Review of licence rationale and design - Australian Institute of ...

Australian Institute ofArchitectsReview of licencerationale and designSubmission toIndependent Pricing andRegulatory Tribunal18 December 2012i

SUBMISSION BYAustralian Institute of Architects – NSW ChapterABN 72 000 023 012Tusculum, 3 Manning StreetPOTTS POINT NSW 2011Telephone: 02 9246 4055Facsimile: 02 9246 4030email: nsw@architecture.com.auPURPOSEThis submission is made by the NSW Chapter of the Australian Institute ofArchitects (the Institute) to IPART in response to the Regulation ReviewDiscussion Paper dated October 2012.At the time of the submission the office bearers of the NSW Chapter are:Matthew Pullinger (President), Brian Zulaikha (Immediate Past-President),Joe Agius, Nigel Bell, Shaun Carter, Emili Fox, David Holm, EstebanInsausti, Chris Jenkins, Alex Kibble, Stuart Landrigan, Louise Nettleton,Peter Sarlos, David Springett.The Office Manager of the NSW Chapter is Roslyn Irons. This paper wasprepared by Murray Brown, Policy & Professional Development Manager,and Richard Barton, Company Secretary, for Chapter Council.INFORMATIONWho is making this submission?The Australian Institute of Architects (the Institute) is an independentvoluntary subscription-based member organization with approximately10,153 members who are bound by a Code of Conduct and DisciplinaryProcedures.The Institute, incorporated in 1929, is one of the 96 member associationsof the International Union of Architects (UIA) and is represented on theInternational Practice Commission.The Institute’s New South Wales Chapter has 2,959 members, of which1,700 are registrable architect members – representing 56% of allregistered architects in NSW.Australian Institute of Architects (NSW)Review of licence rationale and design18 December 2012i

Where does the Institute rank as a professional association?At 10,153 members, the RAIA represents the largest group of nonengineerdesign professionals in Australia.Other related organisations by membership size include: The DesignInstitute of Australia (DIA) - 1,500 members; the Building DesignersAssociation of Australia (BDAA) - 2,200 members; the Australian Instituteof Landscape Architects (AILA) 1,000 members; and the AustralianAcademy of Design (AAD) - 150 members.Australian Institute of Architects (NSW)Review of licence rationale and design18 December 2012ii

Australian Instituteof ArchitectsReview of licencerationale anddesignAustralian Institute of Architects (NSW)Review of licence rationale and design18 December 2012

EXECUTIVE SUMMARYThe Australian Institute of Architects (NSW) supports the current arrangements forthe regulation of architecture in NSW. They provide a self-funding mechanism for:(a) defining and maintaining standards for entry into the profession;(b) providing information to the public regarding the services provided by theprofession;(c) protecting consumers by dealing with consumer claims and complaints as aninexpensive alternative to legal avenues of redress; and(d) disciplining architects who fall short of the required standards.These processes are governed by the NSW Architects Act and managed by astatutory authority constituted under the Act, the NSW Architects Registration Board.However less than 50% of building design work in NSW is performed by architects.This leaves other building design professionals, principally building designers, nonarchitectsand draughtspersons, unregulated. This leaves the consumer publicexposed to risks and uncertainty when dealing with these para-professionals.In this submission we argue for the maintenance of the current registration ofarchitects and additionally the introduction of an expanded regulatory system, similarto that for architects, that encompasses these other para-professionals.In view of the growing flexibility of the profession and the increasing number ofarchitectural practices with offices in more than one state or territory we also arguefor a national registration scheme, so that registration in any state or territory enablesthe architect to practise in every other Australian jurisdiction. We note that architectsin Australia are also recognised by a number of international agreements.Australian Institute of Architects (NSW)Review of licence rationale and design18 December 2012

IPART REGULATION REVIEW – LICENCE RATIONALE & DESIGNSUBMISSION BY AUSTRALIAN INSTITUTE OF ARCHITECTS NSW CHAPTERThe Institute makes this submission in response to the issues paper published by IPART inOctober 2012. The submission addresses the four stages of the PwC draft licensingframework outlined in the issues paper.The Institute fully supports the licensing of all those persons practicing in building relatedfields as an effective and necessary means of consumer protection.INTRODUCTIONThe NSW Architects Act 2003 restricts the use of the term ‘architect’ to those who areregistered by the NSW Architects Registration Board (ARB). We use the term architect inthis submission only to refer to those persons who are registered architects, not any otherperson with architectural and design training but who is not registered.Initial registration depends on appropriate tertiary level education and mandatoryexperience. Continuing registration depends on good conduct, including undertakingmandatory continuing professional development. The NSW Act is similar in intent andfunction to architects acts in each state and territory, and numerous overseas acts andinternational agreements.The objects of the NSW Act, listed in the order given in the Act, are to:1. Ensure that architects provide services to the public in a professional andcompetent manner;2. Provide mechanisms to discipline architects who are found to have actedunprofessionally or incompetently;3. Ensure that the public is appropriately informed about the qualifications andcompetence of individuals or organisations holding themselves out asarchitects; and4. Promote a better understanding of architectural issues in the community.The Act was recently reviewed and a report was issued by the Department of Finance &Services in September 2010. The Minister for Finance & Services has advised the ARB thatthe Act will not be amended until the outcomes of the IPART review are considered.KEY FACTORSA. COVERAGEThe Act regulates the qualifications, experience and conduct of architects. Its only functionfor non-architects is to prohibit the use of ‘derivative words’ to describe themselves.In a direct sense, the Act provides consumer protection only in relation to the limited marketshare of building design performed by architects. As far as the Institute can ascertain, this isapproximately half of building design undertaken in NSW.However, the significance of the Act is not diminished by the limited market-share to which itdirectly applies. Its indirect effect on protecting consumers from being misled into thinkingtheir building work is being provided by fully qualified, suitably experienced, and regulated1Australian Institute of Architects (NSW)Review of licence rationale and design18 December 2012

