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Practical Guidance for Ethical and Effective Advocacy

Mitigation is often the decisive phase in building-practitioner misconduct proceedings. Once a contravention is established or conceded, the focus of the tribunal or board shifts away from liability and toward outcome. At this stage, advocacy is not concerned with excusing conduct, but with assisting the decision-maker to determine a response that is proportionate, protective, and consistent with the statutory objectives of the regulatory regime.

Disciplinary jurisdictions are protective in nature. Their function is to safeguard the public, maintain professional standards, and preserve confidence in regulatory systems. Mitigation must therefore be approached as a structured and principled exercise directed to those ends.

This paper sets out the core principles governing effective mitigation in building-practitioner misconduct matters. Each principle addresses a distinct aspect of the tribunal’s evaluative task and must be engaged separately and coherently.

The Protective Purpose as the Governing Framework for Mitigation

A foundational error in mitigation advocacy is to proceed on the assumption that disciplinary decision-making is punitive in character. Personal hardship, reputational impact, or financial consequences for the practitioner are rarely determinative unless they are demonstrably connected to public protection and future risk.

Effective mitigation is framed by reference to the statutory purpose of the jurisdiction and explains how the proposed outcome:

• protects the public
• reinforces professional standards
• mitigates future risk
• maintains regulatory confidence

Mitigation that does not engage with these considerations fails to assist the decision-maker in performing the function entrusted to them by statute.

Insight as a Distinct and Central Mitigating Consideration

Expressions of remorse, without more, carry limited weight. Tribunals consistently distinguish between remorse as an emotional and in a sense automatic response and remorse as a genuine professional one.

This is bolstered by:

• an accurate characterisation of the conduct
• acceptance of responsibility where appropriate
• acknowledgement of why the conduct was problematic
• recognition of regulatory expectations

Attempts to re-litigate liability, diminish or downgrade the magnitude of established findings, or reframe misconduct as misunderstanding or technical error tend to undermine credibility and may aggravate sanction rather than mitigate it.

Mitigation as an Evidentiary Exercise

Mitigation is evidentiary in nature.

Claims of improvement, competence, or reform are persuasive only to the extent that they are supported by objective material. Effective mitigation typically includes evidence of:

• targeted education or retraining
• revised systems or procedures
• enhanced supervision or peer review
• independent audits or expert input
• demonstrated compliance over time

Tribunals are concerned primarily with future conduct, reassurance and confidence in forming the view that the infraction will never occur again. Evidence that remediation has already occurred is consistently afforded greater weight than assurances of intended change.

References as Independent Evidence of Character and Competence

In practitioner misconduct matters, references occupy a central evidentiary role. They are not ancillary. They are one of the principal means by which decision-makers assess character, competence, and future risk through an external lens.

References that best assist mitigation are those in which the referee:

• understands the nature of the misconduct
• is aware of the regulatory findings
• can speak directly to the practitioner’s professional practice
• addresses competence, systems, and judgment
• acknowledges limitations as well as strengths

References confined to general character endorsement, or which appear formulaic or uninformed, may be given little weight and can undermine the mitigation case by suggesting a lack of insight or seriousness. It is also important that the referees are individuals of high standing and integrity, and are very well known to the respondent.

Consistency Across Submissions, Evidence, and References

Decision-makers assess mitigation holistically. Where there is disconnect between the practitioner’s evidence, the investigator or prosecutor’s evidence, counsel’s submissions, and referee statements, credibility is eroded.

Insight is limited in the submissions if referees have avoided addressing the issue of competence. Mitigation succeeds when all components of the case tell the same story.

Proportionality as a Structured Argument

Proportionality must be articulated.

Effective mitigation explains why the proposed outcome is proportionate by reference to:

• the seriousness of the conduct
• whether the conduct was isolated or systemic
• the practitioner’s disciplinary history
• the actual risk posed to the public

Over-sanctioning risks undermining fairness and regulatory legitimacy. Mitigation assists tribunals by identifying outcomes that protect the public without unnecessarily excluding practitioners whose deficiencies are capable of being overcome.

Financial Capacity and the Weighting of Sanction

In determining appropriate outcomes, tribunals may take into account the financial capacity of the respondent practitioner. This consideration does not operate as an appeal to sympathy, nor does it diminish the seriousness of the conduct. Rather, it is relevant to the weighting and practical impact of sanctions, particularly where financial penalties, costs orders, or economically burdensome conditions are under consideration.

