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ARCHITECTS REGULATIONS 2004 (NO 23 OF 2004)
2004
LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN
CAPITAL TERRITORY
ARCHITECTS BILL
2004
EXPLANATORY
STATEMENT
Circulated by authority of the
Minister for Planning
Mr
Simon Corbell MLA
Architect Bill 2004
The impetus for reform of the Architects Act 1959 came out of the
Productivity Commission’s Report no.13, “Review of Legislation
Regulating the Architectural Profession” in 2000. The terms of the review
required the Commission to examine the existing Australian legislation, identify
any public interest rationale for it and consider alternative forms of
regulation. The report examined the existing legislation and identified areas
in which it could be improved and made two recommendations.
The States
and Territories supported the principles outlined in the second recommendation,
which would enable each jurisdiction to develop their own legislative and
administrative models while maintaining a nationally consistent approach to
registration, qualifications and title protection. In June 2002 the Australian
Procurement and Construction Council (APCC) agreed in principle to pursue
harmonisation of Architects Acts in cooperation with the Boards of Architects
from each jurisdiction.
A framework for national harmonisation was
adopted and endorsed by the APCC and is being used by the National Competition
Council (NCC) as the basis for the assessment of jurisdictions’ compliance
with reform requirements. The framework for legislative reform recommended
that:
• Regulatory boards be constituted with broad industry wide
and consumer representation;
• The regulation of architects not
include restriction on practice;
• Restriction on the use of the
titles “architect” and “registered architect”
remain;
• Where an organisation offers the services of an
architect, an architect must supervise and be responsible for those
services;
• Complaints and disciplinary procedures be made more
transparent and provide avenues for appeal; and
• Architectural
boards be encouraged to identify and implement means of broadening certification
channels.
The existing Architects Act 1959 does not meet the new
framework requirements, and the amount of amendment that would have been
required made it more practical to draft a new Bill. This Bill meets the
ACT’s reform commitments under the National Competition Policy, and will
provide a more transparent and effective registration system for architects in
the ACT.
Part 1 contains the administrative provisions for the operation of the
Act. Part 2 outlines the fundamental concepts that underpin the
Bill.
Part 3 provides for the registration of architects, and
outlines the eligibility and application process, the requirements for the
keeping of a register of architects and the appointment of a registrar. The
note at Division 3.1 clarifies that the nothing in the Act affects the
ACT’s obligations under the Mutual Recognition Act 1992 (Cwth) and
the Trans-Tasman Mutual Recognition Act 1997 (Cwth).
Part 4
sets out the process for people who wish to complain about the actions of a
registered architect or person who was registered at the time they did or did
not do something which gave rise to the complaint.
Part 5 outlines
the process that the Board must follow when taking disciplinary action against
an architect. Part 6 contains offence provisions for the Act. Part
7 provides for the establishment and operations of an ACT Architects
Board.
Part 8 deals with the protection of complainants, and
information dealt with by Board members, the registrar and any person acting
under the direction or authority of the Board.
Part 9 deals with
reviewable decisions. Part 10 deals with miscellaneous provisions.
Part 11 deals with the provisions required to ensure the effective
transition from the operations of the Architects Act 1959 to this
Act.
Most offences are now offences of strict liability in accordance with current legal policy for regulatory offences with small or moderate penalties. That means that conduct alone is sufficient to make the defendant culpable and there are no fault elements for any of the physical elements of the offence. Strict liability offences do not have a mental element, termed ‘mens rea’. However, the physical actions, do have a mental element of their own, for example, voluntariness. For that reason, the general common law defences of insanity and automatism still apply as they go towards whether a person has done something voluntarily, as well as whether they intended to do the act.
Under the Criminal Code, all strict liability offences will have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code provides that other defences may still be available for use in strict liability offences.
The potential consequences for the community of substandard architectural services are the justification for strict liability provision. Those consequences range from the consumers being mislead about the skills or qualifications of a person offering an architectural service, to architectural services being provided which do not meet the standards of professionalism and conduct that may be specified in a Code of Professional Conduct adopted under the Act. Where appropriate the Bill adds specific additional defences for certain offences.
Part 1 Preliminary
Part 1 deals with the
administrative elements of the Bill.
Clause 1 provides for
the title of the Bill. Clause 2 stipulates that the Act commences
on 1 July 2004 and provides notes about the commencement of the Bill. Clause
3 explains that the dictionary contained at the end of the Bill is a
part of the Bill, and provides notes to explain how the definitions are
structured and how they apply to the Bill. Clause 4 explains that
the “notes” that appear in the Bill are aids to interpretation but
not part of the Bill.
Clause 5 explains that provisions in
other legislation apply to offences committed under the Bill. The notes in
Clause 5 explain the application of the Criminal Code and Legislation
Act 2001 to the Bill.
Part 2 outlines the fundamental concepts that underpin the
Bill.
Clause 6 outlines the objects of the Act, which
define the scope of the Bill. Under the Bill an Architects Board (the Board)
will be established to regulate registered architects. One of the important
roles of the Board is to ensure that registered architects provide architectural
services to the public professionally and competently. The Bill also enables
the Board to discipline registered architects who have failed to provide
professional and competent architectural services. Public access to information
about the qualifications and competence or registered architects is also
provided for in this Bill.
