Review of the Tasmanian Building Regulatory Framework. Response from the Board of Architects of Tasmania

Transcription

1 Review of the Tasmanian Building Regulatory Framework Response from the September 2014

2 1. Introduction The Board of Architects commends the Department of Justice for reviewing this industry framework which affects the workings of the building industry in Tasmania. The industry is covered by various Acts which control specific areas which need to interface to create an effective functioning industry. The overarching intent of this review is to: Create national uniformity of standards; Create an effective and efficient system for the industry; and Protect the consumers who use building practitioners. As stated in the document it is a big picture review. The Board of Architects will limit its comments to the area it is set up to control. That is, consumer protection through the implementation of the Architects Act Function of the Board of Architects The current primary function of the Architects Act is to distinguish for the consumer, in the broadest sense, those who have attained the education, experience and verified competence for registration as an architect from those who have not. This remains at least as relevant today as it was 85 years ago. The Board of Architects has been protecting the interests of consumers through the implementation of the Act since 1929 and we look forward to working with the Government to modernise the Architects Act ensuring continued alignment with the workings of the Building Act and keeping it current with industry and consumer expectations. The Board via its involvement with the Architects Accreditation of Australia (AACA) is party to a nationally consistent system of registering architects based on the National Competency Standards of Architecture. In this, it has adopted the Architects Accreditation Council of Australia and the Australian Institute of Architects (AIA) joint code - Architects Model Statutory Code of Professional Standards and Conduct - which is a nationally based Code. This facilitates architects practicing in any part of Australia via mutual recognition, international recognition and registration of overseas qualified people. Persons using the term architect need to have completed the following: 1. A recognised course in Architecture; 2. A minimum of 2 years practical experience (3,000 hours) which needs to be recorded in a logbook; and 3. Completed an Architectural Practice Examination to demonstrate they have a range of competencies as outlined by the National Architectural Competencies Standards. September 2014 Page 1

3 The Board can investigate complaints and discipline architects if they have acted unprofessionally or breached the Act. Currently to use the title Architect or similar, a person is required by law throughout Australia (and in many parts of the world) to be registered under an Architects Act, and the Tasmanian Building Act accredits various categories of Designers. The Board of Architects recognises there is significant consumer confusion over the terms Architect; Building Designer-Architectural Restricted; Building Designer- Architectural Limited; Building Designer-Architectural Domestic; - and this requires some action to remove the current uncertainties. In response to the Review the Board proposes some simple ways to resolve the confusion and offer the consumer a clear understanding on the type of professional they are engaging as a Building Design practitioner. 2. Terms of Reference No comments. 3. Current Legislative Objectives The Board of Architects believes that the current legislative objectives are appropriate. The Board supported the introduction of the Building Act and believes all accredited practitioners should gain an appropriate nationally acceptable academic qualification followed by a suitable period of experience which needs to be documented and reviewed against competencies. All responsible Building Practitioners (designers, builders and building surveyors) should have mandatory insurance and undertake continuing professional development. Recommendation: That the Government retain current legislative provisions that require mandatory insurance and continuing professional development for Building Practitioners and ensure all new accredited practitioners gain an appropriate nationally acceptable qualification followed by a suitable period of experience which needs to be documented and reviewed against competencies. 4. Building Certification No comments. 5. Standards No comments. September 2014 Page 2