Financial capacity is relevant because sanctions must be effective, proportionate, and realistic. A penalty that is nominal for one practitioner may be punitive or exclusionary for another. An outcome that is economically unachievable may frustrate regulatory objectives by forcing unintended exit from the profession rather than facilitating remediation and continued compliance.

Where financial capacity is relied upon, it must be addressed transparently and supported by evidence. This may include:

• income and earnings history
• existing liabilities and debt commitments
• dependent obligations
• mortgage or rental commitments
• business overheads and cash-flow constraints

Unsupported assertions of hardship carry little weight. Tribunals expect financial circumstances to be demonstrated, not asserted, and explained with sufficient clarity to permit reasoned assessment.

Financial material should be framed in terms of sanction impact, not personal hardship. The relevant question is whether the proposed outcome is calibrated to achieve regulatory objectives without becoming disproportionately punitive in effect.

Absence of Recidivism and the Assessment of Future Risk

Where misconduct is isolated, that fact should be addressed expressly. Decision-makers do not assume non-recurrence.

Effective mitigation explains why repetition is unlikely, by reference to prior compliant practice, changes implemented following the incident, and systems now in place to prevent recurrence.

Silence on this issue leaves the tribunal to speculate, rarely to the practitioner’s advantage.

Recidivism and the Heightened Burden of Explanation

Where there is repeat offending, the mitigation task becomes materially more demanding. Recidivism raises immediate concerns about unresolved behavioural, cultural, or systemic issues.

Effective mitigation in such cases requires:

• acknowledgement of the pattern
• explanation of why earlier interventions failed
• evidence of materially different remedial measures
• demonstration that the underlying cause has now been addressed

Attempts to minimise or avoid the issue of recidivism are almost invariably counterproductive.

The Role of Experience in Decision-Making

It is axiomatic that tribunal members and board members bring substantial experience to misconduct matters. They are familiar with recurring narratives, standard remediation claims, and formulaic references.

Mitigation that fails to account for this experiential context risks being discounted. Submissions must therefore be realistic, grounded, and demonstrably specific to the practitioner and the circumstances.

Forward-Looking Outcomes and System Integrity

Misconduct decisions often have enduring consequences for licensing, insurance, employment, and future regulatory engagement. Effective mitigation addresses these consequences not to elicit sympathy, but to assist the tribunal in crafting outcomes that preserve public safety while retaining capable practitioners within the system.

Conditions, supervision, and structured undertakings may, in appropriate cases, better serve the regulatory purpose than exclusion.

Conclusion

Mitigation in building-practitioner misconduct matters is a disciplined, multi-layered exercise. It requires insight, evidence, credible references, proportional reasoning, careful treatment of financial capacity, and candid engagement with issues of recurrence and future risk.

When properly constructed, mitigation assists tribunals to fulfil their protective function while maintaining the integrity and maturity of the regulatory framework. In that sense, effective mitigation advocacy serves not only the practitioner, but the system itself.

With so much at stake in a building practitioner misconduct inquiry, relying on lay advocacy is risky and ultimately a false economy. These matters require expert legal representation. Practitioners are best served by advocates with deep expertise in construction law and building regulation, combined with expert experience in practitioner misconduct proceedings. Although governed by a civil standard of proof, such proceedings operate in a quasi-criminal manner. The consequences, including fines, suspension and cancellation, are punitive and can be career-ending.

Authorised by Tsigereda (‘Ziggy’) Lovegrove 

Tsigereda (“Ziggy”) Lovegrove is a construction and regulatory lawyer practising in building-practitioner advocacy, compliance, and misconduct matters. She advises and represents practitioners in regulatory investigations and disciplinary proceedings, with a focus on mitigation strategy, ethical advocacy, and proportionate outcomes. She practises with Lovegrove & Cotton Construction & Planning Lawyers.

Lovegrove and Cotton have represented building practitioners in practitioner licensing matters for more than 30 years in Victoria, New South Wales and the ACT. The founder co-authored the book Disciplinary Hearings and Advocacy; a lot of the key tenets in this article are derived from that book. To find out more about our credentials in this discreet and complex area of law, click HERE.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. For advice specific to Owners Corporations, building defects, or dispute resolution, please contact Lovegrove & Cotton at enquiries@lclawyers.com.au or call (03) 9600 4077.

Image Acknowledgements:
The digital renders used in this article were developed collaboratively by Lovegrove & Cotton and ChatGPT. The photo images that are not digital renders are stock images sourced from Shutterstock.