Professional Standards Act 1994

This Act may be cited as the Professional Standards Act 1994.

This Act commences on a day or days to be appointed by proclamation.

The objects of this Act are as follows:

to enable the creation of schemes to limit the civil liability of professionals and others,

to facilitate the improvement of occupational standards of professionals and others,

to protect the consumers of the services provided by professionals and others,

to constitute the Professional Standards Council to supervise the preparation and application of schemes and to assist in the improvement of occupational standards and protection of consumers.

In this Act:

another jurisdiction means any State or Territory, other than this jurisdiction.

appropriate Council, in relation to another jurisdiction, means the authority that, under the corresponding law of that jurisdiction, has functions that are substantially the same as the Council’s functions under this Act.

business assets means the property of a person that is used in the performance of the person’s occupation and that is able to be taken in proceedings to enforce a judgment of a court.

corresponding law means a law of another jurisdiction that corresponds to this Act, and includes a law of another jurisdiction that is declared by the regulations to be a corresponding law of that jurisdiction for the purposes of this Act.

costs includes fees, charges, disbursements and expenses.

Council means the Professional Standards Council constituted by this Act.

court includes an arbitrator.

damages means:

damages awarded in respect of a claim or counter-claim or claim by way of set-off, and

costs in or in relation to the proceedings ordered to be paid in connection with such an award (other than costs incurred in enforcing a judgment or incurred on an appeal made by a defendant), and

any interest payable on the amount of those damages or costs.

exercise of a function includes, where the function is a duty, the performance of the duty.

function includes a power, authority and duty.

interstate scheme means a scheme:

that has been prepared under the corresponding law of another jurisdiction, and

that operates, or indicates an intention to operate, as a scheme of this jurisdiction.

judgment includes:

a judgment given by consent, and

an award of an arbitrator.

occupational association means a body corporate:

which represents the interests of persons who are members of the same occupational group or related occupational groups, and

the membership of which is limited principally to members of that occupational group or those occupational groups.

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 by a member of an occupational association acting in the performance of his or her occupation.

scheme means a scheme for limiting the occupational liability of members of an occupational association, and includes an interstate scheme.

this jurisdiction means New South Wales.

Note—

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

A reference in this Act to the amount payable under an insurance policy in respect of an occupational liability includes a reference to:

defence costs payable in respect of a claim, or notification that may lead to a claim (other than reimbursement of the defendant for time spent in relation to the claim), but only if those costs are payable out of the one sum insured under the policy in respect of the occupational liability, and

the amount payable under or in relation to the policy by way of excess.

Notes included in this Act do not form part of this Act.

This Act does not apply to liability for damages arising from any of the following:

the death of or personal injury to a person,

(Repealed)

a breach of trust,

fraud or dishonesty.

This Act does not apply to liability which may be the subject of proceedings under Part 13 or 14 of the Real Property Act 1900.

Subsection (1) (a) does not operate to exclude from the operation of this Act liability for damages arising out of any negligence or other fault of an Australian legal practitioner in acting for a client in a personal injury claim.

This Act binds the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

An occupational association may prepare a scheme.

The Council may, on the application of an occupational association, prepare a scheme.

The Council may, on the application of an occupational association, approve a scheme prepared under this section.

A scheme prepared under this section may indicate an intention to operate as a scheme of this jurisdiction only, or of both this jurisdiction and another jurisdiction.

Before approving a scheme, the Council must publish a notice in a daily newspaper circulating throughout New South Wales:

explaining the nature and significance of the scheme, and

advising where a copy of the scheme may be obtained or inspected, and

inviting comments and submissions within a specified time, but not less than 21 days after publication of the notice.

If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction, the Council must also publish a similar notice in the other jurisdiction in accordance with the requirements of the corresponding law of that jurisdiction that relate to the approval of a scheme prepared in that jurisdiction.

Any person may make a comment or submission to the Council concerning a scheme of which notice has been published under section 8.

A comment or submission must be made within the period specified for that purpose in the notice or within such further time as the Council may allow.

Before approving a scheme, the Council must consider the following:

all comments and submissions made to it in accordance with section 9,

the position of persons who may be affected by limiting the occupational liability of members of the occupational association concerned,

the nature and level of claims relating to occupational liability made against members of the occupational association concerned,

the 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 for members of the occupational association concerned,

the standards (referred to in section 27) determined by the occupational association concerned in relation to insurance policies.

If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction:

the Council must also consider any matter that the appropriate Council for the other jurisdiction would have to consider under the provisions of the corresponding law of that jurisdiction that relate to the approval of a scheme prepared in that jurisdiction, and

the matters to be considered by the Council, whether under subsection (1) or paragraph (a), are to be considered in the context of each of the jurisdictions concerned.

The Council may conduct a public hearing concerning a scheme if the Council thinks it appropriate.

A public hearing may be conducted in such manner as the Council determines.

The Council may submit a scheme approved by it to the Minister.

If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction, the Council may also submit the scheme to the Minister administering the corresponding law of the other jurisdiction.