4 6. Existing Compliance and Enforcement The Architects Act allows the Board to receive and investigate complaints from consumers with most potential complaints handled by an informal mediation process. The AACA and the AIA have developed a joint Code of Conduct which also provides for consistency of professional standards for architects across all states and territories. The recent handling of a formal consumer complaint by the Board has highlighted the inadequacy of disciplinary provisions in the current Act, both in terms of procedure and penalties. These provisions need updating. For example, the maximum fine the Board can impose on an Architect found guilty of misconduct is only $200. This is obviously inadequate as a Penalty for proven misconduct. Recommendation: That the Architects Act 1929 be amended to ensure appropriate processes and penalties for complaints of misconduct. 7. Protection Existing Legislation Consumer and Industry Protection In most cases any enquiry to government organisations, such as Consumer Affairs, by a consumer regarding a dispute with an architect is referred to the Board for action. The Building Act 2000 The Tasmanian Building Act relies on the registration of Architects under the Architects Act to accredit practitioners in the category Architect. It is the Building Act which restricts the scope of work that building designers can undertake, not the Architects Act. Below are extracts from the Scheme for the Accreditation of Building Practitioners - July 2008 (Amended February 2012) under the Building Act which restrict the scope of work. The Architects Act only reserves the use of the title Architect or its derivatives. There are 486 Accredited Building Practitioners in the category Building Designer and 215 in the category Architect. The title Architect enables members of the public to identify people who have demonstrated their higher levels of competencies to be qualified to use the term There is significant consumer confusion on the terms Architect, Building Designer- Architectural Restricted, Building Designer- Architectural Limited, Building Designer- Architectural Domestic and this requires action to remove the current consumer confusion. Section 19 of the Architects Act actually restricts the use of the term Architectural and undertakings have previously been given by Government representatives to September 2014 Page 3

5 amend the terminology in the Scheme under the Building Act to remove the term architectural from the categories listed below. To date this has not occurred. The Board believes that the categories, qualifications and scope of work under the Building Act are appropriate and it is just the terminology that needs amendment as proposed below: Category: A r c h i t e c t Category- Qualification Architect Degree/Master of Architecture with 2 years documented experience and a Pass in the Architectural Practice examination Scope of Work Architectural design and documentation for all components of building work associated with buildings of unrestricted size. Category: Building Designer Class - Qualification Architectural Restricted Advanced Diploma in Building Design and 3 years relevant experience Architectural - Limited A Diploma in Building Design and two years relevant experience; Architectural - Domestic A Certificate IV in Building Design and at least 2 years experience Scope of Work Architectural design and documentation of Classes 1&10, and Classes 2-9 up to 3 storeys with a maximum floor area of 2000m2, and refurbishments of any storey. Architectural design and documentation of Class 1 & 10 buildings, and Class 2-9 buildings of up to 2 storeys with a maximum floor area of 2000 m 2. Architectural design and documentation of Class 1 & 10 buildings. Recommendation: The word "Architectural" should be omitted from the titles of Architectural Building Practitioner - Building Designer accreditations at all three levels to ensure compliance with the Architects Act 1929 and alignment with other Australian jurisdictions. September 2014 Page 4

6 The Occupational Licensing Act 2005 The Occupational Licencing Act 2005 is not appropriate for registration of professionals as it was setup for a specific group of building trades with no reference to, or involvement with architects or other professionals. The Licensing Act was introduced principally to provide an integrated licensing regime for the plumbing, gas-fitting and electrical trades. The Occupational Licencing Act was introduced to: ensure that contractors, practitioners and other persons engaged in certain occupations, trades or callings are appropriately qualified, licensed and regulated to perform their work safely and in accordance with established benchmarks, to promote safety, to provide for the investigation of incidents in those activities Recommendation: The Occupational Licensing Act not be considered for accrediting professionals as it is an inappropriate instrument for the regulation of architects etc as it stands. The Architects Act 1929 The Tasmanian Architects Act has served the public well for the past 83 years, but as outlined in the introduction, it needs updating to reflect current community needs. The Architects Act is self-funding, and minor amendments to the Act will ensure that, like the Architects Acts in all other states, it is not considered to be anti-competitive by the National Competition Council. The Architects Act 1929 protects the public by ensuring that only practitioners registered by the Board may describe themselves as architects in Tasmania. Under the Architects Act 1929 (the Act), it is an offence for anyone who is not registered with the Board to call themselves an architect. (For full details of the prohibited practices please refer to Section 19 of the Architects Act.) By restricting the use of the term architect to persons registered under the Architects Act 1929, members of the public can be assured that an architect has completed a recognised course in Architecture, had a minimum of two years (3,000 hours) practical experience, and completed an Architectural Practice Examination to demonstrate that they have a range of competencies as outlined by the National Architectural Competencies Standards - some of which are gained post the gaining of the academic qualification. The Board can investigate complaints and discipline architects if they have acted unprofessionally or breached the Act which provides an important and effective consumer protection. September 2014 Page 5