architects is in fact the primary function of the Act. In the Institute’s view, Object 3 of the Actis its most important.If there was, as there should be, licensing of all building design practitioners into anappropriate hierarchy of descriptors according to levels of training and experience, theconsumer could be appropriately made aware of the meaning of the descriptors and thecorresponding level of risk.Such descriptors operate in the NSW community, but without clarity and as a consequence,without the consumer protection that ought to be provided for their use.For example, while there is no regulation of the term ‘building designer’ anyone withoutappropriate education/training or experience can mislead an unsuspecting consumer.Consumer protection requires a comprehensive regulatory regime for full effectiveness.B. NATIONAL REGISTRATIONAlthough this enquiry concerns NSW, the Institute advocates the national licensing ofarchitects - so that the payment of a licence fee in one Australian jurisdiction will providecoverage for the whole of Australia. This will substantially reduce the costs for architectsoperating in more than one jurisdiction, while retaining the current cost-neutral position of theARB.Following the same line of argument the Institute proposes the extension of nationallicensing to other para-professionals in the building design sector.C. DRAFT LICENSING FRAMEWORKThe framework is a useful tool, but somewhat repetitive. It is difficult to separate outresponses to the questions in Stage 2 and Stage 3. The Institute suggests a re-draft of theframework based on a rigorous analysis of the information sought. This should enable theremoval of one stage and a re-framing of the stages into:1. Is licensing an option?2. Is licensing working effectively?3. Is licensing the best option?RESPONSES TO DRAFT LICENSING FRAMEWORKStage 1: Is licensing a potential option?Q1 – Is there a clear need for government action?Yes. In common with other professions, the licensing of architects provides assurances topotential clients that the service provider has the appropriate qualifications and is capable ofproviding their services to a minimum professional standard.To become ‘licensed’ as a registered architect across Australia takes a minimum of fiveyears full-time at University, (two degrees, a Bachelors followed by Masters degree),followed by a minimum two years practical experience (3000 hours) logged under 28categories of experience before being allowed to sit the Architectural Practice Examination.2Australian Institute of Architects (NSW)Review of licence rationale and design18 December 2012

This consists of a written exam prior to an oral examination before two experiencedpractitioners. Successful completion of this process enables practitioners to describethemselves as ‘architects’.There are approximately 4,300 architects currently registered in NSW by the ARB.However, the majority of building design is undertaken in NSW by unregulated persons whoare variously described, but not architects. Consumers of these building design services arewithout regulatory protection from the unqualified, or those lacking competence for otherreasons.Q2 – Is there a need for something new?Yes. The Institute believes there is need for a regulatory body for those performing buildingwork as non-architects. Presently, without regulation of non-architect building designpractitioners, consumers only have recourse to potentially expensive and protracted legalaction.This body should:(a) regulate the use of descriptor words according to qualifications and experience;and(b) apply a code of conduct and regulations in response to consumer claims andcomplaints.Q3 – Is there a role for specific regulation?Yes, for the purpose of consumer protection. The current situation where a large part of thebuilding design sector operates outside a formal licencing scheme is out of step with otherstates, eg Victoria and Queensland.Q4 – Are policy objectives likely to be addressed through licensing?Yes. Without licensing, alternative means for consumers to ascertain competence areuncertain. They depend on a consumer’s individual vulnerability to exaggerated advertisingclaims which may be false, and/or the consumer’s ability to undertake research. Licensingdoes not guarantee competence, but it increases the likelihood that consumers will avoiddiscovering incompetence during their interactions with a practitioner.The Institute believes it is not sound policy for a consumer to have to pursue redress throughlimited legal recourse which can also be prohibitively expensive and protracted, but whichcould have been avoided altogether by licensing.Stage 2: Is licensing well designed?Q1 – is licence coverage the minimum necessary?Yes. The coverage will be adequate if it covers the full range of building design practitioners,describes them accurately and provides appropriate and distinct entry standards.3Australian Institute of Architects (NSW)Review of licence rationale and design18 December 2012

