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CIVIL LAW (WRONGS) (PROPORTIONATE LIABILITY AND PROFESSIONAL STANDARDS) AMENDMENT BILL 2004
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Civil Law
(Wrongs) (Proportionate Liability and Professional Standards) Amendment Bill
2004
Contents
Page
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Civil Law (Wrongs)
(Proportionate Liability and Professional Standards) Amendment Bill
2004
A Bill for
An Act to amend the
Civil Law (Wrongs) Act
2002
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Civil Law (Wrongs) (Proportionate Liability and
Professional Standards) Amendment Act 2004.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
This Act amends the Civil Law (Wrongs) Act 2002.
insert
Chapter 7A Proportionate
liability
107A Definitions for ch 7A
In this chapter:
apportionable claim—see section 107B.
concurrent wrongdoer—see section 107D.
defendant, in a proceeding, includes anyone joined as a
defendant or other party in the proceeding (other than as a claimant), whether
joined under this chapter, under rules of court or otherwise.
107B Application of ch 7A—apportionable
claims
(1) This chapter applies to apportionable claims.
(2) An apportionable claim is—
(a) a claim for economic loss or damage to property in an action for
damages (whether in tort, under contract or otherwise) arising from a failure to
take reasonable care; or
(b) a claim for economic loss or damage to property in an action for
damages under the Fair Trading Act 1992, section 46 for a contravention
of that Act, part 2 (Unfair practices).
(3) However, none of the following is an apportionable
claim:
(a) a claim arising out of personal injury;
(b) a consumer claim;
(c) a claim prescribed under the regulations for this paragraph.
(4) Also, without limiting subsection (3), none of the following is an
apportionable claim:
(a) a claim under the Discrimination Act 1991;
(b) a claim to which the Road Transport (General) Act 1999,
part 10 (Compulsory vehicle insurance) applies;
(c) a claim under the Workers Compensation Act 1951.
(5) Regulations made for subsection (3) (c) may make provision in
relation to their application to claims arising from acts or omissions that
happened before the regulations were notified.
(6) For this chapter, there is a single apportionable claim in a
proceeding in relation to the same loss or damage even if the claim for the loss
or damage is based on more than 1 cause of action (whether or not of the same or
a different kind).
107C Meaning of consumer claim for pt
7A
(1) A consumer claim is a claim by an individual (the
claimant) relating to—
(a) goods or services acquired by the claimant from a defendant, or the
supply of goods or services to the claimant by a defendant, for the
claimant’s personal, domestic or household use or consumption;
or
(b) personal financial advice supplied to the claimant by a
defendant.
(2) However, a claim relating to goods or services is not a consumer claim
if, in the course of business, the claimant holds himself or herself out as
acquiring the goods or services from the defendant for the purpose
of—
(a) resupplying them; or
(b) using them up or transforming them in or in relation to a process of
manufacture or production; or
(c) repairing or treating other goods or fixtures on land.
(3) In this section:
acquire—see the Fair Trading Act 1992, section
5 (1) and section 7.
business—see the Fair Trading Act 1992, section
5 (1).
goods—see the Fair Trading Act 1992, section
5 (1).
resupply—see the Fair Trading Act 1992,
section 7 (1).
services—see the Fair Trading Act 1992, section
5 (1).
supply—see the Fair Trading Act 1992, section
5 (1) and section 7 (1).
107D Concurrent wrongdoers
(1) For this chapter, a concurrent wrongdoer, for a claim,
is 1 of 2 or more people whose acts or omissions (or act or omission) caused,
independently of each other or jointly, the loss or damage the subject of the
claim.
(2) For this chapter, it does not matter that a concurrent wrongdoer is
insolvent, is being wound up or has ceased to exist or died.
107E Certain wrongdoers not to have benefit of
apportionment
(1) This chapter does not limit the liability of a concurrent wrongdoer
(an excluded concurrent wrongdoer) in a proceeding involving an
apportionable claim if the concurrent wrongdoer intended to cause, or
fraudulently caused, the economic loss or damage to property the subject of the
claim.
(2) The liability of an excluded concurrent wrongdoer must be decided in
accordance with the legal rules (if any) that, apart from this chapter, are
relevant.
(3) The liability of any other concurrent wrongdoer is to be decided in
accordance with this chapter.
107F Proportionate liability for apportionable
claims
(1) In a proceeding involving an apportionable claim—
(a) the liability of a defendant who is a concurrent wrongdoer for the
claim is limited to an amount reflecting the proportion of the loss or damage
claimed that the court considers just, having regard to the extent of the
defendant’s responsibility for the loss or damage; and
(b) the court must not give judgment against the defendant for more than
that amount.
(2) In apportioning responsibility between defendants in the
proceeding—
(a) the court must exclude the proportion of the loss or damage in
relation to which the claimant is contributorily negligent under any relevant
law; and
(b) the court may consider the comparative responsibility of any
concurrent wrongdoer who is not a party to the proceeding.
(3) If the proceeding involves an apportionable claim and a claim that is
not an apportionable claim—
(a) liability for the apportionable claim must be decided in accordance
with this chapter; and
(b) liability for the other claim must be decided in accordance with the
legal rules (if any) that, apart from this chapter, are relevant.
