An Act to provide for the limitation of liability of members of occupational associations in certain circumstances and to facilitate improvement in the standards of services provided by those members.
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Professional Standards Act 1994.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Objects of this Act
The objects of this Act are as follows:(a) to enable the creation of schemes to limit the civil liability of professionals and others,(b) to facilitate the improvement of occupational standards of professionals and others,(c) to protect the consumers of the services provided by professionals and others,(d) 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.
4 Definitions
In 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.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 by way of set-off, and includes:(a) interest payable in respect of an amount awarded as damages, and(b) legal costs and expenses ordered to be paid in connection with an award of damages (other than legal costs and expenses incurred in enforcing a judgment or incurred on an appeal made by a defendant).exercise of a function includes, where the function is a duty, the performance of the duty.function includes a power, authority and duty.judgment includes:(a) a judgment given by consent, and(b) an award of an arbitrator.occupational association means a body corporate:(a) which represents the interests of persons who are members of the same occupational group, and(b) 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 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.
5 Does this Act apply to all types of occupational liability?
(1) This Act does not apply to liability for damages arising from any of the following:(a) the death of or personal injury to a person,(b) any negligence or other fault of a legal practitioner in acting for a client in a personal injury claim,(c) a breach of trust,(d) fraud or dishonesty.(2) 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.s 5: Am 2000 No 28, sec 4.
6 Act binds the Crown
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.
Part 2 Limitation of liability
Division 1 Making, amendment and revocation of schemes
7 Preparation and approval of schemes
(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, approve a scheme prepared under this section.
8 Public notification of schemes
Before approving a scheme, the Council must publish a notice in a daily newspaper circulating throughout New South Wales:(a) explaining the nature and significance of the scheme, and(b) advising where a copy of the scheme may be obtained or inspected, and(c) inviting comments and submissions within a specified time, but not less than 21 days after publication of the notice.
9 Making of comments and submissions concerning schemes
(1) Any person may make a comment or submission to the Council concerning a scheme of which notice has been published under section 8.(2) 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.
10 Consideration of comments, submissions and other matters
Before approving a scheme, the Council must consider the following:(a) all comments and submissions made to it in accordance with section 9,(b) the position of persons who may be affected by limiting the occupational liability of members of the occupational association concerned,(c) the nature and level of claims relating to occupational liability made against members of the occupational association concerned,(d) the risk management strategies of the occupational association concerned,(e) the means by which those strategies are intended to be implemented,(f) the cost and availability of insurance against occupational liability for members of the occupational association concerned,(g) the standards (referred to in section 27) determined by the occupational association concerned in relation to insurance policies.
11 Public hearings
(1) The Council may conduct a public hearing concerning a scheme if the Council thinks it appropriate.(2) A public hearing may be conducted in such manner as the Council determines.
12 Submission of schemes to Minister
The Council may submit a scheme approved by it to the Minister.
13 Gazettal, tabling and disallowance of schemes
(1) The Minister may authorise the publication in the Gazette of a scheme submitted to the Minister by the Council.(2) Part 6 of the Interpretation Act 1987 (sections 39, 42 and 43 excepted) applies to a scheme which is published in the Gazette with the authorisation of the Minister in the same way as it applies to a statutory rule.
14 Commencement of schemes
(1) A scheme published in the Gazette with the authorisation of the Minister commences:(a) on such day subsequent to the date of its publication as may be specified in the scheme, or(b) if no such day is specified—2 months after the date of its publication.(2) This section is subject to any order of the Supreme Court under section 15 (2).s 14: Subst 1998 No 10, Sch 1 [1].
15 Challenges to schemes
(1) A person who is or is reasonably likely to be affected by a scheme published as referred to in section 13 may apply to the Supreme Court for an order that the scheme is void for want of compliance with this Act.(2) The 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 Court, in relation to an application, may:(a) make an order that a scheme is void for want of compliance with this Act, or(b) decline to make such an order, or(c) give directions as to the things that are required to be done in order that a scheme, the commencement of which is stayed under this section, may commence, or(d) make any other order it thinks fit.
