Microsoft word - psc limited liability information 2013.doc

AN EXPLANATION OF
THE PROFESSIONAL STANDARDS LEGISLATION & LIMITED LIABILITY
To assist clients in understanding the now ‘Australia Wide’ Professional Standards Legislation,and the role of the various Professional Standards Councils [PSC], and its relevance to ShirleyConsulting Engineers Pty Ltd [SCE], the following notes have been prepared.
GENERAL INFORMATION ON PROFESSIONAL STANDARDS SCHEMES
Professional Standards Schemes are limitation of liability schemes approved under the
professional standards legislation within each State and Territory.
Standards Schemes is to improve professional standards and protect consumers.
occupational association can apply for a Professional Standards Scheme, and the Scheme canapply only to members of that association, or to a class of members of that association.
The occupational association must be a single body corporate which represents the interests ofpersons who are members of the same occupational group, and the membership of which islimited principally to members of that occupational group.
An occupational association needs articles of association or a similar type of instrument thatgives it authority over its members. The occupational association must have in place riskmanagement strategies and a complaints and discipline system.
Under the legislation, associations put forward schemes for particular classes of members. Thelegislation requires that all members of the described class be a member of the Scheme,although there can be provision for people to apply to be excluded. The class can consist ofindividuals or companies.
Occupational associations are required to meet strict compliance requirements once a scheme has been approved and is in operation.
REASONS FOR PROFESSIONAL STANDARDS LEGISLATION
As a result of increased insurance premiums for professional persons / organisations in the late
1980s, the NSW Government drafted the initial Professional Standards Act in 1994 for the
purposes of balancing consumer protection with the ever increasing cost of insurance. In effect,
professionals & professional associations are granted ‘limited liability’ in return for members of
the associations committing to a high standard of professional service, consumer care and
continuing professional development.
As a result of the increased professional standards, an upper limit of occupational [i.e.
professional] liability is granted to a member of an approved scheme.
Note: Further information on the Professional Standards Legislation can be obtained from the
Professional Standards Councils website [http://www.psc.gov.au/psc/psc_index.html].
Following the introduction of the NSW legislation, a number of professional associationsregistered compliance schemes under the Professional Standards Act. With the passage oftime similar professional standards legislation has been enacted in all states and territories ofAustralia.
Whilst there are now many professional standards schemes covering lawyers, accountants,engineers, etc., engineering organisations as a group have been generally reluctant to becomemembers of such schemes because of the onerous auditing and industry training requirementsthat membership of a scheme requires. The CIRCEA scheme also currently [viz: in 2013] hasthe largest number of engineer members in NSW.
CIRCEA SCHEME & SCE MEMBERSHIP LEVEL
In relation to the specific scheme covering SCE [viz: the CIRCEA Scheme], a copy of the NSW
Government Gazette enacting the current [viz: 2012] version of the Scheme is attached.
Note: As SCE undertakes geotechnical work, SCE is a Category B member of the CIRCEA scheme with
a monetary ceiling of $5 million on any claim. SCE has also been covered by the forerunners to the
current scheme since 1997.
Ref: G:\Jobbr\BR025\BR025-0\EOI Response\PSC Limited Liability Information 2013.doc Prepared: 9 July 2013
Week No. 52/2012
Friday, 28 December 2012
Containing numbers 132, 133, 134 and 135 Department of Premier and Cabinet Level 11, Bligh House4-6 Bligh Street, SYDNEY NSW 2000Phone: 9228 3120 Fax: 9372 7422Email: nswgazette@dpc.nsw.gov.au OFFICIAL NOTICES
28 December 2012
(1) The restricted substances are obtained only from B. CIRCEA has made an application to the Professional Standards Council, appointed under the Professional (2) The restricted substances are securely stored at the Standards Act 1994 (NSW) (the Act), for a scheme under nursing home within the temperature range included C. The scheme is prepared for the purposes of limiting (3) The administration of the restricted substances is occupational liability to the extent to which such liability only to residents of the nursing home, and, (4) The restricted substances are administered by a D. The scheme is to apply to all ordinary members of registered nurse employed at the nursing home, an Authorised Nurse Immuniser, or a medical practitioner, and, E. CIRCEA has furnished the Council with a detailed list of the risk management strategies intended to be (5) An emergency kit containing adrenaline is available implemented in respect of its members and the means by at the nursing home, and the administration of which those strategies are intended to be implemented.