(4) This chapter applies in a proceeding involving an apportionable claim
whether or not all concurrent wrongdoers are parties to the
proceeding.
107G Defendant to tell claimant about concurrent
wrongdoers
(1) This section applies if—
(a) a defendant in a proceeding involving an apportionable claim has
reasonable grounds to believe that a particular person (the other
person) may be a concurrent wrongdoer for the claim; and
(b) the defendant does not give the claimant, as soon as practicable,
written notice of the information the defendant has about—
(i) the identity of the other person; and
(ii) the circumstances that may make the other person a concurrent
wrongdoer for the claim; and
(c) the claimant unnecessarily incurs costs in the proceeding because the
claimant did not know that the other person may be a concurrent wrongdoer for
the claim.
(2) The court hearing the proceeding may order that the defendant pay all
or any of the claimant’s costs.
(3) The court may order that the costs to be paid by the defendant be
assessed on an indemnity basis or otherwise.
107H Contribution not recoverable from
defendant
A defendant against whom judgment is given under this chapter as a
concurrent wrongdoer for an apportionable claim cannot be required
to—
(a) contribute to any damages or contribution recovered from another
concurrent wrongdoer for the claim (whether or not the damages or contribution
are recovered in the same proceeding in which judgment is given against the
defendant); or
(b) indemnify another concurrent wrongdoer for the claim.
107I Subsequent proceeding by
claimant
(1) This chapter (or any other law) does not prevent a claimant for an
apportionable claim who has recovered judgment against a concurrent wrongdoer
for an apportionable part of any loss or damage from bringing a subsequent
proceeding against any other concurrent wrongdoer for the loss or
damage.
(2) However, in any subsequent proceeding the claimant cannot recover an
amount of damages that, having regard to any damages previously recovered by the
claimant for the loss or damage, would result in the claimant receiving
compensation for loss or damage that is more than the loss or damage actually
sustained by the claimant.
107J Joining non-party concurrent
wrongdoer
(1) In a proceeding involving an apportionable claim, the court may give
leave for any number of people to be joined as defendants.
(2) However, the court must not give leave for the joinder of anyone who
was a party to a previously concluded proceeding in relation to the
claim.
107K Ch 7A does not affect certain other
liability
This chapter does not—
(a) prevent a person from being held vicariously liable for a proportion
of an apportionable claim for which someone else is liable; or
(b) prevent a person from being held jointly and severally liable for the
damages awarded against someone else as agent of the person; or
(c) prevent a partner from being held severally liable with another
partner for the proportion of an apportionable claim for which the other partner
is liable; or
(d) affect the operation of any other Act to the extent that the other Act
imposes several liability on anyone for what would otherwise be an apportionable
claim.
insert
222A Determination of fees
(1) The Minister may, in writing, determine fees for this Act.
Note The Legislation Act contains provisions about the making of
determinations and regulations relating to fees (see pt 6.3).
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
6 Regulation-making
powerSection 223
omit
The Executive
substitute
(1) The Executive
insert
(2) The regulations may prescribe offences for contraventions of the
regulations and prescribe maximum penalties of not more than 20 penalty
units for offences against the regulations.
insert
Schedule 4 Professional
standards
Part 4.1 Preliminary
1 Objects of sch 4
The objects of this schedule are—
(a) to enable the creation of schemes to limit the civil liability of
professionals and others; and
(b) to facilitate the improvement of occupational standards of
professionals and others; and
(c) to protect consumers of the services provided by professionals and
others; and
(d) to establish a council to supervise the preparation and application of
schemes and to assist in the improvement of occupational standards and
protection of consumers.
2 Definitions for sch 4
In this schedule:
business assets, of a person, means the property of the
person that is used to perform the person’s occupation and that can be
taken in proceedings to enforce a judgment of a court.
council—see section 36.
court includes a tribunal and an arbitrator.
damages means damages awarded in relation to a claim or
counterclaim or by way of set-off, and includes—
(a) interest payable on an amount awarded as damages; and
(b) legal costs and expenses ordered to be paid in relation to an award of
damages (other than legal costs and expenses incurred in enforcing a judgment or
incurred on an appeal made by a defendant).
judgment includes—
(a) a judgment given by consent; and
(b) a decision of a tribunal; and
(c) an award of an arbitrator.
occupational association means a corporation—
(a) that represents the interests of people who are members of the same
occupational group; and
(b) the membership of which is limited mainly to members of the
occupational group.
occupational group includes a professional group and a trade
group.
occupational liability means civil liability arising (in
tort, contract or otherwise) directly or vicariously from anything done or
omitted to be done by a member of an occupational association acting in the
performance of the member’s occupation.
scheme means a scheme for limiting the occupational liability
of members of an occupational association.
3 Application of sch 4
(1) This schedule does not apply to liability for damages arising from any
of the following:
(a) personal injury to a person;
(b) anything done or omitted to be done by a lawyer in acting for a client
in a personal injury claim;
(c) a breach of trust;
(d) fraud or dishonesty.
(2) This schedule does not apply to liability that may be the subject of a
proceeding under the Land Titles Act 1925, part 16 (Civil rights and
remedies).