Clause 7 defines
architectural services because it is an important concept and should be
highlighted at the front of the Bill. The definition of architectural
services is required to define the scope of activities that are subject to
the provisions of the Bill. Because of the varied nature of work undertaken by
architects, the definition is broad and designed to cover the range of work
ordinarily undertaken by an architect. Clause 7 includes the capacity to
use regulations to prescribe services that are or are not architectural
services. This enables the Bill to adapt to the changing use of terms and
technology in the provision of architectural services.
Part 3 provides for the registration of architects, and outlines the
eligibility and application process, and the requirements for the keeping of a
register of architects. The note at Division 3.1 clarifies that the nothing in
the Act affects the ACT’s obligations under the Mutual Recognition Act
1992 (Cwth) and the Trans-Tasman Mutual Recognition Act 1997
(Cwth).
Clause 8 outlines the eligibility requirements for an
individual to be registered as an architect. An individual is required to have
both relevant expertise and experience. Relevant expertise requires the
applicant to either:
• have a qualification that has been prescribed
under the regulations, for example a degree in architecture from a recognised
university; or
• have completed a course of study that has been
accredited by the architects board; or
• have an overseas qualification
that the Board is satisfied is adequate to enable the applicant to practise
architecture in the ACT.
In addition to the above, the applicant must
also pass an examination set by the board to assess the individual’s
competence to practise architecture. Relevant experience is defined to require
the individual to have at least 2 years practical experience in architecture,
with at least one year being postgraduate experience and at least one
year’s experience gained in Australia. This experience is normally gained
prior to the individual sitting the examination set by the Board.
The
Board is able to accredit courses and any accreditation is a notifiable
instrument.
These requirements are consistent with the qualification
requirements of other jurisdictions.
Clause 9 requires the
Board, to consider an application by an individual, and make a decision on that
application. Only individuals are eligible to apply for registration. The
decision can be to register or refuse to register the individual. To decide to
register an applicant, the Board must be satisfied that the applicant is
eligible to be registered. If not satisfied, the application must be refused.
The Board must also refuse to register an applicant who has been disqualified
from applying for registration.
There is a range of relevant
circumstances where the Board has discretion to refuse to register an
applicant. If any of those circumstances exist, the Board must be satisfied
that public interest will or might be endangered before the Board can refuse
registration. The definition of relevant circumstances includes
bankruptcy, being convicted or found guilty of an offence under the Bill, being
convicted of an offence punishable by imprisonment for 1 year or longer. If the
applicant is registered in another jurisdiction and that registration has been
cancelled or suspended on grounds that would have resulted in a cancellation or
suspension in the ACT, then this is another ground under which the Board may
refuse to register an applicant. This Clause will assist to maintain the
integrity of the registration system for architects, while recognising a range
of circumstances that may or may not be a relevant consideration in an
individual application.
The Board has discretion to place a condition on
a registration. A decision to refuse to register an individual or place
conditions on a registration is appealable to the Administrative Appeals
Tribunal.
Clause 10 outlines when the Board may place
conditions on a registration, and the type of conditions that may be imposed. A
condition may be placed on a registration at the time of the registration, or as
a result of disciplinary action. The conditions may restrict the term of the
registration, restrict the kind of architectural services that may be provided,
or may be in relation to other matters relevant to the provision of
architectural services. The Board must have regard to certain matters before
making a decision to impose a condition on a registration.
Clause
11 requires the Board to include a registered architect’s
details in the register. The details to be included in the register, such as
name and registration number, are prescribed in the
regulations.
Clause 12 specifies that the standard term for
a registration is one year, but the Board may place a condition on the
registration that provides for a shorter period. This would also cover
circumstances where an overseas architect has been brought to the ACT to work on
one specific project for a period of less than one year. They could be
registered for the period of time required to complete the project, and the
provisions of Clause 10 could also be used to limit the architectural
services provided to only that project.
Clause 13 requires the chief executive to appoint a public
servant to be the registrar of architects. The registrar provides
administrative support for the Board, and is also responsible for maintaining
the register of architects. In carrying out these functions, the registrar is
required to work to any direction given by the Board.
The Board is
required to keep a register of architects that is available for public
inspection. Clause 14 specifies the requirements for the keeping
of a register, including the form in which it may be kept, and that access by
the public to the register is free.
Clause 15 provides an
exception to certain information on the register being available for inspection
by the public. If the Board has taken disciplinary action against a person, the
details of the disciplinary action cannot be included in the register until the
process has been finalised. This means the time for any review of the decision
has ended and no application for review has been made, or an application has
been made and the decision reviewed and the time for further appeal has ended.
If the disciplinary action has been reversed or set aside through the
review process, the original decision must not be available for inspection. If
the decision has been changed, then the changed decision must be included in the
register. These provisions ensure that the person subject to the disciplinary
action is afforded the right to a fair and independent review or the decision,
and only final decisions are open for public inspection.
