian Property Institute Valuers Professional Standards Scheme

These items prescribe the Australian Property Institute Valuers Professional Standards Scheme as a professional standards scheme that has capped civil liability for misleading or deceptive conduct under the ASIC Act, the CCA and the Corporations Act. This scheme was published in the NSW Government Gazette No 214 on 21 May 2021. For the purposes of the CCA, this scheme replaces the currently-prescribed The Australia Property Institute Valuers Limited Professional Standards Scheme.

Items 2, 7 and 12 – extension of a scheme: The Queensland Law Society Professional Standards Scheme

This item extends the application of capped civil liability for misleading or deceptive conduct under the ASIC Act, the CCA and the Corporations Act to the Queensland Law Society Professional Standards Scheme to incorporate the extension of the scheme to 20 June 2022 as published in the Queensland Government Gazette No 63 on 23 April 2021.


ATTACHMENT B

Statement of Compatibility with Human Rights

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

Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulations 2021

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 Act.

Overview of the Legislative Instrument

The Regulations update the list of prescribed professional schemes that have capped civil liability for misleading and deceptive conduct under the Australian Securities and Investments Commission Act 2001 (the ASIC Act), the Competition and Consumer Act 2010 (the CCA) and the Corporations Act 2001 (the Corporations Act).

The intergovernmental Professional Standards Agreement 2011 provides for a national framework of professional standards legislation that provides professionals and members of occupational associations with capped civil liability. As part of this national framework, all states and territories have adopted legislation to establish a Professional Standards Council that can approve professional standards schemes in their respective jurisdictions. Members of professional groups that are part of these schemes are entitled to capped civil liability in return for raising industry service standards and having professional indemnity insurance up to the level of the prescribed liability cap.

As part of the national framework of professional standards legislation, the Commonwealth provides members of professional groups that are part of an approved professional standards scheme with capped civil liability in relation to misleading and deceptive conduct under the ASIC Act, the CCA and the Corporations Act to ensure that actions cannot be brought under these Acts to circumvent the cap on civil liability. This provides consistency across Commonwealth and state and territory laws.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms. Consideration has been given to the international conventions as set out in section 3 of the Human Rights Act.

This Legislative Instrument does not impose or amend penalty provisions, nor does it apply retrospectively or concern privacy rights of individuals or groups of people.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

Overview

The Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulations 2021 (the Regulations) were enacted to update the list of professional standards schemes that have capped civil liability for misleading and deceptive conduct under the Australian Securities and Investments Commission Act 2001, the Competition and Consumer Act 2010, and the Corporations Act 2001. This update reflects the decisions of the Professional Standards Councils to approve or amend professional standards schemes in their respective jurisdictions, as published in the relevant state Government gazette or on the relevant state Government legislation website. The Regulations were introduced by the Commonwealth Government to ensure consistency across Commonwealth and state and territory laws within the national framework of professional standards legislation. These Regulations are made under the authority of the Australian Securities and Investments Commission Act 2001, the Competition and Consumer Act 2010, and the Corporations Act 2001. They aim to provide members of professional groups that are part of an approved professional standards scheme with capped civil liability in relation to misleading and deceptive conduct, preventing actions under these Acts from circumventing the cap on civil liability. The Regulations incorporate by reference the relevant state Government gazette notices or legislative instruments, and details of the approved and expired schemes are available on the Professional Standards Councils website.

Scope and Application

The Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulations 2021 amends the Australian Securities and Investments Commission Regulations 2001, the Competition and Consumer Regulations 2010 and the Corporations Regulations 2001 by updating the list of prescribed professional standards schemes that have capped civil liability for misleading and deceptive conduct under the Australian Securities and Investments Commission Act 2001, the Competition and Consumer Act 2010 and the Corporations Act 2001. The Regulations apply to members of professional groups that are part of approved professional standards schemes and provide them with capped civil liability in relation to misleading and deceptive conduct under these Acts, ensuring consistency across Commonwealth and state and territory laws. The Regulations prescribe new schemes and extensions to currently-prescribed schemes, as approved by the relevant state and territory Professional Standards Councils. The Regulations incorporate by reference the relevant state Government gazette notices or legislative instruments and are a legislative instrument for the purposes of the Legislation Act 2003. The Regulations are compatible with human rights as they do not engage any of the applicable rights or freedoms and do not impose or amend penalty provisions, apply retrospectively or concern privacy rights.

Key Provisions

The main operative sections of the Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulations 2021 (the Regulations) update the list of professional standards schemes that have capped civil liability for misleading and deceptive conduct under the Australian Securities and Investments Commission Act 2001, the Competition and Consumer Act 2010, and the Corporations Act 2001. Specifically, Section 4 of the Regulations provides that the instruments specified in the Schedules to the Regulations are amended or repealed as set out in the applicable items in the Schedule concerned. The Schedules include consequential amendments, the prescription of new schemes such as the Australian Institute of Building Surveyors Professional Standards Scheme and the Australian Property Institute Valuers Professional Standards Scheme, and the extension of existing schemes such as the Queensland Law Society Professional Standards Scheme. These amendments reflect decisions made by the relevant Professional Standards Councils in each jurisdiction. The Regulations impose obligations on the parties and entities they govern by prescribing approved professional standards schemes that provide members with capped civil liability for misleading and deceptive conduct. These schemes must meet certain criteria, including the requirement that members have professional indemnity insurance up to the level of the prescribed liability cap. The Regulations also ensure consistency across Commonwealth and state and territory laws by providing that members of approved schemes cannot be sued under the ASIC Act, the CCA, or the Corporations Act for misleading and deceptive conduct to circumvent the cap on civil liability. The Regulations require that these schemes be approved by the relevant Professional Standards Council and that details of the approved schemes be publicly available on the Professional Standards Councils website. The Regulations do not create new offences or penalties, nor do they impose new obligations on parties or entities beyond those already specified in the ASIC Act, the CCA, and the Corporations Act. However, any breach of the prescribed professional standards schemes could lead to consequences under those Acts. For instance, misleading or deceptive conduct by a member of an approved scheme could result in penalties under the CCA, including fines and imprisonment for individuals, and fines for corporations. Similarly, breaches of the Corporations Act could result in fines and other penalties for both individuals and corporations. The maximum penalties for these offences are specified in the respective Acts. The Regulations also include a Statement of Compatibility with Human Rights, which confirms that the Regulations do not engage any of the applicable rights or freedoms as recognised or declared in the international conventions. The Statement concludes that the Regulations are compatible with human rights as they do not impose or amend penalty provisions, nor do they apply retrospectively or concern privacy rights of individuals or groups of people. The Regulations therefore align with the national framework for professional standards legislation and provide a consistent approach to capped civil liability across all jurisdictions.

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Area of Law
Professional Liability Law
Instrument
Regulation
Concepts
Regulatory Standards
Licensing & Registration
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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.