Commonwealth Numbered Regulations - Explanatory Statements

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PROFESSIONAL STANDARDS SCHEME LEGISLATION AMENDMENT REGULATION 2013 (NO. 1) (SLI NO 25 OF 2013)

EXPLANATORY STATEMENT

Select Legislative Instrument 2013 No. 25

Issued by the Parliamentary Secretary to the Treasurer

Australian Securities and Investments Commission Act 2001

Corporations Act 2001

Professional Standards Scheme Legislation Amendment Regulation 2013 (No. 1)

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

Professional Standards legislation in each state and territory operates, where applicable, to limit the civil liability of professionals and others while still maintaining appropriate protection for consumers of professional services through such measures as compulsory insurance cover and complaints procedures.

Provision is made in the ASIC Act, the Corps Act, and the Competition and Consumer Act 2010 (the CCA) for the prescription of state and territory schemes.  The effect of prescription is to limit occupational liability under certain federal legislation in the same way it is limited under relevant state legislation.

The Regulation amends the Australian Securities and Investments Commission Regulations 2001 and Corporations Regulations 2001 to prescribe the following professional standards schemes:

•                 The New South Wales Bar Association Scheme;

•                 The South Australian Bar Association Incorporated Scheme;

•                 The Law Society of New South Wales Scheme;

•                 The Queensland Law Society Scheme; and

•                 The Law Society of South Australia Professional Standards Scheme

The prescription of the above schemes would commence on 1 March, 2013.

The prescription of the schemes has the effect of limiting the occupational liability of members of the schemes relating to an action for contravention of section 12DA of the ASIC Act, or section 1041H of the Corps Act in the same way as occupational liability is limited under the following relevant State and Territory laws:

•                 The Professional Standards Act 2003 (Vic)

•                 The Professional Standards Act 2004 (SA)

•                 The Professional Standards Act 2004 (NT)

•                 The Professional Standards Act 2004 (QLD)

•                 The Professional Standards Act 1997 (WA)

•                 The Professional Standards Act 1994 (NSW)

•                 The Professional Standards Act 2005 (TAS)

•                 The Civil Law (Wrongs) Act 2002 (ACT)

Section 12DA of the ASIC Act deals with misleading or deceptive conduct in relation to financial services; and

Part 7.10 of the Corps Act deals with market misconduct and other misconduct relating to financial products and financial services. 

The Commonwealth has not consulted on this regulation. The Professional Standards Council seeks the opinion of independent actuarial consultants and calls for public comment on professional standards schemes via public notification in major newspapers circulating throughout the relevant jurisdictions prior to approving schemes. Further consultation was not considered necessary.

The Regulations commence on 1 March, 2013.

Statement of Compatibility with Human Rights

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

Professional Standards Scheme Legislation Amendment Regulation 2013 (No. 1)

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

Prescribes the New South Wales Bar Association Scheme, the South Australian Bar Association Incorporated Scheme,  the Law Society of New South Wales Scheme,  the Law Society of Queensland Scheme and the Law Society of South Australia Professional Standards Scheme under the Australian Securities and Investments Commission Regulations 2001 and Corporations Regulations 2001.

Human rights implications

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

Conclusion

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

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