Widening the Net – Professional Misconduct as it Relates to Council Accredited Certifiers
By Justin Cotton, Partner & Head of Practitioner Advocacy Presented 23/03/2011
There has long been a tension on the basis that traditionally, private accredited certifiers have been treated differently to their Council counterparts.
The spotlight of disciplinary investigations has shone more keenly and more searchingly on private accredited certifiers. Indeed, complaints against private practitioners come from both Councils and private owners.
Recent changes to the Building Professionals Act 2005 (the BPA) has seen Council certifiers brought much further into the curtilage of the disciplinary procedures in that Act.
Individual Council accredited certifiers can now be subject to the disciplinary procedures encompassed by section 31, after changes last year. The trade off is that they will not be subjected to the same sanctions in regard to penalty fines and compensation orders.
The BPA is the main legislation dealing with investigations into and discipline of accredited certifiers. Previously it was the Environmental Planning and Assessment Act 1979.
The two primary bodies charged with administering the disciplinary provisions are the Building Professionals Board (BPB) and the Administrative Decisions Tribunal (ADT). An investigation will firstly be conducted by the BPB.
The Powers to Discipline
Section 31 of the BPA sets out the range of orders available to the BPB after an investigation into an accredited certifier.
Section 31 subsection (4) says that, should the BPB find the accredited certifier guilty of unsatisfactory professional conduct or professional misconduct, the Board may:
- Caution or reprimand the AC;
- Impose conditions on the certificate of accreditation;
- Order the AC to report on their practice at the times, in the manner, and to the persons specified;
- Order the AC to complete such educational courses as specified;
- Order a director or employee of an accredited body corporate to complete an educational course as specified;
- Order the AC to pay a fine of up to 1,000 penalty units;
- Order the AC to pay compensation to a complainant (not exceeding $20,000) for any damage suffered;
- Suspend the AC’s accreditation for such period as specified;
- Cancel the AC’s accreditation;
- Order that the AC cannot re-apply for accreditation within a specified period (including for life); or
- Order that no further action is to be taken on the complaint – if satisfied that the AC is generally competent and diligent and that no other material
complaints have been made against the AC.
Substance and History of the Changes
(i) The BPA was amended to enable Council certifiers to apply for accreditation to the Building Professionals Board. Upon receiving accreditation, they are recognized as Council accredited certifiers.
As a result, Council accredited certifiers are subject to the BPB’s disciplinary procedures and guidelines, CPD program requirements and the BPB’s Code of Conduct.
The relevant legislation:
– The Building Professionals Regulations 2007(BPR)
– The Building Professionals Act 2005 (BPA)
These changes took effect from 1 March 2010.
(ii) A more recent change was introduced, effective from 1 September 2010. This change required Councils to only use accredited certifiers in carrying out Council certifying duties.
This is incorporated by section 74A of the Building Professionals Amendment Act 2008.
The effect is that both Councils and Council accredited certifiers will be subject to the provisions of the BPA and the BPR from 1 September 2010.
(iii) Then a further amendment was made, that exempted Council accredited certifiers from fines and orders for compensation under the BPA (sections 31 and 34).
In other words, Council accredited certifiers will be exempt from the BPB or the ADT imposing the following orders:
- An Order to pay the Board a fine not exceeding 1000 penalty
units ($110,000); and
- An Order to pay a complainant compensation up to $20,000
These orders are found in subsections 4(f) and (g) of section 31, ie in circumstances where the Board determines that the AC is guilty of unsatisfactory professional conduct or professional misconduct.
The powers of the ADT to impose disciplinary orders is found in section 34 of the Act and the relevant subsections there are 2(f) and (g).
This change is reflected in the Building Professionals Amendment Regulations 2010, and took effect from 1 September 2010.
(iv) Another less recent change to the BPA enables the Board to suspend or cancel a certifier’s accreditation to carry out certification work on behalf of a Council, if the person ceases employment with that Council.
This change to the BPA took effect from 1 March 2010.
This is an expansion of the Building Professionals Board accreditation scheme to encompass Council certifiers. In turn, this affects the rights and obligations of Councils and of accredited certifiers they employ.
It is reflective of a trend toward a tighter and stricter system of regulating the conduct of Councils and Council certifiers.
Even with the exemptions on fines and compensation payable on a misconduct finding, it appears these certifiers will still be subject to other possible misconduct orders.
For example, reprimands, impositions of conditions, orders to complete courses, and at the other end even suspension or cancellation.
In many ways the Council accredited certifier, as an individual, will become eligible for many of the same misconduct findings currently faced by errant private certifiers in NSW.
Strategy in Dealing with Misconduct Investigations/Complaints
The first decision to be made is to whether to contest, or not to contest certain charges. Or if you like, to defend charges or to plead guilty to them.
As lawyers we often advise people to only contest those charges where there are good prospects of success. Where matters are contested, the greater the preparation, the longer the hearing, and the higher the cost.
It is often the case that a complaint will not have been brought by a disciplinary body unless there is sound evidence of wrongdoing.
Sometimes the allegations may not be clearly and concisely drafted, or the particulars may be lacking or incorrect, even if there is some evidence of wrongdoing.
If so, it may be possible to contest. But if there is a possible exposure to the practitioner, the first course is usually have your lawyer ask the Board to clarify the allegations.
If you elect to ‘not contest’, you can still present what is called a ‘plea in mitigation’, to try to minimise the penalty imposed.
