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PROFESSIONAL STANDARDS BILL

The Hon. K.O. FOLEY (Deputy Premier) obtained leave and introduced a bill for an act to provide for the limitation of liability of members of occupational associations in certain circumstances; to facilitate improvement in the standards of services provided by those members; and for other purposes. Read a first time.

The Hon. K.O. FOLEY: I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

professional standards bill 2003 This Bill is part of the third stage of the Government's legislative response to the insurance crisis. Over the last 12 months and longer, the Government has been approached by profession­al and occupa­tional groups worried about steep increas­es in the cost of profession­al indemnity insur­ance. The Government has been told that as a result of these cost increases, risky but important professional services may either become prohibitively expensive to insure or be with­drawn from sale. The Government was con­cerned at this because of the consequences for the public if professional services be­come uninsurable or unavailable. It therefore invited comment on the possibili­ty of profes­sional standards legislation, such as that in force in New South Wales, first in a discus­sion paper published in February and later in a consultation letter sent out in October, 2003. Both con­sultations resulted in sup­port.

The Government has meanwhile also taken part in national discussions that have resulted in agreement by all jurisdictions to enact consistent professional standards legis­lation modelled on the New South Wales Professional Standards Act. Accordingly, this Bill comes before the House. It is based on the New South Wales Act, though some modifica­tions have been made.

In summary, the Bill would enable an occupational or trade group (not limited to a profession in the strict sense) to apply to register a professional standards scheme. A registered scheme would apply to all the members of the professional association, or to particular classes of mem­bers specified in the scheme. It would have a life of up to five years, subject to extension. In essence, a scheme would require those to whom it applies to adopt specified risk management practices and adhere to a complaints and disci­plinary regime, so as to improve profes­sional stand­ards and reduce the likelihood of claims. In return, the scheme would cap the professional liability of the practi­tioners covered at a figure not less than the mini­mum cap fixed by law, in this case $500 000. The scheme would then require practi­tioners who wanted the benefit of the cap to maintain insurance cover or business assets, or a combination of these, sufficient to meet claims up to the cap.

The Bill contemplates the establishing of a Professional Stand­ards Council. The Council is to consider proposed schemes and decide whether they should receive approval. The Bill sets out, by clause 11, the matters to be con­sidered by the Council. They include the claims history of the members of the association, the cost and availability of insurance to those people, the effect of the scheme on people who may be affected by it, for example, con­sumers, and the comments and submissions made by the public after consultation on the scheme. Having regard to these and other matters, the Council would decide whether to approve the scheme.

Schemes can be approved for any profession, occupa­tion or trade for liability for breach of a duty of care resul­ting in econom­ic loss. The Bill would not, however, allow the limitation of liability for injury (even if the injury caused economic loss). This means that health profession­als, carers or other practitioners whose chief liability risk is injury would not be able to limit that liability. The same approach has been taken in other jurisdictions.

If the Council approves a scheme, it must then be considered by the Minister, who may authorise the scheme by publication in the Gazette. Once this occurs, the scheme will take effect on a date set in the Gazette notice or, if no date is set, two months from the date of publication of the notice.

The scheme can, however, be disallowed by Parliament in the same way as subordinate legislation. It can also be the subject of a legal challenge, before it starts, by an affected person, on the ground that there has been a failure to comply with the Act.

A person covered by an approved scheme would have to disclose this in all advertising materials distributed and all busi­ness letters sent to clients, as well as on any website maintained by the business. Failure to do so will be a criminal offence. This is intended to ensure that con­sumers can make an informed choice about whether they wish to deal with a professional whose liability is capped.

The Bill does not, however, permit a professional and client to contract out of a scheme. If a professional is covered by a scheme, that scheme will apply to all the work done by the professional and falling within the scope of the scheme. I point out, however, that unlike the ap­proach taken in interstate models, this will not affect a cause of action arising out of a contract made before the commence­ment of the Act, unless the parties otherwise agree.