Clause
16 enables the registrar, with the approval of the Board, to correct
any errors, mistakes or omission in the register, which ensures that the
information available for public inspection is accurate.
One of the aims
of harmonising architects legislation in Australia is to assist jurisdictions to
maintain accurate data bases of registered architects in Australia, which in
turn enhances the effectiveness of the mutual recognition process. To assist in
achieving harmonisation, Clause 17 enables the Board and registrar
to share information relevant to the registration of architects with other
jurisdictions in Australia and New Zealand, for use as part of a joint register
of architects.
There are a range of circumstances in which is appropriate
for the Board to remove information from the register. Clauses
18, 19 and
20 outline the process for and circumstances in which
the information can be removed. Clause 19 requires the Board to remove details of a
person’s registration from the register if the person has died, has asked
for their registration to be cancelled, if the person is no longer registered or
if the Board has cancelled the person’s registration. If as a result of
mental or physical incapacity, the Board is satisfied that a person is no longer
eligible to be registered as an architect, their information must also be
removed. The mental or physical incapacity must affect the person’s
ability to provide architectural services for it to be a consideration in
removing a person’s details from the register.
Clause 20 provides discretion for the Board to remove
details of a person’s registration if the person becomes bankrupt or is
found guilty of an offence punishable by imprisonment for one year or longer.
In these circumstances, and in the circumstance of mental or physical
incapacity, the Board must not remove the details until a notice has been given
to the person under Clause 18. This
Clause requires the Board to give a written notice to the person of the
Board’s intention to remove their details from the register. The notice
must advise the nature of the action, why the Board intends to take the action,
and give the person 12 business days to respond to the notice. If a written
response is received the Board must take the response into account before taking
action. A decision to remove a person’s details from the register is
appealable to the Administrative Appeals Tribunal.
The nominee provisions relate to the requirements for firms providing
architectural services to have architects nominated to be responsible for the
provision of those services.
Clause 21 defines the term
mandatory requirement for this Division as a written requirement by the
nominee that requires the firm to do or not do something in order to comply with
the Act. This assists the nominee in exercising their responsibilities under
the Act.
Clause 22 requires a firm to give the Board
written advice of the appointment of a nominee. The appointment must state the
name of the person who is to be a nominee and whether or not they are
responsible for all or only some of the architectural services provided by the
firm. Where there is more than one nominee appointed, the responsibilities of
each nominee must be stated, and one nominee must be the primary nominee. The
eligibility of the person to be the nominee must also be included.
To be
eligible, the nominee must be registered, and a director, partner or employee of
the firm. The nominee must also agree in writing to be the
nominee.
Clause 23 specifies that if a firm only has one
nominee, he or she is taken to be the primary nominee. The concept of primary
nominee is designed to simplify the advertising requirements for firms that have
large numbers of registered architects.
Where a firm is a partnership
and has more than one nominee, Clause 24
requires the firm to appoint a primary nominee. If one of the nominees is a
partner, that person is the primary nominee. If more than one partner is a
nominee, then the firm must advise in writing which of the partners is the
primary nominee. Where none of the nominees is a partner, the firm must appoint
one as the primary nominee.
Clause 25 is the same as
Clause 24, only it applies to firms that
are corporations.
Clause 26 enables a firm to change its
primary nominee by written notice to the Board. This enables the firm to adjust
to staffing changes and also ensure that the Board is able to keep their
register details up to date.
Clause 27 specifies that a
nominee automatically ceases to be a nominee if they are no longer eligible (eg.
no longer registered, or no longer an employee, director or partner of the
firm).
Clause 28 enables a nominee to
resign their appointment as the nominee. The resignation must be in writing and
be approved by the Board. The clause prescribes the matter about which the
Board must be satisfied before the resignation can be approved. These
include;
• the firm failing to comply with a mandatory requirement of
the nominee
• the nominee no longer being physically or mentally able
to exercise their functions;
• the firm has arranged for another
nominee to take over the nominee’s functions; or
• there are
other appropriate reasons to approve the resignation (for example new carer
responsibilities, moving interstate)
The provisions in Clause 28 and 29 enable
the Board to ensure that they have the most up to date information about the
status of nominees of firms. It will also enable the Board to advise the firm
in circumstances where they may be unaware of the resignation, that they need to
arrange for another nominee to be appointed.
Clause
29 enables a firm, with the Board approval, to
revoke a nominee’s appointment in circumstances where the nominee cannot
exercise their responsibilities due to physical or mental incapacity, where
another nominee has been appointed, or where there are other circumstances that
warrant the revocation. This ensures that a firm can make appropriate
management decisions for the efficient operation of their firm, but maintains
the requirement to advise the Board of those changes which impact on the nominee
arrangements within the firm.