adrenaline is at all times undertaken in accordance with the procedures specifi ed in the National Health F. The scheme is intended to commence on 1 December and Medical Research Council’s ‘The Australian 2012 and remain in force for fi ve (5) years from its Immunisation Handbook’, as in force from time to commencement unless, prior to that time, it is revoked, its operation ceases or it is extended pursuant to section (6) The administration of the restricted substance and adrenaline by a registered nurse employed at the G. The scheme is also intended to apply in the Australian nursing home, other than an Authorised Nurse Capital Territory, Victoria, South Australia, Western Immuniser, is in accordance with a written order, Australia, the Northern Territory, and Queensland.
signed and dated by a medical practitioner, and, (7) The person who administers the restricted substance or adrenaline records the administration on the 1. Occupational
association
1. The College of Investigative and Remedial Consulting Engineers Australia Professional Standards Scheme (the scheme) is a scheme under the Professional Standards Act 1994 (NSW) (the Act) prepared for College of Investigative and Remedial Consulting Engineers Australia (CIRCEA) whose business address is Suite 54, Technopark, 6 Herbert Street, St Leonards NSW 2. The scheme is intended to apply in New South Wales, the Australian Capital Territory, Victoria, South Australia, Western Australia, the Northern Territory and Queensland.
PROFESSIONAL STANDARDS ACT 1994
Persons to Whom the Scheme Applies1
1. Subject to any exemption under Clause 2.3 of the scheme, the scheme applies to all ordinary members PURSUANT to section 13 of the Professional Standards of CIRCEA who have the benefi t of an insurance Act 1994, I authorise the publication of the College of policy under which the amount payable in respect of Investigative and Remedial Consulting Engineers Australia occupational liability is not less than the maximum Professional Standards Scheme. The Scheme will commence amount of liability applicable to that person at 2 months after the date of its publication.
the relevant time, which insurance complies with standards set from time to time by CIRCEA in accordance with section 27 of the Act2.
THE PROFESSIONAL STANDARDS ACT 1994 (NSW) 1 Section 17 of the Act provides that a scheme applies to all persons within an occupational association or to a specifi ed class or classes of persons within an The College of Investigative and Remedial occupational association. The relevant sections of legislation in other jurisdictions in which the scheme is intended to apply under mutual recognition are: Civil Law (Wrongs) Act 2002 (ACT) Schedule 4 Professional Standards subsection 4.15; Professional Standards Act 2004 (NT) subsection 18; Professional Standards Act 2004 (Qld) subsection 19; Professional Standards Act 2003 (Vic) subsection 19; Preamble
Professional Standards Act 1997 (WA) subsection 30; Professional Standards Act 2004 (SA) subsection 19.
A. The College of Investigative and Remedial Consulting 2 Equivalent sections of legislation in other jurisdictions in which the scheme is Engineers Australia (CIRCEA) is an occupational intended to apply under mutual recognition are: Civil Law (Wrongs) Act 2002 (ACT) Schedule 4 Professional Standards section 4.23; Professional Standards Act 2004 (NT) section 28; Professional Standards Act 2004 (Qld) section 28; Professional Standards Act 2003 (Vic) section 29; Professional Standards Act 1997 (WA) section 40; Professional Standards Act 2004 (SA) section 29.
NEW SOUTH WALES GOVERNMENT GAZETTE No. 135
28 December 2012
OFFICIAL NOTICES
2. The scheme may apply to other persons who are 3.4 Relevant defi nitions for the purposes of this clause officers, partners, employees or associates of persons who are covered by the scheme33.
