New South Wales: 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 on the full registration of the person, (c) a decision to remove the person's name from the Register. (2) Despite subsection (1), a person is not entitled to apply to the Tribunal for an administrative review of a decision of the Board refusing to register the person as an architect if registration was refused on the ground that the person had failed to pass an examination that the person was required to pass under this Part. Part 4 Complaints and disciplinary proceedings Division 1 Interpretation 32 Definitions In this Part— complainant means a person who makes a complaint. complaint means a complaint made under this Part. disciplinary finding means a finding of unsatisfactory professional conduct or professional misconduct. professional misconduct means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension of an architect or the cancellation of an architect's registration, or (b) any other conduct that is declared by the regulations to be professional misconduct for the purposes of this Act. unsatisfactory professional conduct means any of the following— (a) any contravention by the architect of the conditions of the architect's registration, (b) a failure by the architect to comply with a provision of any code of professional conduct established by the regulations and in effect under section 7, (c) any failure without reasonable excuse by the architect to comply with a direction, order or requirement of the Board, Tribunal or Supreme Court, (d) any failure without reasonable excuse by the architect to properly supervise the provision of architectural services by an architect corporation or architect firm while the architect is a nominated architect responsible for the provision of those services, (e) any failure by the architect to comply with the applicable requirements of the Licensing and Registration (Uniform Procedures) Act 2002, (f) any contravention by the architect of this Act or the regulations, (g) any conduct of the architect that demonstrates that the architect is not a fit and proper person to be registered as an architect, (h) any other conduct of the architect that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of architecture, (i) any other improper or unethical conduct of the architect in the course of the practice of architecture, (j) any conduct that is declared by the regulations to be unsatisfactory professional conduct for the purposes of this Act. 33 Application of Part (1) If an architect has died— (a) a person cannot make a complaint against the architect, and (b) the Board is not to investigate (or continue to investigate) a complaint made against the architect or to make an application to the Tribunal for a disciplinary finding, and (c) the Tribunal is not to determine an application for a disciplinary finding against the architect. (2) A complaint about an architect may be made and dealt with even though the architect has ceased to be registered. For that purpose, a reference in this Part to an architect includes a reference to a person who has ceased to be registered or whose registration is suspended. (3) Despite subsection (2), the Board or the Tribunal may decide not to investigate a complaint or determine an application (or may decide to terminate an investigation or application) if the person to whom the complaint or application relates has ceased to be registered. Division 2 Complaints 34 Persons who may make complaints (1) Any person (including the Board) may make a complaint against an architect in respect of the architect's conduct as an architect. (2) Complaints (other than complaints made by the Board) are to be made to the Board and are to be lodged with the Registrar. (3) The Board may direct the Registrar to provide reasonable assistance in making a complaint to a person, or a person belonging to a class of persons, specified by the Board from time to time. 35 Withdrawal of complaint A complaint may be withdrawn by the complainant at any time. 36 Form of complaint (1) A complaint must be in writing, must identify the complainant and must contain particulars of the allegations on which it is founded. (2) (Repealed) (3) The Board may consider and investigate a complaint even if it does not comply with the requirements of this section (except the requirement that it identify the complainant) but must not proceed to deal with the complaint under this Part until they are complied with. (4) The Board may require the complainant to provide further particulars of a complaint. 37 Power to dismiss certain complaints (1) The Board may dismiss a complaint if the Board is satisfied that the complaint— (a) is frivolous or vexatious or otherwise lacking in merit, or (b) is a complaint in respect of a matter that has already been dealt with as a complaint under this Part, or (c) is trivial in nature. (2) The Board may dismiss a complaint under this section without having investigated the complaint under this Part, or following an investigation of the complaint under this Part. The Board is not required to investigate a complaint that has been dismissed under this section. (3) The Board is to notify the architect and complainant concerned of the dismissal of a complaint under this section. (4) If the Board dismisses a complaint under this section, the Board may also issue a caution to the architect against whom the complaint was made in respect of the matter complained of. (5) A person who makes a complaint or the architect against whom a complaint is made may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Board to dismiss the complaint under this section. 