This allows you (or your lawyer) to present an explanation as to the background of events and why things panned out the way they did. It also allows correction of disputed matters in statements or records of interview.
Discount for ‘fessing up’ to errors
On the basis of the High Court decision of Cameron v The Queen  HCA 6 a person charged with an offence is entitled to a discount on a penalty for admitting the offence. There are public policy reasons for this.
The purpose of disciplinary proceedings is to protect the public (Craig v Medical Board of South Australia) and not to punish a person in the criminal sense.
The public interest is in having a large, skilled and competent pool of building surveyors in the State. So the Building Professionals Board should only suspend or cancel a person’s accreditation if it is necessary to protect the public.
Not a criminal proceeding or a contract dispute
Litigation is by nature adversarial. However, practitioner advocacy is more about reaching a just compromise that focuses on the future and allows:
• the public and community to be protected;
• the practitioner to improve their skills and develop;
• the practitioner to keep practicing if appropriate.
As practitioner misconduct is really “quasi criminal” in nature, criminal advocates are often better suited to this discrete area of law (compared to litigation lawyers).
Arguments in mitigation should not be confused with arguments that are used to genuinely contest allegations. They are two different things.
For example, it is possible to take issue with an adjoining owner’s statement about what was said on site, while still admitting the specific charge that a specific clause of the Regulations or section of the Act has been breached.
Contesting charges and ‘plea bargains’
In those cases where the disciplinary body has not framed charges properly, or brought charges that are defendable:
an election can be made to contest the charge(s); or
consider whether you can ‘plea bargain’ eg in return for not contesting other charges, ‘shaky’ or more minor charges may be withdrawn.
If an election is made to contest allegations, a longer hearing and more preparation will be required, so legal fees are higher.
Onus of proof
The onus of proof is higher than a mere civil standard of proof (ie more likely than not), which is the standard in commercial, contract disputes.
However, it is not the criminal standard of “beyond reasonable doubt” either. It is some other test.
The seminal case is Briginshaw v Briginshaw  HCA 34. It refers to the seriousness of the allegations made and the gravity of the consequences flowing from a finding of misconduct.
Based on the serious allegations and consequences, a finding affecting a person’s future and livelihood should not be taken lightly by the trier of fact.
Dixon J stated in Briginshaw:
“In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences.”
If a practitioner elects not to contest a charge or allegation, they are effectively pleading guilty. However, the practitioner has the right to present a plea in mitigation through an advocate, to minimise the sanction.
Some advantages of not contesting include:
Shortening the time and cost;
Enabling the Cameron principle of a discount on penalty;
It shows remorse and contrition or more importantly, a willingness to change systems and behaviour.
A plea in mitigation may involve an explanation as to why conduct occurred, possibly framing actions in terms of honest mistakes made in good faith. The plea will then go on to talk about other factors in the practitioner’s favour.
To produce submissions that deny any wrongdoing, is at odds with creating an impression there is remorse/regret and a willingness to change.
The Plea in Mitigation
Firstly, explanations as to conduct
For example, in a recent matter I appeared at the Magistrates Court for a builder who had failed to follow his work method statement (which was part of the Building Permit) and a block wall had partially collapsed.
I provided a submission that described the extremely high winds that day, and that there had been similar incidents reported across Melbourne.
A signed statement from the builder’s bricklayer described that the bricklayer had 25 years experience and was amazed the wind was strong enough to topple the heavy blocks.
A good plea in mitigation follows a formula and you should try to ‘tick’ as many boxes as possible.
The ingredients of the plea
Key ingredients of a strong plea in mitigation:
• Explanation of why the conduct occurred;
• Evidence (if possible) that any mistakes were honest/made in good faith;
• Ownership and admission of guilt;
• Contrition and remorse;
• Changes to work practices/systems to avoid a repeat (critical);
• Evidence of changes to behaviour/continuing education;
• References ie professional character references;
• The harm principal ie if there is no evidence of harm flowing from the conduct
• Financial limitations and distress;
• Demeanor and appearance;
• Sound prior record (ie is the conduct habitual or aberrational?)
Sometimes it will not be appropriate to touch on all of these elements, but you should tick as many of the boxes as you can.
Case law can sometimes be invoked eg Harm principal: Hans v Building Professions Board  NSWADT 285. O’Connor J took significance from the fact that “no harm of any great significance resulted from the conduct of the respondent.”
These are generally paramount but some science needs to be applied.
The reference should ideally:
• Describe the person, their qualifications / profession and how they know the practitioner;
• Describe their professional dealings with the practitioner;
• Speak favourably about the practitioner’s knowledge, professionalism, diligence, honesty etc;
• Advise the writer is aware of the complaints/allegations;
• Say something to the effect that the practitioner is remorseful about what occurred or that it is an aberration.
Avoid a reference that sends the wrong message. For example, if you are acting for a building surveyor charged with failing to adequately ensure plans are consistent, a reference that suggests the practitioner works briskly and turns out prompt approvals sends a bad note.
Aim for at least 2 or 3 key references from someone in the person’s industry. As a back up, any references that also talk about character or contribution to the community are also helpful.
Part of the trick is to get the tribunal to like you. This includes not only the practitioner, but also the advocate. Humor or levity at the right time, can assist in this way.
So presentation both in appearance and attitude is key. But also, to take suggestions or questions from the tribunal and to present those as points for improvement that your client will take on board.