Architects Bill 2003

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The objects of this Bill are:

(a) to provide for the registration of architects, and

(b) to provide for the constitution and functions of the NSW Architects
Registration Board (the Board), and

(c) to regulate the conduct of registered architects, and

(d) to create offences that prohibit persons from representing themselves or
others to be architects when they are not registered as architects and from
advertising the provision of architectural services in a misleading manner,
and

(e) to require corporations and firms that operate as architects to have a
registered architect who is nominated to be responsible for the provision
of architectural services by the corporation or firm, and

(f) to repeal the Architects Act 1921 and the regulations made under that Act
and to enact savings, transitional and other provisions consequent on the
enactment of the proposed Act.

The Bill arises from a National Competition Policy review of the Architects
Act 1921 and incorporates the following reforms:

(a) the introduction of the concept of a registered architect as a replacement
for the concepts of chartered architect and non-chartered architect that are
currently used in the Architects Act 1921,

(b) the removal of the requirement that at least a third of the directors of a
corporation or firm offering architectural services be chartered architects,

(c) the introduction of a new system for making complaints against, and the
disciplining of, architects who are found guilty of unsatisfactory
professional conduct or professional misconduct,

(d) the inclusion in the membership of the Board of Architects of New South
Wales (to be renamed the NSW Architects Registration Board) of
community, consumer and industry representatives,

(e) the establishment by the regulations of codes of professional conduct for
architects,

(f) the extension of the ability of the Board to fund its own activities by
imposing and recovering fees for the services it provides,

(g) the extension of the role of the Board in accrediting courses of study for
architecture and promoting discussion on architectural issues in the
community.

Outline of provisions

Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days
to be appointed by proclamation.

Clause 3 sets out the objects of the proposed Act.

Clause 4 defines certain words and expressions used in the proposed Act. For
instance, architect is defined to mean a person who is registered as an architect
under the proposed Act. Firm is defined to mean a partnership or other
unincorporated association of persons.

Clause 5 provides that the proposed Act binds the Crown.

Clause 6 provides that the proposed Act does not limit or otherwise affect the
operation of the Mutual Recognition Act 1992 of the Commonwealth or the
Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.

Part 2 Practice of architecture
Division 1 Code of professional conduct
Clause 7 provides that the regulations may establish a code of professional
conduct. The clause also provides for the Board to provide the Minister with
advice or proposed guidelines relating to conduct that theMinister thinks should
be the subject of such a code.

Clause 8 provides that the provisions of a code of professional conduct are
relevant in determining what constitutes proper and ethical conduct by an
architect.

Division 2 Offences relating to the practice of architecture
Clause 9 makes it an offence for an individual who is not registered as an
architect under the proposed Act to be represented to be an architect.

Clause 10 makes it an offence for a corporation or firm to be represented to be
an architect unless the corporation or firm has at least one nominated architect
who is responsible for the provision of architectural services by the corporation
or firm.

Clause 11 requires an architect corporation or architect firm to ensure that there
is a nominated architect responsible for the provision of architectural services in
regular attendance at the places of business at which it provides architectural
services. The clause also requires advertising by an architect corporation or
architect firm to include the name of a nominated architect responsible for the
provision of architectural services by the corporation or firm. The Board is
authorised to grant exemptions from the provisions of the clause.

Clause 12 makes it an offence for a person to provide architectural services
other than by or under the supervision of an architect if the person has offered to
provide the services, or represented that they will be provided, using an architect.

Correspondence concerning those services to the client is also required to
include the name of an architect who is to be responsible for the provision of
those services.

Clause 13 deems certain representations to be a representation that a person,
corporation or firm is an architect.

Clause 14 makes provision for what does not constitute a representation that a
person, corporation or firm is an architect.

Clause 15 extends the meaning of “represent” to include claim and hold out.

Part 3 Registration
Division 1 Entitlement to registration
Clause 16 specifies the qualifications required for registration as an architect.

The proposed section also enables the Board to accredit a course of study offered
by an educational or training institution for the purposes of qualification for
registration as an architect. An institution that is refused accreditation by the
Board may apply to the Administrative Decisions Tribunal (the Tribunal) for a
review of that decision.

Clause 17 specifies the circumstances in which a person is entitled to full
registration as an architect under the proposed Act.

Clause 18 provides for temporary registration under the proposed Act in certain
circumstances of architects with overseas qualifications.

Clause 19 provides that an applicant for full or temporary registration as an
architect must pay the fee approved by the Board for such registration before the
person can be registered.

