Pleading the 5th – Self Incrimination and the Building Professionals Act 2005 (NSW)
Written by Jarrod Gusta, Lovegrove & Cotton – Construction and Planning Lawyers
The inundation of American pop culture on T.V. has given rise to an erroneous belief that when faced with any investigating body one has the right to not answer a question if it may incriminate one’s self. The 1970 Nixon Presidential speech in relation to the Watergate scandal comes to mind “I want you all to stonewall it, let them plead the Fifth Amendment, cover-up or anything else, if it’ll save it-save the plan.” Alas there is no constitutional right to silence in the Australian Constitution, some common law cases provide limited protection; limiting adverse inferences being drawn by a jury from an accused remaining silent see (Petty & Maiden v R  HCA 34; (1991) 173 CLR 95 (5 September 1991). However when it comes to the Building Professionals Act 2005, it is clear and unambiguous – you do NOT have a right to not answer a question on the grounds of self-incrimination.
Section 59(1) of the Building Professionals Act 2005 (NSW)(the Act) titled the ‘Limitation on Self Incrimination’ states a “person who is required … to answer a question, produce a thing or provide information is not excused from answering the question, producing that thing or providing the information on the ground that ….the information might tend to incriminate the person or make the person liable to a penalty.”
This section provides the Building Professionals Board (BPB) and its investigative agents very vast powers. So if one is compelled to answer a question and one is a truthful person how can having legal representation help in a BPB inquiry? Well put simply the Act specifies that one must answer the question it does not mean that one must submit to oral questioning for instance. It is a prudent course of action when faced with a BPB inquiry to engage legal representation immediately upon becoming notified of a complaint or anything that could lead to a complaint or investigation.
Legal practitioners will generally insist that all questions are put to the person in writing and that the same questions are answered in writing rather than orally. This allows any building professional to give considered answers after obtaining legal advice. It goes without saying that one must always be truthful in any answer they present, however one should consider their answer carefully and state exactly what they mean, which may not occur if questions are answered ‘off the cuff’.
Section 59(1) of the Act as outlined above is limited in its application by s59(2). Section 59(2) provides that any question answered or thing produced in compliance with the Act will not be admissible in evidence in criminal proceedings against a natural person, with only 3 exceptions to this rule.
The exceptions are if proceedings are brought under s58 of the Act or s307B or s307C of the Crimes Act 1900 (NSW).
S58 of the Act is a penalty provision. It provides for a civil penalty if one obstructs an authorized officer from performing their duties under this part of the Act. It further makes it a requirement that a person comply with a direction of the Board or an authorized officer under this part of the Act.
S307B & s307C of the Crimes Act, makes it an offence to knowingly provide false or misleading information or documents to a public body or a person exercising their authority under a statute, which in this case would include the giving of information to the Board or to an authorized officer.
Thus any answers provided or information provided to an authorized officer under the Building Professionals Act may result in criminal proceedings being brought against the building professional, if they fall into the above category.
Best Practice to Face a Complaint under the Building Professionals Act 2005 (NSW)
Having dealt with these complaints for over 25 years, the firm has a plethora of anecdotal evidence to suggest that many building professionals do not comprehend the gravity of a complaint and/or investigation until it is too late. An authorized officer may call a building professional and ask them questions concerning a complaint, the building professional may not realize at the time that the answers they provide to the questions could in fact be used in evidence against them. It is of paramount importance that if faced with these circumstances a building professional does not refuse to answer the question but merely requests that the questions be put to them in writing and then engages legal representation immediately.
An authorized officer has broad powers under the Act to inspect the site including removing floor coverings or require the removal of parts of the premises and to take measurements and survey the site (s50 Building Professionals Act (2005). Furthermore an authorized officer may require entry onto any premises for the purposes of an investigation under Part 3 or 4 of the Act. This would include entry into the premises of the office of an accredited certifier or builder (s49 Building Professionals Act (2005). If an authorized officer exercises powers under this section building professionals should be aware that the officer can only enter the premises during daytime or ordinary working hours s49(2) Building Professionals Act 2005.
Justin Cotton Partner & Head of Practitioner Advocacy has written a pertinent article on the powers of investigating agents under the equivalent Victorian legislation. If you wish to view this article please click here. It is critical that any building professional or practitioner (as they are called down there in Victoria) know their rights and obligations under the relevant legislation when faced with a complaint or investigation.
There is NO right to not answer questions due to self-incrimination, however there are techniques to ensure that you answer questions in a measured and considered manner whilst still fulfilling your obligations under the legislation.