Architects Act 2003 (NSW)

Architects Act 2003 No 89 An Act to provide for the registration and regulation of architects; to repeal the Architects Act 1921; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Architects Act 2003. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are— (a) to ensure that architects provide services to the public in a professional and competent manner, and (b) to provide mechanisms to discipline architects who are found to have acted unprofessionally or incompetently, and (c) to ensure that the public is appropriately informed about the qualifications and competence of individuals or organisations holding themselves out as architects, and (d) to promote a better understanding of architectural issues in the community. 4 Definitions (1) In this Act— approved fee—see section 69. architect means a person who is registered as an architect under this Act. architect corporation or architect firm—see section 10. Architects Fund means the Architects Fund established under section 72. architectural qualification means a degree, diploma, certificate or other academic award conferred or awarded for a course of study in architecture. architectural service means a service provided in connection with the design, planning or construction of buildings that is ordinarily provided by architects. architecture does not include naval architecture, computer architecture or any other architecture not concerned with buildings. Board means the NSW Architects Registration Board constituted under this Act. cancellation of registration—see section 23. conduct includes any act or omission. Deputy President means the Deputy President of the Board. exercise a function includes perform a duty. firm means a partnership or other unincorporated association of persons. full registration means registration under section 17. function includes a power, authority or duty. neighbouring jurisdiction means each other State, Territory and New Zealand. nominated architect means an architect nominated for the time being under section 27 as an architect responsible for the provision of architectural services by an architect corporation or architect firm. President means the President of the Board. Register means the register of architects referred to in section 25. registered means registered under this Act. Registrar means the Registrar of the Board. temporary registration means registration under section 18. Tribunal means the Civil and Administrative Tribunal. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 5 Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. 6 Mutual recognition laws This Act does not limit or otherwise affect the operation of— (a) the Mutual Recognition Act 1992 of the Commonwealth, or (b) the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth. Part 2 Practice of architecture Division 1 Code of professional conduct 7 Establishment of code of professional conduct (1) The regulations may establish a code of professional conduct setting out guidelines that should be observed by architects in their professional practice. (2) The Minister may direct the Board to provide for the Minister's consideration advice or proposed guidelines relating to any conduct of architects that the Minister considers should be the subject of a code of professional conduct. (3) The Board is to comply with any direction of the Minister under this section. 8 Effect of code of professional conduct The provisions of a code of professional conduct are a relevant consideration in determining for the purposes of this Act what constitutes proper and ethical conduct by an architect. Division 2 Offences relating to the practice of architecture 9 Representing an individual to be an architect (1) An individual must not represent himself or herself to be an architect, and must not allow himself or herself to be represented to be an architect unless he or she is an architect. Maximum penalty—100 penalty units. (2) A person must not represent an individual to be an architect if the person knows, or ought reasonably to know, that the individual is not an architect. Maximum penalty—100 penalty units (in the case of an individual) or 200 penalty units (in the case of a corporation). 10 Representing a corporation or firm to be an architect (1) A corporation or firm must not represent itself to be an architect, and must not allow itself to be represented to be an architect, unless the corporation or firm has at least one nominated architect who is responsible for the provision of architectural services by the corporation or firm. Maximum penalty—200 penalty units. (2) A person must not represent a corporation or firm to be an architect if the person knows, or ought reasonably to know, that any such representation by the corporation or firm itself would constitute a contravention of subsection (1). Maximum penalty—100 penalty units (in the case of an individual) or 200 penalty units (in the case of a corporation). (3) In this Act, a corporation or firm that represents itself to be an architect or that allows itself to be represented to be an architect is referred to as an architect corporation or architect firm (as appropriate). 