38 Board to notify person against whom complaint is made (1) Written notice of the making of a complaint, the nature of the complaint and the identity of the complainant is to be given by the Board to the architect against whom the complaint is made, as soon as practicable after the complaint is made. (2) Any such notice must invite the architect to make, within such period (being at least 7 days) as the Board specifies in the notice, such representations to the Board with respect to the complaint as the architect thinks fit. (3) Notice is not required to be given if the giving of the notice will or is likely to— (a) prejudice the investigation of the complaint, or (b) place the health or safety of a person at risk, or (c) place the complainant or another person at risk of intimidation or harassment. 39 Board to investigate complaints (1) The Board must, subject to this Part, conduct an investigation into each complaint made under this Part. (2) The Board may deal with one or more complaints about an architect in an investigation. (3) If during an investigation of any one or more complaints it appears to the Board that there is a matter in respect of which another complaint could have been made against the architect concerned, the Board may deal with the matter in its investigation as if a complaint had been made about the matter. (4) For the purposes of subsection (3), the Board may deal with a matter that could have been the subject of another complaint— (a) whether that complaint could have been made instead of or in addition to any complaint that was in fact made, and (b) whether or not that complaint could have been made by the same complainant. (5) The Board may dismiss any complaint without investigation if further particulars of the complaint are not given, or the complaint or the further particulars are not verified, as required by the Board. 40 Proceedings before Board in respect of complaints (1) For the purposes of investigating or determining a complaint, the Board is not bound to observe the rules of evidence but may inform itself of any matter in such manner as it thinks fit. (2) Without limiting subsection (1), the Board may meet separately or jointly with the complainant and architect concerned in an attempt to resolve any issue raised by the complaint if it considers the complaint may be resolved expeditiously by doing so. (3) The Board may be assisted by any person that it considers has relevant expertise in mediation or alternative dispute resolution in any such attempt to resolve a complaint. (4) Nothing in subsection (2) or (3) operates to prejudice the rights of the complainant or architect concerned. 41 Powers of Board in investigation in respect of architects (1) For the purpose of investigating or determining any complaint, the Board may, by notice served on any architect, require the architect to do any one or more of the following— (a) provide written information, by the date specified in the notice, and to verify the information by statutory declaration, (b) produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice, (c) otherwise assist in, or co-operate with, the investigation of the complaint in the specified manner. (2) The Board may inspect any document produced before the Board under this section and may retain it for such period as the Board thinks necessary for the purposes of an investigation in relation to which it is produced. The Board may make copies of the document or any part of the document. 42 Power to summon witnesses and take evidence (1) For the purposes of investigating or determining a complaint, the President or Deputy President may summon a person to appear before it to give evidence and to produce such documents (if any) as may be referred to in the summons. (2) The person presiding at a meeting of the Board concerning a complaint may require a person appearing before the Board in respect of the investigation or determination of a complaint to produce a document. (3) The Board may, in proceedings before it in respect of a complaint, take evidence on oath or affirmation and, for that purpose, a member of the Board— (a) may require a person appearing in the proceedings to give evidence either to take an oath or to make an affirmation in a form approved by the person presiding, and (b) may administer an oath to or take an affirmation from a person so appearing in the proceedings. (4) A person served with a summons to appear in any such proceedings and to give evidence must not, without reasonable excuse— (a) fail to attend as required by the summons, or (b) fail to attend from day to day unless excused, or released from further attendance, by the Board. Maximum penalty—20 penalty units. (5) A person appearing in proceedings before the Board in respect of a complaint to give evidence must not, without reasonable excuse— (a) when required to be sworn or to affirm—fail to comply with the requirement, or (b) fail to answer a question that the person is required to answer by the person presiding, or (c) fail to produce a document that the person is required to produce by this section. Maximum penalty—20 penalty units. (6) In this section, a reference to a person presiding at a meeting of the Board includes a reference to a person presiding at a meeting of a committee established under section 62 exercising functions in relation to a complaint. 