Is the Lack of Fining Power for Misconduct a Poisoned Chalice for Council Certifiers?
By Professor Kim Lovegrove
6th May 2011
For local government accredited certifiers in New South Wales, disciplinary procedures under the Building Professionals Act 2005 have widened to include these practitioners within the ambit of that which previously had applied to private certifiers. As a result, local government accredited certifiers can now be subject to most of the same disciplinary sanctions.
However, the BPA provides that local government certifiers are exempted from attracting fines for unsatisfactory professional conduct or professional misconduct. This means that a disciplinary decision maker`s repertoire of censures is unusually if not uniquely limited. The decision maker can reprimand, suspend or cancel if the recalcitrant requires punishment, but not impose a fine.
This creates a significant problem. Having been a chair of a state registration and disciplinary oversight body, Kim Lovegrove said that he would not envy the task of the decision maker in the effecting of negative sanctions. At the best of times the handing down of a disciplinary censure is a challenge as one has to balance the protection of the public tenet with the fact that a censure will contaminate the professional reputation and kudos of the offending party. Fines are an age old and established disciplinary mechanism. They are designed to avoid redress to the most severe negative sanctions i.e. suspensions and or cancellations in situations where lesser, albeit, significant censure is considered appropriate. To quote the words of a seminar attendee, when we were discussing this point, fines allow for graduation. The notion of “first stop” reprimand and “second stop” suspension does not.
The great challenge for the decision maker will be in having to decide as to whether suspension is in order, when a reprimand does not suffice, in circumstances where if s/he had been given the power to impose a high fine, something short of suspension, then that would have been the equitable and just censure.
Say for instance a council certifier committed a relatively heinous act, but something short of suspension was considered the appropriate sanction. In the case of a private certifier there may be a high fine (say $40,000.00) but in the case of a council certifier it would be highly unlikely that the decision maker would hand down a mere reprimand. The decision maker could not, because to hand down token censure would be a dereliction of duty and would evidence a failure to hand down a decision that afforded adequate deterrent value. So an invidious predicament arises for both the certifier and the decision maker; there may be no other option but to suspend.
The conundrum is that to ensure that punishment is effected, there will need to be greater resource to suspension than would otherwise be the case if the fining power were to exist. This is somewhat disquieting and we would urge the legislature to reconsider this issue because ironically it could generate unintended consequences, in a negative way.