This Act lets occupational associations set up approved schemes that limit members' civil liability for professional work by imposing monetary ceilings, subject to conditions such as insurance, business assets or fee‑based formulas. It establishes a Professional Standards Council to approve, monitor and review schemes, require risk‑management, run compliance audits and handle complaints. Professionals bear insurance, compliance and possible audit costs; the Council may charge fees and the Minister authorises publication and can require amendments. Key exclusions include personal injury, fraud, breach of trust and intentional torts.
This Act establishes a statutory framework allowing occupational associations to create schemes that limit the civil (non‑criminal) liability of their members for occupational acts and omissions, subject to specified procedural, substantive and public‑interest constraints. It creates the Professional Standards Council (the Council) to supervise scheme preparation, approve or review schemes, monitor occupational standards and risk management, and assist with complaints and discipline regimes (ss 3, 8, 43, 47). The Act sets out the permitted methods by which a scheme may limit liability: by requiring specified insurance cover up to a monetary ceiling (s 24), by reference to the value of business assets (s 25), or by limiting damages to a multiple of reasonable charges for the work (s 26), with rules for combining those methods (s 28). A scheme may apply to all members of an occupational association or to particular classes; it can also operate as an interstate scheme under corresponding law (ss 20, 8(1A), s 4 definitions).
Mechanically, the Act requires public notification and consultation before the Council decides whether to approve a scheme (ss 9-11). The Council considers submissions, the position of persons who may be affected, the nature and level of claims, the association’s risk‑management strategies and insurance availability and costs (s 11). If approved by the Council and submitted to the Minister, the Minister may authorise publication of the scheme in the Gazette, which triggers commencement rules (ss 13-15). A person affected may challenge compliance with the Act in the Supreme Court prior to commencement (s 16). The Act also provides processes for amendment, review and revocation of Tasmanian and interstate schemes (ss 17-19B).
The Act sets substantive limits and exclusions. It cannot be used to limit liability for death or personal injury, fraud, intentional torts, breach of trust, and certain legal practitioner negligence in personal injury claims (s 5(1)). A scheme cannot reduce a person’s damages below a specified relevant limit for the claim (not less than $500,000 as the statutory floor) (s 29). The scheme’s protection will not bind a client if the professional did not inform the client or give prescribed statement documents before the relevant act or omission (s 31(2), s 36). The Act enables occupational associations to mandate insurance for members, set standards for insurance, monitor claims and require members to comply with risk‑management strategies (ss 37-41). The Council and the Minister retain supervisory and intervention powers, including review directions (s 17), requirements to provide information (s 48) and the power to institute proceedings for offences (s 47(1)(j)).
Current sections
Direct links to the current provisions in Professional Standards Act 2005.
The provisions of this Act commence on a day or days to be proclaimed.
3
Objects of Act
3 Objects of 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 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.
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;
(a) a law of another jurisdiction that corresponds to this Act; and
(b) a law of another jurisdiction that is prescribed by the regulations to be a corresponding law;
costs includes fees, charges, disbursements and expenses;
Council means the Professional Standards Council established by this Act;
court includes a tribunal and an arbitrator;
damages means –
(a) damages awarded in respect of a claim or counter-claim or 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 judgement or incurred on an appeal made by a defendant); and
(c) any interest payable on the amount of those damages or costs;
exercise of a function includes, where the function is a duty, the performance of the duty;
(a) has been prepared under a corresponding law; and
(b) operates, or indicates an intention to operate, as a scheme of Tasmania;
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 to be done by a member of an occupational association acting in the performance of his or her occupation;
partner means a person who has entered into a partnership, within the meaning of the Partnership Act 1891 , with another person;
(2) A reference in this Act to the amount payable under an insurance policy in respect of an occupational liability includes a reference to –
(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 or excess.
5
Application of Act
5 Application of Act
(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;
(3) This Act does not apply to any cause of action arising under, or with respect to, a contract, or contractual relations, entered into before the commencement of this Act (whether or not the action lies in contract) unless the parties, after the commencement of this Act, vary the relevant contract so as to make express provision for the application of this Act.
(a) entered into by a member of a scheme approved under section 8 if that member entered into the contract or contractual relations after the commencement of this Act but before that scheme commenced; or
(b) entered into by a person before that person became a member of a scheme that, at the time the person became a member, had commenced –
unless the parties, after the commencement of the scheme, vary the relevant contract, or relevant contractual relations, so as to make express provision for the application of this Act.
(1) If a provision made by or under Part 3 , 4 or 5 or Schedule 1 is inconsistent with a provision made by or under any other Act, that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect.
(2) Except as provided by subsection (1) , this Act has effect despite any law to the contrary.
7
Act binds Crown
7 Act binds Crown
(1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
(2) Nothing in this Act makes the Crown in any of its capacities liable to be prosecuted for an offence.
Part 2
Limitation of liability
Part 2 Limitation of liability
Division 1
Making, amendment and revocation of schemes
Division 1 Making, amendment and revocation of schemes
8
Preparation and approval of schemes
8 Preparation and approval of schemes
(1) An occupational association may prepare a scheme.
(1) Before deciding whether to approve a scheme, the Council must publish a notice in all daily newspapers published in Tasmania –
(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 28 days after publication of the notice.
(2) If a scheme indicates an intention to operate as a scheme of both Tasmania and another jurisdiction, the Council must also publish a similar notice in the other jurisdiction in accordance with the corresponding law of that jurisdiction that relates to approval of a scheme prepared in that jurisdiction.
10
Making of comments and submissions concerning schemes
10 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 9 .
(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.
11
Consideration of comments, submissions and other matters
11 Consideration of comments, submissions and other matters
(1) Before deciding whether to approve a scheme, the Council must consider the following:
(a) all comments and submissions made to it in accordance with section 10 ;
(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 30 ) determined by the occupational association concerned in relation to insurance policies;
(h) the provisions contained in the proposed scheme or under statute for the making and determination of complaints and the imposition and enforcement of disciplinary measures against members of the occupational association concerned.
(2) If a scheme indicates an intention to operate as a scheme of both Tasmania and another jurisdiction –
(a) the Council must also consider any matter that the appropriate council for that 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 other jurisdiction; and
(b) the matters to be considered by the Council, whether under subsection (1) or under paragraph (a) of this subsection, are to be considered in the context of each jurisdiction concerned.
12
Public hearings
12 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.
13
Submission of schemes to Minister
13 Submission of schemes to Minister
(1) The Council may submit a scheme approved by it to the Minister.
(2) At the same time as the Council submits a scheme to the Minister, the Council is to provide the Minister with a summary of the Council's reasons for approving the scheme.
(4) The Minister does not incur any liability for or in respect of a scheme in consequence of its authorisation, commencement, continued operation, amendment or revocation.
15
Commencement of schemes
15 Commencement of schemes
(1) A scheme published in the Gazette with the authorisation of the Minister commences –
(1) A person who is, or is reasonably likely to be, affected by a scheme published as referred to in section 14 may, at any time before the scheme commences, 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 or at any time after the making of the application, order that the commencement of the scheme be 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.
(4) [Section 16 Subsection (4) inserted by No. 49 of 2016, s. 12, Applied:24 Nov 2016] 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 the scheme was prepared that relate to the contents of schemes prepared in that jurisdiction.
(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 Tasmania.
(4) Without limiting subsection (2) , the Council may review the operation of a scheme that relates to the members of an occupational association if the association proposes under section 30 an alteration in the standards applying in relation to an insurance policy or kind of insurance policy that would, in the opinion of the Council, result in less stringent standards.
(5) The Council may recover the cost of any review of a scheme under this section from the occupational association to whose members the scheme relates as a debt due to it from that occupational association.
18
Amendment of Tasmanian schemes
18 Amendment of Tasmanian schemes
(1) An occupational association may prepare an amendment to a scheme that relates to its members.
(2) The Council may, on the application of an occupational association, approve an amendment to a scheme that relates to the members of the association.
(3) The Minister may direct an occupational association to prepare an amendment to a scheme if the Minister considers that the scheme no longer meets the objects of this Act.
(4) If the Minister directs an occupational association to prepare an amendment to a scheme under subsection (3) , the association must do so within a reasonable time.
(5) If the Minister considers that the occupational association has not prepared an amendment to a scheme within a reasonable time, the Minister may revoke the scheme.
