House of Assembly Fifty-First Parliament, Third Session (51-3) 51 3 Parliament of South Australia House of Assembly published Bills Architectural Practice Bill ARCHITECTURAL PRACTICE BILL Second Reading Second Reading Second reading. The Hon. K.A. MAYWALD House of Assembly Chaffey Minister for the River Murray Minister for Water Security The Hon. K.A. MAYWALD (Chaffey—Minister for the River Murray, Minister for Water Security) (15:39): I move: That this bill be now read a second time. I seek leave to have the second reading explanation inserted in Hansard without my reading it. Leave granted. The Architectural Practice Bill repeals the old Architects Act and replaces it with up-to-date legislation to govern the activities of the architectural profession in line with contemporary consumer protection legislation such as, for example, the Medical Practice Act 2004. The Architects Act dates from 1939 and an overhaul is long overdue. I understand that the State Review Panel commenced reviewing the Act some 10 years ago. The primary motivation for a revamp of this legislation is the need to meet the Competition Policy Agreement between the Commonwealth and State Governments to remove anti-competitive provisions in legislation. The Bill achieves this by— removing ownership restrictions on companies and partnerships providing architectural services; and removing restrictions limiting remuneration for architects; and removing restrictions on advertising by architects; and removing restrictions on companies practising in partnership. Removal of ownership restrictions on companies and partnerships providing architectural services The current Act governs the registration of companies of architects. It contains restrictions on the purpose, ownership and control of architectural firms. The Act limits the extent to which architectural firms can establish themselves as multi-disciplinary practices. The Bill replaces the existing restrictions with a requirement that if a body corporate is to be registered as an architectural business and the governing body consists of an even number of members, at least half of the members must be registered architects. If the governing body has an odd number of members, a majority of the members must be registered architects. In the case of a partnership seeking registration as an architectural business, if the partnership consists of an even number of partners, at least half of the partners must be registered architects. In the case of a partnership with an odd number of partners, a majority of the partners must be registered architects. Removal of restrictions limiting remuneration for architects The State Review Panel reported that the current Code of Professional Conduct endorsed by the Architects Board under the current by-laws places restrictions on the work an architect can do for free, to demonstrate their skills to a client, and on the form and amount of remuneration for architectural services. These provisions restrict competitive conduct among architects and between architects and non-architects. The State Review Panel concluded that these restrictions were not justified by any public benefits they may achieve. The Bill does not include such restrictions on remuneration for architects. Removal of restrictions on advertising by architects Advertising restrictions have traditionally been associated with notions of professionalism and the current Act specifies the form of advertising an architect can undertake. The Bill does not include these restrictions. The State Review Panel considered that sufficient protection for consumers exists under the State Fair Trading Act 1987 and the Commonwealth Trade Practices Act 1974 in relation to misleading or false advertising, without imposing further restrictions under the architects legislation. Removal of restrictions on companies practising in partnership The current Act prohibits companies registered as architects from practising in partnership with any other person. The Bill does not include this restriction. Inclusion of consumer and other representation on the Architects Board The State Review Panel recommended that membership of the Architects Board include a consumer representative, as the role of the Board is to protect public interests, rather than the interests of the architectural profession. Clause 5(1)(b)(iv) of the Bill introduces a requirement that 1 member of the Board be a person who is not eligible for appointment under a preceding provision of subclause (1) (ie is not a registered architect, a lawyer, or a person with qualifications or experience specified in paragraph (b)(ii) or (iii)). The Bill also introduces a requirement that the Board have a member who is a lawyer, another member with qualifications or experience in accounting, business or finance, and a person with qualifications or experience in urban or regional planning or building surveying or construction, or with knowledge of, or experience in, the building and construction industry, to give the Board wider experiential representation than under the current Act. Right of appeal against the Architects Board decisions Under the existing Act a person aggrieved by a decision of the Board can appeal to the Supreme Court. While this provision is an important safeguard it can be expensive to take matters to the Supreme Court and such an appeal right increases the workload of that Court. To implement the State Review Panel’s recommendation, the Bill provides a right of appeal to the Administrative and Disciplinary Division of the District Court rather than the Supreme Court. This will reduce the litigation costs for both appellants and the Board. The Bill provides modern legislation for the 21st century, using gender neutral language and requirements for gender balance on the Board. I commend the Bill to the House. Explanation of Clauses Explanation of Clauses Part 1—Preliminary 1—Short title 2—Commencement These clauses are formal. 