Part 4.2 Limitation of
liability
Division 4.2.1 Making, amendment and
revocation of schemes
4 Preparation of schemes and recommendation by
council
(1) An occupational association may prepare a scheme.
(2) The council may, on the application of an occupational association,
prepare a scheme.
(3) The council may, on the application of an occupational association,
recommend a scheme prepared under this section to the Minister for
approval.
5 Public notification of schemes
Before recommending a scheme, the council must publish a notice in a daily
newspaper circulating in the ACT—
(a) explaining the nature and significance of the scheme; and
(b) stating where a copy of the scheme can be obtained or inspected;
and
(c) inviting comments and submissions within a stated time, but at least
21 days after the day the notice is published.
6 Making of comments and submissions about
schemes
(1) Anyone may make a comment or submission to the council about a scheme
for which notice has been published under section 5.
(2) A comment or submission must be made within the period stated in the
notice or within any longer time the council allows.
7 Consideration of comments, submissions
etc
(1) Before recommending a scheme in relation to an occupational
association, the council must consider the following:
(a) all comments and submissions made to it in accordance with
section 6;
(b) the position of people who may be affected by limiting the
occupational liability of members of the occupational association;
(c) the nature and level of claims relating to occupational liability made
against members of the occupational association;
(d) the risk management strategies of the occupational
association;
(e) how those strategies are intended to be implemented;
(f) the cost and availability of insurance against occupational liability
for members of the occupational association;
(g) the standards (mentioned in section 23) decided by the
occupational association in relation to insurance policies.
(h) the provisions in the proposed scheme for making and deciding
complaints, and imposing and enforcing disciplinary measures against members of
the occupational association.
(2) Subsection (1) does not limit the matters the council may
consider.
8 Public hearings
(1) The council may conduct a public hearing about a scheme if the council
considers it appropriate.
(2) A public hearing may be conducted in the way the council
decides.
9 Submission of schemes to
Minister
The council may submit a scheme it recommends to the Minister for
approval.
10 Approval of schemes by
Minister
(1) The Minister may, in writing, approve a scheme submitted by the
council.
(2) An approved scheme is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
11 Commencement of schemes
(1) A scheme approved by the Minister commences—
(a) on the date or time (after its notification day) provided for in the
approval; or
(b) if a date or time is not provided for in the approval— 2 months
after its notification day.
(2) This section is subject to any order of the Supreme Court under
section 12 (2).
12 Challenges to scheme
(1) A person who is, or is reasonably likely to be, affected by a scheme
approved by the Minister, may, at any time before the scheme commences, apply to
the Supreme Court for an order that the scheme is void for noncompliance with
this schedule.
(2) The Supreme Court may, on the making of the application or at any time
before the scheme commences, order that the commencement of the scheme is stayed
until further order of the court.
(3) The Supreme Court may, in relation to the application—
(a) make or decline to make an order that the scheme is void for
noncompliance with this schedule; or
(b) if the court has stayed the commencement of the scheme— give
directions about the things that must be done so that the scheme may commence;
or
(c) make any other order it considers appropriate.
13 Review of schemes
(1) The Minister may direct the council to review the operation of a
scheme.
(2) The council must comply with a direction under subsection (1),
but may on its own initiative review the operation of a scheme at any time
(whether before or after the scheme ceases to have effect).
(3) A review may, but need not, be conducted to decide whether a scheme
should be amended or revoked or whether a new scheme should be made.
14 Amendment and revocation of
schemes
(1) An occupational association may prepare an amendment or revocation of
a scheme that relates to its members.
(2) The council may, on the application of an occupational association,
prepare an amendment or revocation of a scheme that relates to the members of
the association.
(3) The Minister may direct the council to prepare an amendment or
revocation of a scheme.
(4) The council must comply with a direction but may on its own initiative
prepare an amendment or revocation of a scheme at any time while the scheme
remains in force.
(5) Sections 4 to 12 apply, with any necessary changes, to the amendment
or revocation of a scheme.
Division 4.2.2 Content of
schemes
15 People to whom scheme applies
(1) A scheme may provide that it applies to—
(a) everyone within an occupational association; or
(b) a stated class or classes of people within an occupational
association.
(2) A scheme applying in relation to an occupational association may
provide that the occupational association may, on application by a person,
exempt the person from the scheme.
(3) A scheme ceases to apply to a person exempted under
subsection (2)—
(a) on the date the exemption is granted; or
(b) if the exemption provides for a later date—the later
date.
(4) Subsection (2) does not apply to a person to whom a scheme applies
because of section 16.
16 Other people to whom scheme
applies
(1) If a scheme applies to a person, the scheme also applies
to—
(a) each partner of the person; and
(b) each employee of the person; and
(c) if the person is a corporation, each officer of the corporation;
and
(d) each person who is, under the regulations made for section 25
(Limitation of amount of damages), associated with the person.
(2) If the partner, employee or officer of the person is entitled to be a
member of the same occupational association as the person but is not a member,
the scheme does not apply to the partner, employee or officer.
(3) In this section:
officer—
(a) in relation to a corporation within the meaning of the Corporations
Act—see the Corporations Act, section 82A (Officers of bodies
corporate and other entities); and
(b) in relation to any other corporation—means anyone (by whatever
name called) who is concerned in or takes part in the management of the
corporation.
