Treasury Laws Amendment (Professional Standards Schemes) Regulations 2018

Administered by Department of the Treasury

Legislation au F2018L00096 Regulations Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Issued by authority of the Minister for Revenue and Financial Services

Australian Securities and Investments Commission Act 2001

Competition and Consumer Act 2010

Corporations Act 2001

Treasury Laws Amendment (Professional Standards Schemes) Regulations 2018

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

Sections 12GNA(2) of the ASIC Act, 137(2)(a) 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) Regulations 2018 (the Regulations) gives effect to the decisions the Professional Standards Councils made to approve or amend professional standards schemes in their respective jurisdictions.

The Regulations prescribe the Law Society of South Australia Professional Standards Scheme and the South Australian Bar Association Inc Professional Standards Scheme as new professional standards schemes that have capped civil liability for misleading or deceptive conduct under the three Regulations listed above as these schemes have become approved professional standards schemes in South Australia.

The Regulations also prescribe an extension to include recently published modifications to:

  • extend the Australian Computer Society Professional Standards Scheme in the Competition and Consumer Regulations 2010 to 31 December 2018 to reflect the extension of the scheme that was approved in New South Wales; and
  • amend the RICSV Limited Scheme in the Competition and Consumer Regulations 2010 to reflect changes to scheme that have been approved in New South Wales.

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 by the Commonwealth Government was not considered necessary.

Details of the Regulations are set out in the Attachment.

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 certified that the amendments do not require a Regulatory Impact Statement.

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

The Regulations commence on the day after they are registered on the Federal Register of Legislation.

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) Regulations 2018

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 Regulations update the list of prescribed professional schemes that have capped civil liability for misleading and deceptive conduct under the ASIC Act, CCA and Corporations Act.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT

Details of the Treasury Laws Amendment (Professional Standards Schemes) Regulations 2018

 

Section 1 – Name of Regulations

This section provides that the title of the Regulations is the Treasury Laws Amendment (Professional Standards Schemes) Regulations 2018.

Section 2 – Commencement

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

Section 3 – Authority

This section provides that the Regulations are made 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).

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 items in a Schedule to this instrument has effect according to its terms.

Schedule 1 – Amendments

Items 1, 2, 5, 6, 7, 10, 11

These items replace references to ‘the day the Treasury Laws Amendment (Professional Standards Schemes) Regulations 2017 commences’ with ‘25 May 2017’ which is the date that instrument commenced.

Item 3, 8 and 12

These items prescribe that the Law Society of South Australia Professional Standards Scheme and the South Australian Bar Association Inc Professional Standards Scheme as new professional standards schemes that have capped civil liability for misleading or deceptive conduct under Commonwealth law.

The new schemes replace the old Law Society of South Australia Professional Standards Scheme and the South Australian Bar Association Inc Professional Standards Scheme.

Item 4

This item extends the application of capped civil liability under the CCA for the Australian Computer Society Professional Standards Scheme in accordance with the extension published in the NSW Government Gazette on 15 September 2017.

Item 9

This item amends the application of capped civil liability under the CCA to the RICSV Limited Scheme to incorporate the changes to the scheme as published in the NSW Government Gazette on 23 December 2016.

Overview

The Treasury Laws Amendment (Professional Standards Schemes) Regulations 2018 were introduced 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. Enacted by the Parliament of Australia, these regulations respond to decisions made by the Professional Standards Councils in various jurisdictions to approve or amend professional standards schemes. This legislative instrument ensures that the schemes are recognised under Commonwealth law, thereby providing the necessary capped civil liability to professionals involved in these approved schemes. The primary policy objective is to maintain a consistent national framework for professional standards, facilitating effective regulation across states and territories while ensuring professionals benefit from capped civil liability as per the intergovernmental Professional Standards Agreement 2011.

Scope and Application

The Treasury Laws Amendment (Professional Standards Schemes) Regulations 2018 amends existing regulations to incorporate recent decisions by the Professional Standards Councils in various jurisdictions, establishing new and modified professional standards schemes that confer capped civil liability on their members 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 the Law Society of South Australia, the South Australian Bar Association Inc, the Australian Computer Society and RICSV Limited, granting them capped civil liability as part of a nationally agreed framework designed to balance the protection of consumers and the need for professionals to be able to practice without fear of disproportionate liability. The Regulations extend to the entire Commonwealth and are made under the authority of sections 251 of the ASIC Act, 172 of the CCA and 1364 of the Corporations Act, with no specific exclusions or thresholds stated within the Regulations themselves, though these may be defined within the approved professional standards schemes. The applicability and specific details of the schemes are further refined through subordinate instruments, which ensure that the Regulations are in line with the intergovernmental Professional Standards Agreement 2011.

Key Provisions

The Treasury Laws Amendment (Professional Standards Schemes) Regulations 2018 (the Regulations) primarily amend and update 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 (ASIC Act), the Competition and Consumer Act 2010 (CCA), and the Corporations Act 2001 (Corporations Act). Section 1 of the Regulations identifies the title as the Treasury Laws Amendment (Professional Standards Schemes) Regulations 2018. Section 2 specifies that the Regulations commence the day after registration. Section 3 outlines that the Regulations are made under the ASIC Act, CCA, and Corporations Act, while Section 4 indicates that each specified instrument in the Schedules is amended or repealed as outlined in the applicable items. The Regulations impose obligations on Professional Standards Councils to approve or amend professional standards schemes based on decisions made in their respective jurisdictions. These schemes are intended to provide professionals with capped civil liability for misleading and deceptive conduct, ensuring that actions under the principal Acts cannot circumvent these caps. The Regulations prescribe new schemes, such as the Law Society of South Australia Professional Standards Scheme and the South Australian Bar Association Inc Professional Standards Scheme, as well as modifications to existing schemes like the Australian Computer Society Professional Standards Scheme and the RICSV Limited Scheme. Any breach of the provisions in the Regulations may result in legal consequences. Although the specific offences, penalties, or consequences for breach are not detailed in the explanatory statement, it is implicit that non-compliance with the Regulations could lead to actions being brought under the ASIC Act, CCA, or Corporations Act, potentially circumventing the capped civil liability provisions. The Regulations ensure that approved professional standards schemes are recognised and enforced under Commonwealth law, providing a framework for maintaining industry standards and protecting professionals from excessive liability. The Regulations also ensure compatibility with human rights as they do not engage any of the applicable rights or freedoms recognised in international instruments. The Statement of Compatibility with Human Rights confirms that the Regulations do not raise any human rights issues and are thus compatible with human rights. The Regulations aim to maintain a balanced approach between supporting professional standards and protecting the rights of professionals within the legal framework.

Legal classification tags

Area of Law
Professional Regulation
Instrument
Regulation
Concepts
Definitions & Interpretation
Regulatory Standards
Licensing & Registration
Catchwords
Capped Civil Liability

Interactions

Authorises

All Versions

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.