16 Review of schemes
(1) The Minister may direct the Council to review the operation of a scheme.(2) The Council must comply with any such direction but may on its own initiative at any time (whether before or after the scheme ceases to have effect) review the operation of a scheme.(3) A review may, but need not, be conducted in order to decide whether a scheme should be amended or revoked or whether a new scheme should be made.s 16: Subst 1998 No 10, Sch 1 [2].
16A Amendment and revocation of schemes
(1) An occupational association may prepare an amendment to or revocation of a scheme that relates to its members.(2) The Council may, on the application of an occupational association, prepare or approve an amendment to or revocation of a scheme that relates to the members of the association.(3) The Minister may direct the Council to prepare an amendment to or revocation of a scheme.(4) The Council must comply with any such direction but may on its own initiative, at any time while the scheme remains in force, prepare an amendment to or revocation of a scheme.(5) The provisions of sections 7–15 apply, with any necessary modifications, to the amendment or revocation of a scheme as well as to the making of a scheme.s 16A: Ins 1998 No 10, Sch 1 [2].
Division 2 Contents of schemes
17 Persons to whom scheme applies
(1) A scheme may provide that it applies to all persons within an occupational association or to a specified class or classes of persons within an occupational association.(2) A scheme may provide that the occupational association concerned may, on application by a person, exempt the person from the scheme.(3) A scheme ceases to apply to a person exempted from the scheme as referred to in subsection (2) on and from the date on which the exemption is granted or on and from a later date specified in the exemption.(4) Subsection (2) does not apply to a person to whom a scheme applies by virtue of section 18, 19 or 20.s 17: Am 1999 No 56, Sch 1 [1].
18 Partners of persons to whom a scheme applies
(1) If a scheme applies to a person, the scheme also applies to each partner of the person.(2) However, if a partner of a 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.
19 Employees of persons to whom a scheme applies
(1) If a scheme applies to a person, the scheme also applies to each employee of the person.(2) However, if an employee of a 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 employee.
20 Other persons to whom a scheme applies
If persons are prescribed by the regulations for the purposes of section 29 (4) as being associated with persons to whom a scheme applies, the scheme also applies to the prescribed persons.
21 Limitation of liability by insurance arrangements
A scheme may provide that if a person to whom the scheme applies and against whom a cause of action relating to occupational liability is brought is able to satisfy the court that the person has the benefit of an insurance policy:(a) insuring the person against that occupational liability, andthe person is not liable in damages in relation to that cause of action above the amount so specified.(b) under which the amount payable in respect of the occupational liability relating to that cause of action is not less than the amount of the monetary ceiling specified in the scheme in relation to the person at the time at which the act or omission giving rise to the cause of action occurred,ss 21–23: Am 1998 No 10, Sch 1 [3] [4].
22 Limitation of liability by reference to amount of business assets
A scheme may provide that if a person to whom the scheme applies and against whom a cause of action relating to occupational liability is brought is able to satisfy the court:(a) that the person has business assets the net current market value of which is not less than the amount of the monetary ceiling specified in the scheme in relation to the person at the time at which the act or omission giving rise to the cause of action occurred, orthe person is not liable in damages in relation to that cause of action above the amount so specified.(b) that:(i) the person has business assets and the benefit of an insurance policy insuring the person against that occupational liability, and(ii) the net current market value of the assets and the amount payable under the insurance policy in respect of the occupational liability relating to that cause of action, if combined, would total an amount that is not less than the amount of the monetary ceiling specified in the scheme in relation to the person at the time at which the act or omission giving rise to the cause of action occurred,ss 21–23: Am 1998 No 10, Sch 1 [3] [4].
