Professional Standards Act 1997

CrestWestern Australia

Professional Standards Act 1997

Western Australia

Professional Standards Act 1997

Contents

Part 1 — Preliminary

1. Short title 2

2. Commencement 2

3. Objects of this Act 2

4. Terms used 2

5. Matters to which Act does not apply 4

6. Relationship between this Act and other written laws 5

7. Crown bound 5

Part 2 — Professional Standards Council

Division 1 — Establishment of the Council

8. Council established 6

Division 2 — Membership and procedure of the Council

9. Membership of Council 6

10. Provisions relating to members of Council 6

11. Provisions relating to procedure of Council 6

Division 3 — Functions of the Council

12. Functions of Council 6

12A. Cooperation with authorities in other jurisdictions 8

13. Requirement to supply information 9

13A. Referral of complaints 9

14. Committees of Council 10

Division 4 — Administrative provisions

15. Use of outside staff and facilities 10

16. Funds 10

17. Application of Financial Management Act 2006 and Auditor General Act 2006 11

18. Minister to have access to information 12

19. Minister may give directions 12

Part 3 — Limitation of liability

Division 1 — Making, amending and revoking schemes

20. Preparation and approval 14

21. Notifying the public 14

22. Public comments and submissions 15

23. Matters to be considered by Council before approval 15

24. Public hearings 16

25. Council may submit approved schemes to Minister 16

26. Minister may gazette schemes 16

27. Commencement of schemes 17

28. Challenges to schemes 17

29. Review of schemes 18

29A. Amendment and revocation of schemes 19

30A. Notification of revocation of schemes 20

30B. Termination of operation of interstate schemes in this jurisdiction 20

Division 2 — Contents of schemes

30. Persons to whom scheme applies 21

31. Officers or partners of persons to whom scheme applies 21

32. Employees of persons to whom scheme applies 22

33. Other persons to whom scheme applies 22

34A. Extension of liability limitation to other persons to whom scheme applies 22

34. Limitation of liability by insurance arrangements 24

35. Limitation of liability by reference to amounts of business assets 24

36. Limitation of liability by multiple of charges 25

37. Specification of limits of liability and multiples 26

38. Combination of provisions under s. 34, 35 and 36 27

39. Liability that cannot be limited by schemes 27

40A. Liability in damages not reduced to below relevant limit 28

40. Insurance to be of requisite standard 28

Division 3 — Effect of schemes

41. Limit of occupational liability by schemes 28

42. Limitation of amount of damages 29

43. Effect of schemes on other parties to proceedings 30

44. Proceedings to which schemes apply 30

44A. Duration of schemes 30

45. Notification of limitation of liability 31

Part 4 — Compulsory insurance

46. Occupational associations may compel their members to insure 33

47. Monitoring claims 33

Part 5 — Risk management

48. Risk management strategies 34

49. Reporting 34

Part 6 — Complaints and disciplinary matters

50. Occupational Associations (Complaints and Discipline) Code 35

Part 7 — Miscellaneous

51. Characterisation of this Act 36

52. No contracting out of this Act 36

53. No limitation on other insurance 36

54. Offences to be dealt with by magistrate 36

55. Regulations 36

56. Rules of court 37

57. Review of Act 37

58. Savings, transitional and other provisions 38

Schedule 1 — Provisions relating to members of the Council

1. Chairperson and deputy chairperson of Council 39

2. Deputies of members 39

3. Term of office 40

4. Remuneration and allowances 40

5. Vacancy in office of member 40

6. Filling of vacancy in office of member 41

7. Member not to be public service officer 41

8. Personal liability of members 41

Schedule 2 — Provisions relating to procedure of the Council

1. General procedure 42

2. Quorum 42

3. Presiding member 42

4. First meeting 42

Schedule 3 — Model Code

1. Citation 43

2. Term used: Council 43

3. Actions that may be the subject of complaint 43

4. Who can make complaint 43

5. How complaint is made 43

6. What happens after complaint is made 43

7. What action may be taken after a hearing into complaint 44

8. Notices of decisions 44

9. Rights of representation of parties to complaint 45

10. How occupational association performs functions under this Code 45

11. Protection from liability 45

Schedule 4 — Savings, transitional and other provisions

Division 1 — Provisions relating to the Professional Standards Amendment Act 2004

1. Terms used 46

2. Review of schemes 46

3. Limitation of damages in respect of subsisting causes of action 46

4. Determination of extent of limitation of damages 47

5. Fees for applications for approval of amendment to or revocation of scheme 47

6. Regulations for savings or transitional purposes 47

Division 2 — Provisions relating to the Professional Standards Amendment Act 2010

7. Terms used 48

8. Personal injury claims 48

9. Application of schemes to officers, partners, employees and associates 48

10. Associated defendants 48

11. Expiry date of existing schemes 48

12. Application of clause 6 49

Notes

Compilation table 50

Western Australia

Professional Standards Act 1997

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. Short title

This Act may be cited as the Professional Standards Act 1997 1.

2. Commencement

The provisions of this Act come into operation on such day as is, or days as are respectively, fixed by proclamation 1.