17 Limitation of liability by insurance
arrangements
A person to whom a scheme applies, and against whom a proceeding relating
to occupational liability is brought, is not liable in damages in relation to
the cause of action above the monetary ceiling if the person can satisfy the
court that the person has the benefit of an insurance policy—
(a) insuring the person against the occupational liability; and
(b) under which the amount payable in relation to the occupational
liability relating to the cause of action (including any amount payable by the
person as an excess under or in relation to the policy) is at least the monetary
ceiling stated in the scheme in relation to the class of person and the kind of
work to which the cause of action relates when the act or omission giving rise
to the cause of action happened.
18 Limitation of liability by reference to amount of
business assets
A person to whom a scheme applies, and against whom a proceeding relating
to occupational liability is brought, is not liable in damages for the cause of
action above the monetary ceiling if the person can satisfy the
court—
(a) that the person has business assets with a net current market value of
at least the monetary ceiling stated in the scheme in relation to the class of
person and the kind of work to which the cause of action relates when the act or
omission giving rise to the cause of action happened; or
(b) that—
(i) the person has business assets and the benefit of an insurance policy
insuring the person against the occupational liability; and
(ii) the net current market value of the assets and the amount payable
under the insurance policy in relation to the occupational liability relating to
the cause of action (including any amount payable by the person as an excess
under or in relation to the policy), if combined, would total an amount that is
at least the monetary ceiling stated in the scheme in relation to the class of
person and the kind of work to which the cause of action relates when the act or
omission giving rise to the cause of action happened.
19 Limitation of liability by multiple of
charges
(1) A person to whom a scheme applies, and against whom a proceeding
relating to occupational liability is brought, is not liable in damages in
relation to the cause of action above the limitation amount if the person can
satisfy the court—
(a) that the person has the benefit of an insurance
policy—
(i) insuring the person against that occupational liability; and
(ii) under which the amount payable in relation to the occupational
liability relating to the cause of action (including any amount payable by the
person as an excess under or in relation to the policy) is at least an amount
(the limitation amount), that is a reasonable charge for the
services provided by the person, or that the person failed to provide, and to
which the cause of action relates, multiplied by the multiple stated in the
scheme in relation to the cause of action and the kind of work to which the
cause of action relates when the act or omission giving rise to the cause of
action happened; or
(b) that the person has business assets with a net current market value of
at least the limitation amount; or
(c) that—
(i) the person has business assets and the benefit of an insurance policy
insuring the person against the occupational liability; and
(ii) the net current market value of the assets and the amount payable
under the insurance policy in relation to the occupational liability relating to
the cause of action (including any amount payable by the person as an excess
under or in relation to the policy), if combined, would total an amount that is
at least the limitation amount.
(2) In deciding what is a reasonable charge for a provision mentioned in
subsection (1), the court must consider—
(a) the amount charged; and
(b) the amount that would ordinarily be charged in accordance with a scale
of charges (a relevant scale) accepted by the occupational
association of which the person is a member; or
(c) if there is not a relevant scale—the amount that a competent
person with the same qualifications and experience as the person would be likely
to charge in the same circumstances.
(3) This section does not limit an amount of damages for which a person is
liable if the amount is less than the amount stated for the purpose in the
scheme in relation to the class of person and the kind of work
concerned.
20 Statement of different limits of
liability
(1) A scheme may provide for—
(a) the same maximum amount of liability for all cases to which the scheme
applies; or
(b) different maximum amounts of liability for different cases or classes
of case to which the scheme applies; or
(c) different maximum amounts of liability for the same class of case to
which the scheme applies for different purposes.
(2) A scheme may give an occupational association a discretionary
authority, on application by a person to whom the scheme applies, to state in
relation to the person a higher maximum amount of liability than would otherwise
apply under the scheme in relation to the person, either in all cases, in any
stated case or class of case, or for different purposes.
21 Combination of provisions under s 17, s 18 and s
19
(1) This section applies if, in a scheme, provisions of the kind mentioned
in section 19, and provisions (the additional provisions) of the
kind mentioned in section 17 or section 18 (or both), apply to a person at the
same time in relation to the same occupation.
(2) The scheme must provide that the damages awarded against the person
are to be decided under section 19 but must not exceed the monetary ceiling
provided in relation to the person under the additional provisions.
22 Amount below which liability may not be
limited
(1) A scheme may affect the liability for damages arising from a single
cause of action only to the extent that the liability results in damages
exceeding an amount (at least $500 000) decided by the council and stated in the
scheme.
(2) In making a decision, the council must consider—
(a) the number and amounts of claims made against people within the
occupational association concerned; and
(b) the need to adequately protect consumers.
(3) A council decision—
(a) takes effect when an amendment of the scheme giving effect to the
decision takes effect; and
(b) applies only to a cause of action that arises after the decision takes
effect.
23 Insurance to be of required
standard
For a scheme, an insurance policy must comply with standards decided by the
occupational association whose members may be insured under the
policy.
Division 4.2.3 Effect of
schemes
24 Limit of occupational liability by
schemes
(1) To the extent provided under this schedule and the provisions of the
scheme, a scheme limits the occupational liability of a person in relation to a
cause of action based on an act or omission if the scheme applied to the person
when the act or omission happened.