Clause 30 specifies the
functions for a nominee of a firm. A nominee is required to supervise the
architectural services provided by the firm, and ensure that the provision of
these services comply with the Act. The nominee commits an offence if they fail
to fulfil their functions, unless the nominee had given the firm and the Board a
mandatory requirement, and compliance with the mandatory requirement would have
avoided the failure of the nominee to fulfil their functions. The firm also
commits an offence if the nominee fails to fulfil their functions. This
provision is designed to ensure that appropriately qualified people provide
architectural services advertised to be provided or supervised by a registered
architect. This has benefits for the consumer of these services in knowing that
qualified people are providing the service.
Clause 31
disapplies part 19.3 of the Legislation Act 2001, which specifies the
process for appointments. This is because the appointment of nominees is within
private firms and therefore not appropriately governed by the process in the
Legislation Act.
Clause 32 requires a firm to advise the
Board in writing about a nominee’s resignation or ceasing within one week
after the day the nominee ceased to be the nominee. This is for circumstances
other than the nominee resigning or the firm revoking the appointment, for
example, if the nominee has died. Again, this provision is to assist the Board
in maintaining an accurate register of nominees, which is in the public
interest.
This part sets out the process for people who wish to complain about the
actions of a registered architect or person who was registered at the time they
did or did not do something which gave rise to the complaint.
Clause
33 defines the term architect for the purpose of Part 4, which is, in
relation to an act or omission, a registered person or a person who was
registered at the time the act or omission occurred.
Under Clause
34 anyone who believes a registered or former registered architect
has contravened the Act may complain to the Board. Clause
35 requires the complaint to be in writing and
signed by the person making the complaint (the complainant). The
complaint must include the complainant’s name and address. The Board may
accept a complaint for consideration even if the complaint does not meet the
requirements in Clause 35. If
the Board accepts for consideration a complaint that is not in writing, the
Board must require the complainant to put the complaint in writing unless there
is a good reason for a written complaint not being provided.
Clause
36 enables a complaint to be withdrawn at any time by written notice
to the Board. If the complainant withdraws the complaint, the Board need take
no further action on the complaint, but may continue to act on the complaint if
the Board considers it appropriate. If the complaint is withdrawn the registrar
need not report to the complainant under Clause 40 (Action after investigating complaint) on the
results of any action on the complaint.
Clause 37 enables
the Board to require a complainant to give the Board further information about
the complaint, or to verify all or part of the complaint by statutory
declaration. If the Board requires one of these actions the Board must give the
complainant a reasonable period of time within which to do so, and may extend
that period, whether before or after it ends. If the complainant does not do so
the failure may, but need not, end action in relation to the complaint.
Clause 38 requires the Board to take reasonable steps to
investigate each complaint the Board accepts for
consideration.
However, Clause 39 stipulates that the Board must not take further
action on a complaint if satisfied that the complaint lacks substance, the
complaint is frivolous, vexatious or was not made in good faith, or that the
complaint has been adequately dealt with.
After investigating a
complaint, Clause 40
requires the Board to give a disciplinary notice to the architect who is the
subject of the complaint if satisfied that a disciplinary ground exists. The
Board must advise the complainant in writing that the notice has been given. If
the Board is not satisfied that a disciplinary ground exists in relation to the
complaint, the Board must advise the complainant in writing that no further
action will be taken. However, this does not prevent the Board from taking
further action on the complaint if subsequent to the decision, grounds exist for
disciplinary action to be taken in relation to the complaint. A note indicates
that withdrawal of a complaint relieves the Board of the obligation to advise
the complainant.
Part 5 outlines the process that the Board must follow when taking
disciplinary action against an architect.
Division 5.1 Disciplinary
proceedings
Clause 41 defines the term architect for the
purpose of Part 5, which is, in relation to an act or omission, a registered
person or a person who was registered at the time the act or omission occurred.
Clause 42 lists the disciplinary grounds in
relation to an architect. A disciplinary ground must exist for
the registrar to commence disciplinary action. The grounds are:
(a) the
architect has contravened or is contravening the Act
(b) if a professional
conduct code has been adopted under this Act – the architect has
contravened a requirement of the code;
(c) the architect has contravened, or
is contravening a condition of his or her registration
(d) the architect has
been convicted, or found guilty, of an offence against a corresponding law of
another jurisdiction;
(e) the architect has been found guilty, in the ACT or
elsewhere, of an offence involving fraud, dishonesty or violence, that is
punishable on conviction by imprisonment for one year or more.
Clause
43 requires the Board to give a disciplinary notice under
Clause 44 if satisfied
that a disciplinary ground exists or may exist in relation to an
architect.
A disciplinary notice given to an architect must include certain information.
The notice must state each disciplinary ground that caused the notice to be
given, and state the details of each ground that the Board is satisfied would
allow a reasonable person to identify the circumstances that give rise to the
ground. The notice must also advise the architect that he or she may, within 12
business days after the day the architect is given the notice, give a written
response to the Board about the matters in the
notice.
Where the
Board has given an architect a disciplinary notice, the Board may take
disciplinary action in relation to the architect if satisfied on reasonable
grounds that a disciplinary ground is established in relation to the architect.
Clause 45 requires the registrar to take
into account any response given to the Board in accordance with the disciplinary
notice and the considerations outlined under Clause 46, and may hold an
inquiry under Division 5.2 (Disciplinary inquiries), before making the decision
on what disciplinary action to take.