3—Interpretation This clause provides definitions of words and expressions used in the measure and contains provisions to assist interpretation. Part 2—Architectural Practice Board of South Australia Division 1—Establishment of Board 4—Establishment of Board This clause establishes the Architectural Practice Board of South Australia. Division 2—Board's membership 5—Composition of Board This clause provides that the Board consists of 7 members appointed by the Governor. 3 must be registered architects chosen at an election. 4 must be persons nominated by the Minister. Of these 1 must be a lawyer and 2 other persons must have qualifications, experience or knowledge in specified fields. 1 must be a person who is not otherwise eligible for membership of the Board. The clause requires at least 1 member to be a woman and 1 to be a man, and provides for the appointment of deputies. 6—Elections and casual vacancies This clause provides for elections to choose registered architects for appointment to the Board to be conducted in accordance with principles of proportional representation and sets out rules for filling casual vacancies in the membership of the Board. 7—Terms and conditions of membership This clause provides for members of the Board to be appointed for terms not exceeding 3 years, limits membership of the Board to consecutive terms totalling 9 years, sets out the grounds on which a member may be removed from office and the circumstances in which the office of a member becomes vacant. The clause allows former members to continue to act as members to continue and complete disciplinary proceedings after their terms expire or they resign from the Board. 8—Presiding member This clause requires the Minister to appoint a registered architect member of the Board as its presiding member. 9—Vacancies or defects in appointment of members This clause ensures that a vacancy in the membership of the Board or a defect in the appointment of a member does not render an act or proceeding of the Board invalid. 10—Remuneration This clause entitles a member of the Board to remuneration, allowances and expenses determined by the Governor. Division 3—Registrar and staff of Board 11—Registrar of Board This clause provides for the appointment of a Registrar of the Board on terms and conditions determined by the Board. 12—Other staff of Board This clause provides for the Board to have other staff as it thinks necessary to properly perform its functions and states that an employee of the Board is not a Public Service employee. The Board and a Minister may make an arrangement under which the Board can make use of the services or staff of an administrative unit of the Public Service. Division 4—General functions and powers 13—Functions of Board This clause sets out of the functions of the Board and requires the Board to perform its functions with a view to achieving and maintaining high professional standards both of competence and conduct by registered architects and registered architectural businesses. 14—Committees This clause empowers the Board to establish committees to advise the Board or Registrar or to carry out functions on behalf of the Board. 15—Delegations This clause empowers the Board to delegate its functions or powers. Division 5—Board's procedures 16—Board's procedures This clause prescribes the quorum for meetings of the Boards and makes other provisions relating to procedures to be followed at meetings. 17—Conflict of interest etc under Public Sector Management Act This clause provides that a member of the Board will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector Management Act 1995 just because the member has an interest in the matter that is shared in common with registered architects or registered architectural businesses generally or a substantial section of registered architects or registered architectural businesses in South Australia. 18—Powers of Board in relation to witnesses etc This clause empowers the Board to compel the attendance of witnesses and the production of documents for the purposes of proceedings before the Board. 19—Principles governing hearings This clause provides that in proceedings before the Board, the Board is not bound by the rules of evidence and may inform itself as it thinks fit. The Board must act according to equity, good conscience and the substantial merits of the case, with regard to technicalities and legal forms. It must keep the parties to the proceedings properly informed as to the progress and outcome of the proceedings. 20—Representation at proceedings before Board This clause entitles a party to proceedings before the Board to be represented at the hearing of the proceedings. 