(2) The limitation of liability applying to the cause of action is the
limitation provided under the scheme when the act or omission
happened.
(3) A limitation of liability that, under this section, applies in
relation to an act or omission applies to every cause of action based on the act
or omission, irrespective of when the cause of action arises or proceedings are
begun in relation to it, even if the scheme has been amended or, under section
28 (Duration of scheme), has ceased to be in force.
(4) A person to whom a scheme applies cannot choose not to be subject to
the scheme unless exempt under provisions included in the scheme under
section 15 (2) (People to whom scheme applies).
25 Limitation of amount of
damages
(1) A limitation under a scheme of an amount of damages is a limitation of
the amount of damages that may be awarded for a single claim and is not a
limitation of the amount of damages that may be awarded for all claims arising
out of the same act or omission.
(2) Separate claims by 2 or more people who have a joint interest in a
cause of action based on the same act or omission are to be treated as a single
claim for this schedule.
(3) Two or more claims by the same person arising out of the same act or
omission against people who are associated are to be treated as a single claim
for this schedule.
(4) People are associated if they are—
(a) officers of the same corporation (within the meaning of
section 16); or
(b) partners, employees of the same employer or in the relationship of
employer and employee; or
(c) prescribed under the regulations for this subsection.
26 Effect of scheme on other parties to
proceedings
A scheme does not limit the liability of a person who is a party to a
proceeding if the scheme does not apply to the person.
27 Proceedings to which a scheme
applies
A scheme in force under this schedule applies to proceedings relating to
acts or omissions that happened after the commencement of the scheme.
28 Duration of scheme
(1) A scheme remains in force for the period (not longer than 5 years)
decided by the council unless, before the end of the period
decided—
(a) it is revoked; or
(b) its operation is extended by notice under this section; or
(c) its operation ceases because of the operation of another
Act.
(2) The Minister may, in writing, extend the period for which the scheme
is in force.
(3) An instrument under subsection (2) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(4) An instrument under subsection (2) is effective to extend the period
for which a scheme is in force only if it is notified under the Legislation Act
before the day the period ends.
(5) The period for which a scheme is in force may be extended only once,
and for not longer than 12 months.
29 Notification of limitation of
liability
(1) A person commits an offence if—
(a) the person’s occupational liability is limited under this
schedule; and
(b) the person gives a document to a client or prospective client;
and
(c) the document promotes or advertises the person or the person’s
occupation; and
(d) the document does not carry a statement that the person’s
liability is limited.
Maximum penalty: 50 penalty units.
(2) A person commits an offence if—
(a) the person’s occupational liability is limited under this
schedule; and
(b) a client, or a prospective client, requests a copy of the scheme
limiting the person’s occupational liability; and
(c) the person fails to give a copy of the scheme to the client or
prospective client.
Maximum penalty: 50 penalty units.
(3) An offence against this section is a strict liability
offence.
(4) The regulations may prescribe a form of statement for this
section.
(5) A person does not commit an offence against subsection (1) in
relation to a document if the document carries a statement in the prescribed
form.
(6) In this section:
document includes an item of official correspondence
ordinarily used by the person in the performance of the person’s
occupation and a similar document, but does not include a business
card.
Part 4.3 Compulsory
insurance
30 Occupational association may require members to
insure
(1) An occupational association may require its members to hold insurance
against occupational liability.
(2) A requirement under subsection (1) may be imposed as a condition of
membership or otherwise.
(3) The occupational association may set the standards with which the
insurance must comply.
Example
The occupational association may set the amount of the insurance.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) The occupational association may set different standards of insurance
for different classes of members.
(5) The standards are in addition to other statutory requirements and must
not be inconsistent with them.
31 Monitoring claims by occupational
associations
(1) An occupational association may establish a committee, or 2 or more
occupational associations may establish a common committee, for monitoring and
analysing claims made against members for occupational liability.
(2) Not all committee members need to be members of the occupational
association or associations concerned.
Example
An insurer representative may be a committee member.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) An occupational association may, through the committee or otherwise,
issue practice advice to its members to minimise claims for occupational
liability.
(4) A committee may ask an insurer to give it any information or a copy of
any document that the committee considers will assist it in carrying out its
function.
Part 4.4 Risk
management
32 Risk management strategies by occupational
associations
(1) If an occupational association seeks the council’s
recommendation for a scheme under section 4 (Preparation of schemes and
recommendation by council), it must give the council—
(a) a detailed list of the risk management strategies it intends to
implement for its members; and
(b) information about how it intends to implement the
strategies.
(2) The method of implementation may be imposed as a condition of
membership or otherwise.
(3) The strategies are to apply in addition to, and must not be
inconsistent with, other statutory requirements.
33 Reporting by occupational
associations
(1) An occupational association must give the council the information the
council asks for about the association’s risk management
strategies.
(2) An occupational association must give an annual report to the council
about the implementation and monitoring of its risk management strategies, the
effect of the strategies and any changes made or proposed to be made to
them.
(3) The occupational association’s annual report must include
details of any findings made, or conclusions drawn, by a committee established
by it (whether solely or jointly with other associations) under section 31
(Monitoring claims by occupational associations).