23 Limitation of liability by multiple of charges
(1) A scheme may provide that if a person to whom the scheme applies and against whom a cause of action relating to occupational liability is brought is able to 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 respect of the occupational liability relating to that cause of action is not less than an amount (in this section called the limitation amount), being a reasonable charge for the services provided by the person or which the person failed to provide and to which the cause of action relates, multiplied by the multiple specified in the scheme in relation to the person at the time at which the act or omission giving rise to the cause of action occurred, orthe person is not liable in damages in relation to that cause of action above the limitation amount.(b) that:(i) the person has business assets and the benefit of an insurance policy insuring the person against that occupational liability, and(ii) the net current market value of the assets and the amount payable under the insurance policy in respect of the occupational liability relating to that cause of action, if combined, would total an amount that is not less than the limitation amount,(2) In determining the amount of a reasonable charge for the purposes of such a provision, a court is to have regard to any amount actually charged and to:(a) the amount that would ordinarily be charged in accordance with a scale of charges accepted by the occupational association of which the person is a member, or(b) if there is no such scale, the amount that a competent person of 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 to which a person is liable if the amount is less than the amount specified for the purpose in the scheme in relation to the person.ss 21–23: Am 1998 No 10, Sch 1 [3] [4].
24 Specification of different limits of liability for different persons and different work
A scheme may specify different maximum amounts of liability for different classes of persons within an occupational association or different kinds of work, or both.
25 Combination of provisions under sections 21, 22 and 23
If, in a scheme, provisions of the kind referred to in section 23 and provisions of the kind referred to in section 21 or 22 (or both) apply to a person at the same time in respect of the same occupation, the scheme must provide that the damages which may be awarded against the person are to be determined in accordance with section 23 but must not exceed the amount of the monetary ceiling specified in relation to the person in the provisions of the kind referred to in section 21 or 22.
26 Liability that cannot be limited by a scheme
(1) A scheme can only affect the liability for damages arising from a single cause of action to the extent to which the liability results in damages exceeding such amount (but not less than $500,000) as is determined for the purposes of the scheme by the Council and specified in the scheme.(2) In making a determination, the Council must have regard to:(a) the number and amounts of claims made against persons within the occupational association concerned, and(b) the need to adequately protect consumers.(3) A Council determination:(a) takes effect when an amendment providing for its specification in the scheme takes effect, and(b) applies only to a cause of action that arises after the determination takes effect.s 26: Am 1998 No 10, Sch 1 [5] [6].
27 Insurance to be of requisite standard
For the purposes of a scheme, an insurance policy must be a policy, or a policy of a kind, which complies with standards determined by the occupational association whose members may be insured under such a policy, or a policy of such a kind.
Division 3 Effect of schemes
28 Limit of occupational liability by schemes
(1) To the extent provided by this Act and the provisions of the scheme, a scheme limits the occupational liability, in respect of a cause of action founded on an act or omission occurring during the period when the scheme is in force, of any person to whom the scheme applied at the time when the act or omission occurred.(2) The applicable limitation of liability is the limitation specified by the scheme as in force at the time of the relevant act or omission.(3) A limitation of liability that, in accordance with this section, applies in respect of an act or omission continues to apply to every cause of action founded on it, irrespective of when the cause arises or proceedings are instituted in respect of it, and even if the scheme has been amended or has, in accordance with section 32, ceased to be in force.(4) A person to whom a scheme applies cannot choose not to be subject to the scheme, except in accordance with provisions included in the scheme under section 17 (2).s 28: Subst 1998 No 10, Sch 1 [7]. Am 1999 No 56, Sch 1 [2]–[4].
29 Limitation of amount of damages
(1) Limitation imposed on single claims A limitation imposed by a scheme in force under this Act 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 a single event.(2) No splitting of plaintiffs Claims by a number of persons who have a joint interest in a cause of action are to be treated as a single claim for the purposes of this Act despite the fact that they may also have several interests.(3) No splitting of defendants Two or more claims by the same person arising out of a single event against persons to whom a scheme in force under this Act applies and who are associated are to be treated as a single claim for the purposes of this Act.(4) Associated defendants Persons are associated if they are:(a) partners, employees of the same employer or in the relationship of employer and employee, or(b) persons who are prescribed by the regulations for the purposes of this subsection.
30 Effect of scheme on other parties to proceedings
A scheme does not limit the liability of a person who is a party to proceedings if the scheme does not apply to the person.
31 Proceedings to which a scheme applies
A scheme in force under this Act applies to proceedings relating to an act or omission that occurred after the commencement of the scheme.