(6) If an amendment to a scheme is prepared by an occupational association as a result of a direction from the Minister, the occupational association must submit the amendment to the Council for approval and the Council, if it is satisfied that the amendment complies with this Act and the Minister's direction, must approve the amendment.
(7) The provisions of sections 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 and 16 apply, with any necessary modifications, to the amendment of a scheme as well as to the making of a scheme.
(1) An occupational association may prepare the revocation of a scheme that relates to its members.
(2) The Council may, on the application of an occupational association, approve the revocation of a scheme that relates to the members of the association.
(3) The Council may, on its own initiative, at any time while a scheme remains in force, prepare and approve the revocation of the scheme if satisfied that the scheme no longer meets the objects of this Act.
(4) [Section 19 Subsection (4) inserted by No. 49 of 2016, s. 15, Applied:24 Nov 2016] If a scheme prepared under this Act indicates an intention to operate in both Tasmania and another jurisdiction and is revoked under this section, the Council must give notice of the revocation to the Minister administering the corresponding law of that jurisdiction.
Publication of revocation of interstate scheme under corresponding law
19A Publication of revocation of interstate scheme under corresponding law
[Section 19A Inserted by No. 49 of 2016, s. 16, Applied:24 Nov 2016] If the Minister is notified that an interstate scheme has been revoked under the corresponding law of the jurisdiction in which the scheme was prepared, the Minister must cause notice of that revocation to be published in the Gazette.
19B
Termination of operation of interstate scheme in Tasmania
19B Termination of operation of interstate scheme in Tasmania
(1) On the application of an occupational association, the Council may prepare an instrument terminating the operation, in Tasmania, of an interstate scheme that relates to the members of the association.
(2) The Minister may direct the Council to prepare an instrument terminating the operation, in Tasmania, of an interstate scheme.
(3) The Council must comply with a 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, in Tasmania, of the scheme.
(4) The provisions of sections 9 , 10 , 11 , 12 , 13 , 14 , 15 and 16 apply, with any necessary modifications, to the termination, in relation to Tasmania, of an interstate scheme.
(5) The operation of an interstate scheme in respect of which an instrument under this section is published under section 14 (as applied by subsection (4) ) is terminated, in relation to Tasmania –
(a) on such day later than the publication of the instrument as may be specified in the instrument; or
(b) if no such day is specified in the instrument, at the end of the period of 2 months commencing on the day of the publication of the instrument.
Division 2
Contents of schemes
Division 2 Contents of schemes
20
Persons to whom scheme applies
20 Persons to whom scheme applies
(1) A scheme may provide that it applies to –
(a) all persons within an occupational association; or
(b) a specified class or specified classes of persons within an occupational association; or
(c) specified occupational associations within a specified industry.
(2) A scheme may provide that the occupational association concerned may, on application by a person, exempt the person from the scheme.
(3) If a person is exempted from a scheme, the person is exempted from the whole of the scheme.
(4) A scheme ceases to apply to a person exempted from the scheme as referred to in subsection (2) –
(a) on and from the date on which the exemption is granted; or
(b) on and from a later date specified in the exemption.
Officers or partners of persons to whom scheme applies
21 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) In this section –
officer –
(a) in relation to a body corporate that is a corporation within the meaning of the Corporations Act, has the same meaning as in section 9 of that Act; and
(b) in relation to a body corporate that is not a corporation within the meaning of that Act, means any person (by whatever name called) who is concerned in or takes part in the management of the body corporate.
22
Employees of persons to whom scheme applies
22 Employees of persons to whom scheme applies
If a scheme applies to a person, the scheme also applies to each employee of the person.
23
Other persons to whom scheme applies
23 Other persons to whom scheme applies
If persons are prescribed by the regulations for the purposes of section 32(4) as being associated with persons to whom a scheme applies, the scheme also applies to the prescribed persons.
24
Limitation of liability by insurance arrangements
24 Limitation of liability by insurance arrangements
(a) the person has the benefit of an insurance policy insuring the 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 –
the person is not liable in damages in relation to that cause of action above the amount of that monetary ceiling.
25
Limitation of liability by reference to amount of business assets
25 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 proceeding relating to occupational liability is brought is able to satisfy the court –
(a) [Section 25 Amended by No. 43 of 2006, s. 51, Applied:18 Dec 2006] 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 class of person and the kind of work to which the cause of action relates; or
(b) that –
(i) the person has business assets and the benefit of an insurance policy that insures the person against that occupational liability; and
(ii) [Section 25 Amended by No. 43 of 2006, s. 51, Applied:18 Dec 2006] 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 –
the person is not liable in damages in relation to that cause of action above the amount of the monetary ceiling so specified.
26
Limitation of liability by multiple of charges
26 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 –
(a) that the person has the benefit of an insurance policy –
(i) that insures the person against that occupational liability; and
(ii) [Section 26 Subsection (1) amended by No. 43 of 2006, s. 52, Applied:18 Dec 2006] 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 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 class of person and the kind of work to which the cause of action relates; or
(b) that the person has business assets the net current market value of which is not less than the limitation amount; or
(c) that –
(i) the person has business assets and the benefit of an insurance policy that insures the person against that occupational liability; and
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 the 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.
27
Specification of different limits of liability
27 Specification of different limits of liability
A scheme –
(a) may 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) [Section 27 Amended by No. 49 of 2016, s. 17, Applied:24 Nov 2016] may 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 a specified class of cases.
Combination of provisions under sections 24 , 25 and 26
28 Combination of provisions under sections 24 , 25 and 26
If, in a scheme, provisions of the kind referred to in section 26 and provisions of the kind referred to in section 24 or 25 (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 26 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 24 or 25 .
29
Liability that cannot be limited by scheme
29 Liability that cannot be limited by scheme
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 specified in the scheme.
29A
Liability in damages not reduced to below relevant limit
29A Liability in damages not reduced to below relevant limit
[Section 29A Inserted by No. 43 of 2006, s. 53, Applied:18 Dec 2006] 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 required or 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.
30
Insurance to be of requisite standard
30 Insurance to be of requisite standard
(1) 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.
(2) While a scheme remains in force relating to its members, if an occupational association proposes to alter the standards previously determined by it in relation to an insurance policy or a kind of insurance policy, it must do so by way of an amendment to the scheme in accordance with the provisions of section 18 .
Division 3
Effect of schemes
Division 3 Effect of schemes
31
Limit of occupational liability by schemes
31 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) A scheme does not limit the liability of a person (the "professional") to another person (the "client") if, at no stage before the time of the relevant act or omission, did the professional –
(a) give, or cause to be given, to the client a document that carried a statement of a kind referred to in section 36(1) ; or
(b) otherwise inform the client, whether orally or in writing, that the professional's liability was limited in accordance with this Part.
(3) Subsection (2) does not affect any limitation of the liability of a professional to a person other than the client.
(4) The applicable limitation of liability is the limitation specified by the scheme as in force at the time of the relevant act or omission.
(5) 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 of action arises or proceedings are brought in respect of it, and even if the scheme has been amended or has, in accordance with section 35 , ceased to be in force.
(6) 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 20(2) .
32
Limitation of amount of damages
32 Limitation of amount of damages
(1) 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) Separate claims by two or more persons who have a joint interest in a cause of action founded on the same act or omission are to be treated as a single claim for the purposes of this Act.
(3) Two or more claims of the same type 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 persons are to be treated as a single claim for the purposes of this Act.
(4) Persons are associated if they are –
(a) officers of the same body corporate (within the meaning of section 21 ); or
(b) partners, employees of the same employer or in the relationship of employer and employee; or
(c) persons who are prescribed by the regulations for the purposes of this subsection.
33
Effect of scheme on other parties to proceedings
33 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.
(a) the expiration of the period specified in the scheme in accordance with subsection (1) or, if that period has been extended under subsection (2) , the expiration of that extended period;
(b) the scheme is revoked;
(c) the scheme's operation ceases because of the operation of another Act;
(d) the scheme is declared void by –
(i) an order made by the Supreme Court under section 16 ; or
(ii) an order made by the Supreme Court of another jurisdiction under the corresponding law of that jurisdiction;
(a) the expiration of the period for which the scheme is in force under the corresponding law of the other jurisdiction in which the scheme was prepared or, if that period has been extended under that corresponding law, the expiration of that extended period;
(b) the scheme otherwise ceases to have effect in that other jurisdiction;
(c) the scheme's operation in relation to Tasmania has been terminated under this Act;
(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.