21—Costs This clause empowers the Board to award costs against a party to proceedings before the Board and provides for the taxation of costs by a Master of the District Court in the event that a party is dissatisfied with the amount of costs awarded by the Board. Division 6—Accounts, audit and annual report 22—Accounts and audit This clause requires the Board to keep proper accounting records in relation to its financial affairs, to have annual statements of account prepared in respect of each financial year and to have the accounts audited annually by an auditor approved by the Auditor-General and appointed by the Board. 23—Annual report This clause requires the Board to prepare an annual report for the Minister and requires the Minister to table the report in Parliament. Part 3—Registration and practice Division 1—Registers 24—Register of architects This clause requires the Registrar to keep a register of architects and specifies the information to be included on the register. It requires a registered architect to notify the Registrar of changes in particulars relating to the architect. A maximum penalty of $250 is fixed for non-compliance. The offence is expiable and an expiation fee of $80 is fixed. 25—Register of architectural businesses This clause requires the Registrar to keep a register of architectural businesses and specifies the information to be included on the register. It requires an architecture business to notify the Registrar of changes in particulars relating to the business. A maximum penalty of $250 is fixed for non-compliance. The offence is expiable and an expiation fee of $80 is fixed. 26—Register of removals This clause requires the Registrar to keep a register of persons, bodies and partnerships that have been removed from the register of architects or register of architectural businesses and have not had their registration reinstated. It specifies the information to be included on the register. 27—General provisions relating to registers This clause requires the Registrar to correct errors in the registers and requires the registers to be made available to the public at the office of the Registrar and on the Internet. Division 2—Registration of architects 28—Registration of natural persons as architects This clause provides for the registration of natural persons on the register of architects. It provides for full and limited registration. 29—Application for registration This clause deals with applications for registration. It empowers the Registrar to grant provisional registration if it appears likely that the Board will grant an application for registration. 30—Removal from register This clause requires the Registrar to remove a person from the register of architects on application by the person or in certain specified circumstances (such as the death of the person or suspension or cancellation of the person's registration). 31—Reinstatement on register This clause enables a person to be reinstated on the register of architects. 32—Fees and returns This clause requires registered architects to pay an annual fee and furnish the Board with an annual return. It empowers the Board to remove a person from the register of architects if there is a failure to pay the annual fee or furnish the annual return. Division 3—Registration of architectural businesses 33—Registration of bodies corporate and partnerships as architectural businesses This clause provides for the registration of bodies corporate and partnerships on the register of architectural businesses. 34—Application for registration This clause deals with applications for registration. 35—Removal from register This clause requires the Registrar to remove a body corporate or partnership from the register of architectural businesses on application by the business or in certain specified circumstances (such as cessation of the business or suspension or cancellation of the businesses registration). 36—Reinstatement on register This clause enables a body corporate or partnership to be reinstated on the register of architectural businesses. 37—Fees and returns This clause requires a registered architectural business to pay an annual fee and furnish the Board with an annual return. It empowers the Board to remove a body corporate or partnership from the register of architectural businesses if there is a failure to pay the annual fee or furnish the annual return. Division 4—Restrictions relating to provision of architectural services 38—Illegal holding out as architect This clause prohibits a person, body corporate or partnership that is not registered under the measure from holding out or being held out as an architect or partnership or firm of architects. The maximum penalty is $50,000 or imprisonment for 6 months. 39—Illegal holding out concerning limitations or conditions This clause prohibits a person whose registration as an architect is limited or subject to conditions from holding out or being held out as having registration that is not limited or subject to conditions. The maximum penalty is $50,000 or imprisonment for 6 months. 40—Use of certain titles or descriptions prohibited This clause prohibits the use of prescribed words and expressions (such as 'architect') and their derivatives from being used to describe a person, body corporate or partnership, or services they provide, if the person, body corporate or partnership is not registered. 