Architects Act 2004 (WA)

Western Australia Architects Act 2004 Western Australia Architects Act 2004 Contents Part 1 — Preliminary 1. Short title 2 2. Commencement 2 3. Objects of Act 2 4. Terms used 2 Part 2 — The Architects Board Division 1 — Establishment of Board 5. Board established 5 6. Board not agent of Crown 5 Division 2 — The Board 7. Membership of Board 5 8. Constitution and proceedings 6 9. Remuneration and allowances 6 Division 3 — Functions and powers 10. Functions 6 11. Powers 7 12. Powers of investigation and investigator 8 13. Incriminating information, questions, or documents 10 14. Failure to comply with investigation 11 15. Obstruction of investigator 12 16. Delegation 12 Division 4 — Registrar and other staff 17. Registrar 13 18. Other staff and contractors 13 19. Use of government staff etc. 13 Division 5 — Relationship of Board with the Minister 20. Minister may give directions 14 21. Minister to have access to information 15 Division 6 — General 22. Protection from liability 16 23. Common seal of, and execution of documents by, Board 16 24. Duty not to make improper use of information 17 Part 3 — Finance and reports 25. Funds of Board 18 26. Accounts 18 27. Audit 18 28. Annual report and other reports 19 Part 4 — Registration and licensing of architects Division 1 — Registration, licensing and renewal 29. Registration of natural persons 21 30. Conditions on registration or renewal of registration 21 30A. Architects must be covered by architect insurance 21 31. Licensing of corporations 21 32. Conditions on grant of licences or renewal of licences 22 33. Applications for registration and licences 22 34. Effect of registration and licensing 23 35. Duration of registration and licences 23 36. Renewal of registration and licences 24 37. Fees for renewal of registrations and licences 25 38. Certificates of registration 26 39. Licence documents 27 40. Suspension or cancellation of licences 27 41. Suspension of registration or licence: effect 29 42. Surrender of certificates of registration, licence documents 29 Division 2 — The register 43. The register 30 44. Inspection and publication of register 31 45. Amendment of particulars 31 46. Amendment to ensure accuracy 31 47. Voluntary removal from register 32 48. Removal of names of deceased persons and defunct corporations 32 49. Removal of name of person without up to date skills who has not practised for 5 years or who has lost qualifications 32 50. Effect of removal of name from register 33 51. Restoration of name to register 33 Division 3 — Notifications to Board 52. Change of address 34 53. Loss of qualifications 34 54. Information about insurance 35 55. Corporations: advice as to intention to amend constitution etc. 35 Part 5 — Disciplinary proceedings Division 1 — Disciplinary action 56. Causes for disciplinary action 36 57. Taking disciplinary action 37 58. Failure to comply with disciplinary action 39 Division 2 — Conciliation 59. Conciliation process 39 60. Action if conciliation fails 40 Part 6 — Notifications and review 61. Notice of decisions to affected persons 42 62. Publication and records 42 63. Review 43 Part 7 — Offences 64. False descriptions; pretending to be architect 44 65. Name in which practice may be carried on; use of names 44 66. Making or publishing certain statements or documents 45 67. Falsely representing that work will be done by architect 45 68. Certain conduct not in breach of this Act 47 69. False or misleading information 48 70. False representations 49 Part 8 — Regulations and rules 71. Regulations 50 72. Rules 51 Part 9 — Miscellaneous 73. Recovery of fees 53 74. Evidentiary 53 75. Legal proceedings 53 76. Liability of officers for offence by body corporate 54 77. Liability of partners: offences 55 78. Repeal of Architects Act 1921, savings and transitional provisions 56 81. Review of Act 56 Schedule 1 — Constitution and proceedings of the Board Division 1 — General provisions 1. Terms of office of Board members 57 2. Vacancy in office of elected member 57 3. Resignation, removal etc. 57 4. Chairperson and deputy chairperson 58 5. Leave of absence 59 6. Board member temporarily unable to act 59 7. Saving 59 8. Calling of meetings 60 9. Presiding officer 60 10. General procedures 60 11. Quorum 60 12. Voting 60 13. Minutes 61 14. Resolution without meeting 61 15. Holding meetings remotely 61 16. Committees of the Board 61 Division 2 — Disclosure of interests, etc. 17. Term used: member 61 18. Disclosure of interests 61 19. Voting by interested members 62 20. Clause 19 may be declared inapplicable 62 21. Quorum where clause 19 applies 62 22. Minister may declare clauses 19 and 21 inapplicable 63 Schedule 2 — Savings and transitional provisions 1. Terms used 64 2. Interpretation Act 1984 not affected 64 3. Board (body corporate) continues 64 4. Membership of new Board 65 5. Registrar and other staff 66 6. Persons registered under repealed Act 66 7. Register 67 8. Certificates under repealed Act 67 9. Transitional provision as to applications for registration 67 10. First annual report 68 11. Powers in relation to transitional provisions 68 Notes Compilation table 69 Other notes 69 Defined terms Western Australia Architects Act 2004 An Act — • to provide for the registration of natural persons, and the licensing of corporations, as architects; • to provide for the regulation of the practice of architecture by those persons; • to repeal the Architects Act 1921; • to consequentially amend the Constitution Acts Amendment Act 1899 and the Sentencing Act 1995 1, and for related purposes. Part 1 — Preliminary 1. Short title This Act may be cited as the Architects Act 2004 1. 