Clause 20 specifies the circumstances in which the Board may refuse to register
a person under the proposed Act. It also enables the Board to impose conditions
on registration as an alternative to refusing registration.

Clause 21 restricts the re-registration of de-registered persons and certain other
persons.

Division 2 Registration procedures
Clause 22 provides for the registration by the Board, under the Licensing and
Registration (Uniform Procedures) Act 2002, of architects, and makes certain
modifications to the way that Act applies in that regard.

Division 3 Cancellation and suspension of registration
Clause 23 specifies the effect of the removal of a person’s name from the
Register and the suspension of a person’s registration as an architect.

Clause 24 provides for the circumstances when the Board must remove a
person’s name from the register of architects. It also specifies circumstances
when a name may be removed by the Board.

Division 4 Register of architects
Clause 25 requires the Registrar of the Board to establish and maintain a register
of architects (the Register) and to make the Register available to the public.

Clause 26 requires the Board to publish a list of registered architects at least
once a year for the information of the public.

Clause 27 enables a corporation or firm that provides architectural services to
nominate one or more architects to be responsible for the supervision of
architectural services provided by the corporation or firm.

Clause 28 requires an architect registered under the proposed Act to pay on or
before 31 March each year the annual registration fee approved by the Board.

Clause 29 makes it an offence for an architect to fail to notify the Board of a
change of particulars. It also makes it an offence for a corporation or firm not to
notify the Board that a nominated architect has ceased to be responsible for the
provision of architectural services by the corporation or firm.

Clause 30 gives evidentiary weight to a certificate by the Registrar of the Board
as to matters recorded in the Register.

Division 5 Review of registration decisions
Clause 31 enables a person who has been refused full registration (or who has
had conditions imposed on that registration) by the Board to apply to the
Tribunal for a review of such a decision. It also enables a person whose name
has been removed from the Register by the Board under the proposed Part to
apply for a review of that removal by the Tribunal.

Part 4 Complaints and disciplinary proceedings
Division 1 Interpretation
Clause 32 defines certain terms and expressions used in the proposed Part,
including professional misconduct and unsatisfactory professional conduct.

Clause 33 provides for the cessation of complaints and disciplinary proceedings
against a deceased architect. It also provides that the proposed Part extends to
persons who have ceased to be registered as architects under the proposed Act.

Division 2 Complaints
Clause 34 enables any person (including the Board) to make a complaint against
an architect in respect of the architect’s conduct as an architect.

Clause 35 enables a complaint to be withdrawn at any time.

Clause 36 provides for the form that a complaint must take.

Clause 37 provides that generally the Board must notify the person against
whom a complaint has been made of the making of the complaint, the nature of
the complaint and the identity of the complainant.

Clause 38 requires the Board to investigate complaints and provides for how
multiple complaints may be dealt with.

Clause 39 provides that, for the purposes of investigating or determining a
complaint, the Board is not bound to observe the rules of evidence but may
inform itself of any matter in such manner as it thinks fit. It also enables the
Board to pursue alternative dispute resolution to assist in resolving issues raised
by a complaint.

Clause 40 enables the Board to require an architect to produce documents and
assist in an investigation of a complaint.

Clause 41 enables a person to be summoned to appear before the Board to give
evidence and produce documents for the purposes of investigating or
determining a complaint. It also enables the Board to take evidence on oath or
affirmation.

Clause 42 provides that, after the investigation of a complaint, the Board may
take certain action.

If the Board is satisfied that the architect is not guilty of professional misconduct
or unsatisfactory professional conduct, it must dismiss the complaint.

If the Board is satisfied that the architect is guilty of professional misconduct, it
must apply to the Tribunal for a disciplinary finding against the architect.

If the Board is satisfied that the architect is guilty of unsatisfactory professional
conduct (but not professional misconduct), it may apply to the Tribunal for a
disciplinary finding against the architect or it may itself take any one or more of
the following actions against the architect:

(a) caution or reprimand the architect,

(b) order the withholding or refunding of part or all of the payment for the
architectural services that are the subject of the complaint,

(c) direct that such conditions relating to the architect’s practice of
architecture as it considers appropriate be imposed on the architect’s
registration,

(d) order that the person complete any educational course or courses specified
by the Board,

(e) order that the person report on his or her architectural practice at specified
times, in a specified manner and to specified persons,

(f) order that the person seek and take advice, in relation to the management
of his or her architectural practice, from a specified person or persons,

(g) order the architect to pay a fine of an amount not exceeding 100 penalty
units.