11 Architectural services provided by architect corporation or architect firm (1) An architect corporation or architect firm must ensure that at all times there is at least one nominated architect who is nominated by the corporation or firm and responsible for the provision of architectural services by the corporation or firm. Maximum penalty—200 penalty units. (2) An architect corporation or architect firm must ensure that— (a) any written business correspondence issued by the corporation or firm bearing the name of the corporation or firm indicates the name of an architect who is a nominated architect responsible for the provision of architectural services by the corporation or firm, and (b) the name of an architect who is a nominated architect responsible for the provision of architectural services by the corporation or firm is prominently displayed at each place of business of the corporation or firm, so as to be clearly visible to a person from outside or immediately on entering the place of business. Maximum penalty—200 penalty units. Note— A temporary project or site office does not constitute a place of business of a corporation or firm. (3) The Board may in a particular case grant a corporation or firm an exemption from compliance with a particular provision or provisions of this section. The exemption may be granted unconditionally or subject to conditions. (4) An exemption remains in force for such period as the Board may specify or, if no period is specified, until it is revoked by the Board by notice in writing to the corporation or firm concerned. (5) Proceedings for an offence against this section are not to be commenced without the written consent of the Board given in the particular case. 12 Services provided using an architect (1) If a person (other than an architect) provides an architectural service that the person has offered to provide using an architect or that the person has represented will be provided using an architect, the person is guilty of an offence if the architectural service is not provided by, or under the supervision of, an architect. Maximum penalty—100 penalty units (in the case of an individual) or 200 penalty units (in the case of a corporation). (2) A person (other than an architect) who provides, or represents that the person will provide, architectural services to a person (the client) using an architect must ensure that any correspondence about those services from the person to the client indicates the name of an architect who is responsible for the provision of those architectural services to the client. Maximum penalty—100 penalty units (in the case of an individual) or 200 penalty units (in the case of a corporation). 13 Certain representations taken to be representations that person is an architect (1) Without limiting the ways in which a person, corporation or firm can be considered to be represented to be an architect, a representation using any of the following titles, names or descriptions constitutes such a representation— (a) the title or description "architect" or "registered architect", (b) another title, name or description that indicates, or is capable of being understood to indicate, or is calculated to lead a person to infer, that the person is an architect, (c) any title, name or description prescribed by the regulations. (2) Without limiting the ways in which a corporation or firm can be considered to be represented to be an architect, a representation that a corporation or firm consists of or comprises one or more architects constitutes a representation that the corporation or firm is an architect. 14 Exceptions for certain titles and descriptions This Division does not prohibit— (a) an employee of an architect from using the title or description of "architectural assistant", "architectural technician" or "architectural drafter", or (b) a person from using the title or description of "landscape architect", "naval architect" or "computer systems architect", or (c) a person from using the title or description of "architect" or "registered architect" if— (i) the person is registered as an architect in a neighbouring jurisdiction (within the meaning of section 52) and is normally resident in that jurisdiction, and (ii) the person indicates the jurisdiction in which the person is so registered, and (iii) the person has notified the Board of his or her intention to use such a title or description, or (d) a person who holds an architectural qualification from describing himself or herself as holding that qualification, or (e) a person from using the word "architectural" only as indicating that the person carries on the business of supplying goods in connection with architecture, or (f) a person from using any name, title or description prescribed by the regulations in such circumstances and subject to such restrictions as may be prescribed by the regulations. 15 Extended meaning of "represent" In this Division, represent includes claim and hold out. Part 3 Registration Division 1 Entitlement to registration 16 Qualifications for registration (1) For the purposes of this Act, an individual has the necessary qualifications for registration as an architect if— (a) the individual has such architectural qualifications as may be prescribed by the regulations, or (b) the individual has successfully completed a course of study that is accredited by the Board as meeting criteria prescribed by the regulations for the purposes of this paragraph, or (c) the individual has passed an examination arranged or approved by the Board to assess the person's competency to practise architecture. (2) An educational or training institution may apply to the Board for the accreditation by the Board (under subsection (1) (b)) of a course of study offered by the institution. (3) An educational or training institution that has applied to the Board for the accreditation of a course of study offered by the institution may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any decision of the Board not to accredit the course of study. (4) In determining for the purposes of subsection (1) (b) whether a particular course of study meets the criteria prescribed by the regulations, the Board may have regard to and rely on any findings made on an assessment prepared for the Board in respect of the course of study. 