7 The Board, together with all other State and Territory Boards, is a member of the Architects Accreditation Council of Australia (AACA) which is the national organisation responsible for establishing, coordinating and advocating standards for architects in Australia and for establishing and maintaining mutual recognition agreements with overseas authorities. One of the primary aims of the AACA is to harmonise the various Architects Acts wherever possible. The AACA has produced legislative guidelines which have been used to facilitate consistency of the various state and territories Acts as they have come up for review since The various State and Territory Architect Acts determine what an architect is. They also provide Boards which are able to monitor and accredit University courses in conjunction with AACA national guidelines. It is important to note that legislation in all other states and territories has been reviewed in the past 10 to 15 years and governments have elected to retain the Architects Acts and update them. All the reviewed Acts have subsequently met the Competition Principles Agreement and thus not considered to be anti competitive. The main areas in which the Tasmanian Architects Act is either deficient or silent are: Continuing Professional Development (CPD) The Board and the AACA believe that all practicing architects should be required to undertake continuing professional development - not just those accredited under the Building Act. Currently there are 404 architects registered in Tasmania but only 215 are accredited under the Building Act and thus almost 50% of registered architects are not required to undertake CPD. AACA has developed a joint CPD policy with the Royal Australian Institute of Architects to provide consistency for the profession Australia wide and to facilitate the movement of architects across state and territory boundaries. Professional Indemnity Insurance (PII) The current Architects Act is silent in the area of Professional Indemnity Insurance. This deficiency obviously needs to be rectified and brought into line with contemporary construction industry requirements to ensure all practicing architects have PII coverage to provide consumer protection. Non-Practicing Architect A category of Non-Practicing Architect will need to be introduced to enable architects who are currently not practicing to remain registered and be able to use the title Architect, but without the need to undertake CPD or have PI Insurance. E.g. an academic teaching at a University. Disciplinary Procedures The recent handling of a consumer complaint by the Board has highlighted the inadequacy of disciplinary provisions in the current Act, both in terms of September 2014 Page 6

8 procedure and penalties. For example, the maximum fine the Board can impose on an Architect found guilty of misconduct is $200. The AACA and the RAIA have developed a joint Code of Conduct which also provides for consistency of profession standards across all states and territories. Recommendation: That the Architects Act 1929 be amended to reflect the changes required in the areas of CPD; PII; Non-Practicing Architect; and Disciplinary Procedures as outlined above. Other issues relating to the Architects Act that should be taken into account are: i) Legislative Council Select Committee into ABP Scheme The recommendations of the Legislative Council s Select Committee which undertook an extensive review of the Building Act and future accreditation of building practitioners included: 3. The Architects Act be retained to ensure mutual recognition between the states. 4. In order to avoid unnecessary and unreasonable duplication registration under the Architects Act be acceptable qualification for accreditation and that the Building Act 2000 be amended to include an appropriate deeming provision.. Recommendation: That the recommendations proposed by the Legislative Council Select Committee into the ABP Scheme be implemented. ii) National Listing of Architects The Productivity Council in 2010 recommended that the Australian Government should work with state and territory governments to implement a national register for architects 1. AACA and Architect Registration Boards in all States and Territories have agreed in principle to pursue a system of National Listing for Architects based on the existing mutual recognition legislation. National Listing will ultimately be a preferred model as: 1 Productivity Commission Annual Review of Regulatory Burdens on Business September 2014 Page 7

