Professional Standards Act 2004

This Act may be cited as the Professional Standards Act 2004.

The objects of this Act are—

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

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

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

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

In this Act, unless the contrary intention appears—

another jurisdiction means a State or Territory of the Commonwealth, 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 established by this Act;

court includes a tribunal and 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 in respect 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

a determination of a tribunal; 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; and

the membership of which is limited principally to members of that 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 his or her occupation;

partner means a person who is in a partnership within the meaning of the Partnership Act 1891;

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

this jurisdiction means South Australia.

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 1 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.

This Act applies to civil liability in damages (in tort, contract or otherwise), except for civil liability in damages arising from any of the following:

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

anything done or omitted to be done by a legal practitioner in acting for a client in a personal injury claim;

an intentional tort;

a breach of trust;

fraud or dishonesty.

This Act does not apply to liability which may be the subject of proceedings under Part 18 of the Real Property Act 1886.

This Act does not apply to any cause of action arising under, or with respect to, a contract, or contractual relations, entered into before the commencement of this Act (whether or not the action lies in contract) unless the parties, after the commencement of this Act, vary the relevant contract so as to make express provision for the application of this Act.

If a provision made by or under Part 3, 4 or5 of this Act is inconsistent with a provision made by or under any other Act, that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect.

Except as provided by subsection (1), this Act has effect despite any law to the contrary.

This Act binds the Crown in right of South Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Nothing in this Act makes the Crown in any of its capacities liable to be prosecuted for an offence.

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 the State—

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 28 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 9.

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 10;

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 29) determined by the occupational association concerned in relation to insurance policies;

the provisions contained in the proposed scheme for the making and determination of complaints and the imposition and enforcement of disciplinary measures against members of the occupational association concerned, and may consider such other matters as the Council thinks fit.

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.