2. Commencement (1) Subject to subsection (2), this Act comes into operation on a day fixed by proclamation 1. (2) This Act is not to come into operation before the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Part 2 Division 8 has come into operation. 3. Objects of Act The objects of this Act are — (a) to ensure that only properly qualified and competent persons are identified as architects or as persons who practise architecture and to regulate the practice of architecture by those persons; and (b) to establish, maintain and promote suitable standards of knowledge and skills among architects, for the purpose of protecting the consumers of architectural and related services in Western Australia. 4. Terms used (1) In this Act, unless the contrary intention appears — architect insurance means insurance that — (a) is in effect in respect of civil liability for anything done or omitted in carrying on the practice of architecture; and (b) complies with the requirements prescribed by the regulations; Board means the Architects Board of Western Australia established under section 5; certificate of registration means a certificate of registration issued under section 38; committee means a committee of the Board appointed under Schedule 1 clause 16; condition includes restriction; corporation means — (a) a company as defined in the Corporations Act; or (b) any other body corporate, or body corporate of a kind, prescribed by the regulations; Corporations Act means the Corporations Act 2001 of the Commonwealth; disciplinary action means action that can be the subject of an order under section 57(2); firm means an unincorporated body of persons, whether consisting of natural persons or corporations or partly of natural persons and partly of corporations; licence means a licence granted under Part 4; licence document means a licence document issued under section 39; licensed means licensed under Part 4; officer, in relation to a body corporate, has the meaning given to "officer of a corporation" in the Corporations Act but does not include an employee of the body corporate unless the employee is concerned in the management of the body corporate; public company has the meaning given to that term in the Corporations Act; register means the register referred to in section 43; registered means registered under Part 4; registrar means the person appointed to be registrar under section 17; regulations means regulations made under section 71; restricted word means — (a) "architect", "architects", "architectural" or "architecture"; or (b) any abbreviation or derivative of a word in paragraph (a); or (c) any other word or combination of letters that sounds or looks like a word in paragraph (a). (2) Notes in this Act are provided to assist understanding and do not form part of the Act. [Section 4 amended: No. 7 of 2022 s. 8.] Part 2 — The Architects Board Division 1 — Establishment of Board 5. Board established (1) The Architects Board of Western Australia is established. (2) The Board — (a) is a body corporate; and (b) has perpetual succession and a common seal; and (c) may sue and be sued in its corporate name. 6. Board not agent of Crown The Board does not represent, and is not an agent of, the Crown. Division 2 — The Board 7. Membership of Board (1) The Board consists of 10 natural persons, of whom — (a) 4 persons are to be appointed by the Minister as persons having knowledge of, and experience in representing, community or consumer interests; and (b) 2 are to be appointed by the Minister, on the nominations of bodies that are prescribed by the regulations, as persons having knowledge of, and experience in, matters relating to the profession or practice of architecture; and (c) 4 are to be registered persons who are elected by registered persons in accordance with the regulations. (2) Each body prescribed for the purposes of subsection (1)(b) is to provide to the Minister at least 2 nominations from which the Minister is to choose the persons to be appointed under subsection (1)(b). (3) If, within 30 days of being requested in writing to do so, a body referred to in subsection (2) has not provided at least 2 nominations, the Minister is to make the appointments from nominations of the other bodies. (4) If, within 30 days of being requested in writing to do so, none of the bodies referred to in subsection (2) has provided at least 2 nominations, the Minister is to make the appointments at the Minister's discretion and the persons so appointed are to be regarded as having been nominated under subsection (1)(b). (5) A registered person is not eligible for election under subsection (1)(c) unless — (a) the person belongs to a category of registered persons who are required to pay fees for registration and renewal of registration; and (b) the person is not in arrears in respect of those fees. 8. Constitution and proceedings Schedule 1 has effect with respect to the Board and members of the Board and its committees. 