9 Reduced fee for the ability to practice throughout Australia compared to current fee paid in each State when registering. No need for Government funding. Maintains flexibility on where an architect practices with less paperwork required in proving one is capable of working in a particular state or territory. 8. Professional Education, Training and Development The Board believes all accredited practitioners should gain an appropriate nationally acceptable academic qualification followed by a suitable period of experience which needs to be documented and reviewed against competencies prior to accreditation. All responsible Building Practitioners (designers, builders and building surveyors) should undertake continuing professional development Continuing Professional Development It is in the public benefit for all building practitioners to maintain competence and undertake continuing professional development. The Board and the AACA believe that all practicing architects should be required to undertake continuing professional development - not just those accredited under the Building Act. Currently there are 404 architects registered in Tasmania but only 215 are accredited under the Building Act and almost 50% of registered architects are not required to undertake CPD. AACA has developed a joint CPD policy with the Australian Institute of Architects (RAIA) to provide consistency for the profession Australia wide and to facilitate the movement of architects across state and territory boundaries. Tasmanian Building and Construction Industry Training Board The Board believes that all accredited building practitioners should have access to the funds provided by the consumers of building industry and administered by the TBCITB for professional development. Recommendations: 1) That all practicing architects should be required to undertake CPD. 2) All accredited building practitioners should have access to the funds provided by the consumers of the building industry and administered by the TBCITB for professional development. September 2014 Page 8

10 9. Accreditation, Licensing and Registration The existing system for registering architects, with minor modifications, is the best option as it is based on qualifications and registration requirements that are well documented and accepted nationally and internationally. The system has served the community well for 85 years. The Productivity Council in 2010 recommended that the Australian Government should work with state and territory governments to implement a national register for architects. AACA and Registration Board s in all States and Territories have agreed in principle to pursue a system of National Listing for Architects based on the existing mutual recognition legislation. (Please refer to the attached AACA document titled National Registration for Australian Architects together with letters sent to the Premier dated 17 November 2011 from the AACA President and the letter to Minister O Byrne dated 7 December 2011 from the Chairman of the.) National Listing will ultimately be the preferred Australia-wide model due to: Reduced costs for the ability to practice throughout Australia compared to current fee paid in each State when registering. No need for Government funding Maintains flexibility on where an architect practices with less paperwork required in proving one is capable of working in a particular state Should the Architects Act be retained? The Board of Architects has been protecting the interests of consumers through the implementation of the Act since The current primary function of the Architects Act is to distinguish for the consumer, in the broadest sense, those who have attained the education, experience and verified competence for registration as an architect from those who have not. This remains at least as relevant today as it was 85 years ago. The Architects Act does not restrict the scope of work that building designers can undertake, it only restricts the use of the title Architect to those who have demonstrated the required levels of competencies. Registration under the Architects Act is a competency based process and is not just restricted to people with a Degree or a Masters in Architecture. The National Program of Assessment (NPrA) has been introduced as an alternative path to registration. It is a competency based assessment which provides an opportunity for September 2014 Page 9

11 those who have substantial skills and experience in the architectural profession but do not have a formal qualification in architecture, or whose qualification has not been assessed as equivalent to an accredited qualification, to undertake an assessment to determine whether their skills evidence equivalence to a recognised Australian architecture qualification. Were the Architects Act to be repealed, the consumer of architectural services and the Tasmanian public in general would have no means of determining the qualifications, competency and experience of those offering architectural services. This would present a retrograde step and one that would be unique in Australia. The risks and inevitable consequences of repealing the Act would be: Consumers would be unable to identify that a person presenting themselves as an architect had the qualifications and competencies currently required under the Act. Building design practitioners would be free to misrepresent their competencies and experience in relation to their capacity to provide architectural services. Deregulation of architects in Tasmania would lead to a chaotic and dangerous situation in relation to consumer selection and engagement of building design practitioners, particularly in the case of more complex non-residential projects. It would be possible for building design practitioners to misrepresent their competencies and experience in relation to their capacity to provide architectural services. No regulation or register of Architects in Tasmania would lead to a chaotic and dangerous situation in relation to consumer selection and engagement of building design practitioners, particularly in the case of more complex non-residential projects. A consumer of building design services, having unknowingly engaged a building designer who does not possess the required qualifications or competencies to undertake the commission at hand, faces the prospect of incurring additional costs and recovering costs as a consequence of the inadequate service a potential market failure which is remedied by an Architects Act. Few Building Designers or Architectural Draftsmen possess the required competency to administer building contracts contract administration services - particularly in relation to more complex and non-residential projects. Registered architects are required to demonstrate this competency through the registration process. If building contract administration services are unregulated in Tasmania the consumer has no way of determining who and who isn t competent to administer building contracts. The Productivity Commission Report 2000 recommends national self regulation of the architectural profession by a private certifying body. The feasibility and effectiveness of self regulation of the architectural profession is discussed in more detail later in this section. September 2014 Page 10