32 Duration of scheme
(1) A scheme remains in force for such period (not exceeding 5 years) from its commencement as is determined by the Council unless, before the end of the period so determined:(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, by notice published in the Gazette, extend the period for which a scheme is in force. The notice must be published on or before the day when the original period ends.(3) Only one extension may be effected under subsection (2) in respect of any particular scheme, and the maximum period of such an extension is 12 months.s 32: Subst 1998 No 10, Sch 1 [8].
33 Notification of limitation of liability
(1) If a person’s occupational liability is limited in accordance with this Part, all documents given by the person to a client or prospective client that promote or advertise the person or person’s occupation, including official correspondence ordinarily used by the person in the performance of the person’s occupation and similar documents, must carry a statement to that effect.(2) A person who contravenes this section is guilty of an offence.Maximum penalty: 50 penalty units.(3) The regulations may prescribe a form of statement for the purposes of this section.(4) A person does not commit an offence against this section if the statement carried on the person’s documents is in the prescribed form.(5) In this section, a reference to a document does not include a reference to a business card.s 33: Am 1998 No 10, Sch 1 [9] [10].
Part 3 Compulsory insurance
34 Occupational association may compel its members to insure
(1) An occupational association may require its members to hold insurance against occupational liability.(2) Such a requirement may be imposed as a condition of membership or otherwise.(3) The occupational association may set the standards with which the insurance must comply (for example, as to the amount of the insurance).(4) The occupational association may specify different standards of insurance for different classes of members.
35 Monitoring claims
(1) An occupational association may establish a committee for monitoring and analysing claims made against its members for occupational liability or two or more occupational associations may establish a common committee for that purpose.(2) It is not necessary for all the committee members to be members of the occupational association or associations concerned. (For example, members may include representatives of insurers.)(3) An occupational association may, through such a committee or otherwise, issue practice advice to its members with a view to minimising claims for occupational liability.
Part 4 Risk management
36 Risk management strategies
(1) If an occupational association seeks the approval of the Council under section 7 to a scheme, it must furnish the Council with:(a) a detailed list of the risk management strategies intended to be implemented in respect of its members, and(b) the means by which those strategies are intended to be implemented.(2) The means of implementation may be imposed as a condition of membership or otherwise.(3) The strategies are to apply in addition to other statutory requirements and must not be inconsistent with them.
37 Reporting
(1) An occupational association must provide information to the Council concerning its risk management strategies if requested to do so by the Council.(2) An occupational association must provide an annual report to the Council as to the implementation and monitoring of its risk management strategies, the effect of those strategies and any changes made or proposed to be made to them.(3) The occupational association’s annual report is to be incorporated into the Council’s annual report in such form as the Council determines.
Part 5 Complaints and disciplinary matters
38 Occupational Associations (Complaints and Discipline) Code
(1) A scheme may adopt the provisions of the Model Code set out in Schedule 1 with such additions, omissions or other modifications (if any) as may be approved by the Council.(2) The modifications may include provisions relating to the making and determination 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 the purpose of implementing the Model Code or any of its provisions,(b) the procedure at meetings of any such committee,(c) whether any such committee may administer an oath,(d) the application or exclusion of the rules of and practice as 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 exchanging of information with other occupational associations (within or outside New South Wales).
Part 6 The Professional Standards Council
Division 1 Constitution of the Council
39 Constitution of the Council
There is constituted by this Act a body corporate with the corporate name of the Professional Standards Council.
Division 2 Membership and procedure of the Council
40 Membership of the Council
The Council is to consist of 11 persons appointed by the Minister who have such experience, skills and qualifications as the Minister considers appropriate to enable them to make a contribution to the work of the Council.
41 Provisions relating to members of the Council
Schedule 2 has effect with respect to the members of the Council.
42 Provisions relating to procedure of the Council
Schedule 3 has effect with respect to the procedure of the Council.