3. Objects of this Act

The objects of this Act are —

(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; and

(d) 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.

4. Terms used

(1) In this Act, unless the contrary intention appears —

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 established by section 8;

court includes an arbitrator;

damages means —

(a) damages awarded in respect of a claim or counter‑claim or claim by way of set‑off; and

(b) 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 the defendant); and

(c) any interest payable on the amount of those damages or costs;

interstate scheme means a scheme —

(a) that has been prepared under the corresponding law of another jurisdiction; and

(b) that operates, or indicates an intention to operate, as a scheme of this jurisdiction;

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 or related occupational groups; and

(b) 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;

partner has the same meaning as it has in the Partnership Act 1895;

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

this jurisdiction means Western Australia.

(2) When this Act refers to the amount payable under an insurance policy in respect of an occupational liability it includes —

(a) 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

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

[Section 4 amended: No. 74 of 2003 s. 144(2); No. 25 of 2004 s. 4; No. 3 of 2010 s. 4 and 10.]

5. Matters to which Act does not apply

(1) This Act does not apply to liability for damages arising from —

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

[(b) deleted]

(c) a breach of trust; or

(d) fraud or dishonesty.

(2) This Act does not apply to liability which may be the subject of proceedings under Part XII of the Transfer of Land Act 1893.

(3) 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 a legal practitioner in acting for a client in a personal injury claim.

[Section 5 amended: No. 3 of 2010 s. 24.]

6. Relationship between this Act and other written laws

(1) To the extent to which Parts 4, 5 and 6 are inconsistent with another Act, the other Act prevails.

(2) Otherwise, this Act has effect despite any other written law to the contrary.

(3) This Act does not affect the operation of section 5 of the Corporations (Western Australia) Act 1990 2.

7. Crown bound

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

Part 2 — Professional Standards Council

Division 1 — Establishment of the Council

8. Council established

(1) The Professional Standards Council is established.

(2) The Council is a body corporate with perpetual succession.

(3) Proceedings may be taken by or against the Council in its corporate name.

Division 2 — Membership and procedure of the Council

9. Membership of 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.

10. Provisions relating to members of Council

Schedule 1 has effect with respect to the members of the Council.

11. Provisions relating to procedure of Council

Schedule 2 has effect with respect to the procedure of the Council.

Division 3 — Functions of the Council

12. Functions of Council

(1) The functions of the Council are —

(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 to the Minister, or of notice of the revocation of a scheme;

(ii) the operation of this Act; and

(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 3;

(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 —

(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; and

(ix) continuing occupational education;

(e) to monitor the occupational standards of persons to whom this Act applies;

(f) to monitor the compliance by occupational associations with their risk management strategies;

(g) to publish advice and information concerning the matters referred to in this section;

(h) to conduct forums 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; and

(j) to institute proceedings in its own name for —

(i) the prosecution of; or

(ii) injunctive or other relief in respect of,

an offence against this Act that comes to its notice.

(2) The Council is not empowered to give advice concerning occupational standards contained in any written law other than this Act.

(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 under this Act or any other Act or law.

(5) The Council is taken to have locus standi for the purpose of pursuing any injunctive or other relief under 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.

[Section 12 amended: No. 25 of 2004 s. 5; No. 3 of 2010 s. 11.]

12A. Cooperation with authorities in other jurisdictions

For the purpose of dealing with a scheme that operates, or indicates an intention to operate, as a scheme of both this jurisdiction and another jurisdiction, the Council —

(a) may, in the exercise of its functions under this Act, act in conjunction with the appropriate Council for the other jurisdiction; and

(b) may act in conjunction with the appropriate Council for the other jurisdiction in the exercise of that Council’s functions under the corresponding law of that jurisdiction.

[Section 12A inserted: No. 3 of 2010 s. 12.]

13. Requirement to supply information

(1) The Council may, by notice in writing, require an occupational association —

(a) whose members are subject to a scheme in force under this Act; or

(b) which seeks the approval of the Council under section 20, to a scheme, or an amendment to or revocation of a scheme,

to furnish information to it which it reasonably requires in order to perform its functions.

(2) An occupational association must comply with a notice under this section.

Penalty: $500.

[Section 13 amended: No. 25 of 2004 s. 6.]

13A. 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 45 or an offence under 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.

[Section 13A inserted: No. 25 of 2004 s. 7.]

14. Committees of Council

(1) The Council may establish committees to assist it in the performance 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.

[Section 14 amended: No. 25 of 2004 s. 8.]

Division 4 — Administrative provisions

15. Use of outside staff and facilities

The Council may, with the approval of the Minister —

(a) arrange with the employing authority of a department or organization within the meaning of the Public Sector Management Act 1994 for the use of the services of any staff or facilities of that department or organization;

(b) arrange with a local government or regional local government for the use of the services of any staff or facilities of the local government or regional local government;

(c) engage, under a contract for services or other arrangement, any consultant, or any professional, technical or other assistance, that it considers necessary to enable it to perform its functions.