41—Exceptions for certain titles and descriptions This clause makes a number of exceptions to clauses 38 to 40 to enable certain titles and descriptions to be used by unregistered persons. Part 4—Investigations and proceedings Division 1—Preliminary 42—Interpretation This clause enables disciplinary proceedings to be brought against natural persons, bodies corporate and partnerships that were registered at the relevant time but are no longer registered. 43—Cause for disciplinary action This clause specifies the grounds that constitute proper cause for disciplinary action against a registered architect or architectural business. Division 2—Investigations 44—Powers of inspectors This clause sets out the powers of inspectors to investigate when there are reasonable grounds for suspecting that there is proper cause for disciplinary action or that a person has committed an offence against the measure. 45—Offence to hinder, etc inspector This clause makes it an offence for a person to hinder an inspector, use certain language to an inspector, refuse or fail to comply with a requirement of an inspector, refuse or fail to answer questions to the best of the person's knowledge, information or belief, or falsely represent that the person is an inspector. The maximum penalty is $10,000. Division 3—Proceedings before Board 46—Obligation to report unprofessional conduct of architect This clause requires a person who provides services through the instrumentality of a registered architect to report to the Board if of the opinion that the architect has engaged in unprofessional conduct. The maximum penalty for non-compliance is $10,000. The Board must cause a report to be investigated. 47—Inquiries by Board as to matters constituting grounds for disciplinary action This clause requires the Board to inquire into a complaint relating to matters alleged to constitute grounds for disciplinary action against a person unless the Board considers the complaint to be frivolous or vexatious. If after conducting an inquiry, the Board is satisfied that there is proper cause for taking disciplinary action, the Board can censure the person or order the person to pay a fine of up to $10,000. If the person is a registered architect, the Board may impose conditions on the person's right to provide services as an architect, suspend the person's registration for a period not exceeding 1 year, cancel the person's registration, or disqualify the person from being registered. In the case of a registered architectural business, the Board may suspend the registration of the body corporate or partnership for a period not exceeding 1 year, cancel the registration or disqualify the body corporate or partnership from being registered. If a fine imposed by the Board is not paid, the Board may remove the person, body corporate or partnership from the relevant register. 48—Constitution of Board for purpose of proceedings This clause sets out how the Board is to be constituted for the purpose of hearing and determining disciplinary proceedings. 49—Provisions as to proceedings before Board This clause deals with the conduct of disciplinary proceedings by the Board. Part 5—Appeals 50—Right of appeal to District Court This clause provides a right of appeal to the District Court against certain acts and decisions of the Board. 51—Operation of order may be suspended This clause empowers the Board or the Court to suspend the operation of an order made by the Board where an appeal is instituted or intended to be instituted. 52—Variation or revocation of conditions imposed by Court This clause empowers the District Court, on application by a registered architect, to vary or revoke a condition imposed by the Court on his or her registration. Part 6—Miscellaneous 53—Variation or revocation of conditions imposed by Board This clause empowers the Board, on application by a registered architect, to vary or revoke a condition imposed by the Board on his or her registration. 54—Offence to contravene conditions of registration This clause makes it an offence for a person to contravene or fail to comply with a condition of his or her registration and fixes a maximum penalty of $75,000 or imprisonment for 6 months. 55—Improper directions to architect This clause makes it an offence for a person who provides services through the instrumentality of a registered architect to direct or pressure the architect to engage in unprofessional conduct. The maximum penalty is $75,000. 56—Procurement of registration by fraud This clause makes it an offence for a person to fraudulently or dishonestly procure registration or reinstatement of registration (whether for himself or herself or another person) and fixes a maximum penalty of $20,000 or imprisonment for 6 months. 57—Statutory declarations This clause empowers the Board to require information provided to the Board to be verified by statutory declaration. 58—False or misleading statement This clause makes it an offence for a person to make a false or misleading statement in a material particular (whether by reason of inclusion or omission of any particular) in information provided under the measure and fixes a maximum penalty of $20,000. 59—Registered architects to be indemnified against loss This clause prohibits registered architects from providing services as such unless insured or indemnified in a manner and to an extent approved by the Board against civil liabilities that might be incurred by the person in connection with the provision of services as a registered architect. It fixes a maximum penalty of $10,000 and empowers the Board to exempt persons or classes of persons from the requirement to be insured or indemnified. 