The Bill is intended to strike a balance between main­taining adequate consumer protection against harm and keeping risky but vital professional services available to consumers. Note that, if a client sues a professional in negligence, in the absence of profes­sional standards legis­lation, a consumer may not have any re­course because the professional may not have adequate insurance or assets to meet such a claim. The proposed legislation therefore increases protection to such consumers, by ensuring that a claim can be met, at least in part. It should also help to raise the stand­ards of practition­ers so that they are more alert to risks and better able to avoid them. It is about prevention at least as much as cure.

The Government has consulted widely on the measure, which appears to have support from stakeholders. Several commentators have argued that it should be accompa­nied by a complementary measure, proportionate liability. The Government has indicated its intention to introduce legis­lation for proportionate liability in economic loss and property damage claims, which I expect will be the subject of a future Bill.

The present Bill is consistent, though not identical, with meas­ures taken in New South Wales and Western Australia, and with a Bill now before the Victorian Parliament. Similar measures can be expected to be intro­duced into other Australian Parliaments after the discus­sions of Insurance Ministers nationally. Complementary amendments to the Commonwealth Trade Practices Act, the Corporations Act and the ASIC Act are also expected in view of commitment given by the Federal Government to support State and Territory professional standards legis­lation. This will remove the principal impediments to the effectiveness of professional standards legislation.

I point out that it is the intention of Ministers that the legisla­tion in progress around Australia should be comple­mentary and should result in a national scheme relying on a single Professional Standards Council giving advice to all Ministers. Discussions are continuing and it is possible that some amendments to the measure could be required at a later stage to achieve these ends.

As a result of the measures being taken by States and Territor­ies and by the Commonwealth, it is hoped that professionals across Australia will be encouraged to adopt schemes that will improve the quality and safety of their service to clients, while protect­ing the professional from exposure to catastrophic liability risks in the course of profes­sional practice. The measure should, therefore, offer benefits both to professionals and to their clients.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

This clause provides for the commencement of the Act by proclamation.

3—Objects of Act

This clause specifies that the objects of the Act are to—

× enable the creation of schemes to limit the civil liability of professionals and mem­bers of occu­pational associations and groups; and

× facilitate the improvement of occupa­tional standards of such persons; and

× protect the consumers that receive their ser­vices; and

× establish the Professional Standards Council (the Council) to supervise the prepa­ration and ap­proval of schemes and to assist in the improvement of occupational standards and protection of consum­ers.

4—Interpretation

This clause contains definitions for the purpose of the Act. Some key defini­tions are as follows—

occupational association is defined as a body corporate that repre­sents the interests of persons who are mem­bers of the same occupa­tional group and membership of which is limited prin­cipally to members of that occupa­tional group;

occupational group includes a professional group and a trade group;

occupational liability is defined as civil liability that arises directly or vicari­ously, in tort, contract or other­wise, from any act or omis­sion by a member of an occupational association perform­ing his or her occupa­tion;

scheme is defined as a scheme for limiting the occupa­tional liability of mem­bers of an occupa­tional association.

5—Application of Act

This clause provides that the Act will apply to actions under the law of torts, for breach of a contractual duty of care, or under statute. The Act will not apply for damages arising from—

(a) the death of, or personal injury to, a person; or

(b)the acts or omissions of a legal practitioner in acting for a client in a personal injury claim; or

(c)an intentional tort; or

(d) a breach of trust; or

(e) fraud or dishonesty.

The Act does not apply to liability that may be the subject of pro­ceedings under part 18 of the Real Prop­erty Act 1886.

The Act will not affect contractual arrangements en­tered into before the commence­ment of this Act (unless the parties make provision for the applica­tion of the Act after its commence­ment).

6—Relationship of this Act to other laws

This clause provides that to the extent of any inconsis­tency, Parts 3, 4 and 5 are to take effect subject to the provisions of other Acts. Other­wise, the Act is to have effect despite any other law to the contrary.

7—Act binds Crown

This clause provides that the Act binds the Crown. The Crown is not liable to be prosecuted for an offence under this Act.

Part 2—Limitation of liability

Division 1—Making, amendment and revoca­tion of schemes

8—Preparation and approval of schemes

This clause provides that the Council may ap­prove a scheme, upon applica­tion by an occupa­tional association, to limit the occupational lia­bility of its mem­bers. An application may be prepared by the Council (upon the request of the association) or by the occupa­tional association itself.