16. Funds

(1) The funds available for the purposes of enabling the Council to perform its functions consist of —

(a) moneys from time to time appropriated by Parliament;

(b) fees paid to the Council under this Act; and

(c) any other moneys lawfully received by, made available to, or payable to, the Council.

(2) An account called the Professional Standards Council Account is to be established —

(a) as an agency special purpose account under section 16 of the Financial Management Act 2006; or

(b) with the approval of the Treasurer, at a bank as defined in section 3 of that Act,

to which the funds referred to in subsection (1) are to be credited.

(3) The Account referred to in subsection (2) is to be charged with the cost of the administration of this Act.

[Section 16 amended: No. 28 of 2006 s. 41; No. 77 of 2006 Sch. 1 cl. 134(1) and (2).]

17. Application of Financial Management Act 2006 and Auditor General Act 2006

(1) The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of the Council and its operations.

(2) An annual report submitted by the accountable authority of the Council under the Financial Management Act 2006 Part 5 is to include details of any forums conducted by the Council under section 12(1)(h), and any committees established by the Council under section 14, during the financial year to which the report relates.

[Section 17 amended: No. 74 of 2003 s. 95; No. 77 of 2006 Sch. 1 cl. 134(3); No. 3 of 2010 s. 25.]

18. Minister to have access to information

(1) The Minister is entitled —

(a) to have information in the possession of the Council; and

(b) where the information is in or on a document, to have, and make and retain copies of, that document.

(2) For the purposes of subsection (1) the Minister may —

(a) request the Council to furnish information to the Minister;

(b) request the Council to give the Minister access to information;

(c) for the purposes of paragraph (b) make use of the staff of the Council to obtain the information and furnish it to the Minister.

(3) The Council must comply with a request under subsection (2) and make its staff and facilities available to the Minister for the purposes of paragraph (c) of that subsection.

(4) In this section —

document includes any tape, disc or other device or medium on which information is recorded or stored;

information means information specified, or of a description specified, by the Minister that relates to the functions of the Council.

19. Minister may give directions

(1) The Minister may give directions in writing to the Council with respect to the performance of its functions either generally or in relation to a particular matter, and the Council must give effect to any such direction.

(2) The text of any direction given under subsection (1) shall be included in the annual report submitted by the accountable authority of the Council under Part 5 of the Financial Management Act 2006.

[Section 19 amended: No. 77 of 2006 Sch. 1 cl. 134(4).]

Part 3 — Limitation of liability

Division 1 — Making, amending and revoking schemes

20. Preparation and approval

(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.

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

[Section 20 amended: No. 3 of 2010 s. 13.]

21. Notifying the public

(1) Before approving a scheme, the Council must publish a notice in a daily newspaper circulating throughout Western Australia —

(a) explaining the nature and significance of the scheme;

(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.

(2) 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.

[Section 21 amended: No. 3 of 2010 s. 14.]

22. Public comments and submissions

(1) Any person may make a comment or submission to the Council concerning a scheme of which notice has been published under section 21.

(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.

23. Matters to be considered by Council before approval

(1) Before approving a scheme, the Council must consider —

(a) all comments and submissions made to it in accordance with section 22;

(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; and

(g) the standards (referred to in section 40) determined by the occupational association concerned in relation to insurance policies.

(2) If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction —

(a) 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

(b) 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.

[Section 23 amended: No. 3 of 2010 s. 15.]

24. 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.

[Section 24 amended: No. 25 of 2004 s. 9.]

25. Council may submit approved schemes to Minister

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

(2) 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.

[Section 25 amended: No. 3 of 2010 s. 16.]

26. Minister may gazette schemes

(1) The Minister may authorise the publication in the Gazette of a scheme submitted to the Minister by the Council or, in the case of an interstate scheme, by the appropriate Council for the jurisdiction in which the scheme was prepared.

(2) Sections 42 and 43(3) of the Interpretation Act 1984 apply to a scheme which is published in the Gazette with the authorisation of the Minister in the same way as they apply to regulations.

(3) In this section, a reference to an interstate scheme includes a reference to an instrument amending an interstate scheme.

[Section 26 amended: No. 3 of 2010 s. 17.]

27. Commencement of schemes

(1) A scheme published in the Gazette with the authorisation of the Minister commences —

(a) on a day specified in the scheme, being a day that is later than the day of its publication; or

(b) if no day is so specified, 2 months after the day of its publication.

(2) This section is subject to any order made by the Supreme Court under section 28 and any order made by the Supreme Court of another jurisdiction under the corresponding law of that jurisdiction.

(3) In this section, a reference to a scheme includes, in the case of an interstate scheme, a reference to an instrument amending that scheme.

[Section 27 inserted: No. 25 of 2004 s. 10; amended: No. 3 of 2010 s. 18.]

28. Challenges to schemes

(1A) In this section —

scheme, in the case of an interstate scheme, includes an instrument amending that scheme.

(1) A person who is or is reasonably likely to be affected by a scheme published as referred to in section 26 (including a person who is or is reasonably likely to be affected by a scheme that operates as a scheme of another jurisdiction) 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;

(b) decline to make such an order;

(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.

