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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Professional Standards Amendment Bill 2004
CONTENTS
1. Short title 1
2. Commencement 2
3. The Act amended 2
4. Section 4 amended 2
5. Section 12 amended 2
6. Section 13 amended 3
7. Section 13A inserted 3
8. Section 14 amended 4
9. Section 24 amended 4
10. Section 27 replaced 4
11. Section 29 replaced by sections 29 and 29A 5
12. Sections 30 and 31 replaced 6
13. Section 34 amended 7
14. Section 35 amended 8
15. Section 36 amended 9
16. Section 37 replaced 11
17. Section 38 amended 11
18. Section 39 amended 12
19. Section 41 replaced 12
20. Section 44A inserted 13
21. Section 45 amended 13
22. Section 46 amended 14
23. Section 55 amended 14
24. Section 58 replaced 14
25. Schedule 3 amended 15
26. Schedule 4 replaced 15
304--1 page i
Western Australia
LEGISLATIVE ASSEMBLY
Professional Standards Amendment Bill 2004
A Bill for
An Act to amend the Professional Standards Act 1997.
The Parliament of Western Australia enacts as follows:
1. Short title
This Act may be cited as the Professional Standards
Amendment Act 2004.
page 1
Professional Standards Amendment Bill 2004
s. 2
2. Commencement
This Act comes into operation on a day fixed by proclamation.
3. The Act amended
The amendments in this Act are to the Professional Standards
5 Act 1997*.
[* Act No. 22 of 1997.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 307.]
4. Section 4 amended
10 Section 4 is amended in the definition of "occupational
association" as follows:
(a) in paragraph (a) by inserting after "group" --
" or related occupational groups ";
(b) in paragraph (b) by inserting after "group" --
15 " or those occupational groups ".
5. Section 12 amended
(1) Section 12(1) is amended as follows:
(a) by deleting paragraph (a)(i) and inserting instead --
"
20 (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 a
scheme;
25 ";
(b) in paragraph (h) by deleting ", approved by the
Minister,";
(c) by deleting "and" after paragraph (h);
page 2
Professional Standards Amendment Bill 2004
s. 6
(d) by deleting the full stop after paragraph (i) and inserting
instead --
" ; and ";
(e) by inserting after paragraph (i) --
5 "
(j) to institute proceedings in its own name for --
(i) the prosecution of; or
(ii) injunctive or other relief in respect of,
an offence against this Act that comes to its
10 notice.
".
(2) After section 12(4) the following subsection is inserted --
"
(5) The Council is taken to have locus standi for the
15 purpose of pursuing any injunctive or other relief under
subsection (1)(j), and is not to be required to give any
undertaking as to damages in connection with the grant
of any interlocutory relief.
".
20 6. Section 13 amended
Section 13(1)(b) is amended by inserting after "scheme," --
" or an amendment to or revocation of a scheme, ".
7. Section 13A inserted
After section 13 the following section is inserted --
25 "
13A. Referral of complaints
(1) An occupational association may refer to the Council
any complaint or other evidence received by it that a
member or former member of the association has
page 3
Professional Standards Amendment Bill 2004
s. 8
committed an offence against section 45 or an offence
under the regulations.
(2) Nothing that is done in good faith under this section by
or on behalf of an association subjects the association,
5 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.
".
10 8. Section 14 amended
Section 14(1) is amended by deleting ", with the approval of the
Minister,".
9. Section 24 amended
Section 24(3) is repealed.
15 10. Section 27 replaced
Section 27 is repealed and the following section is inserted
instead --
"
27. Commencement of schemes
20 (1) A scheme published in the Gazette with the
authorisation of the Minister commences --
(a) on a day specified in the scheme, being a day
that is later than the day of its publication; or
(b) if no day is so specified, 2 months after the day
25 of its publication.
(2) This section is subject to any order made by the
Supreme Court under section 28(2).
".
page 4
Professional Standards Amendment Bill 2004
s. 11
11. Section 29 replaced by sections 29 and 29A
Section 29 is repealed and the following sections are inserted
instead --
"
5 29. Review of schemes
(1) The Minister may direct the Council to review the
operation of a scheme.