“Category A member” means a person who is an
3. A person to whom the scheme applies, other than persons described under Clause 2.2 of the scheme applies, who provides advice other than scheme, may, on written application to the Board of CIRCEA, be exempted from the scheme by the “Category B member” means a person who is
an ordinary member of CIRCEA to whom the scheme applies, and who provides advice Limitation of liability
predominantly in the geotechnical engineering 3.1 This scheme only affects the liability for damages arising from a single cause of action to the extent “Category C member” means a person who is an
to which the liability results in damages exceeding scheme applies and who has sought a higher 3.2 If a person, who was at the time of the act or limit of liability under clause 4.1 of the scheme.
omission giving rise to occupational liability, a 3.5 Notwithstanding anything to the contrary contained person to whom the scheme applied, against whom in this scheme if, in particular circumstances giving a proceeding relating to occupational liability is rise to occupational liability, the liability of any brought, is able to satisfy the court that such person person who is subject to this scheme should be capped both by this scheme and also by any other a. of a kind which complies with the standards scheme under professional standards legislation (whether of this jurisdiction or under the law of b. insuring such person against that occupational any other Australian state or territory) and, if the amount of such caps should differ, then the cap on the liability of such person arising from c. under which the amount payable in respect of such circumstances which is higher shall be the that occupational liability is not less than the monetary ceiling specifi ed in this scheme, that person is not liable in damages, in relation to 4.
Conferral of discretionary authority
that cause of action, above the monetary ceiling 4.1 Pursuant to section 244 of the Act this scheme confers on CIRCEA a discretionary authority to specify, on written application of a member of 3.3 The monetary ceiling required for the purposes of CIRCEA to whom the scheme applies, in relation limitation of liability under this scheme at the time to that member, a monetary ceiling in excess of the at which the act or omission giving rise to the cause monetary ceiling that would otherwise apply, but not of action occurred is to be determined according to exceeding $10 million, in relation to the member either in all cases or in any specifi ed case or class 5. Duration
5.1 This scheme will be in force for a period of 5 years 6. Commencement
6.1 This scheme will commence on 1 December 2012. In the event the scheme or a notice relating to the scheme, is published in the NSW Government Gazette of any jurisdiction after 1 December 2012, the scheme will commence on such day 2 months after the date of its publication in that jurisdiction.
member or a Category B member but not exceeding $10,000,000.
PROFESSIONAL STANDARDS ACT 1994
PURSUANT to section 13 of the Professional Standards Act 3 Sections 18 and 19 of the Act provide that if the scheme applies to a body corporate, the scheme also applies to each offi cer of the body corporate and if the scheme 1994, I authorise the publication of the Institute of Public applies to a person, the scheme also applies to each partner of the person, and if the Accountants Professional Standards Scheme. The Scheme scheme applies to a person the scheme also applies to each employee of the person, provided that if such offi cer of the corporation or partner of the person or employee of the person is entitled to be a member of the same occupational association, such offi cer, partner or employee is a member of the occupational association. Section 20 provides that the scheme may also apply to other persons as specifi ed in that section. Section 20A extends the limitation of liability of persons to whom the scheme applies by virtue of sections 18 to 20. Equivalent sections of legislation in other jurisdictions in which the scheme is intended to apply under mutual recognition 4 Equivalent sections of legislation in other jurisdictions in which the scheme is are: Civil Law (Wrongs) Act 2002 (ACT) Schedule 4 Professional Standards section intended to apply under mutual recognition are: Civil Law (Wrongs) Act 2002 (ACT) 4.15; Professional Standards Act 2004 (NT) section 18; Professional Standards Act Schedule 4 Professional Standards section 4.20; Professional Standards Act 2004 2004 (Qld) section 19, section 21A; Professional Standards Act 2003 (Vic) section (NT) section 25; Professional Standards Act 2004 (Qld) section 25; Professional 19; Professional Standards Act 1997 (WA) section 31, section 32; Professional Standards Act 2003 (Vic) section 26; Professional Standards Act 1997 (WA) section Standards Act 2004 (SA) section 20, section 21.
37; Professional Standards Act 2004 (SA) section 26.
NEW SOUTH WALES GOVERNMENT GAZETTE No. 135

Source: http://www.shirley.net.au/sites/default/files/2013/09/22/PSC%20Limited%20Liability%20Information%202013.pdf