Professional Standards Regulations 2017

Occupational associations are the primary addressees of these regulations. Any Victorian professional body that has an approved scheme under the Act, or that seeks to obtain, amend or revoke one, must pay the prescribed fees. The burden falls on the association itself, not directly on individual members. The association must budget for the $5,000 application fee each time it seeks approval of a new scheme or an amending instrument. More significantly, it must pay an annual $50 for each member covered by the scheme. For a large association with tens of thousands of members this creates a substantial recurring liability - $50,000 for 1,000 members, $500,000 for 10,000 members. The association must collect these funds from its members or absorb them from its own revenue, which in turn affects member subscription fees. The additional member fee of $50 per person for members who join during the year creates ongoing administrative tracking obligations.

Members of occupational associations are indirectly affected. They benefit from the liability cap only if their association pays the fees and complies with the notification requirements. If the association fails to pay on time the interest charges increase the cost of maintaining the scheme, which may be passed on to members. Individual members also need to know that the prescribed notification statement must be used in their contracts, websites, invoices, or other communications to clients for the liability cap to be enforceable. The 8 point Times New Roman requirement is particularly relevant for lawyers, accountants, engineers, architects and other professionals who must include the statement in fine print.

The Professional Standards Council is the recipient of all fees and interest and the decision maker on waiver and remission applications. The regulations impose a duty on the Council to process applications, track payments, and apply the interest provisions. The Council also has discretion to waive or remit fees, giving it administrative authority over the financial burden on each association. The Executive Officer can remit up to $250 without further approval, which suggests that minor overpayments or late fee issues can be resolved at low level.

Clients and consumers of professional services are affected because the liability cap reduces the maximum damages they can recover from a professional who is part of an approved scheme. The notification statement warns them of this limitation. The small font size required means the warning may be overlooked, reducing its practical effect as a consumer protection measure.

Other state and territory regulatory bodies are indirectly affected because the regulations reference "professional standards legislation" of other jurisdictions. An association operating under an interstate scheme may use the same notification statement in Victoria without needing a separate Victorian approval, but it still must comply with Victorian fee obligations if its scheme is recognised here.

Duty to pay application fees: An occupational association that applies for Council approval of a new scheme under section 8(3) of the Act must include a $5,000 fee with the application. Similarly, an application under section 18(2) to amend or revoke a scheme must also be accompanied by $5,000. The fee is payable upfront; the Council is not obliged to process an application without it.

Duty to pay annual per member fees: An occupational association must pay $50 per member subject to a scheme. The due date is determined by the commencement quarter of the scheme. The fee is payable annually, not monthly. The association must calculate the number of members as at the due date and remit the total amount. The regulation does not specify whether the count is as at the start of the quarter or the end; a conservative reading requires payment for all members who will be subject to the scheme during that year.

Duty to pay additional member fees: If a new member becomes subject to a scheme during the annual fee period, the association must pay an extra $50 for that member. The due date is the end of the quarter in which the member joined. This creates a quarterly reconciliation obligation.

Right to seek waiver or remission: The Council may waive or remit any fee or interest if it considers there are "special reasons" in a particular case. The term is not defined, giving the Council broad discretion. The Executive Officer can unilaterally waive or remit amounts up to $250. This right provides some relief for associations facing genuine hardship or administrative errors, but the lack of criteria creates uncertainty.

Right to use prescribed notification statement: An occupational association and its members have the right to use the statement "Liability limited by a scheme approved under Professional Standards Legislation" in 8 point Times New Roman to satisfy section 35 of the Act. Using that exact wording and font size entitles them to the benefit of the liability cap. Any deviation may risk losing the limitation.

Right to interest calculation only after 30 days: The 0.05% per day simple interest only accrues on amounts more than 30 days overdue. An association that pays within 30 days of the due date incurs no interest. This gives a small grace period, but the interest rate is high once triggered (18.25% per annum).

Duty of the Council to accept late payment with interest: Once interest has accrued, the Council must collect it. There is no power to waive interest unless the Council exercises its discretion under regulation 9(1)(d). The Council cannot simply ignore the interest.

The regulations themselves do not create criminal penalties or infringement notices. The primary financial penalty is the daily interest charge under regulation 8: 0.05% per day simple interest on any unpaid annual fee or additional member fee that is more than 30 days overdue. This equates to an annual rate of approximately 18.25%. The interest compounds only in the sense that it accrues on the outstanding balance each day; it is simple interest, not compound, meaning interest is not charged on previously accrued interest. Nevertheless, the rate is high enough to create a serious incentive to pay on time. For a large association with a $100,000 annual fee, 30 days of interest would be $1,500, and 90 days would be $4,500.

The regulations do not provide for suspension or revocation of a scheme for non payment of fees. However, the Act itself may allow the Council to take such action. An association that persistently fails to pay may lose the benefit of the scheme for its members, exposing them to unlimited liability. The regulations do not address that consequence, but a practical reading suggests that continued non payment would undermine the scheme.