(4) [Section 35 Subsection (4) inserted by No. 49 of 2016, s. 19, Applied:24 Nov 2016] If the Minister under subsection (2) extends the period for which a scheme is in force and that scheme indicates an intention to operate as a scheme of both Tasmania and another jurisdiction, the Minister is to notify the Minister administering the corresponding law of that other jurisdiction of that extension.
(5) [Section 35 Subsection (5) inserted by No. 49 of 2016, s. 19, Applied:24 Nov 2016] If the Minister is notified that the period for which an interstate scheme is in force has been extended under the corresponding law of the jurisdiction in which the scheme was prepared, the Minister must cause notice of that extension to be published in the Gazette.
36
Notification of limitation of liability
36 Notification of limitation of liability
(1) If the occupational liability of a person is limited in accordance with this Part, the person must ensure that all documents (other than business cards) given, or caused to be given, by the person to a client or prospective client that promote or advertise the person or the person's occupation, including official correspondence ordinarily used by the person in the performance of the person's occupation and similar documents, carry a statement indicating that the person's liability is so limited.
Penalty: Fine not exceeding 50 penalty units.
(2) The regulations may prescribe a form of statement for the purposes of this section.
(3) A person does not commit an offence against subsection (1) if the statement carried on the person's documents is in the prescribed form.
(4) If the occupational liability of a person is limited in accordance with this Part, the person must ensure that a copy of the scheme concerned is given, or caused to be given, to any client or prospective client who requests a copy.
Penalty: Fine not exceeding 50 penalty units.
Part 3
Compulsory insurance
Part 3 Compulsory insurance
37
Occupational association may compel its members to insure
37 Occupational association may compel its members to insure
(1) An occupational association may require its members to hold insurance against occupational liability and, if it does so, the requirement must be stated in the scheme.
(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.
38
Monitoring claims
38 Monitoring claims
(1) An occupational association may establish a claims 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 minimising claims for occupational liability.
(4) A committee may request an insurer to give it any information or a copy of any document that the committee considers will assist it in carrying out its functions.
Part 4
Professional Standards and Risk Management
Part 4 Professional Standards and Risk Management
39
Risk management strategies
39 Risk management strategies
(1) If, under section 8 , an occupational association seeks the approval of the Council to a scheme, it must furnish the Council with –
(a) a detailed list of the occupational standards and 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 of the occupational association or otherwise.
(3) The strategies are to apply in addition to other statutory requirements and must not be inconsistent with them.
40
Reporting
40 Reporting
(1) An occupational association must provide information to the Council concerning its occupational standards and risk management strategies if requested to do so by the Council.
(2) An occupational association must provide an annual report to the Council and, if requested by the Minister, to the Minister 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) An occupational association's annual report must include details of any findings made, or conclusions drawn, by a committee established by it (whether solely or jointly with another association or 2 or more other associations) under section 38 .
(4) The occupational association's annual report is to be incorporated into the Council's annual report in such form as the Council determines.
41
Compliance audits
41 Compliance audits
(1) An audit (a "compliance audit") of the compliance of members, or of specified members or a specified class or classes of members, of an occupational association with the association's occupational standards and risk management strategies –
(a) may be conducted at any time by the Council or the association; and
(b) must be conducted by the association if requested to do so by the Council.
(2) If a compliance audit is conducted by the Council –
(a) the occupational association must give, and ensure that its members give, the Council any information or a copy of any document that the Council reasonably requests in connection with the conduct of the audit; and
(b) the Council must provide a copy of a report of the audit to the association and, if requested by the Minister, to the Minister; and
(c) the Council may recover the costs of the compliance audit from the occupational association.
(3) If a compliance audit is conducted by the occupational association, it must provide a copy of a report of the audit to the Council and, if requested by the Minister, to the Minister.
Part 5
Complaints and disciplinary matters
Part 5 Complaints and disciplinary matters
42
Occupational Associations (Complaints and Discipline) Code
42 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) To the extent to which the provisions of the Model Code are covered by statutory provisions, a scheme is not required to adopt those provisions in the Code.
(3) 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 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 exchanging of information with other occupational associations (within or outside Tasmania).
Part 6
The Professional Standards Council
Part 6 The Professional Standards Council
43
Establishment of Council
43 Establishment of Council
(1) The Professional Standards Council is established by this Act.
(2) The Council –
(a) is a body corporate with perpetual succession; and
(b) has a common seal; and
(c) may sue and be sued in its corporate name; and
(d) may acquire, hold and dispose of real and personal property; and
(e) may do and suffer all acts and things that a body corporate may by law do and suffer.
(3) All courts must take judicial notice of the common seal of the Council affixed to a document and, until the contrary is proved, must presume that it was duly affixed.
(4) The common seal of the Council must be kept in such custody as the Council directs and must not be used except as authorised by the Council.
44
Membership of Council
44 Membership of Council
(1) 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.
(2) An act or decision of the Council is not invalid merely because of –
(a) a defect or irregularity in, or in connection with, the appointment of a member; or
(b) a vacancy in the membership of the Council, including a vacancy arising from the failure to appoint an original member.
45
Provisions relating to members of Council
45 Provisions relating to members of Council
Schedule 2 has effect with respect to the members of the Council.
46
Provisions relating to procedure of Council
46 Provisions relating to procedure of Council
Schedule 3 has effect with respect to the procedure of the Council.
47
Functions of Council
47 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; and
(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 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 members of occupational groups;
(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 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 occupational 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) Subject to subsection (3) , the Council may do all things necessary or convenient to be done in connection with the performance of its functions and, in particular, may charge fees to an occupational association for approving schemes and generally for any services provided by the Council.
(3) The Council is not empowered to give advice concerning occupational standards contained in any other Act or statutory rule.
(4) Any advice given to the Minister by the Council may be given either at the request of the Minister or without any such request.
(5) The Council has such other functions as are conferred or imposed on it by or under this or any other Act.
(6) 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.
47A
Cooperation with authorities in other jurisdictions
47A Cooperation with authorities in other jurisdictions
(a) in the exercise of its functions under this Act, may act in conjunction with the appropriate council of the other jurisdiction; and
(b) may act in conjunction with the appropriate council of the other jurisdiction in the exercise of that Council's functions under the corresponding law of that jurisdiction.
Division 4
Miscellaneous
Division 4 Miscellaneous
48
Requirement to provide information
48 Requirement to provide information
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 to a scheme under section 8 , or to an amendment to or revocation of a scheme –
to provide information to it which it may reasonably require in order to exercise its functions.
49
Referral of complaints
49 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 36 or an offence against the regulations.
(2) An occupational association must provide information to the Council on –
(a) any complaint or other evidence covered by subsection (1) that it did not refer to the Council; and
(b) particulars of any action taken by it in respect of any such complaint or other evidence and of the outcome of that action.
(3) 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.
50
Committees of Council
50 Committees of 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.
51
Engagement of consultants
51 Engagement of consultants
The Council, or a committee established under section 50 , may engage as consultants to it persons with suitable qualifications and experience either in an honorary capacity or for remuneration.
52
Accountability of Council
52 Accountability of Council
(1) The Council must exercise its functions subject to –
(a) the general direction and control of the Minister; and
(b) any specific written directions given to it by the Minister.
(2) Without limiting subsection (1)(b) , a direction under that subsection may require the Council to give the Minister, or provide the Minister with access to, information in its possession about a matter or class of matter specified in the direction.
(3) If the Council is given a written direction under subsection (1)(b) –
(a) the Minister may cause the direction to be published in the Gazette; and
(1) Subject to section 27(b) , this Act applies in relation to a person to whom a scheme in force under this Act applies despite any contract to the contrary made on or after the date on which the person became a person to whom the scheme applies.
(2) This section applies to an interstate scheme, in relation to its operation in Tasmania, whether or not contracting out is permitted under the corresponding law applying to the interstate scheme in another jurisdiction.
56
No limitation on other insurance
56 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.
57
Regulations
57 Regulations
(1) The Governor may make regulations for the purposes of this Act.
(2) The regulations may be made so as to apply differently according to such factors as are specified in the regulations.
(3) The regulations may authorise any matter to be from time to time determined, applied or regulated by any person or body specified in the regulations.
3. What actions may be the subject of a 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 may make a complaint?
Any person may make a complaint (including the occupational association and the Council).
5. How is a complaint 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 a 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 (because, for example, the complaint is frivolous, vexatious, misconceived or lacking in substance);
(e) it may conduct a hearing into the complaint.