(2) The Council must comply with any direction under
subsection (1) but may on its own initiative at any time
10 (whether before or after the scheme ceases to have
effect) review the operation of a scheme.
(3) A review may, but need not, be conducted in order to
decide whether a scheme should be amended or
revoked or whether a new scheme should be made.
15 29A. Amendment and revocation of schemes
(1) An occupational association may prepare an
amendment to or revocation of a scheme that relates to
its members.
(2) The Council may, on the application of an occupational
20 association, prepare or approve an amendment to or
revocation of a scheme that relates to the members of
the association.
(3) The Minister may direct the Council to prepare an
amendment to or revocation of a scheme.
25 (4) The Council must comply with any direction under
subsection (3) but may on its own initiative, at any time
while the scheme remains in force, prepare an
amendment to or revocation of a scheme.
(5) The provisions of sections 20 to 28 apply, with any
30 necessary modifications, to the amendment or
page 5
Professional Standards Amendment Bill 2004
s. 12
revocation of a scheme in the same way as they apply
to the making of a scheme.
(6) The amendment or revocation of a scheme does not
affect a right or liability arising during the application
5 of the scheme to members of an occupational
association before the amendment or revocation.
".
12. Sections 30 and 31 replaced
Sections 30 and 31 are repealed and the following sections are
10 inserted instead --
"
30. Persons to whom a scheme applies
(1) A scheme may provide that it applies to all persons
within an occupational association or to a specified
15 class or classes of persons within an occupational
association.
(2) A scheme may provide that the occupational
association concerned may, on application by a person,
exempt the person from the scheme.
20 (3) A scheme ceases to apply to a person exempted from
the scheme as referred to in subsection (2) on and from
the day on which the exemption is granted or on and
from a later day specified in the exemption.
(4) Subsection (2) does not apply to a person to whom a
25 scheme applies by virtue of section 31, 32 or 33.
31. Officers or partners of persons to whom a scheme
applies
(1) If a scheme applies to a body corporate, the scheme
also applies to each officer of the body corporate.
30 (2) If a scheme applies to a person, the scheme also applies
to each partner of the person.
page 6
Professional Standards Amendment Bill 2004
s. 13
(3) However, if an officer of a body corporate or a partner
of a person is entitled to be a member of the same
occupational association as the body corporate or
person, but is not a member, the scheme does not apply
5 to that officer or partner.
(4) In this section --
"officer" --
(a) in relation to a body corporate that is a
corporation as defined in section 57A of the
10 Corporations Act 2001 of the
Commonwealth, has the meaning given to
that term in section 82A of that Act; and
(b) in relation to a body corporate that is not a
corporation as so defined, means any person
15 (by whatever name called) who is concerned
in or takes part in the management of the
body corporate.
".
13. Section 34 amended
20 Section 34 is amended as follows:
(a) by deleting "an action" and inserting instead --
" a proceeding ";
(b) by inserting before "an insurance policy" --
" the benefit of ";
25 (c) by deleting paragraph (b) and inserting instead --
"
(b) under which the amount payable in respect of
the occupational liability relating to the cause
of action (including any amount payable by the
30 person by way of excess under or in relation to
the policy) 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
page 7
Professional Standards Amendment Bill 2004
s. 14
work to which the cause of action relates at the
time at which the act or omission giving rise to
the cause of action occurred,
".
5 14. Section 35 amended
Section 35 is amended as follows:
(a) by deleting "an action" and inserting instead --
" a proceeding ";
(b) in paragraph (a) by deleting "that person at the time at
10 which the relevant cause of action arose;" and inserting
instead --
"
the class of person and the kind of work to
which the cause of action relates at the time at
15 which the act or omission giving rise to the
cause of action occurred;
";
(c) in paragraph (b)(i) by inserting before "an insurance
policy" --
20 " the benefit of ";
(d) by deleting paragraph (b)(ii) and inserting instead --
"
(ii) the net current market value of the
business assets and the amount payable
25 under the insurance policy in respect of
the occupational liability relating to the
cause of action (including any amount
payable by the person by way of excess
under or in relation to the policy), if
30 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
page 8
Professional Standards Amendment Bill 2004
s. 15
and the kind of work to which the cause
of action relates at the time at which the
act or omission giving rise to the cause
of action occurred,
5 ".