9. Remuneration and allowances Any remuneration or allowances of a member of the Board or of a committee are to be those determined by the Minister on the recommendation of the Public Sector Commissioner. [Section 9 amended: No. 39 of 2010 s. 89.] Division 3 — Functions and powers 10. Functions The functions of the Board are as follows — (a) to administer the scheme of registration and licensing under Part 4; (b) to monitor education in architecture, and provide advice on that education to the Minister and to any other person or body involved in that education; (c) to accredit architectural education courses for the purposes of registration requirements; (d) to promote and encourage — (i) the continuing education of architects in relation to the practice of architecture; and (ii) increased levels of knowledge, skill and competence in the practice of architecture; (e) to perform the other functions that are conferred on the Board by or under this Act or any other Act; (f) to promote public awareness in relation to the functions of the Board; (g) to advise the Minister on matters to which this Act applies. 11. Powers (1) The Board has all the powers it needs to perform its functions. (2) The Board may not acquire, hold or dispose of real property other than premises used, or to be used, by it as office premises. (3) Without limiting subsection (1), the Board may, for the purpose of performing a function — (a) produce and publish information on matters related to the practice of architecture and the education of architects; and (b) develop and turn to account any technology, software or other intellectual property that relates to that function, and, for that purpose, apply for, hold, exploit and dispose of any patent, patent rights, copyright or similar rights. 12. Powers of investigation and investigator (1) The Board may carry out any investigation that the Board considers necessary or expedient for the purposes of — (a) determining any application or any other matter before the Board; (b) determining whether or not a registered person or a licensed corporation is or has been acting in conformity with the conditions, if any, of the registration or licence and is or has been complying with the requirements of this Act; (c) determining whether any other cause exists that might be considered by the Board a proper cause for disciplinary action; (d) detecting offences under this Act. (2) The Board is not to investigate a complaint that is made more than 3 years after the conduct is alleged to have occurred, unless the Board decides that — (a) it is just and fair to investigate the complaint having regard to the delay and the reasons for the delay; or (b) it is in the public interest to investigate the complaint. (3) The Board may appoint an investigator to investigate a matter and report to the Board. (4) The investigator may — (a) require any person — (i) to give the investigator such information as the investigator requires; and (ii) to answer any question put to the person, in relation to any matter the subject of the investigation; and (b) require any person to produce any document to the investigator; and (c) enter at all reasonable times and search any premises and inspect any documents that the investigator finds on the premises; and (d) make a copy or abstract of any document produced or inspected under this section, or of any entry made in the document. (5) A requirement made under subsection (4)(a) — (a) may be made orally or by notice in writing served on the person required to give information or answer a question, as the case may be; and (b) is to specify the time at or within which the information is to be given or the question is to be answered, as the case may be; and (c) may, by its terms, require that the information or answer required — (i) be given orally or in writing; and (ii) be given at or sent or delivered to any place specified in the requirement; and (iii) in the case of written information or answers, be sent or delivered by any means specified in the requirement; and (iv) be given on oath or affirmation or by statutory declaration for which purpose the investigator may administer an oath or affirmation and have the authority of a commissioner for declarations. (6) A requirement made under subsection (4)(b) — (a) is to be made by notice in writing served on the person required to produce a document; and (b) is to specify the time at or within which the document is to be produced; and (c) may, by its terms, require that the document be produced — (i) at any place specified in the requirement; and (ii) by any means specified in the requirement. (7) Where under subsection (4)(a) an investigator orally requires a person to give any information or answer any question, the investigator is to inform that person that the person is required under this Act to give the information or answer the question, as the case may be. (8) Where under subsection (4)(a) or (b) a person is required by notice in writing to give any information, answer any question, or produce any document, the notice is to state that he or she is required under this Act to give the information, answer the question, or produce the document, as the case may be. (9) Before entering any premises under this section the investigator — (a) is to obtain a warrant to do so from a magistrate or Justice of the Peace which warrant the magistrate or Justice of the Peace is authorised to issue upon being satisfied that the entry is sought in good faith for the purpose of an investigation under this section; and (b) is to display to the person, if any, giving the investigator entry, a document signed by the Board and certifying that he or she is an investigator appointed by the Board. 