(3) The occupational association is bound by the rules of natural justice in the conduct of a hearing into the complaint.
7. What action may be taken after a hearing into a 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 person's occupation;
(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. What rights of representation do parties to a complaint have?
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 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 by that resolution for the purpose.
11. Immunity
(1) A member of the executive body of an occupational association or a person acting in accordance with a resolution of an occupational association is not personally liable for anything done or omitted to be done in good faith –
(a) for the purpose of implementing this Code; or
(b) in the reasonable belief that the act or omission was for the purpose of implementing this Code.
(2) Any liability resulting from an act or omission that, but for subclause (1) , would attach to a person attaches instead to the occupational association.
SCHEDULE 2 - Provisions relati
SCHEDULE 2 - Provisions relating to members of council
SCHEDULE 2 - Provisions relati SCHEDULE 2 - Provisions relating to members 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 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.
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 reappointment.
4. Vacancy in office of member
(1) The office of a member becomes vacant if the member –
(a) resigns the office by instrument in writing addressed to the Minister; or
(b) is removed from office by the Minister under this clause; or
(c) 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 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
(d) becomes an insolvent under administration within the meaning of the Corporations Act; or
(f) is convicted in Tasmania of an offence that is punishable by imprisonment for life or for a term of 12 months or more, or is convicted elsewhere than in Tasmania of an offence that, if committed in Tasmania, would be an offence so punishable.
(2) The Minister may remove a member from office for incompetence or misbehaviour.
5. 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 for the remainder of the member's term of office.
6. Effect of certain other Acts
(1) The State Service Act 2000 does not apply to a member in respect of the office of 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; or
(b) prohibiting the person from engaging in employment outside the duties of that office –
does 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.
7. Immunity
(1) A member, a deputy of a member or any person acting under the direction of the Council or of a member or a deputy of a member is not personally liable for anything done or omitted to be done in good faith –
(a) in the exercise of a function under this Act; or
(b) in the reasonable belief that the act or omission was in the exercise of a function under this Act.
(2) Any liability resulting from an act or omission that, but for subclause (1) , would attach to a person attaches instead to the Council.
SCHEDULE 3 - Provisions relati
SCHEDULE 3 - Provisions relating to procedure of council
SCHEDULE 3 - Provisions relati SCHEDULE 3 - Provisions relating to procedure of council
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 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 he or she thinks fit.
Source text: opening excerpt
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
1 Short title
1 Short title
This Act may be cited as the Professional Standards Act 2005 .
2 Commencement
2 Commencement
The provisions of this Act commence on a day or days to be proclaimed.
3 Objects of Act
3 Objects of 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 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 Interpretation
4 Interpretation
[Section 4 Substituted by No. 43 of 2006, Applied:18 Dec 2006]
(1) In this Act, unless the contrary intention appears –
[Section 4 Subsection (1) amended by No. 49 of 2016, s. 4, Applied:24 Nov 2016]another jurisdiction means any State or Territory, other than this jurisdiction;
[Section 4 Subsection (1) amended by No. 49 of 2016, s. 4, Applied:24 Nov 2016]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;
The statutory design distributes costs and decision rights: occupational associations prepare schemes and risk‑management strategies and often require members to bear insurance premiums and compliance costs; the Council decides approval, monitors compliance and can recover certain costs from associations (ss 47(2), 17(5), 41(2)(c)). The Minister authorises Gazette publication and may direct amendments or revocation where schemes no longer meet the Act’s objects (ss 14, 18). The Act binds the Crown but preserves that the Crown is not liable to be prosecuted for an offence under the Act (s 7).
Main concepts
Definitions and limits are central. The Act defines core terms and the scope of “occupational liability” (s 4). Occupational liability is civil liability arising directly or vicariously from acts or omissions of a member acting in performance of their occupation (s 4). The “scheme” is a statutory instrument prepared under the Act (or a corresponding law) that specifies how liability is limited; a scheme may be Tasmanian only or indicate an intention to operate in multiple jurisdictions (ss 4, 8(1A)). “Business assets” are defined as property used in the performance of the occupation and capable of being taken in judgment enforcement (s 4). “Damages” includes awards, related costs (other than enforcement or defendant appeals), and interest (s 4(1)).
Permitted forms of limitation:
Insurance ceiling model (s 24). Protection applies if the defendant can satisfy the court they have insurance where the amount payable under the policy is at least the monetary ceiling specified in the scheme. The policy must meet standards set by the association (s 30).
Business‑asset model (s 25). Protection applies where business assets’ net current market value meets or exceeds the monetary ceiling, or a composite of assets plus insurance combined meets it.
Multiple‑of‑charges model (s 26). Protection is a multiple of a “reasonable charge” for the services (the limitation amount), possibly subject to a minimum cap determined by the Council. The court must have regard to actual amounts charged and to industry scales or what a competent person would charge (s 26(2)).
Combination rules require that if s 26 provisions and s 24 or s 25 provisions both apply, damages are to be determined under s 26 but capped by the monetary ceiling in s 24 or s 25 (s 28). Schemes may specify different limits for different classes or circumstances, and associations may have discretion to permit higher amounts for individual applicants (s 27).
Scope and exclusions:
Excluded liabilities: death or personal injury, certain legal practitioner negligence in PI claims, breach of trust, fraud, dishonesty, intentional torts and liabilities under specified land titles proceedings (s 5(1)-(2)). Contracts entered before commencement are excluded unless expressly varied post‑commencement (s 5(3)-(4)). The Act applies to interstate schemes operating in Tasmania subject to corresponding law provisions (s 5(5), s 35(1B)).
Temporal application: schemes apply to acts or omissions occurring while the scheme is in force, and the applicable limitation is the one in force at the time of the act or omission (s 31(1), (4)-(5)). Schemes generally do not apply retrospectively to contracts made before commencement unless varied (s 5(3)-(4)).
Procedural and supervisory mechanisms:
Notification and consultation: public notices in daily Tasmanian newspapers and similar publicity in other jurisdiction(s) if interstate (s 9). A minimum 28‑day submissions period applies (s 9(1)(c)).
Council assessment criteria: the Council must consider submissions, affected persons’ positions, claims data, association risk management and its implementation, insurance availability and cost, insurance standards, and complaint/disciplinary arrangements (s 11).
Judicial oversight: persons affected may apply to the Supreme Court to void a scheme for non‑compliance prior to commencement; the Court may stay commencement (s 16).
Reporting, audits and compliance: associations must provide risk‑management details and annual reports, and may be audited by the Council or themselves (ss 39-41). The Council may recover audit costs from the association (s 41(2)(c)).
Mandatory member actions:
If a member’s occupational liability is limited under a scheme, they must carry a statement on promotional and client documents (excluding business cards) informing clients their liability is limited; they must provide a copy of the scheme to any client or prospective client who requests it (s 36). Failure attracts a fine up to 50 penalty units (s 36).
Institutional features:
The Council is a corporate statutory body with 11 ministerially appointed members and defined governance provisions (ss 43-46; Schedules 2-3). It may charge fees to occupational associations for approval and services (s 47(2)), institute prosecutions and seek injunctive relief (s 47(1)(j)), and act collaboratively with other jurisdictions’ councils for interstate schemes (s 47A).
Who it affects
Primary affected parties:
Occupational associations. They design and propose schemes, determine insurance standards, set risk‑management strategies, establish complaints and discipline procedures (including adopting the Model Code in Schedule 1), monitor and report, run or participate in compliance audits, and may be required to prepare amendments on Ministerial direction (ss 8, 30, 37-41, 18(3)). The Council can recover certain costs from the association (s 17(5), s 41(2)(c)), and may charge fees for approvals and services (s 47(2)). Associations also bear administrative burden of public consultation and scheme publication processes (ss 9-14).
Members of occupational associations (professionals, tradespeople). Members are the subjects of schemes; they may be required to hold insurance (s 37), comply with risk‑management obligations set by the association (s 39), be subject to disciplinary regimes under scheme provisions (s 42 and Schedule 1), and carry prescribed notification statements on promotional/client documents (s 36). Members bear direct costs: insurance premiums, possible increases in compliance/administration costs, and potential exposure if they fail to comply with scheme procedural duties (s 36).