Enforcement of the notification requirement under regulation 10 is indirect. If an occupational association or member uses a different statement or a smaller font, section 35 of the Act may not be satisfied, and the liability cap will not apply. That is a civil consequence rather than a penalty. The regulations do not create an offence for using the wrong wording.

The waiver and remission power under regulation 9 is a safety valve but not an enforcement tool. The Council can choose to reduce or eliminate fees and interest if special reasons exist. This could be used to resolve disputes without litigation, but it also creates a risk of inconsistent treatment between associations.

There is no dedicated enforcement body specified in the regulations. The Council itself is responsible for monitoring payments and applying the interest provisions. The Act may provide broader enforcement powers, but the regulations defer to that.

Professional Standards Act 2003 (Vic): These regulations are made under section 57 of that Act and are directly ancillary to it. The Act sets out the substantive law about occupational liability schemes: who may apply, what a scheme must contain, the maximum cap on liability, and the effect of the cap in legal proceedings. The regulations fill in the financial and procedural details. Without the Act the regulations would have no operative force. The regulations also cross reference specific provisions: the application fee for approval of a scheme under section 8(3), the fee for amending or revoking a scheme under section 18(2), and the prescribed notification statement under section 35.

Professional Standards Regulations 2007 (Vic): These regulations revoke the 2007 version in full. The 2007 regulations were the predecessor and presumably set different fee amounts or different due dates. Practitioners must be careful not to rely on the old version. The transitional effect is that any scheme approved under the 2007 regulations continues under the 2017 regulations for fee purposes, but the fee amounts and due dates now change.

Professional Standards Act of other States and Territories: The definition of "professional standards legislation" in regulation 5 includes corresponding laws of other Australian jurisdictions. This means an occupational association that operates under an interstate scheme can use the prescribed notification statement in Victoria without needing a separate Victorian approval. However, the fee obligations in these regulations apply only to schemes approved by the Victorian Council. An interstate association that merely has members in Victoria but no Victorian scheme may not need to pay fees here, but it would still need to comply with Victoria's notification requirements if it wishes to cap liability in Victorian proceedings.

Subordinate Legislation Act 1994 (Vic): The endnote notes that these regulations will sunset ten years after making, on 24 October 2027, under section 5 of that Act. This means the regulations automatically repeal on that date unless re made. Associations should plan for a new regulatory instrument before that date.

Interpretation of Legislation Act 1984 (Vic): The endnotes explain that headings, examples, notes and punctuation form part of the regulations, and that the font size and wording requirements in regulation 10 are legally binding. The ILA also provides that where a regulation is amended, the original becomes subregulation (1). This affects how the regulations may be read if amended in the future.

The Table of Amendments in the endnote states that there are no amendments made to the Professional Standards Regulations 2017 by statutory rules, subordinate instruments or Acts. The regulations were made on 24 October 2017, came into operation on 6 November 2017, and as of the version published (Version No. 001) they have not been amended. There are also no amendments not yet in operation. This means the regulations are in their original form. However, the sunset clause means they will automatically expire in 2027 unless re made or amended before then. The absence of amendments suggests that the fee amounts ($5,000 application fee, $50 per member) and the interest rate (0.05% per day) have remained constant since 2017. Over time, inflation erodes the real value of these fixed fees, making them relatively cheaper for associations. Conversely, the interest rate is a nominal rate that does not change, so its deterrent effect remains constant.

The regulations do not mention any cases. The source text contains no references to litigation. As a subordinate instrument setting fees and a prescribed statement, these regulations are unlikely to be the subject of direct challenge. Any litigation would more likely involve the Professional Standards Act itself or the validity of a scheme. However, two potential areas of dispute could arise. First, an association might challenge the Council's refusal to waive or remit fees under regulation 9(1), arguing that the Council failed to consider "special reasons" or acted unreasonably. The broad discretion given to the Council would make such a challenge difficult but not impossible if the decision was procedurally flawed. Second, a member or client might argue that the notification statement was not compliant because the font size was measured incorrectly or a different typeface was used. The 8 point Times New Roman requirement is precise and could be a trap for the unwary. A court might need to interpret whether "face measurement" means the height of the lettering or the point size setting in software. No reported Victorian cases on this specific regulation exist as of the source date. Practitioners should be aware that case law under the Act may inform how courts treat the notification requirement, but the regulations themselves have no litigation history.

The 8 point Times New Roman requirement is mandatory and literal. Regulation 10 requires the statement to be "printed in a size not less than the face measurement of Times New Roman typeface in 8 point". This means the font must be exactly Times New Roman, not Arial, not Calibri, not any sans serif font. The size must be at least 8 point based on "face measurement" - which likely refers to the font's x-height or the measurement of the typeface's body. If an association uses a different font or a smaller point size, section 35 of the Act may not be satisfied, and the liability cap will not apply. For digital communications such as websites, emails, or PDFs, the font must be rendered in Times New Roman at least 8 point. This is an archaic requirement that may cause practical difficulties in modern web design where fonts are often specified in CSS pixels rather than points. Associations should test their digital outputs to ensure compliance.