9—Public notification of schemes

This clause requires the Council, before approv­ing a scheme, to publish a notice in a daily news­paper circu­lating throughout the State. This notice must explain the nature and significance of the scheme, advise where a copy of the scheme may be obtained or inspected and invite comments and submissions not less than 28 days after publication of the notice.

10—Making of comments and submissions concern­ing schemes

This clause allows any person to make a com­ment or submis­sion concern­ing a scheme follow­ing publication of the notice. Any comment or submis­sion must be made within the period specified for that purpose in the notice or such further time allowed by the Council.

11—Consideration of comments, submissions and other matters

This clause lists matters the Council must con­sider before approving a scheme. These matters include all comments and submissions made under clause 10, the position of persons who may be affected by a scheme, the nature and level of claims made against members of the occupation­al association relating to occupational liability, risk manage­ment strategies of the occupational association concerned, the means by which those strat­egies are intended to be implemented, the cost and availabili­ty of insurance against occupa­tional liability, the requisite insurance standards referred to in clause 29 and provi­sions relating to complaints and disciplinary measures. The Council may consider other relevant matters.

12—Public hearings

This clause enables the Council to conduct public hear­ings concern­ing a scheme. The public hear­ing may be conducted if the Council considers it appropriate and in a manner deter­mined by the Council.

13—Submission of schemes to Minister

This clause provides for the Council to submit schemes it has approved to the responsible Min­ister.

14—Gazettal, tabling and disallowance of schemes

This clause enables the Minister, after carrying out the consul­tation required by clause 13, to authorise the publication of a scheme submitted by the Council in the Gazette. A scheme will then be tabled in Parliament and may be disal­lowed as if the scheme were a regulation.

15—Commencement of schemes

This clause provides that a scheme will com­mence on a date speci­fied by the Minister or, if no date is specified, after the expiration of 2 months after Gazettal, unless the scheme is sub­ject to any order of the Supreme Court (the court) under clause 16.

16—Challenges to schemes

This clause enables a person who is, or is reason­ably likely to be, affected by a scheme to chal­lenge its va­lidity in the court on the ground that it does not comply with the Act. An applica­tion for an order is to be made before the scheme com­mences. The court may stay the commencement of the scheme until it makes a further order. The court can make an order to void a scheme, de­cline to make an order, give directions to ensure the scheme may commence or make any other order that it sees fit.

17—Review of schemes

This clause provides that the Council, on direction of the Minister or on its own initiative, may at any time review the operation of a scheme. The Council must comply with a direction given by the Minister. A review may be con­ducted to determine whether a scheme should be amended or revoked or whether a new scheme should be made. The Council may also review the operation of a scheme if an occupational association proposes altering the standards apply­ing to an insurance policy that would, in the Council's opin­ion, be less stringent than stand­ards previously ap­proved by the Council.

18—Amendment and revocation of schemes

This clause allows an occupational association, the Council (on application of an occupation association), or the Minister upon a direction to the Council, to pre­pare an amendment or revoca­tion of a scheme that relates to its members. The Council is required to ap­prove such an amend­ment or revocation of a scheme. Further, clause 18 makes the provisions of clauses 8 to 16 apply to the amendment and revocation of schemes.

Division 2—Contents of schemes

19—Persons to whom scheme applies

This clause provides that a scheme can apply to all persons within an occupa­tional association or to a specified class or classes of persons within that association. An occupational association may exempt a person from the scheme on appli­cation by that person.

20—Officers or partners of persons to whom a scheme applies

This clause specifies that where a scheme applies to a person or a body corporate, the scheme will apply to each partner of the person or each officer of the body corporate. However, the scheme will not apply to a partner of that person or officer of the body corporate, if the partner or officer is entitled to be a member of the same occupa­tional association as the person, but is not a member of that occupa­tional association.

21—Employees of persons to whom a scheme ap­plies

This clause specifies that a scheme will apply to each employ­ee of a person to whom the scheme applies, unless the employ­ee is entitled to be a member of the same occupational association as the person, and the em­ployee is not a member.

22—Other persons to whom a scheme applies

This clause extends the application of a scheme to persons who are pre­scribed by regulations, for the purposes of clause 31, to be associated with persons to whom a scheme applies.