Clients and prospective clients. Their rights are affected: schemes limit recoverable damages in specified circumstances (ss 24-29). The Act protects clients by excluding personal injury and other specified liabilities from limitation (s 5). Clients have a statutory route to receive a copy of the scheme on request (s 36(4)), and they benefit from the association’s risk management and complaint procedures required or encouraged by the Act (ss 39-42).
Insurers and the insurance market. Schemes create demand for particular insurance forms and standards, and associations may set differing standards for different classes of members (ss 30, 37). The Council must consider availability and cost of insurance when approving schemes (s 11(1)(f)). Insurers are potential information sources for claims committees (s 38(4)) and may be asked to supply claims information to committees.
Courts and litigants. Courts must enforce scheme limitations when the statutory and scheme conditions are met; the Act defines how claims are to be aggregated for limitation purposes (s 32). Parties may contest whether scheme conditions are met in proceedings (for example, whether the defendant has the required insurance or business assets), triggering evidentiary and valuation issues under ss 24-26.
The Professional Standards Council and Minister. The Council is responsible for approval, monitoring and supervision; the Minister authorises Gazette publication, may direct amendments and revoke schemes if objects are not met (ss 14, 18). The Council can initiate prosecutions for offences under the Act or regulations (s 47(1)(j)), and the Minister may direct the Council and requires accountability (s 52).
Secondary impacts and who pays:
Members and associations pay insurance premiums, compliance costs, possible increased administrative costs from risk management and audit requirements. Associations may be charged fees by the Council and reimburse audit or review costs (ss 47(2), 17(5), 41(2)(c)). The state (via the Minister and Council) incurs administrative, oversight and enforcement costs, though the Act authorises the Council to charge fees and recover certain costs from associations, shifting some financial burden to the regulated parties (s 47(2), s 41(2)(c)).
Interjurisdictional implications:
Where schemes operate across jurisdictions (interstate schemes), coordination is required with corresponding laws and appropriate councils in other jurisdictions; the Council may act jointly and must publish notices in other jurisdictions as required (ss 8(1A), 9(2), 11(2), 47A). The Act covers how interstate schemes operate in Tasmania and provides for termination of interstate scheme operation in Tasmania (ss 19A, 19B, 35(1B)).
Key duties and rights
Duties of occupational associations:
Prepare schemes and, where required by the Minister, prepare amendments (ss 8, 18(3)-(6)). Associations must supply the Council with detailed lists of occupational standards and risk‑management strategies and the means of implementation when seeking scheme approval (s 39(1)). Associations may require membership conditions, including compulsory insurance, and may set differing insurance standards for classes of members (s 37). They must provide annual reports to the Council that include implementation and monitoring of risk‑management strategies and findings of claims committees, and those reports feed into the Council’s annual report (s 40). Associations must comply with Council requests for information and with mandatory compliance audits if requested (ss 48, 41(1)(b)).
Duties of members (professionals):
If a member’s liability is limited under a scheme, they must ensure promotional or client documents (other than business cards) carry the prescribed statement that their liability is limited (s 36(1)-(3)). Members must provide a copy of the scheme to any client or prospective client who requests it (s 36(4)). Members must comply with their association’s occupational standards and risk‑management measures where those are imposed as a condition of membership or otherwise (s 39(2)). If the association requires compulsory insurance, members must hold insurance in accordance with scheme provisions (s 37).
Rights of members:
Members benefit from statutory limitation of occupational liability where scheme conditions are met, protecting them above the monetary ceiling or limitation amount defined in the scheme (ss 24-26, 31). A scheme may grant an association discretion to permit an individual higher cap on application (s 27(b)). Members also have access to the association’s complaints and disciplinary framework and natural justice protections under the Model Code if adopted (Schedule 1 clauses 6-8). Members may be exempted from a scheme only in the specific manner prescribed by that scheme (s 20).
Rights of clients:
Clients retain full damages rights in excluded categories (personal injury, fraud, intentional torts, breach of trust, certain legal practitioner negligence in personal injury claims) (s 5). Clients have the right to receive a copy of the scheme on request (s 36(4)), and the client’s ability to take advantage of the scheme’s limitation is contingent on being properly notified where required (s 31(2)). Clients may participate in the consultation process when schemes are publicly notified (ss 9-10).
Council duties and powers:
The Council must consider statutory criteria before approving schemes (s 11). It provides advice to the Minister and associations on insurance and occupational standards, monitors compliance, conducts audits and can institute prosecutions and seek injunctive relief (s 47). The Council may charge fees for approval and services and recover some costs (s 47(2), s 41(2)(c)). It must act subject to Ministerial direction and control, including supplying information to the Minister if so directed, and publish such directions in the Gazette or include them in financial reports (s 52).
Ministerial powers:
The Minister may authorise publication in the Gazette of approved schemes or interstate schemes, causing their commencement procedures to operate and subjecting them to subordinate‑legislation scrutiny (ss 14-15). The Minister may direct associations to prepare amendments where schemes no longer meet the Act’s objects and may revoke schemes if associations fail to act within a reasonable time (s 18(3)-(6)). The Minister can extend scheme duration (s 35(2)) and is involved in interstate coordination (s 19A).
Judicial rights:
Persons affected by a proposed scheme can apply to the Supreme Court to have a scheme declared void for non‑compliance prior to its commencement, and the Court may stay commencement (s 16). Courts are given specific duties in determining the applicable limitation and assessing whether the defendant satisfies the statutory conditions for limitation (ss 24-26, 28).
Other rights and immunities:
Members of occupational association executive bodies and persons implementing the Model Code have statutory immunity for acts done in good faith in implementing the Code (Schedule 1, cl 11). Council members, deputies and persons acting under Council direction have immunity for good faith exercise of functions (Schedule 2, cl 7).
Penalties and enforcement
Statutory offences and penalties in the Act are limited in number but the Act provides institutional enforcement pathways. The clearest offence provision is in relation to notification obligations: a person whose occupational liability is limited under a scheme must ensure required statements appear on documents promoting the person or their occupation and must provide a copy of the scheme to any client or prospective client who requests it; failure to comply attracts a penalty of a fine not exceeding 50 penalty units for each of the two obligations in s 36(1) and s 36(4). The regulations may prescribe the form of statement that satisfies s 36(1) and compliance with that form is a defence to the offence in s 36(3).
Enforcement actors and powers:
The Professional Standards Council may institute proceedings in its own name for the prosecution of an offence against this Act or the regulations that comes to its notice and may seek injunctive or other relief (s 47(1)(j)). The Council is taken to have locus standi for these purposes and is not required to give an undertaking as to damages when seeking interlocutory relief (s 47(1)(j), last sentence).
An occupational association may refer complaints or other evidence that a member has committed an offence under s 36 or the regulations to the Council (s 49(1)). Associations must also notify the Council about complaints or evidence they do not refer and provide particulars of any action taken and outcomes (s 49(2)).
The Council may require an occupational association to provide information by written notice (s 48). Failure to comply with formal information requests could attract regulatory consequences through the Council’s supervisory powers and potentially civil enforcement (the Act authorises recovery of costs, audits and reporting obligations at ss 41, 47, though it does not specify criminal sanctions for non‑cooperation with all such powers).
Courts can be engaged pre‑commencement to declare a scheme void for want of compliance with the Act (s 16). The Court can stay commencement, give directions to remedy defects, or make other orders it thinks fit (s 16(2)-(3)). The Court may not declare an interstate scheme void on the ground that it fails to comply with Division 2 (contents of schemes) , only on the basis a scheme fails to comply with the corresponding law of the jurisdiction in which it was prepared (s 16(4)).
Ministerial oversight includes directions to associations to prepare amendments and the power to revoke schemes where associations fail to comply within a reasonable time (s 18(3)-(6)). The Minister also authorises Gazette publication and is engaged in disallowance and subordinate‑legislation processes (s 14).
Limits and immunities:
The Crown is bound by the Act in right of Tasmania (s 7(1)), but the Crown is not subject to prosecution for an offence under the Act (s 7(2)). Council and association personnel have statutory immunities from personal liability for acts done in good faith in implementing the Code or exercising Council functions (Schedules 1 and 2, cl 11 and cl 7 respectively).
Enforcement costs and burdens:
The Council can recover costs of reviews and compliance audits from the occupational association to whose members the scheme relates (ss 17(5), 41(2)(c)). Associations therefore may bear the financial consequence of enforcement activity. The Council may also charge fees for approving schemes and services provided (s 47(2)), shifting administrative costs to associations.