43 Decision after investigation of complaint (1) After the Board has completed an investigation into a complaint against an architect, the complaint is to be dealt with in accordance with this section. (2) The Board may apply to the Tribunal for a disciplinary finding against an architect under Division 3 if it is satisfied that the architect is guilty of unsatisfactory professional conduct or it may instead exercise the functions conferred on it by subsection (4). (3) However, the Board must apply to the Tribunal for a disciplinary finding against an architect under Division 3 if it is satisfied that the architect is guilty of professional misconduct. (4) If the Board is satisfied that the architect is guilty of unsatisfactory professional conduct (but not professional misconduct), the Board may take any one or more of the following actions— (a) caution or reprimand the architect, (b) order the withholding or refunding of part or all of the payment for the architectural services that are the subject of the complaint, (c) direct that such conditions relating to the architect's practice of architecture as it considers appropriate be imposed on the architect's registration, (d) order that the person complete any educational course or courses specified by the Board, (e) order that the person report on his or her architectural practice at specified times, in a specified manner and to specified persons, (f) order that the person seek and take advice, in relation to the management of his or her architectural practice, from a specified person or persons, (g) order the architect to pay a fine of an amount not exceeding 15 penalty units. (5) Action is not to be taken under subsection (4) 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. (6) The Board is to dismiss the complaint against the architect if it is satisfied that the architect is not guilty of either unsatisfactory professional conduct or professional misconduct. (7) The Board may decline to deal with a complaint if the complainant fails to provide further particulars (including documents and other information) required by the Board. (8) The Board is to notify the architect of any action taken by the Board under this section. 44 Person may apply to Tribunal for administrative review of disciplinary finding of Board A person in respect of whom the Board has made a disciplinary finding may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of that finding and any action taken by the Board under section 43 (4). 45 Delegation of Board's functions under this Part to committee (1) Subject to subsection (2), the Board may delegate any of its functions under this Part (other than this power of delegation) to a committee established under section 62 that is constituted as provided by subsection (3). (2) If an architect or a complainant makes a written request to the Board for the complaint concerned to be investigated by a committee— (a) the Board is to delegate its functions under this Part in relation to the investigation of the complaint to a committee established under section 62 that is constituted as provided by subsection (3), and (b) the committee is to make recommendations to the Board in respect of the disciplinary action (if any) that would be appropriate. (3) A committee to which a function of the Board under this Part may be delegated must be constituted by 3 members of the Board, of whom— (a) one must be an Australian legal practitioner, and (b) one must be an architect, and (c) one must be a member who is neither an Australian legal practitioner nor an architect. (4) The member referred to in subsection (3) (a) is to be the chairperson of the committee. Division 3 Applications to Tribunal for disciplinary findings 46 Board may apply to Tribunal for disciplinary finding The Board may apply to the Tribunal for a disciplinary finding under this Division against an architect with respect to any complaint against the architect. 47 Functions of Tribunal in applications for disciplinary findings (1) If any application is made under this Division for a disciplinary finding in relation to an architect, the Tribunal is to determine whether or not the architect is guilty of unsatisfactory professional conduct or professional misconduct. (2) If the Tribunal finds that the architect is guilty of unsatisfactory professional conduct, the Tribunal may make any one or more of the following decisions— (a) caution or reprimand the architect, (b) order the withholding or refunding of part or all of the payment for the architectural services that are the subject of the complaint, (c) direct that such conditions relating to the architect's practice of architecture as it considers appropriate be imposed on the architect's registration, (d) order that the person complete any educational course or courses specified by the Tribunal, (e) order that the person report on his or her architectural practice at specified times, in a specified manner and to specified persons, (f) order that the person seek and take advice, in relation to the management of his or her architectural practice, from a specified person or persons, (g) order the architect to pay a fine of an amount not exceeding 200 penalty units. (3) If the Tribunal finds that the architect is guilty of professional misconduct, the Tribunal may (in addition to any decision made under subsection (2))— (a) order the suspension of the architect's registration for such period as the Tribunal thinks fit, or (b) order the cancellation of the architect's registration. (4) The Tribunal is to dismiss an application under this section if it finds that the architect is not guilty of unsatisfactory professional conduct or professional misconduct. (5) If the Tribunal orders the cancellation of the architect's registration, it may also order that the person cannot apply to be re-registered within such period (including the person's lifetime) as may be specified by the Tribunal. (6) If an architect's registration is suspended by the Tribunal, the Registrar is to note in the Register the suspension and its date and cause. (7) If the architect is not registered, an order or direction can still be given under this section but has effect only so as to prevent the person being registered unless the order is complied with or to require the conditions concerned to be imposed when the person is registered, as appropriate. 