Q2 – Is licence duration the maximum possible?The Institute supports the continuation of the current one-year licence period, which is linkedto continuing professional development and professional indemnity insurance and is fullyself-funded. If the proposed comprehensive licence coverage is adopted there will be a needfor periodic review of the process to adopt learnings to correct deficiencies in the process.The recently released Ombudsman’s report concerning Victoria’s Building Commissionought to indicate the need for periodic comprehensive and objective operational review, notthat a licensing system itself is a policy failure.Q3 – Are reporting requirements the minimum necessary?A considerable broadening of coverage in the building design sector makes it important thatannual reporting accurately covers the transitional period and any difficulties that arise.Q4 – Are fees and charges appropriate?Yes. The licence fee is willingly paid by architects in a self-funding process. Fee structuresneed to be adequate to ensure the authority is able to fulfil its functions, includingenforcement of all regulated aspects. Characteristically, licensing boards find it more difficultfinancially to pursue offences by those who are not licensed with them, because they mustpursue these breaches of the Act in courts with legal expenses and protractions. Fees andcharges need to be set so that there is no barrier to fulfilling all of a licensing act’s functions.Q5 – Are conduct rules the minimum necessary?Yes. In the Institute’s opinion, real consumer protection is afforded by regulating falseadvertising, (use of the restricted title or derivative words by those who are notregistered/licensed), and ought to be a key focus. As noted in the answer to the questionabove, prosecuting breaches by registered persons is often easier than prosecuting ‘holdingout’ using restricted descriptions.The ARB’s Annual Reports advise that a number of complaints made are actually about nonarchitectsand false advertising. ‘In cases where a potential breach is identified, theindividual or entity is given the opportunity to remedy the matter’ 1 .In general, fines for such breaches need to be real commercial deterrents, not tokenamounts.Q6 – Are mandatory attributes the minimum necessary?Entry requirements to use of titles based on education and experience are the key toconsumer protection, as well as the clear separation of roles, through appropriate licensedtitles. The Institute supports the continuation of the present requirement for continuingprofessional development and professional indemnity insurance.1 NSW Architects Registration Board, Annual Report 2011-12, p.18Australian Institute of Architects (NSW)Review of licence rationale and design18 December 20124

Stage 3: Is licensing administered effectively/efficiently?Q1 – Are registering and licensing activities efficient?Yes, but the breadth of prohibited conduct needs to be enforced, so that the title ‘architect’ isclearly reserved for registered architects..Q2 - Are stakeholders well informed?Yes, in relation to the work performed by architects and the skills required. However,information about the relative skill sets and functions across the whole of the building designsector needs to be made available to consumers. It is also important for practitionersthemselves to be aware of the demarcations and skill requirements of each component ofthe sector.Q3 - Is collecting information targeted?This will be a key feature of the proposed new system and will take some time to bed down.See the answer to Q3 above.Q4 - Is receiving and responding to complaints optimal?Generally yes. The Institute has recommended modifications to the current ARB complaintsprocedure. This will need to be expanded significantly under the proposed new system.Q5 - Is monitoring and enforcing compliance best practice?Generally yes. As noted in the answers given above, false/misleading advertising ofentitlement to use a restricted title by non-architects is a major issue, with arguably too littleeffective action taken. The Institute is aware of one prosecution in the last eight years.Q6 - Is the scheme subject to periodic review?Yes, in line with the reporting schedule proposed in Q3 in Stage 2.Stage 4: Is the licensing scheme the best response?Q1 – Does a preliminary assessment suggest licensing will result in a net benefit?There are three parts to this response:i. The proposed licensing coverage for the whole building design sector will provideclose to 100% protection for consumers of building design services wherepreviously only less than half of consumers of building design had protection;ii.Although this enquiry is limited to NSW, the Institute advocates the nationallicensing of architects - so that the payment of a licence fee in one Australianjurisdiction will provide coverage for the whole of Australia. This will substantiallyreduce the current anomalies in registration and reduce the costs for architectswanting to operate in more than one jurisdiction and under the internationalagreements currently in force; andAustralian Institute of Architects (NSW)Review of licence rationale and design18 December 20125

iii.The Institute proposes the extension of this same principle to other practitionersin the building design sector.In regard to point (ii) above, we also note that mutual recognition at a national level alsoflows on to international agreements such as Free Trade Agreements, the APEC ArchitectAgreement and the Canberra Accord for architectural education.Q2 – Are there other alternative options that could deliver policy objectives?As noted above, if there is to be consumer protection in relation to all building design, it willbe necessary to set standards for entry into the building design sectorProviding these protections within a “title regulation” act enables consumers, via lodging acomplaint, to access these measures outside the ordinary legal system in order to avoidunnecessary costs.Q3 – Does a cost benefit analysis show licensing is the optimal option?In the absence of a full analysis the Institute advocates full licensing of the entire buildingdesign sector to provide comprehensive consumer protection for the users of these services.CONCLUSIONThe Institute considers the present Act is an appropriate form of licensing that is supportedby architects. There is an opportunity to extend licensing coverage to non-architects andpara-professionals to provide more comprehensive protection for consumers.The Institute will be pleased to discuss these proposals in more detail in the new year.6Australian Institute of Architects (NSW)Review of licence rationale and design18 December 2012