Regulatory instruments and subordinate law:
The Governor may make regulations under the Act (s 57). The regulations may prescribe forms (including the s 36 statement) and can be tailored to apply differently according to specified factors (s 57(2)). The Act incorporates subordinate‑legislation scrutiny and disallowance mechanisms when schemes are published in the Gazette (s 14(2)-(3) and cross references to the Subordinate Legislation Act and Acts Interpretation Act).
How it interacts with other laws
Priority and inconsistency rules:
Section 6 sets out the relationship to other laws. If a provision made by or under Part 3, Part 4, Part 5 or Schedule 1 of this Act is inconsistent with a provision made by or under any other Act, the other Act prevails and the provision under this Act is of no force to the extent of the inconsistency (s 6(1)). Except for that qualification, the Act has effect despite any law to the contrary (s 6(2)). This creates a specific caveat: some provisions in Parts 3-5 and Schedule 1 are explicitly subject to any other Act that would otherwise prevail.
Exclusions and overlaps:
The Act expressly excludes certain liabilities from being limited by scheme (s 5(1)-(2)), so any other law dealing with those matters (for example workplace safety statutes, criminal law, or statutory compensation schemes) will interact by operating outside the scope of limitation. Where other statutes impose mandatory standards, licensing or disciplinary regimes (for example health practitioner legislation), risk‑management strategies required under this Act must not be inconsistent with those statutory requirements (s 39(3)).
The Act also interacts with contract law: it does not apply to causes of action arising from contracts entered into before the Act’s commencement unless the parties vary the contract to make the Act apply (s 5(3)). Similar protections apply for contracts entered into before a scheme commences (s 5(4)). Section 55 further provides that, subject to limited exceptions, parties cannot contract out of the Act in respect of persons to whom a scheme applies (s 55(1)), meaning private agreement cannot displace statutory liability limitations once the scheme applies.
Interstate and corresponding laws:
The Act contemplates interstate schemes prepared under corresponding laws. Definitions include “interstate scheme” and “appropriate council” and the Act contains provisions for multi‑jurisdictional operation, coordination with appropriate councils in other jurisdictions, and how an interstate scheme operates in Tasmania (s 4 definitions; ss 8(1A), 9(2), 11(2), 47A, 19A, 19B, 35(1B)). For interstate schemes, the Court cannot void the scheme on the ground it fails to comply with Division 2 of this Act if the failure is characterised under the corresponding law of the preparing jurisdiction (s 16(4)). The Minister must publish notices in the Gazette about revocation or extension where notified by the preparing jurisdiction (ss 19A, 35(5)).
Subordinate legislation and Parliamentary oversight:
When the Minister authorises publication of a scheme in the Gazette, the scheme is treated as if it were regulations for certain purposes under the Acts Interpretation Act and Subordinate Legislation Act (s 13(3), s 14(1)-(3)). This subjects schemes to disallowance and parliamentary scrutiny mechanisms applicable to subordinate legislation in Tasmania (s 14(2)-(3), cross references).
Other statutory interfaces:
The Act references other Tasmanian statutes in defining terms and cross‑enforcing processes, for example the Corporations Act definition of “officer” (s 21(3)), the Subordinate Legislation Act provisions applied to schemes (s 13(3)), and the Acts Interpretation Act as to Gazette publication consequences (s 14). The Council’s reporting obligations are to be incorporated in the accountable authority’s financial reports under the Financial Management Act where directions are published (s 52(3)).
Practical consequences of interaction:
Because Parts 3-5 and Schedule 1 defer to other Acts in cases of inconsistency, occupational associations and the Council must review other legislative regimes (licensing, consumer protection, professional registration, workplace compensation laws) to ensure schemes are crafted to avoid inconsistency. The no‑contracting‑out rule limits the ability for private parties to opt out of statutory consequences of schemes (s 55). The Act’s interactional design channels regulatory responsibility primarily to the Council and Minister for approval and oversight while leaving ultimate precedence in specific areas to other laws.
Amendment history
The Act text carries in‑line amendment annotations that indicate several legislative changes over time. The following list extracts the amendment signals present in the text and links them to the sections affected as shown in the source material.
Key amendments and insertions recorded in the Act text:
2006 changes: Section 4 was substituted by No. 43 of 2006, applied 18 Dec 2006 (s 4 header note). Section 24 was substituted by No. 43 of 2006, applied 18 Dec 2006 (s 24 note). Sections 25 and 26 carry amendment notes referencing No. 43 of 2006, applied 18 Dec 2006 (ss 25, 26). Section 29A (liability not reduced below relevant limit) was inserted by No. 43 of 2006, applied 18 Dec 2006 (s 29A). These 2006 amendments appear to have reworked definitions and the mechanism for insurance, business assets and multiples.
2007 change: Section 5(1)(b) was amended by No. 66 of 2007, Schedule 1, applied 31 Dec 2008 (s 5(1) annotation), affecting the exclusion for negligence or other fault of an Australian legal practitioner in acting for a client in a personal injury claim.
2016 changes (consolidated): A substantial number of insertions and amendments are attributed to No. 49 of 2016, applied 24 Nov 2016. These include:
Multiple new or amended definitions in s 4 (e.g. "another jurisdiction", "appropriate council", "interstate scheme", corresponding law etc).
Insertions across scheme procedural provisions: s 8(1A) allowing schemes to indicate intention to operate in multiple jurisdictions; s 9 substitution of public notification provisions; s 11 substituted; s 13(4) insertion; s 14 amendments including subsection (3A); s 15 amendments including subsection (3) and (1) changes; s 16(4) insertion and s 16(5) insertion; s 17 substituted subsection (3); s 18(8) insertion; s 19(4)-(5) insertions; insertion of ss 19A and 19B; s 26 amendments; s 27 amendments; s 28; s 31(5) clarified; s 34 amended; s 35 substituted or extensively amended; s 36 prescriptive changes; s 47A inserted; s 49 amendments; s 52 amendments; s 55 substituted by No. 49 of 2016; s 19 and several other sections likewise updated.
2017 change: Section 52(3) was amended by No. 4 of 2017, Schedule 1, applied 01 Jul 2019, relating to inclusion of Council directions in financial reports under the Financial Management Act (s 52(3) notation).
What the annotations show practically:
The Act has been revised in multiple stages, with substantial structural and interjurisdictional adjustments in 2016 (No. 49/2016). The 2006 reforms (No. 43/2006) altered substantive limitation mechanisms and added the protection that liability is not reduced below relevant limits (s 29A). The 2007 amendment limited the Act’s application to certain legal practitioner negligence in PI claims (s 5(1)(b)). A 2017 technical amendment adjusted accountability reporting (s 52(3)). The specific amendment instruments and dates are those cited within the Act text, and any contemporary practice should be cross‑checked against those amending Acts and their commencement provisions.
Limitation on historical claims in this note:
This section reports only the amendment annotations present within the supplied Act text. It does not attempt to reconstruct amendment debates, salutary history, or secondary instruments beyond the in‑text notes. Practitioners should consult official consolidation and the amending Acts (No. 43 of 2006, No. 66 of 2007, No. 49 of 2016, No. 4 of 2017) for full amendment texts and commencement particulars.
Litigation history
The Act itself, as supplied, does not list case law or judicial determinations. The statutory text provides procedural hooks for judicial review and litigation:
The Supreme Court may be asked to declare a scheme void for want of compliance with the Act and may stay commencement pending litigation (s 16). Courts are involved in adjudicating whether a defendant has met the scheme’s statutory tests for limitation (ss 24-26), and in assessing the value of business assets, insurance amounts, reasonable charges, and proper notification to clients (ss 24-26, 31, 36).
The Council is given locus standi to institute proceedings in its own name for prosecution of offences under the Act and for injunctive or other relief (s 47(1)(j)). The Council is not required to provide an undertaking as to damages for interlocutory relief, which is a procedural feature that affects the Court’s interlocutory litigation landscape (s 47(1)(j), last sentence).
The Act creates a statutory path for judicial determination of pre‑commencement compliance under s 16 and for disputes during substantive litigation about whether scheme conditions are met. However, the text supplied contains no reported decisions or citations to judicial authority.
Practical implication for researchers and practitioners:
To assess how courts interpret and apply the Act’s provisions (for example the meaning of “reasonable charge” in s 26(2), valuation of business assets under s 25, the scope of the client‑notification exception in s 31(2)), one must consult Tasmania Supreme Court decisions and relevant appellate authorities. The Act provides the litigation mechanisms but does not itself record outcomes; the absence of case citations in the supplied text means litigation history must be sourced from judicial databases and law reports external to this Act text.