48, 49 (Repealed) Division 4 Confidentiality issues 50 Duty of confidentiality of client communications (1) An architect must comply with a requirement under this Part to answer a question or to produce information or a document despite any duty of confidentiality in respect of a communication between the architect and a client (but only if the client is the complainant or consents to its disclosure). (2) An architect may disclose a matter to the Board, a committee of the Board or the Tribunal in breach of any duty of confidentiality if the Board, committee or Tribunal is satisfied that it is necessary for the architect to do so to rebut an allegation in the complaint. 51 (Repealed) Division 5 Co-operation with other jurisdictions in respect of disciplinary action 52 Notice of disciplinary action to other Boards (1) When the registration of an architect is cancelled or suspended or any condition is imposed on the registration of an architect— (a) the Board must without delay notify particulars of that action to the local registration authority of each neighbouring jurisdiction, and (b) the Board may notify particulars of that action to the local registration authority of any other jurisdiction. (2) The Board is required or authorised to act under this section despite any law relating to secrecy or confidentiality. (3) This section does not affect any obligation or power to provide information under the Mutual Recognition Act 1992 of the Commonwealth or the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth. (4) In this section— local registration authority of a jurisdiction means the person or authority in the jurisdiction having the function conferred by legislation of registering persons in connection with the carrying on of architecture in the jurisdiction. registration includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for the carrying on of the practice of architecture. Division 6 Publicising disciplinary action 53 Definitions In this Division— architect includes a former architect. disciplinary action means any of the following actions (whether or not taken under this Part)— (a) the suspension or cancellation of the registration of an architect, (b) the refusal to register a qualified person as an architect, (c) the removal of the name of an architect from the Register, (d) any direction or order made by the Board or Tribunal in respect of an architect following a disciplinary finding in respect of the architect. 54 Publicising disciplinary action (1) The Board may publicise disciplinary action taken against an architect in any manner the Board thinks fit. (2) However, the Board must publicise disciplinary action taken against an architect (including the name and other identifying particulars of the person against whom the disciplinary action was taken). (3) Without limiting subsection (1), it is sufficient compliance with subsection (2) if the Board provides to the Registrar sufficient information to enable the Registrar to exercise the Registrar's functions in respect of the register of disciplinary action required to be kept under this Division. (4) The requirement to publicise disciplinary action applies only to disciplinary action taken after the commencement of this section. However, the Board may publicise disciplinary action taken under the Architects Act 1921 before the commencement of this section in accordance with this Division. (5) This section extends to disciplinary action taken outside this State, to the extent that the particulars of that disciplinary action are known to the Board. 55 Register of disciplinary action (1) The Registrar must keep a register of disciplinary action taken against architects. (2) The register is to include the following— (a) the name and other identifying particulars of the person against whom the disciplinary action was taken, (b) particulars of the disciplinary action taken. (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 and in any other manner that the Board directs. (4) The Registrar may, on request, provide information recorded in the register to members of the public in any other manner. (5) The Registrar may correct any error in or omission from the register. (6) The requirement to keep a register of disciplinary action applies only to disciplinary action taken after the commencement of this section. However, the Registrar may include in the register disciplinary action taken before the commencement of this section, or publicise such action in any other manner, in accordance with this Division. (7) This section extends to disciplinary action taken outside this State, to the extent that the particulars of that disciplinary action are known to the Registrar. 56 Quashing of disciplinary action (1) If disciplinary action is quashed on appeal or review after the action was publicised by the Board under this Division, the result of the appeal or review is to be publicised with equal prominence by the Board. (2) If the disciplinary action was recorded in the register kept by the Registrar under this Division, any reference to that disciplinary action is to be removed from the register. 57 Liability for publicising disciplinary action (1) No liability is incurred by the State, the Board, the Registrar or any person acting at the direction of the Board or Registrar in respect of anything done in good faith for the purpose of— (a) publicising disciplinary action under this Division, or (b) exercising the functions of the Board or Registrar under this Division. (2) No liability is incurred by a person publishing in good faith disciplinary action, or a fair report or summary of disciplinary action, recorded in a register kept by the Registrar, or otherwise publicised by the Board or Registrar, under this Division. (3) In this section— liability includes liability in defamation. 