(4) The Court may not make an order that an interstate scheme is void for want of compliance with this Act on the ground that the scheme fails to comply with Division 2, but may do so on the ground that the scheme fails to comply with the provisions of the corresponding law of the jurisdiction in which it was prepared that relate to the contents of schemes prepared in that jurisdiction.

(5) This section does not prevent a scheme from being challenged or called into question otherwise than under this section.

[Section 28 amended: No. 3 of 2010 s. 19.]

29. Review of schemes

(1) The Minister may direct the Council to review the operation of a scheme.

(2) The Council must comply with any direction under subsection (1) 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 —

(a) in the case of a scheme prepared under this Act, whether the scheme should be amended or revoked or whether a new scheme should be made; or

(b) in the case of an interstate scheme, whether the operation of the scheme should be terminated in relation to this jurisdiction.

[Section 29 inserted: No. 25 of 2004 s. 11; amended: No. 3 of 2010 s. 20.]

29A. Amendment and revocation of schemes

(1) An occupational association may prepare an instrument amending or revoking a scheme that relates to its members.

(2) The Council may, on the application of an occupational association, prepare or approve an instrument amending or revoking a scheme that relates to the members of the association.

(3) The Minister may direct the Council to prepare an instrument amending or revoking a scheme.

(4) The Council must comply with any direction under subsection (3) but may on its own initiative, at any time while the scheme remains in force, prepare an instrument amending or revoking a scheme.

(5) The provisions of sections 20 to 28 extend, with any necessary modifications, to the amendment of a scheme by an instrument under this section.

(6) The provisions of sections 20 to 27 (other than section 25(2)) extend, with any necessary modifications, to the revocation of a scheme by an instrument under this section.

(7) The amendment or revocation of a scheme does not affect a right or liability arising during the application of the scheme to members of an occupational association before the amendment or revocation.

(8) This section does not apply to an interstate scheme.

[Section 29A inserted: No. 25 of 2004 s. 11; amended: No. 3 of 2010 s. 21.]

30A. Notification of revocation of schemes

(1) On publication in the Gazette of an instrument revoking a scheme (other than an interstate scheme) that operates as a scheme of another jurisdiction, the Minister must cause notice of that fact to be given to the Minister administering the corresponding law of that jurisdiction.

(2) On receipt of notice that an interstate scheme has been revoked under the corresponding law of the jurisdiction in which it was prepared, the Minister must cause a statement to that effect to be published in the Gazette.

[Section 30A inserted: No. 3 of 2010 s. 22.]

30B. Termination of operation of interstate schemes in this jurisdiction

(1) The Council may, on the application of an occupational association, prepare an instrument terminating, in relation to this jurisdiction, the operation of an interstate scheme that relates to members of the association.

(2) The Minister may direct the Council to prepare an instrument terminating the operation of an interstate scheme in relation to this jurisdiction.

(3) The Council must comply with any direction under subsection (2) but may on its own initiative, at any time while an interstate scheme remains in force, prepare an instrument terminating the operation of the scheme in relation to this jurisdiction.

(4) The provisions of sections 21 to 26 (other than section 25(2)) extend, with any necessary modifications, to the termination of the operation of an interstate scheme under an instrument under this section.

(5) The operation of an interstate scheme in respect of which an instrument under this section is published under section 26 (as applied by subsection (4)) is terminated, in relation to this jurisdiction, as from —

(a) a day specified in the instrument, being a day that is later than the day of its publication; or

(b) if no day is specified, 2 months after the day of its publication.

[Section 30B inserted: No. 3 of 2010 s. 22.]

Division 2 — Contents of schemes

30. 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 day on which the exemption is granted or on and from a later day specified in the exemption.

(4) Subsection (2) does not apply to a person to whom a scheme applies by virtue of section 31, 32 or 33.

[Section 30 inserted: No. 25 of 2004 s. 12.]

31. Officers or partners of persons to whom scheme applies

(1) If a scheme applies to a body corporate, the scheme also applies to each officer of the body corporate.

(2) If a scheme applies to a person, the scheme also applies to each partner of the person.

(3) However, if an officer of a body corporate or a partner of a person is entitled to be a member of the same occupational association as the body corporate or person, but is not a member, the scheme does not apply to that officer or partner.

(4) In this section —

officer —

(a) in relation to a body corporate that is a corporation as defined in the Corporations Act 2001 (Commonwealth) section 57A, has the meaning given in section 9 of that Act; and

(b) in relation to a body corporate that is not a corporation as so defined, means any person (by whatever name called) who is concerned in or takes part in the management of the body corporate.

[Section 31 inserted: No. 25 of 2004 s. 12; amended: No. 3 of 2010 s. 26.]

32. Employees of persons to whom 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 that employee.

33. Other persons to whom scheme applies

If persons are prescribed by the regulations for the purposes of section 42(4) as being associated with persons to whom a scheme applies, the scheme also applies to the prescribed persons.

