EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 332

 

 

 

Issued by authority of the Minister for Revenue and Assistant Treasurer

 

Trade Practices Act 1974

 

Trade Practices Amendment Regulations 2007 (No. 5)

 

Section 172 of the Trade Practices Act 1974 (the TP Act) provides, in part, that the Governor-General may make regulations prescribing matters required or permitted by the TP Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the TP Act.

 

The Treasury Legislation Amendment (Professional Standards) Act 2004 (the Amendment Act) amended the TP Act to align these Commonwealth laws with State laws on professional standards. The relevant State laws limit the civil liability of professionals and others while still maintaining appropriate protection for consumers of professional services through measures such as compulsory insurance cover, continual education and training and formalised complaint procedures.

 

The new Regulations prescribe the Australian Valuers Institute Professional Standards Scheme, thereby limiting the occupational liability of members of the scheme relating to an action for contravention of section 52 of the TP Act in the same way as occupational liability arising under the Professional Standards Act 1994 (NSW) is limited.

 

The Amendment Act supports State professional standards law by limiting liability in certain circumstances under provisions of certain Acts. Section 52 of the TP Act deals with misleading and deceptive conduct. This broad provision has been recognised as being a possible alternative cause of action to common law negligence.

 

The Amendment Act establishes a structure under which the Commonwealth, by prescribing State professional standards schemes, can support State professional standards legislation by allowing liability under the TP Act to be capped. The proposed Regulations add to the existing professional standard prescriptions of the New South Wales Bar Association Scheme, the Engineers Australia (NSW) Scheme, The Law society of New South Wales Scheme, and the Investigative and Remedial Engineers Scheme.

 

The TP Act specifies no conditions that need to be met before the power to make the proposed Regulations may be exercised.

 

The New South Wales Professional Standards Council sought the opinion of an independent actuarial consultant and called for public comment on the scheme via public notification in the Sydney Morning Herald newspaper prior to approving the Australian Valuers Institute Professional Standards Scheme.

 

The new Regulations commence on 5 October 2007.