Bill introduced and read a first time.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [6.24]: I move:
I seek leave of the House to have my second reading speech incorporated in Hansard.
That this bill be now read a second time.
The purpose of the Architects Bill is to repeal the Architects Act 1921 and replace it with a new Act to regulate the architectural profession in New South Wales, to promote national uniformity in the regulation of architects, to introduce a new Register of Architectural Practices, to expand and update the provisions for registration and deregistration and the investigation of complaints, and to improve the professional standards of architects.
To achieve this the Architects Bill will replace the existing legislation with a comprehensive and up to date set of provisions for the regulation of the architectural profession in New South Wales.
The bill results from a comprehensive review of the Architects Act 1921 by the New South Wales Government and the Board of Architects.
Architecture, the quality of buildings and the urban environment, respect for the cultural heritage are matters of significant public interest. The profession of architecture has ancient origins and it remains today fundamental to growth and development in the community.
In view of the long training needed to acquire the complex skills necessary for competence in the practice of architecture some form of regulation of the profession has been in force in most countries for many years.
In New South Wales, the existing legislation, the Architects Act 1921, came into force in 1922. Before 1922 there was no legal regulation of architects in New South Wales. The Act established a Board of Architects of 10 members drawn from the profession, government and the universities. The board is the statutory professional body regulating the profession of architecture in New South Wales.
The existing legislation has served the profession of architecture and the community for over 70 years. The aims of the Act are to maintain high architectural standards and to protect the community. These aims will be continued and strengthened by the new proposed legislation.
The Board of Architects is presently both a registering body and a disciplinary authority. The board maintains the register of architects. For an architect to be registered, he or she must satisfy educational, professional and good character requirements. An architect may be removed from the register if the architect is convicted of a serious offence under the criminal law, or is guilty of "improper conduct in a professional respect" as defined in the Act. That definition embraces primarily fraudulent or unethical conduct. The existing legislation provides for complaints against architects to be heard by the Board of Architects. The board may also, of its own motion, conduct an inquiry into the conduct or practice of an architect. Where a finding of improper conduct is made by the board, the board is empowered to reprimand the architect, impose a fine not exceeding $200, or remove the architect's name from the register. An architect, but not a complainant, may appeal to the District Court against a decision of the board.
To promote national uniformity in the regulation of architects, all State and Territory architects registration boards were consulted by the Board of Architects throughout the course of review of the existing legislation and, where possible, a consensus position was incorporated in the drafting of the bill with respect to provisions for registration and disciplinary proceedings.
A characteristic of architectural practice, in Australia as elsewhere perhaps unparalleled by other professions, is the degree of interstate mobility of many practices. In Australia architects often undertake projects in adjacent States whilst the larger practices may be national in scope. Ten per cent of architects registered in New South Wales are residents of other States and a comparable number of New South Wales resident architects maintain registration in another State.
The Board of Architects is one of the nominating bodies of the Architects Accreditation Council of Australia, the national body created by State and Territory Architects Registration Boards and the Royal Australian Institute of Architects to deal with recognition and regulatory issues which require national response. The Architects Accreditation Council of Australia plays a major role in maintaining uniformity or registration standards between the autonomous State and Territory authorities.
In Australia the accreditation of courses of study, recognition of qualifications in architecture and examination of practical experience for the purpose of professional recognition, are conducted on a national basis and State and Territory registration requirements for architects are generally uniform throughout Australia and registration in one State is qualification for registration in another.
The Architects Accreditation Council of Australia has produced and endorsed legislative guidelines for a national model Act for the registration of architects. These guidelines have been favourably reviewed by the Trade Practices Commission. The provisions of the Bill are based upon those guidelines.
The national adoption of those guidelines will strengthen the reciprocity which already exists for the registration of architects between all States and Territories in Australia and will in turn be reinforced by the Mutual Recognition Acts.
Mr President, I wish to briefly refer to the Mutual Recognition Acts which commenced in January 1993. This package of complementary Federal and State legislation enables architects, lawyers, accountants and others to move interstate and carry on practice in the new State without satisfying any further legal requirements. I can indicate to honourable members that the Mutual Recognition Act does not affect the wording of the Architects Bill and that the mutual recognition of the qualifications and registration of architects will be provided for by both the Architects Bill and the Mutual Recognition Acts.
Mr President, I now turn to one of the important innovations contained in the bill. The bill establishes a new and separate register of all practices entitled to use the description architects, including sole practitioners, so that they may be immediately identified both by the Board of Architects and by members of the public.