34A. Extension of liability limitation to other persons to whom scheme applies

(1) In this section —

associate, of a person, means someone who is associated with the person under the regulations referred to in section 42(4)(b);

officer —

(a) in relation to a body corporate that is a corporation as defined in the Corporations Act 2001 (Commonwealth) section 57A, has the meaning given in section 9 of that Act; and

(b) in relation to a body corporate that is not a corporation as so defined, means any person (by whatever name called) who is concerned in or takes part in the management of the body corporate.

(2) A limitation that applies under this Act to the occupational liability of a person as a member of an occupational association in respect of a cause of action (the principal cause of action) also applies, in respect of the principal cause of action and any related cause of action, to the liability of any other person to whom the scheme concerned applies as a partner, officer, employee or associate of the member (whether or not the other person’s liability is an occupational liability).

(3) A related cause of action is a cause of action in respect of civil liability of the other person arising (in tort, contract or otherwise) directly or vicariously from anything done or omitted by that person that caused or contributed to the loss or damage with which the principal cause of action is concerned and that resulted from the same or substantially the same event as that from which the principal cause of action arose.

(4) When this section refers to a person who is a partner, officer, employee or associate of a member of an occupational association it refers to a person who was such a partner, officer, employee or associate at the time of the event that gave rise to the principal cause of action.

(5) When this section refers to a limitation on liability that applies to a person as a member of an occupational association it includes a limitation on liability that would apply to the person if a cause of action relating to the liability were brought against the person.

[Section 34A inserted: No. 3 of 2010 s. 27; amended: No. 17 of 2014 s. 32.]

34. Limitation of liability by insurance arrangements

A scheme may provide that if a person to whom the scheme applies and against whom a proceeding relating to occupational liability is brought is able to satisfy the court concerned that —

(a) that person has the benefit of an insurance policy insuring that person against the occupational liability to which the cause of action relates; and

(b) the amount payable under the policy in respect of that occupational liability is not less than the amount of the monetary ceiling specified in the scheme in relation to the class of person and the kind of work to which the cause of action relates,

that person is not liable in damages in relation to that cause of action above the amount of the monetary ceiling so specified.

[Section 34 inserted: No. 3 of 2010 s. 5.]

35. Limitation of liability by reference to amounts of business assets

A scheme may provide that if a person to whom the scheme applies and against whom a proceeding relating to occupational liability is brought is able to satisfy the court concerned —

(a) that that 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 class of person and the kind of work to which the cause of action relates; or

(b) that —

(i) that person has business assets and the benefit of an insurance policy insuring that person against the occupational liability to which the cause of action relates; and

(ii) the net current market value of the business assets and the amount payable under the policy in respect of that occupational liability, 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 class of person and the kind of work to which the cause of action relates,

that person is not liable in damages in relation to that cause of action above the amount of the monetary ceiling so specified.

[Section 35 amended: No. 25 of 2004 s. 14; No. 3 of 2010 s. 6.]

36. 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 proceeding relating to occupational liability is brought is able to satisfy the court concerned —

(a) that that person has the benefit of an insurance policy —

(i) which insures that person against the occupational liability to which the cause of action relates; and

(ii) under which the amount payable in respect of that occupational liability is not less than an amount (the limitation amount), being a reasonable charge for the services which were provided by that person, or which that person failed to provide, and to which the cause of action relates, multiplied by the multiple specified in the scheme in relation to the class of person and the kind of work to which the cause of action relates;

or

(aa) that that person has business assets the net current market value of which is not less than the limitation amount; or

(b) that —

(i) that person has business assets and the benefit of an insurance policy insuring the person against the occupational liability to which the cause of action relates; and

(ii) the net current market value of the business assets and the amount payable under the policy in respect of that occupational liability, if combined, would total an amount that is not less than the limitation amount,

the person is not liable in damages in relation to that cause of action above the limitation amount or, if the scheme specifies a minimum cap determined by the Council for the purposes of the scheme that is higher than the limitation amount, above the amount of the minimum cap so specified.

(2) In determining the amount of a reasonable charge for the purposes of a provision made under subsection (1), 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 that amount is less than the amount specified for the purpose in the scheme in relation to the class of person and the kind of work concerned.

[Section 36 amended: No. 25 of 2004 s. 15; No. 3 of 2010 s. 7.]

37. Specification of limits of liability and multiples

(1) A scheme may —

(a) specify the same maximum amount of liability in relation to all cases to which the scheme applies or different maximum amounts of liability for different cases or classes of case or for the same case or class of case for different purposes; and

(b) confer a discretionary authority on an occupational association, on application by a person to whom the scheme applies, to specify in relation to the person a higher maximum amount of liability than would otherwise apply under the scheme in relation to the person either in all cases or in any specified case or class of case.

(2) A scheme may specify a multiple, monetary ceiling or minimum cap by way of a formula that is to be applied to calculate the multiple, ceiling or cap.

[Section 37 inserted: No. 25 of 2004 s. 16.]

38. Combination of provisions under s. 34, 35 and 36

If, in a scheme, provisions of the kind referred to in section 36 and provisions of the kind referred to in section 34 or 35 (or both) apply to a person at the same time in respect of the same kind of work, the scheme must provide that the damages which may be awarded against the person are to be determined in accordance with section 36 but must not exceed the amount of the monetary ceiling specified in relation to the class of person and the kind of work in the provisions of the kind referred to in section 34 or 35.