If the registrar takes
disciplinary action against an architect, the Board must notify the architect in
writing about the decision. The Board must include in the notice when the
action takes effect, which can be when the notice is given to the architect or
on a later date stated in the notice.
If the Board decides to take
disciplinary action in relation to an architect, Clause 46
enables the Board, having considered a range of stated matters, to do one or
more of the following:
(a) reprimand the architect ;
(b) require the
architect to complete a specific course of training to the satisfaction of the
Board or another stated person;
(c) impose a condition on the
architect’s registration, or vary an existing condition;
(d) order the
licensee to pay to the Territory a financial penalty of not more than
$1 000;
(e) suspend the registration for a stated period or until a
certain thing happens;
(f) cancel the architect’s
registration;
(g) cancel the architect’s registration and disqualify
the architect from applying for registration for a period or until a certain
thing happens;
(h) disqualify the architect from applying for registration
for a period, or until a certain thing
happens.
A financial penalty under (e) can be
recovered by the Territory as a debt. The capacity to impose a financial
penalty enables the Board to consider action that imposes a sanction that is
commensurate to the disciplinary ground, while not unnecessarily inconveniencing
the clients of the architects. The imposition of the financial penalty plus
another action such as requiring the completion of a training course, may be a
better alternative to suspension of registration, which may inconvenience the
clients, particularly where they wish the architect to complete their
contractual commitments. The right of the architect to appeal a decision of the
Board to take disciplinary action also provides a capacity for independent
review, which is an appropriate check and balance on the imposition of
disciplinary action.
Clause 47 outlines the requirements
for a public notice of the Board’s decision to take disciplinary action
against an architect. The Board may notify the public of the relevant matters
(defined at the end of the clause) by publishing those matters in relation to
the decision in a daily ACT newspaper and in any other way the Board considers
appropriate. The decision may only be publicly notified if the time for any
review of the decision has ended and no application for appeal or review has
been made or application for review has been made, and the decision has been
confirmed on review and the time for further appeal has ended. If the decision
has been reversed, the decision must not be publicly notified. If the decision
has been altered, the public notification applies to the decision as altered.
This provision complements the requirements in Clause 15 relating to exemption
of certain information on the public register.
Clause 48
requires the Board to advise each local registering authority of architects of
any cancellation, suspension or disqualification of an architect’s
registration. The information to be provided must include the name of the
architect, a description of the disciplinary grounds, which led to the
cancellation, suspension or disqualification, and the period of effect of any
suspension or disqualification. This provision contributes to the aim of
harmonisation of architects regulation in Australia, but does not limit any
other requirement under law to give information to other registering
authorities.
Division 5.2 Disciplinary
inquiries
If the Board decides to hold an inquiry in relation to an architect,
Clause 49 requires the Board to give the architect at least two
weeks written notice of the inquiry. The notice must be accompanied by a copy
of the disciplinary notice given to the architect under Clause 44 . The notice must state whether the Board
considers that any disciplinary ground no longer applies, or has changed,
because of any written response made by the architect and, if a ground has
changed, how it has changed. The notice must also explain that the inquiry may
result in the taking of disciplinary action against the architect and tell the
architect where and when the inquiry will be held. Clause 50
enables the Board to decide any procedure for an inquiry that is not prescribed
under this Act, and the Board may also adjourn an inquiry.
Under
Clause 51, when an inquiry is held, the Board may take evidence on
oath or affirmation and is not bound by rules of evidence but may inform itself
in anyway the Board considers appropriate. At an inquiry, an architect whose
actions are being inquired into may call witnesses. Clause 52
allows an architect to be represented at an inquiry by a lawyer who may examine
witnesses and address the Board on behalf of the architect. The Board may
appoint a lawyer to examine witnesses in an inquiry and advise the Board on any
matter relating to the
inquiry.
Clause
53 enables the Board to require in writing, a person to appear before
the inquiry on a stated date to give evidence, produce any document or thing in
the possession, custody or control of the person or both. The Board may set
aside a requirement for a person to give evidence or produce documents or other
evidence.
The Board may give a party to the inquiry leave, subject to
conditions, to inspect a document or thing produced under this clause and make
copies of a produced document for the inquiry. A person is taken to have
complied with a requirement to produce a document if the person delivers the
document or thing to the Board before the date stated in the requirement.
A person commits an offence if they fail to comply with a requirement
made of them under this section. This is an offence of strict liability, which
narrows the range of defences available and reflects that failure to assist an
inquiry may allow an architect to continue providing substandard architectural
services, with potential negative consequences for the consumers of those
services.
There may be circumstances where an architect, as either a
witness or as the subject of the inquiry, must give information to the inquiry
that was provided to them in confidence by a client. This may be necessary to
explain why certain actions were or were not taken at the time. Clause
54 provides that the giving of that information does not make the
architect liable for providing this confidential information.