23—Limitation of liability by insurance ar­range­ments

This clause provides that a person to whom the scheme applies will not be liable for damages above the amount of the mon­etary ceiling speci­fied in the scheme as part of a proceeding relat­ing to occupa­tional liability. How­ever, the person must be able to satisfy the court that the person has the benefit of an insurance policy—

(a)that insures the person against that occupa­tion­al liabili­ty; and

(b)under which the amount payable in respect of occu­pa­tional liability (including any amount payable by way of excess) is not less than the amount of the monetary ceiling specified in the scheme, relating to the class of person and kind of work, at the time the act or omission giving rise to the cause of action occurred.

24—Limitation of liability by reference to amount of busi­ness assets

This clause provides that a person to whom the scheme applies will not be liable for damages above the amount of the mon­etary ceiling speci­fied in the scheme as part of a proceeding relat­ing to occupa­tional liability. How­ever, the person must be able to satisfy the court that—

(a) the person—

(i)has business assets; and the net current value of these business assets is not less than the amount of the monetary ceiling specified in the scheme at the time the act or omis­sion giving rise to the cause of the action occurred; or

(ii)has business assets and the benefit of an insur­ance policy that insures the person against that occupa­tion­al liability (includ­ing any amount pay­able by way of the ex­cess); and

(b)if combined, the value of these busi­ness assets and the amount payable under the insurance policy, is not less than the amount of the mon­etary ceiling specified in the scheme, relating to the class of person and kind of work, at the time the act or omission giving rise to the cause of action occur­red.

25—Limitation of liability by multiple of charges

This clause provides that a person to whom the scheme applies will not be liable in damages above the "limita­tion amount" specified in the scheme as part of a pro­ceeding relating to occu­pational liability. A scheme may also specify a minimum cap that may be higher than the "limi­tation amount"; in such instan­ces, damag­es will be limited to the amount specified by the scheme as the minimum cap. How­ever, the person must be able to satisfy the court that—

(a) the person—

(i)has the benefit of an insurance policy—

×that insures the person against that occupa­tion­al liability; and

×under which the amount payable in respect of occu­pa­tional liability (including the amount payable by way of excess), relating to the cause of action, is not less than the "limi­tation amount" at the time the act or omission giving rise to the cause of the ac­tion occurred; or

(ii)has business assets and the net current value of these business assets is not less than the "limita­tion amount"; or

(iii)has business assets and the benefit of an insur­ance policy that insures the person against that occupa­tion­al liability; and

(b)if combined, the value of these busi­ness assets and the amount payable under the insurance policy in respect of occupational liability (includ­ing the amount payable by way of excess), is not less than the "limitation amount".

The "limitation amount" means the reasonable charge for the ser­vices that the person provided or failed to provide, to which the action relates, multiplied by the multiple specified in the scheme that relates to the class of person and kind of work.

In determining the amount of a reasonable charge, a court must have regard to—

(a)the ordinary scale of charges accept­ed by the occu­pa­tional association; or

(b)if there is no such scale, the amount that a compe­tent person of the same qualifica­tions and experience would be likely to charge in the same circumstances.

This clause does not operate to limit the liability of a person, for an amount of damages less than the amount speci­fied for that purpose in the scheme.

26—Specification of different limits of liability

This clause enables a maximum liability to apply to all cases to which the scheme applies or differ­ent amounts for different cases, classes or pur­poses. An occupational authority is also granted a discretionary authority to specify a higher maxi­mum liability than would other­wise apply.

27—Combination of provisions under sections 23, 24 and 25

This clause provides that where clause 25 and clause 23 and/or clause 24 apply, at the same time, to a person in relation to the same occupa­tion, the scheme must speci­fy that damages will be deter­mined under clause 25. However, any damages award­ed must not exceed the monetary ceiling specified in the scheme in accordance with clause 23 or 24.

28—Amount below which liability cannot be limited

A limitation on liability for damages, arising from a single claim, must not be less than $500 000.

In determining the liability amount, the Council must have regard to the number and amount of claims made against persons within the occupa­tional association and the need to provide ad­equate consumer protection.