[Section 38 amended: No. 25 of 2004 s. 17.]

39. Liability that cannot be limited by schemes

(1) A scheme can only affect the liability for damages arising from a single cause of action to the extent to which that 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 adequately to 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.

[Section 39 amended: No. 25 of 2004 s. 18.]

40A. Liability in damages not reduced to below relevant limit

The liability in damages of a person to whom a scheme applies is not reduced below the relevant limitation imposed by a scheme in force under this Act because the amount available to be paid to the claimant under the insurance policy required for the purposes of this Act in respect of that liability is less than the relevant limitation.

[Section 40A inserted: No. 3 of 2010 s. 8.]

40. 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

41. 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 at which the act or omission giving rise to the cause of action concerned occurred.

(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 44A, 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 30(2).

[Section 41 inserted: No. 25 of 2004 s. 19; amended: No. 3 of 2010 s. 9.]

42. 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

(ba) officers of the same body corporate or in the relationship of body corporate and officer of the body corporate (with officer having the meaning given in section 31); or

(b) persons who are prescribed by the regulations for the purposes of this subsection.

[Section 42 amended: No. 3 of 2010 s. 28.]

43. Effect of schemes 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 that person.

44. Proceedings to which schemes apply

A scheme in force under this Act applies to proceedings relating to an act or omission that occurred after the commencement of the scheme.

44A. Duration of schemes

(1) A scheme must specify the period (not exceeding 5 years) for which it is to remain in force after its commencement.

(2A) Subject to subsection (2), a scheme (other than an interstate scheme) remains in force until —

(a) the period specified under subsection (1) ends; or

(b) the scheme is revoked; or

(c) the scheme’s operation ceases because of the operation of another Act; or

(d) the scheme is declared void, either by an order made by the Supreme Court under section 28 or by an order made by the Supreme Court of another jurisdiction under the corresponding law of that jurisdiction; or

(e) the scheme is disallowed under the Interpretation Act 1984 section 42.

(2B) Subject to subsection (2), an interstate scheme remains in force in this jurisdiction until —

(a) the period specified under subsection (1) ends; or

(b) the scheme’s operation in relation to this jurisdiction is terminated under section 30B; or

(c) the scheme ceases to have effect in the jurisdiction in which it was prepared; or

(d) the scheme is disallowed under the Interpretation Act 1984 section 42.

(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 an extension is 12 months.

[Section 44A inserted: No. 25 of 2004 s. 20; amended: No. 3 of 2010 s. 23.]

45. Notification of limitation of liability

(1) If the occupational liability of a person is limited under this Part, the person must ensure that all documents given, or caused to be given, by the person to a client or prospective client that promote or advertise the person or his or her occupation, including official correspondence ordinarily used by the person in the performance of his or her occupation and similar documents, carry a statement to that effect.

Penalty: $5 000.

(2) The regulations may prescribe a form of statement for the purposes of this section.

(3) A person does not commit an offence under this section if the statement carried on the documents given by the person is in the prescribed form.

(4) In this section, a reference to a document does not include a reference to a business card.

[Section 45 amended: No. 25 of 2004 s. 21.]

Part 4 — Compulsory insurance

46. Occupational associations may compel their 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.

(4) The occupational association may specify different standards of insurance for different classes of members or for different kinds of work or on the basis of any other differing circumstances that it considers relevant.

[Section 46 amended: No. 25 of 2004 s. 22.]

47. Monitoring claims

(1) An occupational association may establish a committee for monitoring and analysing claims made against its members for occupational liability, or 2 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.

(3) An occupational association may, through such a committee or otherwise, issue practice advice to its members with a view to minimizing claims for occupational liability.

Part 5 — Risk management

48. Risk management strategies

(1) If an occupational association seeks the approval of the Council under section 20 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 the requirements of other written laws and must not be inconsistent with them.

49. 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 concerning 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 annual report of an occupational association is to be incorporated into the annual report of the Council in such form as the Council determines.

Part 6 — Complaints and disciplinary matters

50. Occupational Associations (Complaints and Discipline) Code

(1) A scheme may adopt the provisions of the Model Code set out in Schedule 3 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) —

(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 relating 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 exchange of information with other occupational associations (within or outside Western Australia).

Part 7 — Miscellaneous

51. Characterisation of this Act

The provisions of this Act are to be regarded as part of the substantive law of the State.

52. 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 that contract was made before, on or after the day on which that person became a person to whom that scheme applies.

53. 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.

54. Offences to be dealt with by magistrate

A court of summary jurisdiction dealing with an offence under this Act is to be constituted by a magistrate.

[Section 54 inserted: No. 59 of 2004 s. 141.]

55. Regulations

(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

(2) Without limiting the generality of subsection (1), the regulations may prescribe —

(a) the fees for applications for the Council’s approval, under Part 3 Division 1, of a scheme, or an amendment to or revocation of a scheme; and

(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) The regulations may create offences punishable in each case by a penalty not exceeding $5 000.