Clause 43 enables a person against whom a disciplinary finding has been made
by the Board to apply to the Tribunal for a review of that finding and any action
taken against the person by the Board.

Clause 44 enables the Board to delegate its functions under the proposed Part to
specially constituted committees of the Board.

Division 3 Applications to Tribunal for disciplinary findings
Clause 45 enables the Board to apply to the Tribunal for a disciplinary finding
against an architect with respect to a complaint against the architect.

Clause 46 provides that on any such application the Tribunal is to determine
whether or not the architect is guilty of professional misconduct or
unsatisfactory professional conduct. If the Tribunal finds that the architect is
guilty of either, the Tribunal may take any one or more of the following actions
against the architect:

(a) caution or reprimand the architect,

(b) order the withholding or refunding of part or all of the payment for the
architectural services that are the subject of the complaint,

(c) direct that such conditions relating to the architect’s practice of
architecture as it considers appropriate be imposed on the architect’s
registration,

(d) order that the person complete any educational course or courses specified
by the Tribunal,

(e) order that the person report on his or her architectural practice at specified
times, in a specified manner and to specified persons,

(f) order that the person seek and take advice, in relation to the management
of his or her architectural practice, from a specified person or persons,

(g) order the architect to pay a fine of an amount not exceeding 200 penalty
units,

(h) order the suspension of the architect’s registration for such period as the
Tribunal thinks fit,
        (i) order the cancellation of the architect’s registration.

Clause 47 provides that the Tribunal may award costs under section 88 of the
Administrative Decisions Tribunal Act 1997 in respect of proceedings
commenced by the Board for a disciplinary finding.

Clause 48 provides that a decision of the Tribunal on an application for a
disciplinary finding may be appealed to an Appeal Panel of the Tribunal under
Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997.

Division 4 Confidentiality issues
Clause 49 provides that an architect may disclose confidential information to
the Board, a committee of the Board or the Tribunal despite any duty of
confidentiality.

Clause 50 provides that the Tribunal is not required to include confidential
information in its statement of a decision. If the statement would be false or
misleading without the confidential information, the Tribunal is not required to
provide the statement. However, a confidential information notice must then be
provided indicating that confidential information is not given or the statement
will not be provided.

Division 5 Co-operation with other jurisdictions in respect of
disciplinary action
Clause 51 requires the Board to notify various architect professional registration
authorities in Australia and New Zealand of the taking of disciplinary action
against an architect. It also enables the Board to notify the architect professional
registration authorities of other jurisdictions outside the State of the taking of
such action.

Division 6 Publicising disciplinary action
Clause 52 defines certain terms used in the proposed Division.

Clause 53 enables and requires the Board to publicise disciplinary action taken
against an architect or former architect.

Clause 54 requires the Registrar of the Board to keep a register of disciplinary
action and to make it available to the public.

Clause 55 requires the Board to publicise the quashing on appeal or review of
any disciplinary action taken against an architect or former architect and to
update the register of disciplinary action to reflect the quashing of the action.

Clause 56 provides that no liability is incurred by the State, the Board, the
Registrar or a person acting at the direction of the Board or Registrar in respect
of anything done in good faith for the purpose of publicising disciplinary action
or otherwise carrying out functions under the proposed Division. It also provides
that no liability is incurred by a person who publishes a fair report or summary
of disciplinary action that is publicised.

Clause 57 specifies what matters cannot be published when publicising
disciplinary action.

Part 5 NSW Architects Registration Board
Division 1 Constitution
Clause 58 provides for the constitution of the NSW Architects Registration
Board as a body corporate.

Clause 59 provides for the membership of the Board.

Division 2 Functions of the Board
Clause 60 provides that the functions of the Board are the following:

(a) the registration of architects,

(b) the investigation of complaints against architects,

(c) the taking of disciplinary action against architects,

(d) the investigation of matters referred to it by the Minister for advice and
report in relation to the practice of architecture (including codes of
professional conduct),

(e) co-operation with the other States, the Territories and New Zealand to
further a common and harmonious approach to the administration of
legislation relating to architects,

(f) the accreditation of courses of study in architecture,

(g) the maintenance and operation of the Architects Fund,

(h) the promotion of community discussion about architectural issues,
        (i) the provision of general advice to consumers of architectural services with
respect to the ethics and standards of professional competence that are
generally expected of architects,

(j) the provision of advice to the Minister with respect to any other matter in
connection with the administration of the proposed Act,

(k) such other functions as are conferred or imposed on the Board by or under
the proposed Act or any other Act.