29—Insurance to be of requisite standard

This clause requires an insurance policy to be of a kind which complies with standards determined by the occu­pational association concerned. An occupa­tional association may sub­mit to the Council for approval revised standards applicable to an insur­ance policy while a scheme remains in force. The Council retains discretion to approve or refuse a proposal submitted to it by an occupa­tional association. Where the Council refuses to ap­prove a proposal, the standards remain as previ­ously determined by the occupational association.

Division 3—Effect of schemes

30—Limit of occupational liability by schemes

This clause provides that a scheme limits the occupa­tional liability of a person to whom a scheme applies from the date of its com­mence­ment, for an act or omis­sion, for the period in which the scheme remains in force.

A person to whom a scheme applies cannot choose not to be subject to the scheme, except in accordance with clause 19.

31—Limitation of amount of damages

This clause provides that the limitation of liabili­ty is a limita­tion of the amount of damages which may be awarded for a single claim. It is not a limitation of the amount of damages which may be awarded for all claims arising out of a single event. However, claims by persons who have a joint interest and claims by the same person arising out of a single event against associ­ated persons (such as body corporate officers, part­ners, co-employees and persons in an employ­er/employee rela­tionship) are to be treated as a single claim.

32—Effect of scheme on other parties to pro­ceedings

This clause provides that the scheme does not apply to limit the liability of a party to proceed­ings if the scheme does not apply to that person.

33—Proceedings to which a scheme applies

This clause provides that a scheme in force under the Act will apply only to liability that arises after the scheme's commence­ment.

34—Duration of scheme

This provides that an application of a scheme is to cease after a period deter­mined by the Council of not more than 5 years, in most cases, so that schemes are regular­ly reviewed by the Council. The Council may revoke or extend a scheme, by notice, for a period not greater than 12 months.

35—Notification of limitation of liability

This clause requires a person whose civil liability is limited under Part 2 to disclose that fact on all docu­ments given by the person to a client or prospec­tive client that promote or adver­tise the person or the person's occupation, including official corres­pondence ordinarily used by the person in the perform­ance of the person's occu­pation, and similar documents. The dis­closure will also be required on any website established by the person to pro­mote his or her business. Further, a member of a scheme is required to provide a copy of the scheme to a client or prospec­tive client where a request is made. Such docu­ments do not include a busi­ness card.

Part 3—Compulsory insurance

36—Occupational association may compel its mem­bers to insure

This clause enables an occupational association to compel its mem­bers to hold insurance against occupa­tional liability and may specify different insurance arrange­ments for different categories of members.

37—Monitoring claims

This clause enables an occupational association to establish commit­tees to monitor and analyse claims against its members. Occupation­al associations may establish a common committee. Committee members need not be members of the occupational association concerned.

An occupational association (or such committee) can provide to its mem­bers, practical advice to minimise claims for occu­pational liability.

Part 4—Risk management

38—Risk management strategies

This clause requires an occupational association that seeks Council approval to a scheme to pro­vide, as part its applica­tion, information on pro­posed risk manage­ment strategies and detail the means by which those strategies intend to be imple­mented in respect of its members.

39—Reporting

This clause requires an occupational association to report annually (and more frequent­ly if re­quested by the Council) as to the imple­mentation, monitoring and changes to its risk manage­ment strategies. The occupa­tional association's annual report must report findings or conclusions of a commit­tee established by it.

40—Compliance audits

This clause provides that the Council may con­duct, or require the occupa­tional association to conduct, a com­pliance audit of its mem­bers in respect of the association's risk management strategies at any time. The association, and its members, is required to give the Council information and/or docu­ments that the Council reason­ably requires to conduct the compliance audit. The Council is required to provide a copy of the audit report to the association. Where the association is responsible for conducting a com­pli­ance audit, it is required to provide a copy of the audit report to the Council.

Part 5—Complaints and disciplinary matters

41—Complaints and discipline code

This clause enables the occupational association to incorpo­rate, as part of a scheme, the code set out in Schedule 1. The occupa­tional association may amend the code before its ap­proval by the Council. The code contains provi­sions concern­ing the making and determi­na­tion of complaints against mem­bers of occupation­al associations and the taking of disciplinary meas­ures against members.