17 Full registration as architect (1) An individual is entitled to be registered as an architect if— (a) the Board is satisfied that the individual is of good fame and character, and (b) the individual has the necessary qualifications for registration as an architect, and (c) the Board is satisfied that the individual has acquired such practical experience required by the Board as a prerequisite for entry to the examination referred to in paragraph (d), and (d) the individual has, to the satisfaction of the Board, passed an examination in architectural practice arranged or approved by the Board. (2) Registration under this section is full registration. (3) An entitlement to full registration does not prevent conditions being imposed on that registration in accordance with this Act. Note— By virtue of section 20 of the Mutual Recognition Act 1992 of the Commonwealth, a person is entitled to be registered as an architect if the person is registered in another State or a Territory for an equivalent occupation (if that State or Territory participates in the mutual recognition scheme). The entitlement arises once the person lodges a notice under section 19 of that Act and, until registered under this Act, the person is then deemed (by section 25 of that Act) to be registered. See also the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth. 17A Duration of registration (1) An application for full registration or a renewal of registration is to nominate one of the following terms of duration for the registration (the nominated term)— (a) 1 year, (b) 3 years, (c) 5 years. (2) The Board may grant or renew registration for the nominated term or, if satisfied that it is in the public interest to do so, a shorter term than the nominated term. (3) If an application for renewal of registration has been made but the application is not finally determined by the Board before the expiry of the registration, the registration (if not suspended or sooner cancelled) continues in force until the application is finally determined. (4) If registration is granted or renewed for a shorter term than the nominated term, the Board is to refund to the applicant the difference between the fee for the nominated term and the fee for the term that was granted. (5) The suspension of registration does not affect the term of the registration. (6) This section does not affect the term of any registration granted under this Act and in force immediately before the insertion of this section by the Fair Trading Legislation Amendment (Reform) Act 2018. 18 Temporary registration of overseas architects (1) The Board may register an individual as an architect for a limited period if— (a) the Board is satisfied that the individual is of good fame and character, and (b) the Board is satisfied that the individual has architectural qualifications and practical experience in another country of a kind that demonstrates that the individual would be capable of practising architecture in the State with the same level of competence and skill expected of architects with full registration. (2) Registration under this section is temporary registration. (3) A person granted temporary registration is registered as an architect until the temporary registration expires or is cancelled. Temporary registration expires on the date stated in the relevant certificate of registration unless the period of temporary registration is extended. (4) The Board may from time to time extend the period for which temporary registration is in force. (5) The Board may cancel a person's temporary registration for any reason that the Board considers proper. Cancellation does not affect any application for full registration by the person. (6) The Board may impose such conditions as it thinks fit on the temporary registration of a person and may at any time remove, add to or vary those conditions by notice in writing to the registered person. 19 Registration fees An applicant for full registration or temporary registration must pay the approved fee for such registration before the person can be registered as an architect. 20 Power to refuse or impose conditions on full registration (1) The Board may refuse to register a person who would otherwise be entitled to full registration if— (a) the person is bankrupt, has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, has compounded with his or her creditors or made an assignment of his or her remuneration for their benefit, or (b) the person has been convicted of an offence under Part 2, or (c) the person has been convicted of any other offence, either in or outside the State, and the Board is of the opinion that the circumstances of the offence are such as to render the person unfit in the public interest to practise architecture, or (d) the person's registration, licence, accreditation or certification under an architects registration law has been cancelled or suspended because of conduct that would (if it occurred in New South Wales and the person were an architect under this Act) authorise cancellation or suspension of the person's registration under this Act. (2) As an alternative to refusing to register a person under subsection (1), the Board may grant the person registration subject to conditions if the Board considers that refusal of registration is not warranted and that the person should be granted registration subject to appropriate conditions. (3) Conditions of registration may relate to the aspects of the practice of architecture in which the person may be engaged, and any other matters, as the Board thinks appropriate. Note— The Mutual Recognition Act 1992 of the Commonwealth and the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth also provide for the imposition of conditions on registration. Conditions can also be imposed on a person's registration as a result of disciplinary proceedings to which the person has been subject. (4) In this section— architects registration law means any law of a place outside the State that provides for the registration, licensing, accreditation or certification of architects. 