15. Section 36 amended
(1) Section 36(1) is amended as follows:
(a) by deleting "an action" and inserting instead --
" a proceeding ";
10 (b) in paragraph (a) by inserting before "an insurance
policy" --
" the benefit of ";
(c) in paragraph (a)(ii) by deleting "relevant cause of
action" and inserting instead --
15 "
cause of action (including any amount
payable by the person by way of excess
under or in relation to the policy)
";
20 (d) in paragraph (a)(ii) by deleting "that cause of action
relates, multiplied by the multiple specified in the
scheme in relation to that person at the time at which
that cause of action arose;" and inserting instead --
"
25 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 at the time at which the
30 act or omission giving rise to the cause
of action occurred;
";
page 9
Professional Standards Amendment Bill 2004
s. 15
(e) after paragraph (a) by deleting "or" and inserting --
"
(aa) that person has business assets the net current
market value of which is not less than the
5 limitation amount; or
";
(f) in paragraph (b)(i) by inserting before "an insurance
policy" --
" the benefit of ";
10 (g) in paragraph (b)(ii) by deleting "relevant cause of
action" and inserting instead --
"
cause of action (including any amount
payable by the person by way of excess
15 under or in relation to the policy)
";
(h) at the end of paragraph (b) by deleting "amount." and
inserting instead --
"
20 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.
25 ".
(2) Section 36(3) is amended by deleting "person." and inserting
instead --
" class of person and the kind of work concerned. ".
page 10
Professional Standards Amendment Bill 2004
s. 16
16. Section 37 replaced
Section 37 is repealed and the following section is inserted
instead --
"
5 37. Specification of limits of liability and multiples
(1) A scheme may --
(a) specify the same maximum amount of liability
in relation to all cases to which the scheme
applies or different maximum amounts of
10 liability for different cases or classes of case or
for the same case or class of case for different
purposes; and
(b) confer a discretionary authority on an
occupational association, on application by a
15 person to whom the scheme applies, to specify
in relation to the person a higher maximum
amount of liability than would otherwise apply
under the scheme in relation to the person
either in all cases or in any specified case or
20 class of case.
(2) A scheme may specify a multiple, monetary ceiling or
minimum cap by way of a formula that is to be applied
to calculate the multiple, ceiling or cap.
".
25 17. Section 38 amended
Section 38 is amended as follows:
(a) by deleting "occupation" and inserting instead --
" kind of work ";
(b) by deleting "person in" and inserting instead --
30 " class of person and the kind of work in ".
page 11
Professional Standards Amendment Bill 2004
s. 18
18. Section 39 amended
(1) Section 39(1) is amended by inserting after "Council" --
" and specified in the scheme ".
(2) Section 39(3) is repealed and the following subsection is
5 inserted instead --
"
(3) A Council determination --
(a) takes effect when an amendment providing for
its specification in the scheme takes effect; and
10 (b) applies only to a cause of action that arises after
the determination takes effect.
".
19. Section 41 replaced
Section 41 is repealed and the following section is inserted
15 instead --
"
41. Limit of occupational liability by schemes
(1) To the extent provided by this Act and the provisions
of the scheme, a scheme limits the occupational
20 liability, in respect of a cause of action founded on an
act or omission occurring during the period when the
scheme is in force, of any person to whom the scheme
applied at the time when the act or omission occurred.
(2) The applicable limitation of liability is the limitation
25 specified by the scheme as in force at the time of the
relevant act or omission.
(3) A limitation of liability that, in accordance with this
section, applies in respect of an act or omission
continues to apply to every cause of action founded on
30 it, irrespective of when the cause arises or proceedings
are instituted in respect of it, and even if the scheme
page 12
Professional Standards Amendment Bill 2004
s. 20
has been amended or has, in accordance with
section 44A, ceased to be in force.
(4) A person to whom a scheme applies cannot choose not
to be subject to the scheme, except in accordance with
5 provisions included in the scheme under section 30(2).
".