Division 3 Functions of the Council
43 Functions of Council
(1) The Council has the following functions:(a) to give advice to the Minister concerning:(i) the publication in the Gazette of a scheme, or of an amendment to a scheme, submitted by it to the Minister, or of notice of the revocation of such a scheme,(ii) the operation of this Act,(iii) any other matter relating to the occupational liability of members of occupational associations,(b) to give advice to occupational associations concerning policies of insurance for the purposes of Part 2,(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 the giving of advice and assistance concerning 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 persons to whom this Act applies,(f) to monitor the compliance by an occupational association with its risk management strategies,(g) to publish advice and information concerning the matters referred to in this section,(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 concerning the standards of occupational groups,(j) to institute proceedings in its own name for the prosecution of an offence against this Act or the regulations that comes to its notice or for injunctive or other relief in respect of such offences.(2) The Council is not empowered to give advice concerning occupational standards contained in any other Act or statutory instrument.(3) Any advice given to the Minister by the Council may be given either at the request of the Minister or without any such request.(4) The Council has such other functions as are conferred or imposed on it by or under this or any other Act.(5) The Council is taken to have locus standi for the purpose of pursuing any injunctive or other relief in accordance with subsection (1) (j), and is not to be required to give any undertaking as to damages in connection with the grant of any interlocutory relief.s 43: Am 1998 No 10, Sch 1 [11]–[13].
Division 4 Miscellaneous
44 Requirement to provide information
(1) The Council may, by notice in writing, require an occupational association whose members are subject to a scheme in force under this Act or which seeks the approval of the Council under section 7 to a scheme, or an amendment to or revocation of a scheme, to furnish information to it which it may reasonably require in order to exercise its functions.(2) An occupational association which does not comply with a notice under this section is guilty of an offence.Maximum penalty: 5 penalty units.s 44: Am 1998 No 10, Sch 1 [14].
44A 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 33 or an offence against the regulations.(2) Nothing that is done in good faith under this section by or on behalf of an association subjects the association, any member of the association’s executive body or any person acting under the direction of the association or its executive body to any action, liability, claim or demand.s 44A: Ins 1998 No 10, Sch 1 [15].
45 Committees of the Council
(1) The Council may, with the approval of the Minister, establish committees to assist it in the exercise of its functions.(2) It does not matter that any or all of the members of a committee are not members of the Council.(3) The procedure for calling committee meetings and for the conduct of business at those meetings is to be as determined by the Council or (subject to any determination of the Council) by the committee.
46 Staff of the Council
The Council may, with the approval of the Minister, arrange for the use of the services of any staff or facilities of a government department, an administrative office or a public or local authority.
47 Annual report
(1) As soon as practicable after 30 June, but before 1 October, in each year, the Council must prepare and forward to the Minister a report on the Council’s work and activities for the period of 12 months ending on 30 June in that year.(2) The Minister is required to lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.s 47: Subst 1998 No 120, Sch 1.33.
Part 7 Miscellaneous
48 Characterisation of this Act
The provisions of this Act are to be regarded as part of the substantive law of the State.
49 Application of this Act
(1) To the extent to which Parts 3, 4 and 5 are inconsistent with another Act, the other Act prevails. Otherwise, this Act has effect despite any other law to the contrary.(2) This Act does not affect the operation of section 5 of the Corporations (New South Wales) Act 1990.
50 No contracting out of this Act
This Act applies in relation to a person to whom a scheme in force under this Act applies despite any contract to the contrary, whether the contract was made before, on or after the date on which the person became a person to whom the scheme applies.
51 No limitation on other insurance
Nothing in this Act limits the insurance arrangements a person may make apart from those made for the purposes of this Act.
52 Proceedings for offences
Proceedings for an offence against this Act or the regulations are to be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.
53 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) Without limiting the generality of subsection (1), the regulations may make provision concerning the following:(a) the fees for applications for the Council’s approval, under Division 1 of Part 2, of a scheme, or an amendment to or revocation of a scheme,(b) the annual fee to be paid to the Council by an occupational association whose members are subject to a scheme in force under this Act.(3) A regulation may create an offence punishable by a penalty not exceeding 50 penalty units.s 53: Am 1998 No 10, Sch 1 [16].