21 Restrictions on registration of de-registered persons (1) A person must not apply for registration (and any such application must be rejected) if— (a) the person's registration is cancelled under this Act, or (b) the Tribunal or the Supreme Court orders that the person not be re-registered (a registration prohibition order). (2) A person may apply for registration despite subsection (1) only if— (a) any period specified in a registration prohibition order during which the person is not to be re-registered has expired and any other condition specified in the order is complied with, or (b) the Tribunal or Supreme Court orders that the person may apply for registration despite subsection (1) (an application permission order). (3) A person to whom subsection (1) applies may apply for an application permission order— (a) where the Tribunal ordered the cancellation of the person's registration or made the registration prohibition order against the person—to the Tribunal, or (b) where the Supreme Court ordered the cancellation of the person's registration or made the registration prohibition order against the person—to the Supreme Court, but only if a period of at least 12 months has elapsed since the cancellation of the person's registration or the making of the registration prohibition order (as the case may be). (4) The Board is to be a party to any proceedings concerning an application for an application permission order. (5) The Tribunal or Supreme Court is not to make an application permission order unless it is satisfied that no useful disciplinary purpose is served by continuing to prohibit the person from applying for registration. (6) (Repealed) (7) Nothing in this section affects any entitlement of a person who has failed to pay an annual fee for registration to be re-registered under section 28 on payment of any such fee. Division 2 Registration procedures 22 Application to registration of Licensing and Registration (Uniform Procedures) Act 2002 (1) For the purposes of this Act, the Board may grant— (a) full registration under section 17, or (b) temporary registration under section 18. (2) Part 3 (other than section 39) of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of both full registration and temporary registration under this Act, subject to the modifications and limitations prescribed by this Act or the regulations. Note— See clause 3 of Schedule 3, which temporarily suspends the provisions of the applied Act in relation to the making of applications by way of electronic communication. (3) For the purposes of applying Part 3 of the applied Act to full registration and temporary registration under this Act— (a) (Repealed) (b) registration may be amended under that Act, and (c) the requirement of section 54 of that Act for a registration administration fee to be paid to the relevant registration authority within 14 days after each anniversary of the date on which the relevant certificate of registration was issued is to be read as a requirement for the approved fee for annual registration to be so paid on or before 31 March in each year. (4) Subject to this Act, the regulations may make provision for or with respect to such matters concerning full registration and temporary registration under this Act as are relevant to the operation of Part 3 of the applied Act. Division 3 Cancellation and suspension of registration 23 Cancellation and suspension of registration (1) A person ceases to be registered as an architect if the person's name is removed from the Register. (2) A reference in this Act to the cancellation of an architect's registration is a reference to the removal of the architect's name from the Register. (3) A person whose registration as an architect is suspended is taken not to be an architect during the period of the suspension, except for the purposes of Part 4 (Complaints and disciplinary proceedings). 24 Removal of architect's name from the Register (1) The Board must remove an architect's name from the Register if— (a) the architect has died, or (b) the architect has requested the Board in writing to remove his or her name from the Register, or (c) the architect has failed to pay the approved fee for annual registration in accordance with section 28, or (d) the Tribunal or the Supreme Court has ordered that the architect's registration be cancelled, or (e) the term of the architect's registration has expired and the registration has not been renewed or restored. (2) The Board may remove an architect's name from the Register if— (a) the architect does not possess the qualifications in respect of which he or she is registered, or (b) the architect becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (c) the architect has been convicted of an offence under Part 2, or (d) the architect is convicted in New South Wales of an indictable offence that is punishable by imprisonment for 12 months or more, or if he or she is convicted elsewhere than in New South Wales of an indictable offence that, if committed in New South Wales, would be an offence so punishable, or (e) the architect has been registered by means of any false or fraudulent representation or declaration made either orally or in writing, or (f) the architect has become a mentally incapacitated person, or (g) the architect has failed to comply with any continuing professional development requirements, or (h) the architect has not met a requirement relating to professional indemnity insurance. (3) Action is not to be taken under subsection (2) unless the Board— (a) has caused notice of the proposed action to be given to the architect, and (b) has given the architect at least 28 days within which to make written submissions to the Board in relation to the proposed action, and (c) has taken any such submissions into consideration. Division 4 Register of architects 25 Register of architects (1) The Registrar is to establish and maintain a register of architects for the purposes of this Act, and for the purposes of Part 3 of the Licensing and Registration (Uniform Procedures) Act 2002, as applied by this Act. (2) Without limiting subsection (1), the Register is to include the particulars of nominated architects. (3) The Registrar is to ensure that the Register is made available to the public, free of charge, at the Board's offices during ordinary office hours. (4) The Board may authorise the Registrar to share information (including names and addresses) contained in the Register with neighbouring jurisdictions for the purpose of establishing a common register of architects among the jurisdictions. (5) The regulations may make provision with respect to— (a) the particulars to be recorded in the Register, and (b) the manner and form in which the Register is to be maintained. Note— See also section 49 of the Licensing and Registration (Uniform Procedures) Act 2002 with respect to the particulars to be recorded in the register of architects. 