Explanatory Statement

Issued by authority of the Assistant Treasurer

Treasury Laws Amendment (Professional Standards Schemes) Regulations 2019

Australian Securities and Investments Commission Act 2001

Competition and Consumer Act 2010

Corporations Act 2001

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. 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) Regulations 2019 (the Regulations) gives effect to 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. This includes prescribing replacement schemes (new schemes which replace currently-prescribed schemes), as well as extensions to currently-prescribed schemes.

The Regulations also update the list of prescribed schemes by removing those which have expired.

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 .

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/#/gazettes

WA https://www.slp.wa.gov.au/gazette/gazette.nsf

QLD https://www.legislation.qld.gov.au/

VIC http://www.gazette.vic.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.

Details of the Regulations are set out in 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 this instrument is registered on the Federal Register of Legislation.

ATTACHMENT A

Details of the Treasury Laws Amendment (Professional Standards Schemes) Regulations 2019

Clause 1 - Name of Regulations

This section provides that the title of the Regulations is the Treasury Laws Amendment (Professional Standards Schemes) Regulations 2019.

Clause 2 - Commencement

This section provides that the Regulations commence the day after registration.

Clause 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).

Clause 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, 3, 6, 9, 11, 13, 18, 21, 23 and 26 - consequential amendments

These items replace references to 'the day the Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulations 2018 commences' with '3 October 2018' which is the date that instrument commenced.

Items 2, 12, and 22 - replacement scheme: Law Society of New South Wales Professional Standards Scheme

These items prescribe the Law Society of New South Wales 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, as published in the New South Wales Government Gazette on 7 September 2018. This scheme replaces the currently-prescribed Law Society of New South Wales Scheme.

Items 4, 16, and 24 - replacement scheme: Bar Association of Queensland Professional Standards Scheme

These items prescribe the Bar Association of Queensland 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, as described in the Professional Standards (Bar Association of Queensland Professional Standards Scheme) Notice 2019 (Qld) of 18 February 2019. This scheme replaces the currently-prescribed Bar Association of Queensland Scheme.

Items 5, 17 and 25 - extension of scheme: Western Australian Bar Association Scheme

These items extend the application of capped civil liability for misleading or deceptive conduct under the ASIC Act, the CCA and the Corporations Act to the Western Australian Bar Association Scheme to incorporate the extension to the scheme as published in the Western Australian Government Gazette on 21 December 2018.

Items 7, 20, and 27 - replacement scheme: Institute of Public Accountants Professional Standards Scheme

These items prescribe the Institute of Public Accountants 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, as published in the Victoria Government Gazette on 18 October 2018. This scheme replaces the currently-prescribed Institute of Public Accountants Professional Standards Scheme.

Item 8 - replacement scheme: Australian Computer Society Professional Standards Scheme

This item prescribes the Australian Computer Society Professional Standards Scheme as a professional standards scheme that has capped civil liability for misleading or deceptive conduct under the CCA, as published in the New South Wales Government Gazette on 19 December 2018. This scheme replaces the currently-prescribed Australian Computer Society Professional Standards Scheme.

Items 10, 15 and 19 - removing expired schemes

These items remove the following prescribed schemes which have expired:

•

the College of Investigative and Remedial Consulting Engineers Australia Professional Standards Scheme (item 10);

•

the ATMA Scheme (item 15); and

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the Engineers Australia Tasmania Scheme, the Engineers Australia (ACT) Scheme and the Engineers Australia Northern Territory Professional Standards Scheme (item 19).

Item 14 - extension of scheme: Professional Surveyors Occupational Association Scheme

This item extends the application of capped civil liability for misleading or deceptive conduct under the CCA to the Professional Surveyors Occupational Association Scheme to incorporate the extension to the scheme as published in the NSW Government Gazette on 10 August 2018.

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) Regulations 2019

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.