(4) The occupational association’s annual report must be
incorporated into the council’s annual report in a form decided by the
council.
34 Compliance audits
(1) An audit of the compliance of members (a compliance
audit), or of specified members or a specified class or classes of
members, of an occupational association with the association’s risk
management strategies—
(a) may be conducted at any time by the council or the association;
or
(b) must be conducted by the association if the council requests
it.
(2) If a compliance audit is conducted by the council—
(a) the occupational association must give, and ensure that its members
give, the council any information or a copy of any document that the council
reasonably asks for, relating to the conduct of the audit; and
(b) the council must give a copy of a report of the audit to the
association.
(3) If the occupational association conducts a compliance audit, it must
give a copy of a report of the audit to the council.
Part 4.5 Complaints and disciplinary
matters
35 Complaints and Discipline
Code
(1) A scheme may adopt the provisions of the model code set out in
schedule 5 with any changes recommended by the council.
(2) The changes may include provisions for the making and deciding of
complaints and the imposition and enforcement of disciplinary measures against
members of an occupational association, including (but not limited to) the
following:
(a) the establishment of committees for implementing the model code or any
of its provisions;
(b) the procedure at committee meetings;
(c) whether a committee may administer an oath;
(d) the application or exclusion of the rules of, and practice relating
to, evidence;
(e) the grounds on which a complaint may be made;
(f) the verification of complaints by statutory declaration;
(g) the suspension of members from membership or from practice;
(h) the imposition of fines;
(i) the making of appeals;
(j) the exchange of information with other occupational associations
(within or outside the ACT).
(3) The provisions are in addition to other relevant statutory schemes and
must not be inconsistent with them.
Part 4.6 Professional standards
council
Division 4.6.1 Establishment and functions
of council
36 The council
(1) The Professional Standards Council (the council) is
established.
(2) The council—
(a) is a corporation; and
(b) must have a seal.
37 Functions of council
(1) The council has the following functions:
(a) to give advice to the Minister about—
(i) the approval of schemes, and their amendment and revocation, by the
Minister; and
(ii) the operation of this schedule; and
(iii) anything else relating to the occupational liability of members of
occupational associations;
(b) to give advice to occupational associations about policies of
insurance for part 4.2 (Limitation of liability);
(c) to encourage and assist in the improvement of occupational standards
of members of occupational associations;
(d) to encourage and assist in the development of self-regulation of
occupational associations, including giving advice and assistance about the
following:
(i) codes of ethics;
(ii) codes of practice;
(iii) quality management;
(iv) risk management;
(v) resolution of complaints by clients;
(vi) voluntary mediation services;
(vii) membership requirements;
(viii) discipline of members;
(ix) continuing occupational education;
(e) to monitor the occupational standards of members of occupational
groups;
(f) to monitor the compliance by an occupational association with its risk
management strategies;
(g) to publish advice and information about the matters mentioned in this
subsection;
(h) to conduct forums, approved by the Minister, on issues of interest to
members of occupational groups;
(i) to collect, analyse and provide the Minister with information on
issues and policies about the standards of occupational groups;
(j) any other functions given to it under this schedule or any other
Territory law.
(2) The council is not authorised to give advice about occupational
standards prescribed under another Act or statutory instrument.
(3) Any advice given to the Minister by the council may be given with or
without a request of the Minister.
Division 4.6.2 Membership of
council
38 Membership of council
The council is to consist of 11 people appointed by the Minister who have
the experience, skills and qualifications the Minister considers appropriate to
enable them to make a contribution to the work of the council.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
Note 3 Certain Ministerial appointments require consultation with an
Assembly committee and are disallowable (see Legislation Act,
div 19.3.3).
39 Chairperson and deputy chairperson of
council
(1) Two of the members of the council are to be appointed as chairperson
and deputy chairperson of the council, respectively.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
Note 3 Certain Ministerial appointments require consultation with an
Assembly committee and are disallowable (see Legislation Act,
div 19.3.3).
(2) The Minister may remove a member from the office of chairperson or
deputy chairperson of the council at any time.
(3) A person holding office as chairperson or deputy chairperson of the
council vacates the office if the person—
(a) is removed from the office by the Minister; or
(b) ceases to be a member.
Note A person’s appointment also ends if the person resigns
(see Legislation Act, s 210).
40 Deputies of members
(1) The Minister may appoint a person to be the deputy of a
member.
(2) In the absence of a member, the member’s deputy—
(a) is, if available, to act in the place of the member; and
(b) while so acting, has all the functions of the member and is taken to
be a member.
(3) The deputy of a member who is chairperson or deputy chairperson of the
council does not (because of this section) have the member’s functions as
chairperson or deputy chairperson.
(4) A person acting in the place of a member is entitled to be paid the
allowances decided by the Minister.
41 Term of appointment
A member is to be appointed for not longer than 3 years.
42 Allowances of members
A member is entitled to be paid the allowances decided by the
Minister.