12 Any suggestion that the architectural profession in Tasmania be self-regulating through the Australian Institute of Architects is not appropriate. The AIA is a national professional organisation constituted to advance the architectural profession and not necessarily to protect the interests of the public. Repeal of the Architects Act in Tasmania would also have serious ramifications for the accreditation of the Architecture course at University of Tasmania and possibly jeopardise its viability. The consequences of repealing the Architects Act on the accreditation of the Architecture course at University of Tasmania is discussed in more detail below. Recommendations: That the existing Architects Act 1929 be retained and amended to reflect the changes described in Section 7 that have been universally acknowledged by the Architects Board, the AACA, the Productivity Council, and successive Tasmanian Governments. Eligibility Requirements for ABP Architects The current eligibility requirements under the Building Act for ABP -Architects are based on a person being a registered architect - with the underpinning skill and experience eligibility requirements being those that apply nationally under the AACA processes. Accordingly, if the Architects Act was repealed, these eligibility requirements could not be met without substantial changes to the Building Act. The Director of Building Control has existing processes in place for determining and maintaining the eligibility requirements for other ABP categories (ie, the minimum qualifications, experience or competence required). These would need to be applied to develop new eligibility criteria for ABP - Architects. It is likely that such processes would have reference to the existing level of competence and qualification requirements achieved by the AACA processes. The Building Act would have to be substantially amended to reflect the nationally consistent skill and experience eligibility requirements that apply nationally under the AACA processes. The AACA has advised that: AACA s current constitution provides for membership only of nominees from the existing state and territory architect registration boards. Its assessment and accreditation processes are provided to its membership and all processes, including that relating to the accreditation of programs in architecture offered by Australian schools, are subject to copyright. Accordingly, under the second approach the Government would need to reach agreement with the AACA over the use of its intellectual property rights associated with its examinations and associated processes and any assistance required from the AACA regarding the conduct of exams and other related eligibility assessments. There would September 2014 Page 11

13 be substantial costs associated with both options, however it is not possible to say at this point what the level of such costs would be. AACA recognition of University of Tasmania Courses in Architecture The AACA accredits Australian universities and other institutions that offer courses in architecture. Hence, accreditation of a course by the AACA allows graduates of that course to be considered for registration by interstate registration authorities. That is, subject to meeting specified experience requirements, persons who hold a qualification from an accredited course are then able to sit the AACA's Architectural Practice Exam (APE), which applicants are required to pass in order to become registered as an Architect. Advice received from the University of Tasmania indicates that it considers that the Architects Act is required so as to not disadvantage those who choose to study architecture at the University's School of Architecture and Design. The University's concern is if the Architects Act is repealed, then it may lose its accreditation by AACA. The AACA has advised that: Programs in architecture are currently accredited through the process known as the Australian Architecture Program Accreditation and Recognition Procedure. The Procedure is available to all accrediting authorities, ie the Architects Registration Board in each state and territory, including the. If there was not a Tasmanian Board, programs in architecture offered in Tasmania would not be eligible for accreditation and accordingly would not be accepted for national listing by AACA. The consequence of this would impact upon the viability of these programs. The loss of the University's accreditation would mean that qualifications gained through its courses would not be accepted as meeting the qualification requirements necessary to sit the AACA's APE. This in turn would prevent future graduates of the University of Tasmania from meeting some of the registration requirements of other jurisdictions. This would clearly have a significant adverse impact on the viability of the University's Architecture and Design courses. A review of the Procedure to which the AACA refers, indicates that it is designed on the basis that all Australian States and Territories register architects - which is understandable given that the AACA was tasked with developing nationally consistent assessment processes for architects. Consequently, the Procedure does not contemplate a situation where a state or territory does not register architects. Whilst the Tasmanian Government could request the AACA to effect changes that would enable the procedure to accredit University of Tasmania courses of architecture if the Architects Act were repealed, such an outcome is not certain. Alternatively, other state and territory governments would need to be persuaded by the Tasmanian Government to amend their Acts or Regulations to specifically recognise University of Tasmania courses of architecture. Such a course of action would take significant time and, again, the outcome is not certain. September 2014 Page 12