13. Incriminating information, questions, or documents Without prejudice to the provisions of the Evidence Act 1906 section 11, where under section 12 of this Act a person is required to — (a) give any information; or (b) answer any question; or (c) produce any document, the person must not refuse to comply with that requirement on the ground that the information, answer, or document may tend to incriminate the person or render the person liable to any penalty, but the information or answer given, or document produced, by the person is not admissible in evidence in any proceedings against the person other than proceedings in respect of an offence under section 14(1)(b). 14. Failure to comply with investigation (1) Where under section 12 a person is required to give any information, answer any question, or produce any document and that person, without reasonable excuse (proof of which shall lie on that person) — (a) fails to give that information or answer that question at or within the time specified in the requirement; or (b) gives any information or answer that is false in any particular; or (c) fails to produce that document at or within the time specified in the requirement, the person commits an offence. Penalty: $2 000. (2) It is a defence in any proceeding for an offence under subsection (1)(a) or (1)(c) for the accused to show — (a) that, in the case of an alleged offence arising out of a requirement made orally under section 12, the investigator did not, when making the requirement, inform the accused that the accused was required under this Act to give the information or answer the question, as the case may be; or (b) that, in the case of an alleged offence arising out of a requirement made by notice in writing under section 12, the notice did not state that the accused was required under this Act to give the information, answer the question, or produce the document, as the case may be; or (c) that the time specified in the requirement did not afford the accused sufficient notice to enable the accused to comply with the requirement; or (d) that, in any case, the investigator did not, before making the requirement, have reasonable grounds to believe that compliance with the requirement would materially assist in the investigation. [Section 14 amended: No. 84 of 2004 s. 82.] 15. Obstruction of investigator A person must not prevent or attempt to prevent an investigator from entering premises or otherwise obstruct or impede an investigator in the exercise of his or her powers under section 12. Penalty: $2 000. 16. Delegation (1) The Board may delegate any power or duty of the Board under another provision of this Act to — (a) a member of the Board; or (b) a committee; or (c) the Registrar or any other member of staff of the Board; or (d) a person referred to in section 19(1). (2) The delegation must be in writing executed by the Board. (3) A person or committee to whom a power or duty is delegated under this section cannot delegate that power or duty. (4) A person or committee exercising or performing a power or duty that has been delegated to the person or committee under this section, is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown. (5) Nothing in this section limits the ability of the Board to perform a function through the registrar or any other member of its staff or an agent. (6) This section does not apply to the execution of documents but authority to execute documents on behalf of the Board can be given under section 23. Division 4 — Registrar and other staff 17. Registrar (1) The Board is to appoint a person to be the registrar. (2) The registrar has the functions that are conferred under this Act or that he or she is directed by the Board to perform. 18. Other staff and contractors (1) The Board may employ staff. (2) This section does not detract from the power that the Public Sector Management Act 1994 section 100 gives the Board to engage a person under a contract for services or appoint a person on a casual employment basis. (3) The Board may, by arrangement on such terms as are agreed with the relevant parties, make use of the services of a person employed by another person. 19. Use of government staff etc. (1) The Board may by arrangement with the relevant employer make use, either full‑time or part‑time, of the services of any officer or employee — (a) in the Public Service; or (b) in a State agency or instrumentality; or (c) otherwise in the service of the State. (2) The Board may by arrangement with — (a) a department of the Public Service; or (b) a State agency or instrumentality, make use of any facilities of the department, agency or instrumentality. (3) An arrangement under subsection (1) or (2) is to be made on the terms agreed by the parties. Division 5 — Relationship of Board with the Minister 20. Minister may give directions (1) The Minister may give written directions to the Board with respect to the performance of its functions, either generally or, subject to subsection (2), in relation to a particular matter and the Board is to give effect to any such direction. (2) The Minister must not under subsection (1) direct the Board with respect to the performance of its functions under