20. Section 44A inserted
After section 44 the following section is inserted --
"
10 44A. Duration of scheme
(1) Having commenced, a scheme remains in force for a
period (not exceeding 5 years) determined by the
Council by notice published in the Gazette unless,
before the end of the period so determined --
15 (a) it is revoked;
(b) its operation is extended by notice under this
section; or
(c) its operation ceases because of the operation of
another Act.
20 (2) The Minister may, by notice published in the Gazette,
extend the period for which a scheme is in force. The
notice must be published on or before the day when the
original period ends.
(3) Only one extension may be effected under
25 subsection (2) in respect of any particular scheme, and
the maximum period of an extension is 12 months.
".
21. Section 45 amended
(1) Section 45(1) is amended by deleting ", business cards".
page 13
Professional Standards Amendment Bill 2004
s. 22
(2) After section 45(3) the following subsection is inserted --
"
(4) In this section, a reference to a document does not
include a reference to a business card.
5 ".
22. Section 46 amended
Section 46(4) is amended by deleting "members." and inserting
instead --
"
10 members or for different kinds of work or on the basis
of any other differing circumstances that it considers
relevant.
".
23. Section 55 amended
15 Section 55(2) is amended by deleting paragraph (a) and "and"
after it and inserting instead --
"
(a) the fees for applications for the Council's
approval, under Part 3 Division 1, of a scheme,
20 or an amendment to or revocation of a scheme;
and
".
24. Section 58 replaced
Section 58 is repealed and the following section is inserted
25 instead --
"
58. Savings, transitional and other provisions
Schedule 4 has effect.
".
page 14
Professional Standards Amendment Bill 2004
s. 25
25. Schedule 3 amended
Schedule 3 clause 11 is amended by deleting "the person" and
inserting instead --
"
5 a member of the executive body of the association, or the
person so acting,
".
26. Schedule 4 replaced
Schedule 4 is repealed and the following Schedule is inserted
10 instead --
"
Schedule 4 -- Savings, transitional and
other provisions
[s. 58]
15 1. Terms used in this Schedule
In this Schedule --
"amending Act" means the Professional Standards
Amendment Act 2004;
"commencement" means the commencement of the
20 amending Act.
2. Review of schemes
Section 29, as inserted by the amending Act, extends to
apply in respect of schemes in force at the commencement.
3. Limitation of damages in respect of subsisting causes of
25 action
(1) Sections 34, 35 and 36, as in force immediately before the
commencement, continue to apply in respect of any cause of
action that arose before the commencement as if those
amendments had not been made, except as provided by
30 subclause (2).
page 15
Professional Standards Amendment Bill 2004
s. 26
(2) The amendments to sections 34, 35 and 36 made
respectively by sections 13(b), 14(c) and 15(1)(b) of the
amending Act apply in relation to a cause of action arising
before as well as after the commencement.
5 (3) Section 41, as in force immediately before its repeal by the
amending Act, continues to apply in respect of any cause of
action arising from anything done or omitted before its
repeal.
4. Determination of extent of limitation of damages
10 The amendments made by the amending Act to section 39
do not apply in respect of a determination made under that
section before those amendments took effect.
5. Fees for applications for approval of amendment to or
revocation of scheme
15 For the avoidance of doubt, section 55, as in force
immediately before the commencement of the amending
Act, is to be taken always to have empowered the
prescription by regulation of any fee that might be
prescribed under that section as in force after the
20 commencement.
6. Regulations for savings or transitional purposes
(1) Regulations made under section 55 may contain provisions
of a savings or transitional nature consequent on the
enactment of the amending Act.
25 (2) If regulations made under subsection (1) provide that a state
of affairs specified or described in the regulations is to be
taken to have existed, or not to have existed, at and from a
day that is earlier than the day on which the regulations are
published in the Gazette but not earlier than the day on
30 which the amending Act is assented to, the regulations have
effect according to their terms.
page 16
Professional Standards Amendment Bill 2004
s. 26
(3) If regulations contain a provision referred to in
subsection (2), the provision does not operate so as to --
(a) affect in a manner prejudicial to any person (other
than the State or an authority of the State), the rights
5 of that person existing before the day of publication
of those regulations; or
(b) impose liabilities on any person (other than the
State or an authority of the State) in respect of
anything done or omitted to be done before the day
10 of publication of those regulations.
".
page 17
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