Where a
person is required to attend an inquiry to give evidence or give evidence and
produce a document or something else, Clause 55 requires the
notice to be accompanied by an undertaking to appear, to be signed by the person
and returned to the Board by the stated date. It must also include a form to be
completed by the person to claim the reasonable costs and expenses of attendance
at the inquiry. A person, however, is not entitled to refuse to comply with the
requirement only because the requirement was not accompanied by the form.
Part 6 contains offence provisions for the Act.
Clause
56 clarifies that for the purposes of Part 6, an individual is not
taken to be registered or (where applicable) a nominee if their registration is
suspended.
Clause 57 stipulates that it is an offence for
a person who is not registered to pretend to be registered. There is a range of
terms used by other professions, such as landscape architect, which are clearly
not an attempt by a person to hold themselves out as an architect. The
regulations may prescribe the use of terms that would not be an offence under
this clause.
Under Clause 58 a firm must not offer
architectural services if they do not have a nominee. Each partner in a
partnership commits an offence if the partnership advertises or otherwise offers
to provide an architectural service if they do not have a nominee. However, it
is a defence to a prosecution for an offence if a partner proves that they did
not know the partnership did not have a nominee and took all reasonable steps to
avoid committing the offence or that they were not in a position to influence
the advertising or the offers made by the partnership.
Clause 59 stipulates that it is
an offence if a person advertises that the person provides, or will provide, an
architectural service and is not registered. If a registered architect
advertises to provide and architectural service and does not include the
person’s full name and registration number in the advertisement, they
commit an offence under Clause 60. Clause
61 provides the same offence as Clause 60 in relation to advertising by firms, which
requires the firm to include the name and registration number of their primary
nominee in the advertisement. These offences are strict liability, which
narrows the range of defences available.
It
is an offence under Clause 62 for a firm to advertise that it will
provide an architectural service, and fails to include in its written business
correspondence the name of the firm’s primary nominee and their
registration number.
It is an offence under
Clause 63 for a person to offer an architectural service to be
provided by another person, if the person is reckless about whether the person
who is to provide the architectural service, is a registered architect. Under
the Criminal Code recklessness can be proved by proving knowledge that the
person offering the service either knew that the person to provide the service
was not a registered architect, or did not make reasonable effort to find out if
they were a registered architect.
Part 7 provides for the establishment and operations of an ACT
Architects Board.
Clause 64 establishes the ACT Architects Board as a body
corporate.
Clause 65 stipulates the Board’s function,
which are to:
a) Register architects;
b) Investigate
complaints;
c) Take disciplinary action where necessary;
d) Consider and
report to the Minister about matters referred to it by the Minister;
e) Advise the Minister in relation to the practice of
architecture;
f) Further the harmonisation of architects legislation in
Australia through cooperation with other jurisdictions;
g) Accredit courses
of study in architecture; and
h) Provide general advice to consumers about
the professional conduct and standards of competence expected of registered
architects.
The Board is also able to exercise any other function given
to it by this Act or any other Territory law.
Clause 66
makes it clear that the Board is to operate independently and in the public
interest. This does not however, remove the obligation of the Board to respond
to directions from the Minister.
The Minister is able to give the Board
written directions about the exercise of the Board’s functions, but a
direction can only be given if the Minister believes it is in the public
interest to do so. The direction is given under Clause
67, but a direction cannot be given in relation to
the registering of individual architects, including renewal, cancellation,
disciplinary action or refusal to register. The Minister is required to advise
the Board of the proposed direction, give the Board the opportunity to comment
and consider any comment given prior to making a direction. Where a direction
is given, it is a notifiable instrument.
Clause 68
stipulates that the Board must comply with a direction given under Clause
67.
Clause 69 specifies the requirements for each member of the
Board. The Minister must appoint the five members: one nominated by a entity
that has as a main purpose the promotion of the interests of architects, one who
is or has recently been an academic architect, one architect, one commercial
lawyer and one member who is not an architect to represent community interests.
The membership requirements are designed to ensure that while the Board will
have architects as the majority members, there is appropriate representation
from the community, with the assistant of a lawyer, particularly where a
disciplinary process is being undertaken.
Under Clause 70,
each member is appointed for a term not longer than three years. Clause
71 outlines the procedure for the election of the chair and deputy
chair, and stipulates that both positions must be occupied by architects. In
the absence of the Board chair, or when the position is vacant, the deputy chair
acts in the position of the Board chair.
There may be circumstances where
the Board is required to consider an issue that presents a conflict of interest
for a Board member. Clause 72 requires the member who has the
conflict of interest to disclose the nature of the interest at a board meeting
as soon as practicable after the relevant facts have become apparent. The
disclosure must be recorded in the Board ’s minutes, and (unless the Board
decides otherwise) the Board member with the conflict of interest must not be
present when the Board considers the issue, or take part in any decision on the
issue.
The Minister is required to end the appointment of a board member
if the member has failed, without reasonable excuse, to declare a conflict of
interest, or has been convicted of an offence punishable by imprisonment for at
least one year. Clause 73 also specifies circumstances where the
Minister has a discretion to terminate a Board appointment. Those circumstances
are where the member is absent from three consecutive meetings without the
approval of the Minister, if the member no longer has the attributes for which
they were appointed, for misbehaviour or physical or mental incapacity that
affects the exercise of their functions, or if the member becomes bankrupt. A
member can also resign their appointment.