43 Vacancy in office of member
(1) The office of a member becomes vacant if the member—
(a) dies; or
(b) completes a term of office and is not re-appointed; or
(c) is removed from office by the Minister; or
(d) is absent from 4 consecutive meetings of the council of which
reasonable notice has been given to the member personally or in the ordinary
course of post, except on leave granted by the council or unless, before the end
of 4 weeks after the day of the last of those meetings, the member is excused by
the council for having been absent from those meetings; or
(e) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with creditors or makes an
assignment of remuneration for the benefit of creditors; or
(f) is convicted in the ACT of an offence punishable by imprisonment for
12 months or more or is convicted elsewhere of an offence that, if committed in
the ACT, would be an offence so punishable.
Note A person’s appointment also ends if the person resigns
(see Legislation Act, s 210).
(2) The Minister may remove a member from office for—
(a) incompetence or misbehaviour; or
(b) mental or physical incapacity to carry out the duties of office
satisfactorily.
44 Filling of vacancy in office of
member
If the office of a member becomes vacant, a person may be appointed to fill
the vacancy.
45 Personal liability of members
etc
(1) A member, a deputy of a member, or anyone acting under the direction
of the council, a member or a deputy member, is not personally liable for
anything done or omitted to be done honestly—
(a) in the exercise of a function under this schedule; or
(b) in the reasonable belief that the act or omission was in the exercise
of a function under this schedule.
(2) Any liability that, apart from subsection (1), would attach to a
person attaches instead to the council.
Division 4.6.3 Procedure of
council
46 General procedure for council
(1) The procedure for the calling of meetings of the council and for the
conduct of business at those meetings is, subject to this schedule and the
regulations, to be as decided by the council.
(2) However, the chairperson of the council is to call the first meeting
of the council in the way the chairperson considers appropriate.
(3) Subsection (2) and this subsection expire 6 months after the day this
section commences.
47 Quorum at council meetings
The quorum for a meeting of the council is a majority of its members for
the time being.
48 Presiding member at council
meetings
(1) The chairperson of the council or, in the absence of the chairperson,
the deputy chairperson of the council or, in the absence of both, another member
elected to chair the meeting by the members present is to preside at a meeting
of the council.
(2) The person presiding at any meeting of the council has a deliberative
vote and, if the votes are equal, has a second or casting vote.
49 Voting at council meetings
A decision supported by a majority of the votes cast at a meeting of the
council at which a quorum is present is the decision of the council.
Division
4.6.4 Miscellaneous
50 Requirement to provide
information
(1) The council may, by written notice, require an occupational
association—
(a) whose members are subject to a scheme in force under this schedule;
or
(b) that seeks the council’s recommendation under section 4 for
a scheme, or an amendment or revocation of a scheme;
to give it the information it reasonably requires to exercise its
functions.
(2) An occupational association commits an offence if it does not comply
with a notice under this section.
Maximum penalty: 5 penalty units.
(3) An offence against this section is a strict liability
offence.
51 Referral of complaints
(1) An occupational association may refer to the council any complaint or
other evidence received by it that a member or former member of the association
has committed an offence against section 29 (Notification of limitation of
liability) or an offence against the regulations.
(2) An occupational association must give information to the council
about—
(a) any complaint or other evidence covered by subsection (1) that it
did not refer to the council; and
(b) particulars of any action taken by it on the complaint or other
evidence and of the outcome of the action.
(3) An occupational association, member of an association’s
executive body, or anyone acting under the direction of an association or its
executive body, is not personally liable for anything done or omitted to be done
honestly—
(a) in the exercise of a function under this section; or
(b) in the reasonable belief that the act or omission was in the exercise
of a function under this section.
(4) Any liability that, apart from subsection (3), would attach to a
person attaches instead to the occupational association.
52 Council committees
(1) The council may, with the Minister’s approval, establish
committees to assist in the exercise of its functions.
(2) Committee members need not be members of the council.
(3) The procedure for calling committee meetings and for the conduct of
business at those meetings is to be decided by the council or (subject to any
decision of the council) by the committee.
53 Use of government staff or
facilities
The council may, with the approval of the Minister, arrange for the use of
government staff or facilities.
54 Engagement of consultants by
council
The council, or a committee established under section 52, may engage
consultants with suitable qualifications and experience, either in an honorary
capacity or for remuneration.
55 Accountability of council to
Minister
(1) The council must exercise its functions subject to—
(a) the general direction and control of the Minister; and
(b) any specific written directions given by the Minister.
(2) Without limiting subsection (1) (b), a direction may require
the council to give the Minister information, or give access to information, in
its possession or control about anything stated in the direction.
56 Annual report of council
(1) The council must prepare a report on the council’s work and
activities during each financial year.
(2) The council must give the report for a financial year to the Minister
before 1 October in the next financial year.
(3) The Minister must present a copy of the annual report to the
Legislative Assembly within 6 sitting days after the day the Minister receives
it.
Part 4.7 Miscellaneous
57 Characterisation of sch 4
The provisions of this schedule are to be regarded as part of the
substantive law of the ACT.
58 No contracting out of sch 4
This schedule applies to a person to whom a scheme in force under this
schedule applies despite any contract to the contrary, whether the contract was
made before, on or after the day the person became a person to whom the scheme
applies.
59 No limitation on other
insurance
This schedule does not limit the insurance arrangements a person may make
apart from those made for this schedule.
60 Review of sch 4
(1) The Minister must review this schedule as soon as possible after the
end of its 5th year of operation.