26 List of registered architects to be prepared and published each year (1) The Registrar must ensure that, at least once each year, a list of the names and addresses of all architects in the Register is published for the information of the public. (2) The list must be published in such form (whether printed, electronic or both) as the Board may specify from time to time. 27 Nomination of responsible architects for architectural services (1) A corporation or firm that provides architectural services may nominate one or more architects to be responsible for the provision of architectural services by the corporation or firm. (2) A corporation or firm may nominate an architect under subsection (1) only if— (a) the architect is a director or member of the governing body of the corporation or firm, is a partner in the firm or is otherwise concerned in the management of the corporation or firm, or (b) the architect is an employee of the corporation or firm. (3) A nomination for the purposes of this section and any revocation or amendment of such a nomination is to be made to the Board in a form approved by the Board and must be accompanied by any approved fee. 28 Annual registration fees (1) An architect must, on or before 31 March in the year in which the architect's registration is due to be renewed, pay to the Board the approved fee for the registration. (2) The Board must cause an architect's name to be removed from the Register if the architect has failed to pay the approved fee for annual registration by the due date. (2A) An application for the restoration of registration must be made— (a) within 3 months of the expiry of the registration, or (b) within the further period determined by the Board on the application of the person seeking the restoration of registration. (2B) Without limiting subsection (2A) (b), the Board may extend the period within which an application for restoration of a licence may be made if the Board is satisfied that— (a) in a case where the applicant failed to apply for renewal before the licence expired-the failure to apply for renewal of the registration before it expired was due to inadvertence, or (b) it is just and equitable to restore the registration. (2C) An application for the restoration of registration must nominate a term of duration for the registration. (3) A person whose name has been removed from the Register for failure to pay the approved fee for annual registration is entitled to re-registration if the person pays to the Board any unpaid annual registration fee or fees together with any approved fee for late payment. (4) The entitlement to re-registration is an entitlement to registration on the same terms and subject to the same conditions (if any) as applied to the person's registration immediately before the removal of the person's name from the Register. (5) A person registered pursuant to an entitlement to re-registration under this section is taken to have been so registered on and from the day the person's name was removed from the Register or on and from such later day as the Board determines and notifies to the person. However, nothing in this subsection affects any proceedings for an offence instituted against the person before the person was entitled to be re-registered. (6) Nothing in this section requires the Board to re-register a person if the Board is satisfied that the person would not be entitled to be registered as an architect but for this section. (7) An entitlement to re-registration under this section does not override any other provision of this Act pursuant to which a person's name is authorised or required to be removed from the Register. (7A) The Board may refuse an application for the restoration of registration in the circumstances prescribed by the regulations. (8) The regulations may exclude or modify the provisions of this section in their application to temporary registration. 29 Change of particulars to be notified (1) An architect must comply with the requirements of section 53 (as applied by this Act) of the Licensing and Registration (Uniform Procedures) Act 2002. Maximum penalty—10 penalty units. Note— Section 53 of the Licensing and Registration (Uniform Procedures) Act 2002 makes it a condition of registration for registered persons to provide information regarding changes to their particulars. (2) If a nominated architect ceases to be responsible for the provision of architectural services by the corporation or firm concerned, the corporation or firm must notify the Board of that fact within 7 days of that cessation. Maximum penalty—50 penalty units. 30 Evidentiary certificates A certificate— (a) that is signed by the Registrar, and (b) that certifies that, on a specified date or during a specified period, the particulars contained in the Register as to specified matters were as so specified, is admissible in any proceedings and is evidence of the matters so certified. Note— See also section 55 of the Licensing and Registration (Uniform Procedures) Act 2002 with respect to evidentiary certificates. Division 5 Review of registration decisions 31 Tribunal may administratively review certain registration decisions (1) A person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions of the Board under this Part— (a) a decision to refuse the person full registration as an architect, (b) a decision to impose conditions o