Clause 74 requires the Board to meet at least four times
each year. Under Clause 75 the Board chair presides at meetings,
and in his or her absence, the deputy chairs the meeting. A quorum of three
members is required for a meeting, including at least two architects and the
chair or deputy chair. Decisions may be made by a majority vote of members
present at the meeting, and where the vote is equally divided the deciding vote
rests with the member presiding at the meeting. The Board is required to keep
minutes of its meetings.
Clause 76 enables the Board to establish committees to
assist the Board is exercising its functions. Clause 77 enables
the Board to decide how a committee is to exercise its functions and the
procedures to be followed for meetings of the committee, including such matters
as the keeping of minutes and making of decisions. Clause 78
stipulates that a committee consists of people appointed by the Board, and can
consist completely or partly of Board members.
A non-Board committee
member is not entitled to be paid for the exercise of a member’s
functions, however Clause 79 requires the Territory to reimburse a
non-Board committee member for expenses reasonably incurred in exercising a
member’s function.
Part 8 deals with the protection of complainants, and information
dealt with by Board members, the registrar and any person acting under the
direction or authority of the Board.
Clause 80 defines
informed person as anyone who is or has been an official. The
word official is defined as a member of the Board, the registrar, or
anyone who is or has been acting under the direction or authority of the
Board.
In order for a complaints system to work effectively, a
complainant or participant in a complaint proceeding must be confident that they
are protected against civil action when they are making a complaint. Clause
81 provides that protection by stipulating that an action or
proceeding does not lie against them provided they have acted
honestly.
Clause 82 stipulates that an official does not
incur civil or criminal liability for something done or not done when acting in
the capacity of an official, provided they have acted honestly and without
negligence under this Act. In these circumstances, the liability attaches to
the Territory.
Clause 83 provides definitions for
court, tribunal and protected information. An informed
person is prohibited from making a record or communicating protected
information, or giving, producing or allowing access to a document given to them
under this Act. There are exceptions to this provision, which includes
divulging or making a record of protected information as part of exercising a
function under this Act, or with the consent of the person from whom the
information was obtained. An informed person is also able to give protected
information to a person administering architects legislation in another
jurisdiction, or to a law enforcement authority. It is not mandatory for an
informed person to give protected information to a court unless it is necessary
for this Act or another Act.
Part 9 deals with reviewable decisions.
Clause
84 stipulates the decisions of the Board that are reviewable by the
Administrative Appeals Tribunal. Those decisions are:
a) Refusing to
register a person under section 9;
b) Registering a person under section 9
subject to a condition;
c) Deciding to remove a person’s name from the register under section
19(2) or section 20;
d) Refusing to approve a nominee’s resignation
under section 28;
e) Refusing to approve the revocation of a nominee’s
appointment under section 28; and
f) Taking disciplinary action against a
person under section 46.
Under Clause 85 applications for
review are to be made to the Administrative Appeals Tribunal. Where the Board
makes a reviewable decision, it must give a written notice to each person
affected by the decision, and the notice must comply with the code of practice
under the Administrative Appeals Tribunal Act 1989.
Part 10 deals with miscellaneous provisions.
Clause
86 enables the Board to conduct examinations and to appoint examiners
to conduct the examinations. The Board is also able to determine the fees to be
paid to examiners and fees to be paid by candidates for examination. A
determination under the clause is a notifiable instrument. This clause will be
used primarily for the purpose of Clause 8(2)(b).
One of the key
documents that will underpin the Act is the code of professional conduct. The
code will establish the standard of conduct and professionalism that each
registered architect will be expected to comply with, when providing
architectural services. Clause 87 enables regulations to be made,
which can adopt in whole or part, a code of professional
conduct.
Professional indemnity insurance is not mandatory for registered
architects, however, consumers have a right to make an informed decision when
choosing an architect, and professional indemnity insurance is a relevant issue
for consideration. Clause 88 requires a registered architect to
give a client evidence of what professional indemnity insurance they hold
(including if they have no professional indemnity insurance) in relation to the
architectural services to be provided, before providing that service. The
registered architect can ask the client to sign and acknowledgement that the
information has been provided, and must give a copy of the acknowledgement to
the client. If a question arises as to whether the advice was given, failure to
produce a signed acknowledgement is taken by the Board to be evidence that the
client was not advised of what professional indemnity insurance the architects
holds.
A registered architect is taken to have given evidence of
insurance if they have advertised the information in a way likely to come to the
attention of the client, such as including the information in a yellow pages
advertisement relating to the provision of architectural services.
Under
Clause 89 the Board may issue evidentiary certificates which state
that on a date or during a stated period, a named individual was or was not
registered, or was or was not a nominee or primary nominee. That certificate is
taken to be evidence of the matters stated in it.
Clause 90
enables the Minister to determines fees for the Act, and any determination under
this clause is a disallowable instrument.