Gotchas
Concrete pitfalls and timing traps in the Act that routinely cause disputes or compliance failures are evident from the statutory wording.
Client notification contingency (s 31(2), s 36)
A scheme will not limit a professional’s liability to a client if, at no stage before the relevant act or omission, the professional provided the client with the prescribed statement (s 36(1)) or otherwise informed the client orally/in writing that liability was limited (s 31(2)). This is a strict temporal precondition. Failure to comply defeats the limitation in relation to that client, though the limitation may still apply to other persons. Ensure practitioners give the prescribed statement in the required documents before the service is performed.
Exclusions you cannot cover (s 5)
The Act excludes personal injury/death, fraud/dishonesty, intentional torts, breach of trust and certain legal practitioner negligence in PI claims (s 5(1)-(2)). Schemes cannot lawfully limit recovery in these areas. Drafters must segregate liability types and ensure clients are not inadvertently misled into thinking limitations apply to excluded categories.
Minimum cap and “relevant limitation” (ss 29, 29A)
A scheme can affect liability only to the extent that damages exceed an amount specified in the scheme, but that amount cannot be less than $500,000 (s 29). Section 29A confirms liability is not reduced below the relevant limitation because of the amount actually payable under an insurance policy being less than the relevant limitation. Negotiating caps below the statutory floor is impossible.
Multiple limitation methods and capping rules (ss 26, 28)
If both s 26 (multiple of charges) and s 24 or s 25 apply, damages must be determined under s 26 (the multiple‑of‑charges method) but not exceed the monetary ceiling in s 24/25 (s 28). Drafting must clearly specify how limitation methods interact; inconsistent scheme drafting can produce litigation.
Insurance standard and evidentiary proof (ss 30, 24)
A defendant must satisfy the Court the insurance policy covers the occupational liability and the amount payable is not less than the monetary ceiling (s 24). Associations set insurance standards (s 30). Practically, that raises evidentiary burdens and potential disputes about policy wording, defence costs inclusion, excesses, and whether defence costs count toward the one sum insured (s 4(2)). Keep documentary evidence and insurer confirmations robust.
No contracting out (s 55)
Except where expressly provided (s 27(b) discretionary higher cap), parties cannot contract out of the Act’s application once a person is subject to a scheme (s 55(1)). Private agreements purporting to alter statutory limits are ineffective, which can upset prior commercial arrangements.
Parts 3-5 and Schedule 1 subject to other Acts (s 6(1))
Provisions in Parts 3-5 and Schedule 1 are subject to inconsistency with other Acts; if inconsistent, the other Act prevails (s 6(1)). Schemes must be checked against licensing, consumer protection and professional registration legislation to avoid invalid provisions.
Duration, renewal and Ministerial extension limits (s 35)
Tasmanian schemes must have a specified period not exceeding five years (s 35(1)). Only one extension up to 12 months is permitted (s 35(2)-(3)). Failure to manage renewal timelines may result in expiry and loss of protection for acts occurring after expiry.
Interstate schemes bring coordination challenges. The Supreme Court cannot void an interstate scheme in Tasmania for failing to comply with Division 2, but can on grounds the scheme fails the corresponding law of the preparing jurisdiction (s 16(4)). Notices, revocations and extensions require liaison with other jurisdictions (ss 9(2), 19A, 19B, 35(1B)). Ensure cross‑jurisdictional consistency and monitor corresponding law.
Financial and administrative exposure to association (ss 17(5), 41(2)(c), 47(2))
The Council can recover review and audit costs from an association and charge fees for approvals and services. Associations carry financial exposure for Council activity and should budget accordingly.
Crown immunity from prosecution (s 7(2))
The Crown cannot be prosecuted under the Act (s 7(2)), which may affect enforcement against public sector professionals; check other mechanisms for public sector accountability.
Specialist evidentiary issues on “business assets” and “reasonable charge” (ss 4, 25, 26(2))
Valuation of business assets and determination of “reasonable charge” are factually intensive and litigable. Maintain contemporaneous accounts and agreed scales to reduce dispute risk.
How to comply
For occupational associations (stepwise checklist with statutory references):
Determine eligibility and scope:
Identify the occupational group and whether a scheme should apply to all members, classes, or specified associations (s 20(1)). Consider whether the scheme will be Tasmanian only or interstate (s 8(1A)).
Design scheme content:
Decide the method(s) of limitation: insurance ceiling (s 24), business assets (s 25), multiple of charges (s 26) or combinations (s 28). Ensure monetary ceilings respect s 29’s floor ($500,000 minimum).
Draft provisions on exemptions, application mechanics, and whether the association will have discretion to specify higher limits for individuals (s 20(2)-(3), s 27(b)).
Risk‑management and occupational standards:
Prepare a detailed list of occupational standards and risk‑management strategies and the means of implementation to furnish the Council (s 39(1)). Ensure strategies do not conflict with other statutory duties (s 39(3)).
Insurance standards:
Set clear standards for insurance policies that comply with the association’s determinations (s 30). If compulsory insurance is imposed, specify standards and different classes where applicable (s 37).
Complaints and discipline:
Adopt the Model Code in Schedule 1 or tailor it with Council approval to cover complaints, discipline, and natural justice protections (s 42, Schedule 1).
Consultation and notification:
Prepare public notice materials and allow at least 28 days for comments after publishing notices in daily Tasmanian newspapers (s 9(1)(c)). For interstate schemes, coordinate notices with other jurisdiction requirements (s 9(2)).
Submit to Council:
Submit the draft scheme and a summary of reasons to the Minister through the Council after Council approval, and provide full documentation for Council consideration (ss 8(2), 13(1)-(2)).
Respond to Council and Minister directions:
Be ready to provide further information under s 48, to participate in compliance audits (s 41), and to prepare amendments if the Minister directs (s 18(3)-(6)).
Administration and reporting:
Implement claims monitoring and complaints committees (s 38). Provide annual reports and incorporate committee findings into Council’s reporting (s 40). Budget for Council fees and possible audit/review cost recovery (s 47(2), ss 17(5), 41(2)(c)).
Member communications and compliance:
Ensure members receive training and materials to comply with scheme standards and notification obligations; provide templates for the s 36 statement to members.
For individual members/professionals:
Verify scheme applicability:
Confirm whether you are a person to whom the scheme applies, including partners, officers and employees (ss 20-23).
Insurance and asset checks:
If required, obtain and maintain insurance that meets association standards (ss 24, 30, 37), and retain documentary proof to satisfy court if required (s 24). If relying on business assets, maintain up‑to‑date valuations (s 25).
Client notification:
Ensure all documents promoting or advertising your practice, and official correspondence to clients (excluding business cards), carry the prescribed statement before performing services where limitation is to be claimed (s 36(1)-(3)). Keep records of delivery and client acknowledgements.
Client requests:
Provide copies of the scheme to any client or prospective client who requests it (s 36(4)), and keep logs of such requests and fulfilment.
Risk‑management compliance:
Follow the occupational standards and risk‑management measures required by your association and participate in any mandated training or reporting (s 39(2), s 40).
Recordkeeping:
Maintain records, bills and scales of charges to support the calculation of “reasonable charge” in the event limitation under s 26 is claimed; preserve insurance certificates and policy documents showing amounts payable and defence cost arrangements.
Respond to complaints and audits:
Cooperate with association complaints processes and any compliance audits by the association or the Council; ensure procedural fairness in hearings and retain legal advice where needed (Schedule 1 clauses 6-9, s 41).
Avoid excluded categories:
Be aware limitations do not apply to excluded liabilities (s 5); communicate transparently to clients.
For insurers:
Understand required standards:
Work with associations to align policy wordings with scheme insurance standards (s 30), and prepare processes for providing information to claims committees when requested (s 38(4)).
Documentation:
Ensure policies clearly state the amount payable for occupational liabilities, whether defence costs are included in the sum insured and how excesses operate, as these affect court determinations under s 24 and s 4(2).
Claims handling:
Be prepared for requests for information from associations and the Council and consider data‑sharing protocols that comply with privacy and regulatory obligations (s 38(4), s 48).
For the Council and Minister:
Follow statutory decision criteria:
Consider all public submissions, the position of affected persons, claims history, risk management, insurance availability and costs, insurance standards and disciplinary provisions before approving schemes (s 11).