14 Recommendation: That any change to existing legislation take into account the consequences to accreditation of the Architecture and Design program provided by the University of Tasmania and the impact on students undertaking courses offered by UTAS in this field. Registration of Tasmanian Architects in other Jurisdictions In light of the linkages between the AACA processes and jurisdictional eligibility requirements for the registration of architects, the repeal of the Architects Act would also have implications for the registration of Tasmanian architects in other jurisdictions. (Those Tasmanian architects who have already gained interstate registration on the basis of their registration as an architect in Tasmania would not be affected by this option.) However, those who have not gained interstate registration would no longer be able to do so under the national Mutual Recognition Act 1992 arrangements, as there would be no Tasmanian registration on which to base mutual recognition. Rather, they would have to seek registration in another jurisdiction as a fresh applicant. In this situation, the impact on Tasmanian architects would be: If they were graduates from a course that is accredited by the AACA, then they would meet the qualification requirements necessary to sit the APE. They would then have to pass the APE to obtain registration. If they were graduates from the University of Tasmania at a time when the University's courses were accredited, then it is possible that they would still be able to meet the qualification requirements necessary to sit the APE. This is, however, dependant on whether the relevant jurisdictional registration authority recognises qualifications from past accredited courses as meeting their requirements for sitting the APE. This situation would also apply to qualifications from any other Australian institutions whose courses were no longer accredited. If the relevant jurisdictional registration authority did not recognise a person's qualification as being from an accredited course, then to meet the qualification requirements necessary to sit the APE they would first need to pass the AACA's National Program of Assessment (NPrA). The NPrA is designed to assess persons who have no formal architectural qualifications. The experience requirements under the NPrA are significantly greater than those required under other pathways to sitting the APE (minimum of 7 years work experience in a related field within the last ten years, three of which must be in an architect's office). Those with no formal architectural qualifications would need to undertake the NPrA before they could qualify to sit the APE. This situation would result in some Tasmanian architects facing significant barriers to being able to gain registration as an architect interstate as a result of the repeal of the Architects Act. It should be noted that this outcome is not a direct result of the way that the Mutual Recognition Act operates. Rather it is a function of the eligibility requirements imposed by the various registration authorities combined with the AACA eligibility assessment arrangements used by those authorities. September 2014 Page 13

15 10. Defining work No comments. 11. Planning No comments. 12. Plumbing and Building No comments. 13. Appeals and the Review of determinations or applications Based on past experience most enquiries from the public relating to issues with Architects have been resolved by informal mediation by the Board without the need for consumers to lodge formal complaints. It is extremely unlikely that significant additional administrative costs will occur. In this event the Board has sufficient reserves and operates at a surplus, and could fund the handling of Complaints at the current level of complaints without increasing registration fees. The Tasmanian Board of Architects is a party to the Joint Model Statutory Code of Professional Standards and Conduct and so already has a system in place to ensure that appeals and reviews are undertaken appropriately. September 2014 September 2014 Page 14