[Section 55 amended: No. 25 of 2004 s. 23.]

56. Rules of court

(1) Rules of court may be made with respect to any matter arising under Part 3.

(2) A rule of court may specify —

(a) matters relating to section 28;

(b) the means by which the net current market value of business assets may be determined for the purposes of section 35 or 36.

(3) This section does not limit the rule‑making powers of any court.

57. Review of Act

(1) The Minister is to review this Act to determine whether or not —

(a) the policy objectives of this Act remain valid; and

(b) the terms of this Act remain appropriate for securing those objectives.

(2) The review is to be undertaken as soon as possible after the expiry of the period of 5 years from the day on which this Act receives the Royal Assent.

(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.

58. Savings, transitional and other provisions

Schedule 4 has effect.

[Section 58 inserted: No. 25 of 2004 s. 24.]

Schedule 1 — Provisions relating to members of the Council

[Section 10]

1. Chairperson and deputy chairperson of Council

(1) The Minister is to appoint 2 of the members of the Council (in and by their respective instruments of appointment or in and by other instruments executed by the Minister) 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 that person —

(a) is removed from that office by the Minister;

(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 deputy of the member —

(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 functions of that member 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 is specified in the instrument of appointment of the member, but is eligible (if otherwise qualified) for reappointment.

4. Remuneration and allowances

(1) Subject to subclause (2), a member is to be paid out of the funds of the Council such remuneration and allowances as are determined in his or her case by the Minister on the recommendation of the Public Sector Commissioner.

(2) A member who is an employee (as defined in the Public Sector Management Act 1994) is to be paid out of the funds of the Council only such travelling and subsistence allowances as are determined in his or her case by the Minister on the recommendation of the Public Sector Commissioner.

[Clause 4 amended: No. 39 of 2010 s. 89.]

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 reappointed; or

(c) resigns that office by instrument in writing addressed to the Minister; or

(d) is removed from office by the Minister under this clause; 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, unless —

(i) the member is so absent on leave granted by the Council; or

(ii) before the expiry 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) is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or

(g) becomes a mentally incapacitated person; or

(h) is convicted in Western Australia of an offence which is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in Western Australia of an offence which, if committed in Western Australia, would be an offence so punishable.

(2) The Minister may remove a member from office for incompetence or misbehaviour.

[Clause 5 amended: No. 18 of 2009 s. 70.]

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. Member not to be public service officer

Part 3 of the Public Sector Management Act 1994 does not apply to the appointment of a member.

8. Personal liability of members

A matter or thing done or omitted by the Council, a member or any person acting under the direction of the Council or a member does not subject the member or the person so acting personally to any liability if that matter or thing was done or omitted in good faith for the purpose of executing this Act or any other written law.

Schedule 2 — Provisions relating to procedure of the Council

[Section 11]

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, to be 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 his or her absence, the deputy chairperson of the Council or, in the absence of both, another member elected to chair the meeting concerned 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.

(3) 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.

4. First meeting

The chairperson of the Council is to call the first meeting of the Council in such manner as he or she thinks fit.

Schedule 3 — Model Code

[Section 50]

1. Citation

This Code may be cited as the Occupational Associations (Complaints and Discipline) Code.

2. Term used: Council

In this Code —

Council means the Professional Standards Council established by the Professional Standards Act 1997.

3. Actions that may be the subject of complaint

(1) 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.

(2) 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 can make complaint

Any person may make a complaint (including the occupational association and the Council).

5. How complaint is made

(1) A complaint may be made to the occupational association.

(2) The complaint must be in writing and contain the particulars of the allegations on which it is founded.

(3) 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 complaint is made

(1) 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.

(2) The occupational 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;

(e) it may conduct a hearing into the complaint.

7. What action may be taken after a hearing into complaint

(1) 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 relating to the carrying out of the occupation of the person;

(c) require the person to complete specified courses of training or instruction;

(d) require the person to report concerning the carrying out of his or her occupation at the times, in the manner and to the persons specified by the occupational association;

(e) order the person to obtain advice concerning the carrying out of his or her occupation from such persons as are specified by the occupational association;

(f) expel the person from membership of the occupational association.

(2) If the occupational association does not find the complaint substantiated, it must dismiss the complaint.

(3) The occupational association is not entitled to make an award of compensation.

8. Notices of decisions

(1) 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.

(2) The statement must include the reasons for the decision.

9. Rights of representation of parties to complaint

The complainant and the person against 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 occupational association performs functions under this Code

A function of an occupational association under this Code may, in accordance with a resolution of the occupational association, be performed by the executive body of the occupational association or by a person or persons appointed by that resolution for the purpose.

11. Protection from liability

A matter or thing done or omitted by the occupational association or a person acting in accordance with a resolution of the occupational association does not subject 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.

[Clause 11 amended: No. 25 of 2004 s. 25.]

Schedule 4 — Savings, transitional and other provisions

[s. 58]

[Heading inserted: No. 25 of 2004 s. 26.]

Division 1 — Provisions relating to the Professional Standards Amendment Act 2004

[Heading inserted: No. 3 of 2010 s. 29(2).]

