Australian Capital Territory
Civil Law (Wrongs) College of Investigative and Remedial Consulting Engineers Australia Scheme 2012 (No 1)
Disallowable instrument DI2012–281
made under the  
Civil Law (Wrongs) Act 2002, section 4.10, schedule 4 (Schemes are subject to disallowance)

1	Name of instrument
This instrument is the Civil Law (Wrongs) College of Investigative and Remedial Consulting Engineers Australia Scheme 2012 (No 1).
2	Commencement 
This instrument commences 2 months after it is notified. 
3	Notice
I give notice of the New South Wales Professional Standards Council’s approval of the attached College of Investigative and Remedial Consulting Engineers Australia Scheme.  

Mr Simon Corbell MLA
Attorney-General
17.12.2012

The Professional Standards Act 1994 (NSW)

THE COLLEGE OF INVESTIGATIVE  AND REMEDIAL CONSULTING  ENGINEERS  AUSTRALIA PROFESSIONAL  STANDARDS SCHEME

PREAMBLE

A.	The  College  of  Investigative  and  Remedial  Consulting  Engineers  Australia
(CIRCEA) is an occupational association.

B.  CIRCEA has made an application to the Professional Standards Council, appointed under the Professional Standards Act 1994 (NSW) (the Act), for a scheme under the Act.

C.   The scheme is prepared for the purposes of limiting occupational liability to the extent to which such liability may be limited under the Act.

D.	The scheme is to apply to all ordinary members of CIRCEA.

E. 	CIRCEA has furnished the Council with a detailed list of the risk management strategies intended to be implemented in respect of its members and the means by which those strategies are intended to be implemented.

F.   The scheme is intended to commence on 1 December 2012 and remain in force for five (5) years from its commencement unless, prior to that time, it is revoked, its operation ceases, or it is extended pursuant to section 32(2) of the Act.

G.   The  scheme  is  also  intended  to  apply  in  the  Australian  Capital  Territory, Victoria, South Australia, Western Australia, the Northern Territory, and Queensland.

THE COLLEGE OF INVESTIGATIVE  AND REMEDIAL CONSULTING ENGINEERS AUSTRALIA PROFESSIONAL  STANDARDS SCHEME

1.  Occupational association

1.1	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 2066.

1.2	The scheme is intended to apply in New South Wales, the Australian Capital Territory, Victoria, South Australia, Western Australia, the Northern Territory, and Queensland.

2.  Persons to Whom the Scheme Applies1

2.1      Subject to any exemption under  clause  2.3 of the  scheme, the scheme applies to all ordinary members of CIRCEA who have the benefit of an insurance policy under which the amount payable in respect of occupational liability is not less than the maximum amount of liability applicable to that

1 Section 17 of the Act provides that a scheme applies to all persons within an occupational association or to a specified class or classes of persons within an 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 ss4.15; Professional Standards Act 2004 (NT) ss18; Professional Standards Act 2004 (Qid) ss19; Professional Standards Act 2003 (Vic) ss19; Professional Standards Act 1997 (WA) ss30; Professional Standards Act 2004 (SA) ss19.

person  at  the  relevant  time,  which  insurance complies with  standards  set from time to time by CIRCEA  in accordance with section  27 of the Ace.

2. 2       The   scheme    may   apply   to   other   persons   who   are   officers,    partners, employees or associates of persons who are covered by the scheme3.

2. 3       A person  to whom  the scheme  applies,  other  than persons described under clause   2.2  of  the  scheme,   may,  on  written   application  to  the   Board   of CIRCEA,  be exempted from the scheme  by the Board.

3	Limitation of liability

3.1       This scheme  only affects the liability  for damages arising  from a single  cause of  action  to  the  extent  to  which  the  liability  results  in  damages exceeding
$1,000,000.

3.2       If  a  person,   who  was  at  the  time   of  the  act  or  omission  g1v1ng rise  to occupational liability,  a person  to whom  the scheme  applied,  against  whom  a proceeding relating  to occupational liability  is brought,  is able  to  satisfy  the court that such person  has the benefit of an insurance policy:

(a)  of a kind which  complies with the standards determined by CIRCEA; (b) 	insuring such person  against  that occupational liability; and
(c)   under  which  the amount  payable  in respect  of that  occupational liability is not less than the monetary ceiling  specified  in this scheme,

that person  is not liable in damages, in relation  to that cause  of action,  above the monetary ceiling  specified  in this scheme.

3. 3       The  monetary ceiling  required for the purposes of limitation of liability  under this scheme  at the time at which  the act or omission giving  rise to the cause of action occurred is to be determined according to the following  table:

Class	Description	Monetary ceiling	
1	Category A member	$1, 000,000	
2	Category B member	$5,000,000	
3	Category C member	Such amount specified pursuant to clause 4.1 in excess of the monetary ceiling in respect of either Category A member or a Category B member but not exceeding $10,000,000.	

3.4 	Relevant  definitions for the purposes of this clause  are as follows:

" Category  A member'   means   a  person   who  is  an  ordinary   member  of CIRCEA to whom  the scheme  applies,  who provides advice  other  than  as a Category  B member.

2 Equivalent 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 s4.23; Professional Standards Act 2004 {NT) s28; Professional Standards Act 2004 (Qid) s28; Professional Standards Act 2003 (Vic) s29; Professional Standards Act 1997 (WA) s40; Professional Standards Act 2004 (SA) s29.
3 Sections 18 and 19 of the Act provide that if the scheme applies to a body corporate, the scheme also applies to each officer of the body corporate
and if the scheme applies to a person. the scheme also applies to each partner of the person, and if the scheme applies to a person the scheme also applies to each employee of the person, provided that if such officer 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 officer, partner or employee is a member of the occupational association.   Section 20 provides that the scheme may also apply to other persons as specified 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 are: Civil Law (Wrongs) Act 2002 (ACT) Schedule 4 Professional Standards s4.15; Professional Standards Act 2004 (NT) s18; Professional Standards Act 2004 (Qid) s19, s21A; Professional Standards Act 2003 (Vic) s19; Professional Standards Act 1997 (WA) s31, s32; Professional Standards Act 2004 (SA) s20, s21.

" Category  8 member"  means  a  person  who  is  an  ordinary  member  of CIRCEA  to  whom  the  scheme  applies,  and  who  provides  advice predominantly in the geotechnical engineering  field.

" Category  C  member'  means  a  person  who  is  an  ordinary  member  of CIRCEA to whom the scheme applies and who has sought a higher limit of liability under clause 4.1 of the scheme.

3.5       Notwithstanding  anything  to  the  contrary  contained  in  this  scheme  if,  in particular circumstances giving rise to occupational liability, the liability of any person who is subject to this scheme should be capped both by this scheme and  also  by  any  other  scheme  under  professional  standards  legislation (whether of this jurisdiction  or under the law of 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 such circumstances which is higher shall be the applicable cap.

4          Conferral of discretionary authority

4.1 		Pursuant to s244   of the Act, this scheme confers on CIRCEA a discretionary authority to specify, on written application of a member of CIRCEA to whom the scheme applies, in relation to that member, a monetary ceiling in excess of the monetary  ceiling that would  otherwise  apply, but not exceeding  $10 million, in relation to the member either in all cases or in any specified case or class of case.

5          Duration

5.1     This scheme will be in force for a period of 5 years from the date of commencement.

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 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.

4 Equivalent 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 s4.20; Professional Standards Act 2004 (NT) s25; Professional Standards Act 2004 (Qid) s25; Professional Standards Act 2003 (Vic) s26; Professional Standards Act 1997 (WA) s37; Professional Standards Act 2004 (SA) s26.