Use audit and reporting tools:
Exercise powers to conduct compliance audits and request information, and recover costs from associations where appropriate (ss 41, 48, 17(5)).
Ensure transparency and accountability:
Publish reasons for approval, provide summaries to the Minister (s 13(2)), and include any Ministerial directions in financial reporting as required (s 52(3)).
General compliance risk management:
Maintain contemporaneous documentary proof for insurance, valuations and client notification. Align scheme drafting with other statutes to avoid inconsistency under s 6(1). For interstate schemes, secure coordination with corresponding law and appropriate councils to manage commencement, revocation and notifications (ss 8(1A), 9(2), 19A, 19B, 35(1B)). Use clear drafting to avoid ambiguous interactions between s 24/25 and s 26 methods and ensure scheme provisions are consistent with the Model Code where disciplinary measures are adopted (s 42 and Schedule 1).
[Section 4 Subsection (1) amended by No. 49 of 2016, s. 4, Applied:24 Nov 2016]corresponding law means –
(a) a law of another jurisdiction that corresponds to this Act; and
(b) a law of another jurisdiction that is prescribed by the regulations to be a corresponding law;
costs includes fees, charges, disbursements and expenses;
Council means the Professional Standards Council established by this Act;
court includes a tribunal and an arbitrator;
damages means –
(a) damages awarded in respect of a claim or counter-claim or 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 judgement or incurred on an appeal made by a defendant); and
(c) any interest payable on the amount of those damages or costs;
exercise of a function includes, where the function is a duty, the performance of the duty;
function includes a power, authority and duty;
[Section 4 Subsection (1) amended by No. 49 of 2016, s. 4, Applied:24 Nov 2016]interstate scheme means a scheme that –
(a) has been prepared under a corresponding law; and
(b) operates, or indicates an intention to operate, as a scheme of Tasmania;
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 to be done by a member of an occupational association acting in the performance of his or her occupation;
partner means a person who has entered into a partnership, within the meaning of the Partnership Act 1891 , with another person;
[Section 4 Subsection (1) amended by No. 49 of 2016, s. 4, Applied:24 Nov 2016]scheme means a scheme for limiting the occupational liability of members of an occupational association, whether prepared under this Act or a corresponding law;
subordinate legislation has the same meaning as in the Subordinate Legislation Act 1992 .
(2) A reference in this Act to the amount payable under an insurance policy in respect of an occupational liability includes a reference to –
(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 or excess.
5 Application of Act
5 Application of Act
(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) [Section 5 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] any negligence or other fault of an Australian legal practitioner in acting for a client in a personal injury claim;
(c) a breach of trust;
(d) fraud or dishonesty;
(e) an intentional tort.
(2) This Act does not apply to liability which may be the subject of proceedings under Division 2 of Part XI of theLand Titles Act 1980 .
(3) This Act does not apply to any cause of action arising under, or with respect to, a contract, or contractual relations, entered into before the commencement of this Act (whether or not the action lies in contract) unless the parties, after the commencement of this Act, vary the relevant contract so as to make express provision for the application of this Act.
(4) [Section 5 Subsection (4) inserted by No. 49 of 2016, s. 5, Applied:24 Nov 2016] This Act does not apply to any cause of action (whether or not the action lies in contract) arising under, or with respect to, a contract, or contractual relations –
(a) entered into by a member of a scheme approved under section 8 if that member entered into the contract or contractual relations after the commencement of this Act but before that scheme commenced; or
(b) entered into by a person before that person became a member of a scheme that, at the time the person became a member, had commenced –
unless the parties, after the commencement of the scheme, vary the relevant contract, or relevant contractual relations, so as to make express provision for the application of this Act.
(5) [Section 5 Subsection (5) inserted by No. 49 of 2016, s. 5, Applied:24 Nov 2016] This section applies to an interstate scheme in its operation in Tasmania despite a corresponding law that applies to the interstate scheme in another jurisdiction stating that the corresponding law does apply to a liability of a kind referred to in subsection (1) or (2) .
6 Relationship of Act to other laws
6 Relationship of Act to other laws
(1) If a provision made by or under Part 3 , 4 or 5 or Schedule 1 is inconsistent with a provision made by or under any other Act, that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect.
(2) Except as provided by subsection (1) , this Act has effect despite any law to the contrary.
7 Act binds Crown
7 Act binds Crown
(1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
(2) Nothing in this Act makes the Crown in any of its capacities liable to be prosecuted for an offence.
Part 2 Limitation of liability
Part 2 Limitation of liability
Division 1 Making, amendment and revocation of schemes
Division 1 Making, amendment and revocation of schemes
8 Preparation and approval of schemes
8 Preparation and approval of schemes
(1) An occupational association may prepare a scheme.
(1A) [Section 8 Subsection (1A) inserted by No. 49 of 2016, s. 6, Applied:24 Nov 2016] A scheme prepared under this section may indicate an intention to operate as a scheme –
(a) of Tasmania only; or
(b) of Tasmania and another jurisdiction.
(2) The Council may, on the application of an occupational association, approve a scheme prepared under this section.
9 Public notification of schemes
9 Public notification of schemes
[Section 9 Substituted by No. 49 of 2016, s. 7, Applied:24 Nov 2016]
(1) Before deciding whether to approve a scheme, the Council must publish a notice in all daily newspapers published in Tasmania –
(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 28 days after publication of the notice.
(2) If a scheme indicates an intention to operate as a scheme of both Tasmania and another jurisdiction, the Council must also publish a similar notice in the other jurisdiction in accordance with the corresponding law of that jurisdiction that relates to approval of a scheme prepared in that jurisdiction.
10 Making of comments and submissions concerning schemes
10 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 9 .
(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.
11 Consideration of comments, submissions and other matters
11 Consideration of comments, submissions and other matters
[Section 11 Substituted by No. 49 of 2016, s. 8, Applied:24 Nov 2016]
(1) Before deciding whether to approve a scheme, the Council must consider the following:
(a) all comments and submissions made to it in accordance with section 10 ;
(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 30 ) determined by the occupational association concerned in relation to insurance policies;
(h) the provisions contained in the proposed scheme or under statute for the making and determination of complaints and the imposition and enforcement of disciplinary measures against members of the occupational association concerned.
(2) If a scheme indicates an intention to operate as a scheme of both Tasmania and another jurisdiction –
(a) the Council must also consider any matter that the appropriate council for that 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 other jurisdiction; and
(b) the matters to be considered by the Council, whether under subsection (1) or under paragraph (a) of this subsection, are to be considered in the context of each jurisdiction concerned.
12 Public hearings
12 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.
13 Submission of schemes to Minister
13 Submission of schemes to Minister
(1) The Council may submit a scheme approved by it to the Minister.
(2) At the same time as the Council submits a scheme to the Minister, the Council is to provide the Minister with a summary of the Council's reasons for approving the scheme.
(3) Paragraph (e) of item 2 of Schedule 1 to theSubordinate Legislation Act 1992 applies to a proposed scheme submitted to the Minister as if –
(a) the proposed scheme were proposed subordinate legislation; and
(b) the reference in that paragraph to any other subordinate legislation included a reference to any other existing or proposed scheme.
(4) [Section 13 Subsection (4) inserted by No. 49 of 2016, s. 9, Applied:24 Nov 2016] If the scheme indicates an intention to operate as a scheme of both Tasmania and another jurisdiction, the Council may also submit the scheme to the Minister administering the corresponding law of that other jurisdiction.
14 Gazettal, tabling and disallowance of schemes
14 Gazettal, tabling and disallowance of schemes
(1) [Section 14 Subsection (1) amended by No. 49 of 2016, s. 10, Applied:24 Nov 2016] The Minister, after carrying out any consultation required under section 13(3) , may authorise the publication in the Gazette of a scheme submitted to the Minister –
(a) [Section 14 Subsection (1) amended by No. 49 of 2016, s. 10, Applied:24 Nov 2016] under section 13 by the Council; or
(b) [Section 14 Subsection (1) amended by No. 49 of 2016, s. 10, Applied:24 Nov 2016] in the case of an interstate scheme, under a corresponding law by the appropriate council for the jurisdiction in which the scheme was prepared.
(2) [Section 14 Subsection (2) amended by No. 49 of 2016, s. 10, Applied:24 Nov 2016] [Section 47(3)(c)](/view/html/inforce/2026-
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