(2) The review must examine whether the policy objectives of this schedule
remain valid and whether the terms of the schedule remain appropriate for
securing those objectives.
(3) A report of the outcome of the review is to be presented to the
Legislative Assembly within 12 months after the end of the 5 years.
(4) This section expires 7 years after the day it commences.
Schedule 5 Occupational
associations—model code
Model code
1 Name of code
This code is the Occupational Associations (Complaints and Discipline)
Code.
2 Meaning of council
In this code:
council means the Professional Standards Council established
under the Civil Law (Wrongs) Act 2002, schedule 4.
3 What actions may be the subject of a
complaint?
(1) A complaint may be made that a member of the occupational association
has acted (or has failed to act) in such a way as to justify the taking of
disciplinary action against the member under this code.
(2) A complaint may be made and dealt with even though the person about
whom it is made has ceased to be a member.
4 Who may make a complaint?
Any person may make a complaint (including the occupational association and
the council).
5 How is a complaint made?
(1) A complaint may be made to the occupational association.
(2) The complaint must be in writing and contain the particulars of the
allegations on which it is founded.
(3) The occupational association must notify the council of each complaint
made to it (other than a complaint made by the council).
6 What happens after a complaint is
made?
(1) The occupational association must consider a complaint as soon as
practicable after the complaint is made to it or notified to it by the
council.
(2) The association may do any 1 or more of the following:
(a) require the complainant to provide further particulars of the
complaint;
(b) carry out an investigation into the complaint;
(c) attempt to resolve the complaint by conciliation;
(d) decline to consider the complaint (because, for example, the complaint
is frivolous, vexatious, misconceived or lacking in substance);
(e) conduct a hearing into the complaint.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) The occupational association is bound by the rules of natural justice
in conducting a hearing into the complaint.
7 What action may be taken after a hearing into a
complaint?
(1) After an occupational association has conducted a hearing into a
complaint against a person, it may, if it finds the complaint substantiated, do
any 1 or more of the following:
(a) caution or reprimand the person;
(b) impose conditions relating to the carrying out of the person’s
occupation;
(c) require the person to complete specified courses of training or
instruction;
(d) require the person to report about the carrying out of the
person’s occupation at the times, in the way and to the people specified
by the association;
(e) order the person to obtain advice about the carrying out of the
person’s occupation from the people specified by the
association;
(f) expel the person from membership of the association.
(2) If the association does not find the complaint substantiated, it must
dismiss the complaint.
(3) The association is not entitled to make an award of
compensation.
8 Notices of decisions
(1) Within 30 days after the day a decision is made by an occupational
association about a complaint, the complainant and the person against whom the
complaint is made must be given a written statement of the decision.
(2) The statement must include the reasons for the decision.
9 What rights of representation do parties to a
complaint have?
The complainant and the person about whom the complaint is made are not
entitled to legal representation during attempts to resolve the complaint by
conciliation but are entitled to legal representation during a hearing into the
complaint.
10 How may occupational association’s functions
under code be exercised?
A function of an occupational association under this code may, in
accordance with a resolution of the association, be exercised by the executive
body of the association or by a person or people appointed for the purpose by
the executive body.
11 Protection from liability
(1) A member of the executive body of an occupational association, or
anyone acting in accordance with a resolution of the association, is not
personally liable for anything done or omitted to be done
honestly—
(a) in the exercise of a function under this schedule; or
(b) in the reasonable belief that the act or omission was in the exercise
of a function under this schedule.
(2) Any liability that, apart from subsection (1), would attach to a
person attaches instead to the council.
10 Dictionary,
new definitions
insert
apportionable claim, for chapter 7A (Proportionate
liability)—see section 107B.
business assets, for schedule 4 (Professional
standards)—see schedule 4, section 2.
11 Dictionary,
definition of claimant
substitute
claimant—
(a) for chapter 5 (Personal injuries claims—pre-court
procedures)—see section 49; and
(b) for chapter 7A (Proportionate liability)—see
section 107C.
12 Dictionary,
new definitions
concurrent wrongdoer, for chapter 7A (Proportionate
liability)—see section 107D.
consumer claim, for chapter 7A (Proportionate
liability)—see section 107C.
council—
(a) for schedule 4 (Professional standards)—see schedule 4, section
36; and
(b) for schedule 5 (Occupational associations—model code)—see
schedule 5, section 2.
13 Dictionary,
definition of court, paragraph (h)
substitute
(h) for part 14.2 (Costs in damages claims if no reasonable prospects of
success)—see section 186; and
(i) for schedule 4 (Professional standards)—see schedule 4, section
2.
14 Dictionary,
new definitions
damages, for schedule 4 (Professional standards)—see
schedule 4, section 2.
defendant, for chapter 7A (Proportionate liability)—see
section 107A.
judgment, for schedule 4 (Professional standards)—see
schedule 4, section 2.
occupational association, for schedule 4 (Professional
standards)—see schedule 4, section 2.
occupational group, for schedule 4 (Professional
standards)—see schedule 4, section 2.
occupational liability, for schedule 4 (Professional
standards)—see schedule 4, section 2.
scheme, for schedule 4 (Professional standards)—see
schedule 4, section 2.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2004.
2 Notification
Notified under the Legislation Act on 2004.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2004
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