54 Rules of court
(1) Rules of court may be made with respect to any matter arising under Part 2.(2) A rule of court may specify:(a) matters relating to section 15, and(b) the means by which the net current market value of assets may be determined for the purposes of section 22 or 23.(3) This section does not limit the rule-making powers of any court.
55 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.(3) A report of the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
56 Savings, transitional and other provisions
Schedule 4 has effect.s 56: Ins 1998 No 10, Sch 1 [17].
Schedule 1 Complaints and disciplinary matters
(Section 38)
Model code
1 Citation
This Code may be cited as the Occupational Associations (Complaints and Discipline) Code.
2 Definitions
In this Code:Council means the Professional Standards Council constituted by the Professional Standards Act 1994.
3 What actions may be the subject of a complaint?
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. 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?
A complaint may be made to the occupational association. The complaint must be in writing and contain the particulars of the allegations on which it is founded. 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?
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. The association may then do any one or more of the following:(a) it may require the complainant to provide further particulars of the complaint,(b) it may carry out an investigation into the complaint,(c) it may attempt to resolve the complaint by conciliation,(d) it may decline to entertain the complaint (because, for example, the complaint is frivolous, vexatious, misconceived or lacking in substance),(e) it may conduct a hearing into the complaint.
7 What action may be taken after a hearing into a complaint?
After an occupational association has conducted a hearing into a complaint against a person, it may, if it finds the complaint substantiated, do any one or more of the following:(a) caution or reprimand the person,(b) impose conditions as 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 as to the carrying out of the person’s occupation at the times, in the manner and to the persons specified by the association,(e) order the person to obtain advice as to the carrying out of the person’s occupation, from such persons as are specified by the association,(f) expel the person from membership of the association.If the association does not find the complaint substantiated, it must dismiss the complaint. The association is not entitled to make an award of compensation.
8 Notices of decisions
Within 30 days after a decision is made by an occupational association concerning a complaint, the complainant and the person against whom the complaint is made must be given a written statement of the decision. 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 the functions of the occupational association under this 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 persons appointed for the purpose.
11 Protection from liability
No matter or thing done or omitted by the occupational association or a person acting in accordance with a resolution of the association subjects a member of the executive body of the association or the person so acting personally to any liability if the matter or thing was done or omitted in good faith for the purpose of implementing this Code.
sch 1: Am 1998 No 10, Sch 1 [18].
Schedule 2 Provisions relating to members of the Council
(Section 41)
1 Chairperson and Deputy Chairperson of the Council
(1) Two of the members of the Council are (in and by their respective instruments of appointment or in and by other instruments executed by the Minister) to be appointed as Chairperson and Deputy Chairperson of the Council, respectively.(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 that office if the person:(a) is removed from that office by the Minister, or(b) resigns that office by instrument in writing addressed to the Minister, or(c) ceases to be a member.
2 Deputies of members
(1) The Minister may, from time to time, appoint a person to be the deputy of a member, and the Minister may revoke any such appointment.(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 clause) have the member’s functions as Chairperson or Deputy Chairperson.(4) A person while acting in the place of a member is entitled to be paid such allowances as the Minister may from time to time determine in respect of the person.
3 Term of office
Subject to this Schedule, a member holds office for such period (not exceeding 3 years) as may be specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
4 Allowances
A member is entitled to be paid such allowances as the Minister may from time to time determine in respect of the member.
5 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) resigns the office by instrument in writing addressed to the Minister, or(d) is removed from office by the Minister under this clause or by the Governor under Part 8 of the Public Sector Management Act 1988, or(e) 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 expiration of 4 weeks after the last of those meetings, the member is excused by the Council for having been absent from those meetings, or(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(g) becomes a mentally incapacitated person, or(h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.(2) The Minister may remove a member from office for incompetence or misbehaviour.
6 Filling of vacancy in office of member
If the office of a member becomes vacant, a person may, subject to this Act, be appointed to fill the vacancy.