The Board may under Clause
91, approve forms for this Act, relating to registration and
nominees. Where a form is approved, it must be used for that purpose, and is a
notifiable instrument.
Clause 92 enables the Executive to
make regulations for this Act, including regulations relating to who may be
nominate to be a board member and how that nomination is to
occur.
Part 11 Transitional
Part 11 deals with the
provisions required to ensure the effective transition from the operations of
the Architects Act 1959 to this Act.
Clause 93
defines repealed Act as the Architects Act 1959 (repealed).
Clause 94 repeals the Architects Act 1959, the
Architects (Board) Appointment 2001 DI2001-253, and the Architects (Fees)
Revocation and Determination 2003 (No 2) DI2003-308.
Clause
95 stipulates that a member of the Board under the repealed Act is
taken to be a member under this Act until the new Board is appointed. However
the appointment expires three months after the commencement of the Act whether
or not a new Board has been appointed.
Clause 96 deals with
individuals who were registered under the repealed Act immediately before it is
repealed, even if they did not have a current practising certificate. The
registration of that individual does not expire until 30 June 2005 and any
information about them on the register of the repealed Act must be included in
the register under this Act. As renewals of practising certificates under the
repealed Act are due in March, this provision provides a three month extension
to coincide with the new annual registration requirements, which will align with
the financial year.
Clause 97 specifies that if a
person’s registration was suspended immediately before the Architects
Act 1959 is repealed, that suspension continues under this Act until the
stated period of the suspension ends.
If an inquiry had commenced but was
not completed under the repealed Act, Clause 98 stipulates
that the inquiry is deemed to be an inquiry under this Act, which enables the
inquiry process to be completed, including the taking of disciplinary action as
a result of the inquiry.
Clause 99 clarifies that, for the
purposes of section 42 (disciplinary grounds), a reference to this Act in
relation to a contravention of the Act, includes the repealed Act. This enables
disciplinary action to be taken under this Act, for contraventions of the
repealed Act where that was the relevant Act at the time the contravention took
place.
Clause 100 enables a person who had an appealable
decision made against them under the repealed Act, to appeal the decision to the
Supreme Court if the time for appeal had not ended immediately before the
repealed Act was repealed.
Clause 101 states that the
provisions at Schedule 1 are on commencement of the section, regulations made
under section 93 of the Act. The provisions are taken to have met the
notification and presentation requirements of the Legislation Act 2001.
Clause 102 enables the regulations to prescribe savings or
transitional matters necessary to be prescribed because of the enactment of this
Act. The regulations may also modify the operation of this Act if a matter has
not been adequately dealt with.
Clause 103 is a
consequential amendment amends the Building and Construction Industry
Training Levy Regulations 2001 to make reference to the Architects Act
2004 instead of the Architects Act 1959, in the definition of
qualified valuer.
Clause 104 expires the transitional
provisions on 30 June 2005.
Regulation 1 identifies the regulations as the
Architects Regulations 2004.
Regulation 2 explains
that the dictionary contained at the end of the Regulations is a part of the
Regulations, and provides notes to explain how the definitions are structured
and how they apply to the Regulations.
Regulation 3
explains that the “notes” that appear in the Regulations are aids to
interpretation but not part of the Regulations.
Regulation 4 explains that the qualifications in schedule
1, are the prescribed qualifications for the purpose of section 8(2)(a)(i) of
the Act.
Regulation 5 prescribes the details that are to be
included in the register of architects for the purposes of section 11 of the
Act.
Regulation 6 specifies for the purposes of section
57(2) of the Act, that where a person uses the terms landscape architect, naval
architect, or computer systems architect to describe the services they provide,
they are not committing an offence under section 57(1) of the
Act.
Regulation 7 allows a person to use the term
architectural where their business is the supply of goods in relation to
architecture, without committing an offence under section 57(1). The regulation
also allows an employee of a registered architect to use the terms architectural
assistant, architectural technician and architectural drafter to describe the
services they provide without committing an offence under section
57(1).
Under Regulation 8 the terms architect and
registered architect may be used in the ACT by an interstate person who
is registered in another jurisdiction. The conditions that apply to the use of
these terms by a person registered interstate is that the person has told the
Board in writing that they would be using the term, and provides a document that
indicates the jurisdiction in which they are registered.
Under
Regulation 9, a person does not commit an offence under section 57(1)
when they use a term to describe an architectural qualification that they
hold.
Regulation 10 prescribes the nomination process for
the Board member position of architect. During the prescribed period, which is
a one month period commencing 7 months before the end of the architect
member’s appointment, the registrar must publish a notice in a daily ACT
newspaper. The notice must state the details to be provided in the nomination,
and ask for nominations for the architect member position and invite written
nominations from registered architects by a specified date.
The
registrar is required to tell each nominee if their nomination was received
before the closing date. Once a decision has been made on the appointment of
the architect member, the Minister is required to tell each nominee whose
nomination was received before the closing date, who has been appointed as the
new architect member of the Board.
Schedule 1 lists the prescribed
qualifications for the purpose of section 8(2)(a)(i) of the Act.
The
Dictionary contains definitions for the purposes of the Regulations.