58 General (1) The provisions of this Division are subject to any order made by the Tribunal under section 64 of the Civil and Administrative Tribunal Act 2013. Note— Section 64 of the Civil and Administrative Tribunal Act 2013 allows the Tribunal to make an order prohibiting or restricting the disclosure of information. (2) If disciplinary action involves the suspension or cancellation of the registration of a person, or a refusal to register a person, as an architect because of the infirmity, injury or mental or physical illness of the person, the reason for the suspension, cancellation or refusal, and any other information relating to the infirmity, injury or mental or physical illness of the person, is not to be recorded in the register kept under this Division or otherwise publicised. (3) Despite subsection (2), the name and other identifying particulars of the person against whom the disciplinary action was taken, and the kind of disciplinary action taken, must be publicised, and recorded in the register kept under this Division, in accordance with the requirements set out in this Division. Part 4A 58A–58F (Repealed) Part 5 NSW Architects Registration Board Division 1 Constitution 59 Constitution of the Board There is constituted by this Act a body corporate with the corporate name of the "NSW Architects Registration Board". 60 Membership of the Board (1) The Board is to consist of the following 11 members— (a) the immediate past President of the New South Wales Chapter of the Royal Australian Institute of Architects, (b) the NSW Government Architect, (c) one architect who is to be an academic who teaches architecture at a relevant educational institution and who is appointed by the governing bodies of relevant educational institutions in accordance with the regulations, (d) 2 architects who are elected by architects in accordance with the regulations, (e) one architect who is to be appointed by the Minister, who the Minister is satisfied will represent the interests of practising architects and who is not an office holder in any Australian architectural industry organisation, (f) 5 persons who are to be appointed by the Minister in accordance with subsection (2) who are not architects (unless the Minister otherwise determines in a particular case). (2) The members to be appointed by the Minister are to be persons who the Minister considers have sufficient knowledge and understanding of the architectural profession to be of assistance to the Board in the exercise of its functions. The members appointed are to be as follows— (a) one person who the Minister is satisfied has taken a public interest in architectural matters and who the Minister is satisfied will represent the views of home owners as consumers of architectural services, (b) one person who the Minister is satisfied has expertise in the property development industry, (c) one person who the Minister is satisfied has particular knowledge and awareness of the views of local government in respect of the quality of building, (d) one person who is an Australian legal practitioner and who the Minister is satisfied has expertise in building and construction law, (e) one person who the Minister is satisfied has expertise in the building industry. (3) Without limiting subsection (1) (c), the regulations may make provision for rotating an appointment for the purpose of that paragraph among the governing bodies of relevant educational institutions should there at any time be more than one such institution. (4) If a person is not appointed for the purposes of subsection (1) (c) in accordance with this Act or the regulations— (a) the Minister may appoint an architect who is an academic teaching architecture at a relevant educational institution to be a member instead of the person required to be appointed, and (b) the person appointed by the Minister is taken to be a member appointed under subsection (1) (c) and to have been appointed by the relevant educational institutions referred to in that paragraph at the time of his or her appointment by the Minister. (5) If a person is not elected for the purposes of subsection (1) (d) in accordance with this Act or the regulations— (a) the Minister may appoint an architect to be a member instead of the person required to be elected, and (b) the person appointed by the Minister is taken to be a member elected under subsection (1) (d) and to have been elected at the time of his or her appointment by the Minister. (6) In this section, relevant educational institution means an institution at which architecture is taught that is prescribed by the regulations. Division 2 Functions of the Board 61 Functions of the Board (1) The Board has the following functions— (a) the registration of architects, (b) the investigation of complaints against architects, (c) the taking of disciplinary action against architects, (d) the investigation of matters referred to it by the Minister for advice and report in relation to the practice of architecture (including codes of professional conduct), (e) co-operation with neighbouring jurisdictions to further a common and harmonious approach to the administration of legislation relating to architects, (f) the accreditation of courses of study in architecture, (g) the maintenance and operation of the Architects Fund, (h) the promotion of community discussion about architectural issues, (i) the provision of general advice to consumers of architectural services with respect to the ethics and standards of professional competence that are generally expected of architects, (j) the provision of advice to the Minister with respect to any other matter in connection with the administration of this Act, (k) such other functions as are conferred or imposed on the Board by or under this Act or any other Act. (2) The Board may also develop model client agreements relating to home design for use by architects. Division 3 Committees and staff 62 Committees (1) The Board may establish committees to assist it in connection with the exercise of any of its functions. (2) It does not matter that any or all of the members of a committee are not members of the Board. (3) A member of a committee, while sitting on the committee, is entitled to be paid by the Board such a