60—Information relating to claim against architect to be provided This clause requires a person against whom a claim is made for alleged negligence committed by a registered architect in the course of providing services as a registered architect to provide the Board with prescribed information relating to the claim. The clause fixes a maximum penalty of $10,000 for non-compliance. 61—Victimisation This clause prohibits a person from victimising another person (the victim) on the ground, or substantially on the ground, that the victim has disclosed or intends to disclose information, or has made or intends to make an allegation, that has given rise or could give rise to proceedings against the person under this measure. Victimisation is the causing of detriment including injury, damage or loss, intimidation or harassment, threats of reprisals, or discrimination, disadvantage or adverse treatment in relation to the victim's employment or business. An act of victimisation may be dealt with as a tort or as if it were an act of victimisation under the Equal Opportunity Act 1984. 62—Self-incrimination This clause provides that if a person is required to provide information or to produce a document, record or equipment under this measure and the information, document, record or equipment would tend to incriminate the person or make the person liable to a penalty, the person must nevertheless provide the information or produce the document, record or equipment. However, the information, document, record or equipment so provided or produced will not be admissible in evidence against the person in proceedings for an offence, other than an offence relating to the provision of false or misleading information. 63—Punishment of conduct that constitutes an offence This clause provides that if conduct constitutes both an offence against the measure and grounds for disciplinary action under the measure, the taking of disciplinary action is not a bar to conviction and punishment for the offence, and conviction and punishment for the offence is not a bar to disciplinary action. 64—Vicarious liability for offences This clause provides that if a body corporate is guilty of an offence against this measure, each person who is a member of the governing body of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless it is proved that the person could not, by the exercise of reasonable care, have prevented the commission of the principal offence. 65—Application of fines This clause provides that fines imposed for offences against the measure must be paid to the Board. 66—Ministerial review of decisions relating to courses This clause gives a provider of a course of education or training the right to apply to the Minister for a review of a decision of the Board to refuse to approve the course for the purposes of the measure or to revoke the approval of a course. 67—Confidentiality This clause makes it an offence for a person engaged or formerly engaged in the administration of the measure or the repealed Act (the Architects Act 1939) to divulge or communicate personal information obtained (whether by that person or otherwise) in the course of official duties except— (a)	as required or authorised by or under this measure or any other Act or law; or (b)	with the consent of the person to whom the information relates; or (c)	in connection with the administration of this measure or the repealed Act; or (d)	to an authority responsible under the law of a place outside this State for the registration or licensing of persons who provide psychological services, where the information is required for the proper administration of that law; or (e)	to an agency or instrumentality of this State, the Commonwealth or another State or a Territory of the Commonwealth for the purposes of the proper performance of its functions. However, the clause does not prevent disclosure of statistical or other data that could not reasonably be expected to lead to the identification of any person to whom it relates. Personal information that has been disclosed for a particular purpose must not be used for any other purpose by the person to whom it was disclosed or any other person who gains access to the information (whether properly or improperly and directly or indirectly) as a result of that disclosure. A maximum penalty of $10,000 is fixed for a contravention of the clause. 68—Immunity from liability This clause grants the Registrar of the Board immunity from civil liability for an act or omission in the exercise or purported exercise of powers or functions under the measure. An action instead lies against the Board. The clause does not prejudice rights of action of the Board in respect of an act or omission of the Registrar not in good faith. 69—Service This clause sets out the methods by which notices and other documents may be served. 70—Evidentiary provision This clause provides evidentiary aids for the purposes of proceedings for offences and for disciplinary proceedings. 71—Regulations This clause empowers the Governor to make regulations. Schedule 1—Repeal and transitional provisions This Schedule repeals the Architects Act 1939 and makes transitional provisions with respect to the Board and registrations. Debated adjourned on motion of Mrs Redmond.