1. Terms used

In this Division —

amending Act means the Professional Standards Amendment Act 2004;

commencement means the commencement of the amending Act 1.

[Clause 1 inserted: No. 25 of 2004 s. 26; amended: No. 3 of 2010 s. 29(3).]

2. Review of schemes

Section 29, as inserted by the amending Act, extends to apply in respect of schemes in force at the commencement.

[Clause 2 inserted: No. 25 of 2004 s. 26.]

3. Limitation of damages in respect of subsisting causes of action

(1) Sections 34, 35 and 36, as in force immediately before the commencement, continue to apply in respect of any cause of action that arose before the commencement as if those amendments had not been made, except as provided by subclause (2).

(2) The amendments to sections 34, 35 and 36 made respectively by sections 13(b), 14(c) and 15(1)(b) of the amending Act apply in relation to a cause of action arising before as well as after the commencement.

(3) Section 41, as in force immediately before its repeal by the amending Act, continues to apply in respect of any cause of action arising from anything done or omitted before its repeal.

[Clause 3 inserted: No. 25 of 2004 s. 26.]

4. Determination of extent of limitation of damages

The amendments made by the amending Act to section 39 do not apply in respect of a determination made under that section before those amendments took effect.

[Clause 4 inserted: No. 25 of 2004 s. 26.]

5. Fees for applications for approval of amendment to or revocation of scheme

For the avoidance of doubt, section 55, as in force immediately before the commencement of the amending Act, is to be taken always to have empowered the prescription by regulation of any fee that might be prescribed under that section as in force after the commencement.

[Clause 5 inserted: No. 25 of 2004 s. 26.]

6. Regulations for savings or transitional purposes

(1) Regulations made under section 55 may contain provisions of a savings or transitional nature consequent on the enactment of the amending Act.

(2) If regulations made under subclause (1) provide that a state of affairs specified or described in the regulations is to be taken to have existed, or not to have existed, at and from a day that is earlier than the day on which the regulations are published in the Gazette but not earlier than the day on which the amending Act is assented to, the regulations have effect according to their terms.

(3) If regulations contain a provision referred to in subclause (2), the provision does not operate so as to —

(a) 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 day of publication of those regulations; or

(b) 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 day of publication of those regulations.

[Clause 6 inserted: No. 25 of 2004 s. 26; amended: No. 3 of 2010 s. 29(4).]

Division 2 — Provisions relating to the Professional Standards Amendment Act 2010

[Heading inserted: No. 3 of 2010 s. 29(5).]

7. Terms used

In this Division —

amending Act means the Professional Standards Amendment Act 2010;

commencement day means the day mentioned in the amending Act section 2(b) 1.

[Clause 7 inserted: No. 3 of 2010 s. 29(5).]

8. Personal injury claims

Section 5, as in force immediately before commencement day, continues to apply to a cause of action that arose before commencement day.

[Clause 8 inserted: No. 3 of 2010 s. 29(5).]

9. Application of schemes to officers, partners, employees and associates

Section 34A, as in force on and from commencement day, does not apply to a cause of action that arose before commencement day.

[Clause 9 inserted: No. 3 of 2010 s. 29(5).]

10. Associated defendants

The application of section 42, as in force on and from commencement day, extends to a cause of action that arose before commencement day but not so as to affect any decision of a court, or any compromise or settlement made before commencement day.

[Clause 10 inserted: No. 3 of 2010 s. 29(5).]

11. Expiry date of existing schemes

Any period determined by the Council under section 44A(1), as in force before commencement day, as the period for which a scheme is to remain in force is to be taken to be specified in the scheme.

[Clause 11 inserted: No. 3 of 2010 s. 29(5).]

12. Application of clause 6

The provisions of clause 6 apply in relation to the amending Act as if those provisions were part of this Division.

[Clause 12 inserted: No. 3 of 2010 s. 29(5).]

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Notes

1 This is a compilation of the Professional Standards Act 1997 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.

Compilation table

2 On 15 July 2001 the Corporations (Western Australia) Act 1990 was superseded by the Corporations Act 2001 of the Commonwealth, see Part 2 of the Corporations (Ancillary Provisions) Act 2001.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

amending Act Sch. 4 cl. 1, Sch. 4 cl. 7

another jurisdiction 4(1)

appropriate Council 4(1)

associate 34A(1)

business assets 4(1)

commencement Sch. 4 cl. 1

commencement day Sch. 4 cl. 7

corresponding law 4(1)

costs 4(1)

Council 4(1), Sch. 3 cl. 2

court 4(1)

damages 4(1)

document 18(4)

information 18(4)

interstate scheme 4(1)

judgment 4(1)

limitation amount 36(1)

limitation on liability 34A(5)

occupational association 4(1)

occupational group 4(1)

occupational liability 4(1)

officer 31(4), 34A(1), 42(4)

partner 4(1)

partner, officer, employee or associate of a member 34A(4)

principal cause of action 34A(2)

related cause of action 34A(3)

scheme 4(1), 28(1A)

this jurisdiction 4(1)