Part 6—The Professional Standards Council

Division 1—Establishment of Council

42—Establishment of Council

This clause establishes a body corporate to be known as the Profes­sional Standards Council with the full legal capacity of a body corporate.

Division 2—Membership and procedure of Council

43—Membership of Council

This clause enables the Minister to appoint per­sons to the Council. Member­ship of the Council is to comprise of up to 11 persons having appro­priate experi­ence, skills and qualifica­tions.

44—Provisions relating to members of Council

This clause is a formal provision that gives effect to Schedule 2. That Schedule contains detailed provisions relating to the appoint­ment, term and tenure of office and remuneration of members.

45—Provisions relating to procedure of Council

This clause is a formal provision that gives effect to Schedule 3. That Schedule contains detailed provisions relating to the procedures and deter­minations of the Council.

Division 3—Functions of Council

46—Functions of Council

This clause specifies the functions of the Council. The Council is to—

×advise the Minister concerning the publica­tion in the Gazette of a scheme, or of any amend­ments or a notice of revoca­tion, submitted by the Council to the Minister;

×advise the Minister on matters relating to the operation of the Act;

×advise, encourage and assist occupa­tional associations regarding insurance poli­cies, the im­provement of occu­pa­tional stand­ards and the devel­opment of self-regula­tion of such occupation­al associations;

×monitor the occupational standards of mem­bers of occu­pational groups and compli­ance, by an occupation­al association, with its risk manage­ment strategies;

×collect and analyse information con­cerning the occu­pa­tional standards of persons to whom the Act applies.

Division 4—Miscellaneous

47—Requirement to provide information

This clause enables the Council to require an occupa­tional association to supply it with information needed in order to exercise its func­tions.

48—Referral of complaints

This clause enables an occupational association to refer to the Council any complaint or other evidence of a member or former member of the association who has commit­ted an offence under clause 35. It is also the intention of this clause to confer upon an occupational association, any person acting under its direction and the association's executive body, a partial immunity against an action, liability, claim or demand where the act is done in good faith pursuant to this clause (for example, in an action for defama­tion).

49—Committees of Council

This clause enables the Council to establish Committees to assist it in the exercise of its functions. The Council is respon­sible for deter­mining the procedures and ar­range­ments for committee meet­ings and the conduct of busi­ness.

50—Engagement of consultants

This clause enables the Council or a committee to en­gage the services of suitably qualified and experienced consultants.

51—Accountability of Council

This clause requires the Council to exercise its func­tions in accord­ance with the general direction and con­trol of the Minis­ter and any written directions given by the Minister. The Minister may also direct the Council to provide, or provide access to, any information in its possession relating to a matter specified in the direction.

52—Professional Standards Council Fund

This clause establishes the Professional Stand­ards Council Fund. Any money appropri­ated by the Parliament for the purposes of the Fund, any fees paid to the Council and any other money to which the Council is lawfully entitled must be paid into the Fund. The Council may expend this Fund to carry out its func­tions under the Act.

Part 7—Miscellaneous

53—Characterisation of Act

This clause provides that this Act is to be regard­ed as part of the substan­tive law of the State, so that when the law of the State is applied in an­other jurisdiction, the limitation on liabili­ty pro­vided for in the Act will also be applied.

54—No contracting out of Act

This clause prevents persons to whom a scheme applies from con­tracting out of the provisions of the Act after the scheme applies to them.

55—No limitation on other insurance

This clause provides that the Act does not limit the insurance ar­rangements a person may make, apart from those arrange­ments that are made for the pur­poses of the Act.

56—Minister's power of delegation

This clause provides a Ministerial power of delegation.

57—Regulations

This clause relates to the making of regulations for the pur­poses of the meas­ure.

58—Review of Act

This clause requires the Act to be reviewed with­in 5 years so as to ensure that the policy objec­tives of the Act retain their validity.

Schedule 1—Model code

This schedule contains the Occupational Associations (Com­plaints and Discipline) Code.

Schedule 2—Provisions relating to members of Council

This schedule contains provisions relating to the mem­bers of the Council.

Schedule 3—Provisions relating to the proced­ure of the Council

This schedule contains provisions relating to the pro­cedure of the Council.

The Hon. D.C. KOTZ secured the adjournment of the debate.