7 Effect of certain other Acts
(1) Part 2 of the Public Sector Management Act 1988 does not apply to the appointment of a member.(2) A provision made by or under any Act:(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, ordoes not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as such a member.(b) prohibiting the person from engaging in employment outside the duties of that office,(3) The office of a member is not, for the purposes of any Act, an office or place of profit under the Crown.
8 Personal liability of members
No matter or thing done or omitted by the Council, a member or any person acting under the direction of the Council or a member subjects the member or person personally to any liability if the matter or thing was done or omitted in good faith for the purpose of executing this or any other Act.
sch 2: Am 1999 No 94, sec 7 (2) and Sch 5, Part 2.
Schedule 3 Provisions relating to procedure of the Council
(Section 42)
1 General procedure
The procedure for the calling of meetings of the Council and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Council.
2 Quorum
The quorum for a meeting of the Council is a majority of its members for the time being.
3 Presiding member
(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, in the event of an equality of votes, has a second or casting vote.
4 Voting
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.
5 First meeting
The Chairperson of the Council is to call the first meeting of the Council in such manner as the Chairperson thinks fit.
Schedule 4 Savings, transitional and other provisions
(Section 56)
Part 1 Miscellaneous
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
2 Definition
In this Part, the amending Act means the Professional Standards Amendment Act 1998.
3 Review of schemes
The provisions of section 16, as inserted by the amending Act, extend to apply in respect of schemes in force at the commencement of the section, as so inserted.
4 Limitation of damages in respect of subsisting causes of action
(1) Sections 21, 22 and 23, as in force immediately before the day on which amendments made to them by the amending Act took effect, continue to apply in respect of any cause of action that arose before that day as if those amendments had not been made, except as provided by subclause (2).(2) The amendments made to sections 21, 22 and 23 by Schedule 1 [3] to the amending Act apply in relation to a cause of action arising before, as well as after, those amendments took effect.(3) Sections 28 and 32, as in force immediately before their repeal by the amending Act, continue to apply in respect of a cause of action arising from anything done or omitted before their repeal.
5 Determination of extent of limitation of damages
The amendments made by the amending Act to section 26 do not apply in respect of a determination made under that section before those amendments took effect.
6 Fees payable on applications for approval of amendment to or revocation of scheme
For avoidance of doubt, section 53, as in force immediately before the amendment made to that section by the amending Act, is taken always to have empowered the prescription by regulation of any fee that might be prescribed under that section as in force after the amendment took effect.
7 Definition of existing schemes
In this Part, existing scheme means a scheme purporting to have been established in compliance with this Act and in existence immediately before the commencement of this clause.
8 Validation of existing schemes for limited period
(1) The provisions of an existing scheme are, to the extent to which they fail to provide for the scheme to apply to all persons within an occupational association or to a specified class or classes of persons within an occupational association, taken to have complied with this Act:(a) at the time at which the provisions were first included in the scheme, and(b) at all times until:(i) the expiration of 12 months after the commencement of this clause, or(ii) the amendment of the provisions in accordance with this Act after the commencement of this clause, orwhichever occurs first.(iii) the operation of the scheme ceases,(2) This clause does not apply to the provisions of an existing scheme to which clause 9 applies.
9 Validation of exemption provisions in existing schemes and exemptions
(1) This clause applies to the provisions of an existing scheme that provide (in effect) that an occupational association may, on application, exempt a person from the scheme.(2) The provisions of an existing scheme to which this clause applies are taken to have complied with this Act:(a) at the time at which the provisions were first included in the scheme, and(b) at all times until the commencement of section 17 (2).(3) The provisions of an existing scheme to which this clause applies are taken to have been made under section 17 (2).(4) An exemption granted before the commencement of this clause under the provisions of an existing scheme to which this clause applies is taken to have been validly granted on the date on which it was granted and is taken to be valid at all times on and from that date.
10 Part does not apply to new provisions of existing schemes
This Part does not apply to a provision of an existing scheme included in the scheme after the commencement of this clause.
11 Part does not affect previous court or tribunal decisions
This Part does not affect any decision or order of a court or tribunal made before the commencement of this clause.
sch 4: Ins 1998 No 10, Sch 1 [19]. Am 1999 No 56, Sch 1 [5] [6].