The new Register of Architectural Practices will identify the architects in a practice who are responsible for the provision of architectural services, will prohibit the improper use of the title "architect" by architectural practices, and will authorise the requirement that professional indemnity insurance be held by all architectural practices.
The intention of those provisions of the bill is to ensure that when members of the public commission an architect, whether an individual or a firm, they will obtain the services of an architect. This is neither guaranteed nor required by the present legislation.
At present all States and Territories in Australia, except New South Wales and Tasmania, maintain separate registers of corporate or other architectural practices.
In the case of architects practising under their own name or names the board or members of the public may identify an architect in the practice through the register of architects. Where the practice name does not contain the names of registered persons it is essential to have an immediate means of identifying architect principals in the practice.
Architectural practices as well as architects will be required to renew registration annually. It is proposed that the regulation will provide that, as a requirement for annual renewal of registration, the principal of an architectural practice will be required to certify that all architectural work during the previous annual period has been controlled by an architect principal. The bill requires that the names of all architect principals of an architectural practice are to be listed on practice stationery.
Both architects and architectural practices will be required to renew registration annually. It is proposed that regulations under the new Act will provide that as a requirement for annual renewal of registration.
In New South Wales, as in the other States and Territories of Australia, the architectural profession is regulated through statutory restriction of use of the title architect and its derivatives by registration, to those whose education and training are of a standard to enable them to provide architectural services of an acceptable quality. This form of regulatory control differs fundamentally from the usual concept of business licensing in that there is not control over the right to practise in the field of architecture.
Neither the current Act not the proposed amendments prevent anyone from designing buildings provided they do not call themselves architects if they are not registered. An architect is defined as a person whose name is on the register of architects.
Similarly an architectural practice is defined as a practice on the register of architectural practices.
Architects carry a heavy financial and technical responsibility for their clients and need to be properly trained to do so. Many users of architectural services know little of the dangers involved in connection with the design, construction, enlargement or alteration of buildings. There is a wide variety of building consultants to choose from and the risk to the public is unacceptable if unqualified or inexperienced people are commissioned in ignorance to do work for which they are not adequately trained.
Without adequate and relevant provisions for the regulation of professional standards as a condition of the registration of architects, it would often not be possible for the users of architectural services to distinguish the competent from the possibly incompetent provider of such services.
The bill will require architects to comply with a prescribed professional conduct code, and it will expand the scope for investigation by the Board of Architects of complaints of professional misconduct by architects. The bill does this by extending the definition of professional misconduct to include matters relating to incompetence or negligence as well as matters of integrity, by introducing a process of conciliation between parties as an alternative to a formal hearing by a new tribunal to be set up under the bill.
The new tribunal, to be called the New South Wales Architects Tribunal, will undertake formal hearings and an extended range of penalties will be available to it.
Mr President, I now deal with each of these aspects of the new legislation. Architects must exercise aesthetic and technical judgment, be proficient in drawing, understand finance and employ creative and managerial skills. They also have responsibility for the co-ordination of other specialists in the design/construction process.
Central to the concept of occupational regulation through control of the use of a professional title is the determination and maintenance of standards of training and conduct which both define the occupation and those who practise it. There is little doubt that registration of architects has been an important factor in the development of high architectural standards in Australia.
The professional code of conduct will be included in the regulations under the proposed Act and that it will deal with matters such as competence, fairness, truthfulness of professional opinions and conflicts of interest.
Under the present legislation, the issue of the conduct in professional regulation focuses on fraudulent or unethical conduct, as defined by a list of prohibited practices, for which an offending architect might be punished by fine or revocation of registration. However, many of the complaints against architects which are referred to the Board of Architects involve allegations of negligence or at least reflect dissatisfaction of a client with an architect's performance.
If statutory control of the title architect is to be fully effective it should indicate not only a minimum level of training but the expectation of a reasonable standard of care and competence.
The provisions of the bill are based on the Model Architects Act Legislative Guidelines adopted by the Architects Accreditation Council of Australia in August 1992.
Under the bill professional indemnity insurance, as prescribed by regulations, will be a requirement for the annual renewal of registration both by sole practitioners and by architectural practices.
It is proposed that the minimum requirements for mandatory professional indemnity cover would include that secure local insurers to be used, that policy terms include an adequate level of cover and proper provisions to ensure that the potential liability of architects to their clients is fully indemnified by the insurer.
The minimum sum insured would be determined by the board from time to time, in order to ensure that the level of cover maintains pace with the potential liability.