Part 4 or 5 in respect of — (a) a particular person; or (b) a particular qualification; or (c) a particular application, complaint, investigation or other proceeding. (3) The Minister must cause the text of any direction given under subsection (1) to be laid before each House of Parliament, or dealt with under subsection (4), within 14 days after the direction is given. (4) If — (a) at the commencement of the period referred to in subsection (3) a House of Parliament is not sitting; and (b) the Minister is of the opinion that that House will not sit during that period, the Minister is to transmit a copy of the direction to the Clerk of that House. (5) A copy of a direction transmitted to the Clerk of a House is to be regarded as having been laid before that House. (6) The laying of a copy of a direction that is regarded as having occurred under subsection (5) is to be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the copy. (7) The text of a direction under subsection (1) is to be included in the annual report submitted by the Board under section 28. 21. Minister to have access to information (1) The Minister is entitled — (a) to have information in the possession of the Board; and (b) where the information is in or on a document, to have, and make and retain copies of, that document. (2) For the purposes of subsection (1) the Minister may — (a) request the Board to furnish information to the Minister; (b) request the Board to give the Minister access to information; (c) for the purposes of paragraph (b) make use of the staff of the Board to obtain the information and furnish it to the Minister. (3) The Board is to comply with a request under subsection (2) and make its staff and facilities available to the Minister for the purposes of subsection (2)(c). (4) The Minister is not entitled to have information under this section in a form that — (a) discloses the identity of a person involved in a particular application, complaint, investigation or other proceeding; or (b) might enable the identity of such a person to be ascertained, unless that person has consented to the disclosure. (5) In this section — document includes any tape, disc or other device or medium on which information is recorded or stored; information means information specified, or of a description specified, by the Minister that relates to the functions of the Board. Division 6 — General 22. Protection from liability (1) An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act. (2) The Board is also relieved of any liability that it might otherwise have had for another person having done anything as described in subsection (1). (3) The protection given by this section applies even though the thing done as described in subsection (1) may have been capable of being done whether or not this Act had been enacted. (4) In this section, a reference to the doing of anything includes a reference to the omission to do anything. 23. Common seal of, and execution of documents by, Board (1) A document is duly executed by the Board if — (a) the common seal of the Board is affixed to it in accordance with subsections (2) and (3); or (b) it is signed on behalf of the Board by a person or persons authorised to do so under subsection (4). (2) The common seal of the Board must not be affixed to any document except as authorised by the Board. (3) The common seal of the Board is to be affixed to a document in the presence of 2 of its members, and each of them is to sign the document to attest that the common seal was so affixed. (4) The Board may, by writing under its seal, authorise one or more of its members or the registrar or another member of staff of the Board to sign documents on behalf of the Board, either generally or subject to the conditions that are specified in the authorisation. (5) A document purporting to be executed in accordance with this section is to be presumed to be duly executed until the contrary is shown. (6) When a document is produced bearing a seal purporting to be the common seal of the Board, it is to be presumed that the seal is the common seal of the Board until the contrary is shown. 24. Duty not to make improper use of information A member or former member of the Board or a committee must not, whether within or outside the State, make improper use of information acquired by virtue of that position to gain, directly or indirectly, an advantage for himself or herself or for any other person. Penalty: $5 000. Part 3 — Finance and reports 25. Funds of Board (1) The funds of the Board consist of — (a) fees received by the Board; and (b) pecuniary penalties paid in respect of offences under this Act; and (c) other money or property lawfully received by the Board in connection with the performance of its functions; and (d) other money lawfully received by, made available to, or payable to, the Board. (2) The funds of the Board may be applied — (a) for the purposes of the administration and enforcement of this Act, including the remuneration of members of the Board and committees and of the registrar and other members of staff of the Board; and (b) for the furtherance of education, including public education, and research in relation to architecture; and (c) for any other purpose that would enable the Board to perform its functions or to facilitate the carrying out of the objects of this Act. 26. Accounts (1) The Board is to cause to be kept proper accounts and records of the transactions and affairs of the Board and prepare financial statements in accordance with Australian Accounting Standards. (2) The financial statements are to be prepared on an accrual basis unless the Board determines otherwise. 