The interest rate is 0.05% per day simple interest, not per annum. This equates to 18.25% per year. The regulations do not cap the total interest that can accrue. An association that is six months late on a $100,000 fee would owe approximately $9,125 in interest. There is no provision for compounding, but the daily accrual adds up quickly. The 30 day grace period means interest starts on day 31, not day one. Associations must diary the due date and ensure payment is made within 30 days.

The additional member fee is due by the end of the quarter in which the member joins, not a later date. If a member joins on 1 October, the fee is due by 31 December. If the association misses that deadline, interest begins 30 days later. This creates a quarterly administrative burden for associations with high member turnover.

The annual fee due date depends on the scheme's commencement date, not a fixed date. An association that has a scheme commencing in one quarter must pay by the end of that quarter each year. If the scheme started on 15 February, fees are due by 31 March. If the association later changes its scheme commencement date (by amendment), the due date may shift. The regulations do not address what happens if a scheme is amended to change its effective date mid year. Associations must maintain accurate records of the original commencement date.

Waiver or remission is discretionary and based on "special reasons". There is no definition of "special reasons". An association cannot rely on a waiver as of right. The Executive Officer can remit up to $250 only. For larger amounts the Council must decide. This creates uncertainty for associations that wish to contest a fee. The cost of applying for a waiver may outweigh the benefit for small fee disputes.

The $5,000 application fee is payable whether the scheme is drafted by the association or by the Council. Regulation 6(1) says the fee applies to applications for approval of a scheme "prepared by the occupational association or by the Council". So even if the Council prepares the scheme on behalf of the association, the association still pays the fee.

The statement must be used for all notifications of limitation, not just initial notices. Section 35 of the Act requires the prescribed statement to be used whenever a limitation is asserted. This includes contracts, invoices, disclaimers, websites, and public notices. Each separate use must comply with the font and wording requirements. An association cannot simply include it once and rely on that for all purposes.

The regulations use the term "occupational association" but do not define it. The Act defines it. An entity that is not an occupational association under the Act cannot apply for a scheme and therefore has no obligations under these regulations. But unincorporated bodies or informal groups may mistakenly believe they qualify.

Step 1: Determine if you need to pay fees. Only occupational associations that have an approved scheme under the Professional Standards Act 2003 (Vic) are subject to the annual and additional member fees. Those that are merely considering a scheme must pay the $5,000 application fee only when they submit an application. Associations with an existing scheme should check whether their scheme was approved under Victorian law or an interstate law. If it is an interstate scheme recognised in Victoria, fee obligations may differ; consult the Council.

Step 2: Calculate the annual fee. Count the number of members who are subject to the scheme in force. Regulation 7(1) says the fee is $50 "for each member of that occupational association who is subject to a scheme". The association must determine the count as at the due date. For schemes that commenced between 1 January and 31 March, the annual fee is due by 31 March each year. For other quarters the dates shift accordingly. Set up a recurring diary entry to recalculate the member count and remit the payment before the due date.

Step 3: Pay when new members join. Whenever an additional member becomes subject to the scheme during the annual fee period, pay $50 for that member by the end of the quarter in which they joined. This requires a process to detect new members and trigger a payment. For large associations, a quarterly reconciliation of new members and a bulk payment is advisable.

Step 4: Pay within 30 days of the due date to avoid interest. Even if the payment is late, the interest under regulation 8 starts only after 30 days. But the association should aim to pay before the due date. If payment is unavoidably late, pay within 30 days to avoid interest. If interest has already accrued, pay the interest as well. The Council may waive interest under regulation 9(1)(d) if special reasons exist, but do not rely on that.

Step 5: Apply for waiver or remission if necessary. If an error occurs or there are exceptional circumstances (such as a natural disaster affecting the association), write to the Council explaining the special reasons. If the amount involved is $250 or less, the Executive Officer can decide. For larger amounts the Council must decide. Include supporting evidence. Do not assume a waiver will be granted.

Step 6: Use the correct notification statement. For any contract, website, invoice, disclaimer, email signature, or public notice where the association or its members wish to rely on the liability limitation, use exactly: "Liability limited by a scheme approved under Professional Standards Legislation". Print it in Times New Roman typeface, size not less than 8 point. For digital media, embed the font or ensure the rendering software uses Times New Roman at that size. Test on common browsers and devices. For physical documents, use a printed font that matches Times New Roman exactly. Avoid stylised versions.

Step 7: Keep records. Retain copies of all fee payments, member counts, and waiver applications. In the event of a dispute about whether the limitation applied, the association may need to prove that the notification was properly made. Record the date and method of each notification.

Step 8: Monitor the sunset. The regulations expire on 24 October 2027. Before that date the government may make new regulations. Stay informed and adjust compliance processes accordingly. If new regulations change fee amounts or the prescribed statement, update contracts and systems promptly.

Step 9: Consider the cost benefit of the scheme. With the annual per member fee of $50, the association must weigh the benefit of liability caps against the compliance burden. For low risk professions the fee may be a net cost. The compliance steps above add administrative overhead that may be passed on to members. Ensure the scheme remains viable.