In the bill, therefore, the concept of unacceptable professional conduct is extended, to include conduct that involves a substantial or consistent failure to reach reasonable standards of professional competence and conduct involving a contravention of the professional conduct code as well as matters of integrity.
With the extension of the concept of unacceptable professional conduct to cover failure to achieve professional standards as well as fraudulent conduct, the disciplinary functions of the Board of Architects have been transferred to the new architects tribunal.
The bill provides for the Board of Architects to conduct an initial investigation into any complaint that an architect has provided a service to the public of a standard lower than that generally considered by the profession to be a reasonable minimum standard of service, or that he or she has fallen below the ethical standards expected by the consumer and the profession and to reject complaints which it considers to be without substance.
All other complaints must be either referred to the architects tribunal for hearing or, where the complaint involves a dispute between the complainant and an architect or practice and the complainant seeks redress from architect or practice, the Board of Architects may appoint a conciliator to assist the complainant and architect to reach a settlement of the complaint. The conciliation procedure may be used whether or not the complaint involves an allegation of unacceptable professional conduct. If this process is unsuccessful the complaint is to be referred back to the board for resolution, or subsequent referral to the architects tribunal.
The architects tribunal will be empowered to hear all complaints involving unsatisfactory professional conduct by architects, as referred to it by the Board of Architects.
The range of penalties available to the architects tribunal will be wider that those under the existing legislation. Those penalties include a caution or reprimand, a fine of up to $10,000 for an individual architect or $20,000 for an architect principal in a registered architectural practice, suspension or cancellation of the registration of architects, including architect principals engaged in an architectural practice, suspension or cancellation of the registration of architectural practices and conditions on the re-registration of architects or practices whose registration has been cancelled.
Any party to the hearing of a complaint by the architects tribunal, which includes the complainant, the architect, and the board may appeal to the District Court against a finding or order by the tribunal.
Because rigid criteria cannot be applied to professional standards, which will vary with changes in technology and practice, it follows that these matters should be properly considered by a practitioner's professional peers. It is equally important that consumer representatives participate in the assessment of complaints against architects or architectural practices which have been brought by consumers. Finally, given the range of penalties which the tribunal may impose, and the serious consequences on affected persons, it is essential that the tribunal include legally qualified members. The architects tribunal, which is independent of the Board of Architects, will comprise at least six members, with equal representation of architects, legal practitioners and "lay" persons. The president of the tribunal will be appointed by the Minister for Public Works.
Legal representation of all parties will be permitted at any hearing before the architects tribunal where the tribunal considers that there is a real possibility that the registration of the architect or an architectural practice may be suspended or cancelled if the complaint is found to be proved. Otherwise legal representation is only allowed with the leave of the tribunal.
Mr President, I turn now to the matter of continuing professional development. This may be described as systematic maintenance, improvement and broadening of knowledge and skill and the development of personal qualities necessary for the execution of professional and technical duties throughout the practitioner's working life.
There has long been awareness of the importance of continuing education but many professions now believe that a more determined and systematic approach should be adopted. In the interests of improved performance and consumer protection there is an increasing public and government recognition of the need for all professionals to keep up to date in appropriate areas of practice throughout their careers. Continuing education is an important tool in risk minimisation and the containment of professional liability.
It is accepted that practice itself is a continuous learning experience. However, obligatory continuing professional development is defined as a systematic and structured commitment to pre-determined professional goals. To ensure that professional development appropriate to best practice in the field of architecture is undertaken by all practising architects, it is to be introduced as a statutory obligation for all architects and as a condition of continued registration.
In order to maintain the professional relevance of the program, the detailed requirements for continuing professional development will be determined by the Board of Architects from time to time and notified to all architects.
Mr President, turning now to the constitution of the Board of Architects, it is proposed that the board be composed of eleven members, instead of ten as at present.
The present board has membership in part ex-officio, in part by ministerial appointment, in part by appointment by educational institutions and in part by election. These arrangements are satisfactory and will continue. The only new provision is for two consumer representatives and one architect to be appointed by the Minister for Public Works in place of one architect and one non-architect appointed under the existing legislation.
The present four-year term of office is satisfactory in administrative terms and will continue, although as a matter of policy, the academic appointments are staggered to provide continuity.
So far as Government funding is concerned, I can assure honourable members that there will be no financial impact on Government funds. The board is and will continue to be funded by registration fees and not by Government grant.
I commend the bill.
Debate adjourned on motion by the Hon. K. J. Enderbury.
Mr President, the bill will protect and strengthen the interests of the profession of architecture and the consumers of architectural services.