27. Audit The accounts and financial statements of the Board are to be audited at least once a year, at the expense of the Board, by a registered company auditor (as defined in paragraph (a) of the definition of that term in the Corporations Act) appointed by the Board with the prior approval of the Minister. 28. Annual report and other reports (1) The Board, not later than 31 October in each year, is to make and submit to the Minister an annual report of its proceedings for the financial year ending on the preceding 30 June together with a copy of its financial statements for that year and the auditor's report on those statements. (2) The Board's annual report is to include details of — (a) the number, nature, and outcome, of — (i) complaints received by the Board; and (ii) investigations undertaken by, or at the direction of, the Board; and (iii) matters that have been brought before the State Administrative Tribunal by the Board; and (b) the number and nature of matters referred to in paragraph (a) that are outstanding; and (c) any trends or special problems that may have emerged; and (d) forecasts of the workload of the Board in the year after the year to which the report relates; and (e) any proposals for improving the operation of the Board. (3) Despite subsection (2), the identity of a person who has made a complaint under this Act, a person about whom or which a complaint is made or referred under this Act or any other person in relation to an investigation or other proceeding must not be disclosed in an annual report. (4) The Minister is to cause a copy of the Board's annual report and financial statements and of the auditor's report submitted under subsection (1) to be laid before each House of Parliament within 14 sitting days of that House after receipt of the report by the Minister. (5) The Board is to ensure that after subsection (4) has been complied with copies of the reports and statements referred to in that subsection are available on request for inspection at its premises. Part 4 — Registration and licensing of architects Division 1 — Registration, licensing and renewal 29. Registration of natural persons A natural person is to be registered if the person — (a) applies to the Board in accordance with section 33; and (aa) is covered by architect insurance; and (b) satisfies the Board that the person complies with the requirements prescribed by the regulations for the purposes of this section in relation to that person. [Section 29 amended: No. 7 of 2022 s. 9.] 30. Conditions on registration or renewal of registration The registration or renewal of the registration of a natural person must not be subject to conditions except to the extent that conditions may be imposed — (a) under section 51(6); or (b) by way of taking disciplinary action. [Section 30 inserted: No. 7 of 2022 s. 10.] 30A. Architects must be covered by architect insurance A registered person must not carry on the practice of architecture unless the person is covered by architect insurance. [Section 30A inserted: No. 7 of 2022 s. 10.] 31. Licensing of corporations The Board may grant a licence to a corporation that — (a) applies to the Board in accordance with section 33; and (b) satisfies the Board that the corporation complies with the requirements prescribed by the regulations for the purposes of this section. 32. Conditions on grant of licences or renewal of licences (1) The Board may grant a licence or renew a licence subject to the conditions that the Board specifies. (2) Without limiting subsection (1), the Board may impose as a condition of the grant of a licence or the renewal of a licence — (a) a requirement to give the Board advice or information about the registered person who has ultimate responsibility for the architectural work done by the corporation; and (b) that insurance cover be in effect in respect of the corporation's civil liability for anything done or omitted by the corporation as an architect; and (c) that the insurance cover be of a standard or for an amount prescribed by the regulations. 33. Applications for registration and licences (1) An application for registration or for the grant of a licence is to be — (a) made in writing in a manner and form determined by the Board; and (b) accompanied by — (i) the application fee prescribed by the regulations in relation to the applicant; and (ii) the registration fee or licence fee (whichever is relevant) prescribed by the regulations in relation to the applicant. (2) The applicant is to provide the Board with any further information that the Board requires in any particular case and is to verify the information by statutory declaration if required by the Board to do so. (3) The Board may, in writing, require — (a) an applicant for registration; or (b) an officer of a corporation that is an applicant for the grant of a licence, to attend before the Board for the purpose of satisfying the Board as to a matter relevant to the application and the Board may refuse the application if the person fails to attend as required. (4) In considering any application for registration or for the grant of a lic