Division 3 Committees and staff
Clause 61 provides for the establishment of advisory and other committees of
the Board.

Clause 62 provides for the employment of a Registrar of the Board and such
other staff as are necessary to enable the Board to exercise its functions. The
proposed section also enables the Board to make use of the staff and facilities of
government departments and public authorities.

Division 4 General provisions
Clause 63 enables the Board to conduct such examinations as may be required
for the purposes of the proposed Act and to appoint examiners in respect of those
examinations.

Clause 64 enables the Board to delegate its functions, subject to certain
restrictions.

Clause 65 deals with the exclusion of personal liability for acts and omissions
of the Board, Board members and persons acting under the direction of the
Board or a Board member.

Clause 66 gives effect to Schedule 1, which contains further provisions relating
to the membership and procedure of the Board.

Part 6 Finance
Division 1 Fees
Clause 67 enables the Board to charge fees for certain services it provides.

Clause 68 enables the Board to approve certain fees for the purposes of certain
provisions of the proposed Act.

Clause 69 enables the Minister to direct the Board to reduce fees that it charges
or approves if the Minister considers the fees to be excessive.

Clause 70 enables the Board to waive or reduce fees.

Division 2 Architects Fund
Clause 71 requires the Board to establish and maintain a fund to be known as
the Architects Fund.

Clause 72 requires any fees or monetary penalties (other than for offences) paid
to, or recovered by, the Board and any other money received by or on account of
the Board to be paid into the Architects Fund.

Clause 73 provides for when money may be paid out of the Architects Fund by
the Board. It also provides that the Treasurer may direct the Board to pay out of
the Architects Fund to the Consolidated Fund an amount (or part of an amount)
that, in the opinion of the Treasurer, is in excess of the amount required to meet
the Board’s expenses for a financial year.

Clause 74 enables the Board to invest money held in the Architects Fund.

Division 3 General
Clause 75 provides for the financial year of the Board to commence on 1 July.

Clause 76 provides that any fee payable under the proposed Act, and any
monetary penalty imposed under the proposed Act (other than for an offence),
may be recovered by the Board in any court of competent jurisdiction as a debt
due to the Board.

Part 7 Miscellaneous
Clause 77 provides for the giving of notices.

Clause 78 provides for the service of documents on the Board.

Clause 79 requires the Board, the President or an authorised member of the
Board to provide on request a written statement of the reasons for a decision.

Clause 80 provides for the authentication of official documents of the Board by
signature instead of seal.

Clause 81 provides for a partner in or member of the governing body of a firm
to be guilty of an offence if he or she knowingly authorised or permitted a
contravention by the firm of any provision of the proposed Act or the
regulations.

Clause 82 provides that if a corporation contravenes any provision of the
proposed Act or the regulations, each director or other person concerned in the
management of the corporation is also taken to have contravened the provision
if the director or person knowingly authorised or permitted the contravention.

Clause 83 provides for the making of regulations under the proposed Act.

Clause 84 provides that an offence under the proposed Act or the regulations
may be dealt with summarily by a Local Court.

Clause 85 provides for the repeal of the following:

(a) the Architects Act 1921,

(b) the Architects (Elections and Appointments) Regulation 1995,

(c) the Architects (General) Regulation 1995.

Clause 86 is a formal provision that gives effect to the amendments to the Acts
and Regulations set out in Schedule 2.

Clause 87 is a formal provision that gives effect to the savings, transitional and
other provisions set out in Schedule 3.

Clause 88 provides for a review of the operation of the proposed Act to be
undertaken after 5 years from the date of assent to the proposed Act.

Schedule 1 Constitution and procedure of Board
Schedule 1 contains standard provisions relating to the constitution of the Board
and the procedure of the Board.

Schedule 2 Amendment of Acts and Regulations
Schedule 2 contains amendments to the following Acts and Regulations:

(a) the Administrative Decisions Tribunal Act 1997,

(b) the Environmental Planning and Assessment Regulation 2000,

(c) the Home Building Act 1989 (as amended by the Home Building
Legislation Amendment Act 2001),

(d) the Home Building Regulation 1997,

(e) the Licensing and Registration (Uniform Procedures) Act 2002,

(f) the Public Finance and Audit Act 1983.

Schedule 3 Savings, transitional and other provisions
Schedule 3 contains a number of savings, transitional and other provisions
consequent on the enactment of the proposed Act, including a provision enabling
the regulations under the proposed Act to make further provisions of a savings
or transitional nature.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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