Submission to Building Professionals Act 2005 Draft Report from:Tim Stenning
I have read the BP Act review and wish to make the following comments, primarily in relation to Part 15 ;
The proposal to make a certification practice guide is welcomed and could potentially be a great addition to the certifiers toolbox. The proposal to give the guide legal effect (part 15.4 pg 221) is interesting and it actually highlights a significant flaw in the current BP Act and the process for the handling and reporting of complaints as discussed below.
The review of the BP Act report fails to address the following structural issues with the current BP Act and the disciplinary procedures that are created by the Act.
Disciplinary actions are heard by a committee, serious cases are not required to be referred to the courts and detailed reports on decisions are not made public.
Education is not a statutory function of the BPB.
Disciplinary Procedures
The BPB disciplinary committee has the power to impose a fine of up to $110,000 and cancel a certificate of accreditation, including cancellation of a certificate of corporate accreditation. I have not studied law, but this seems like significant power for a committee, as opposed to a court. A court will create legal precedent and then follow legal precedent. Currently, the committee does not create precedent that is available for reference at future cases. It does not publish detailed reports and decisions on disciplinary decisions, other than providing a copy of the report to the certifier under investigation. The BP Act does not require anything other than a register to be created. S.39 (2) of the Act states; “ The Board may publicise disciplinary action taken against an accreditation holder in any manner the Board thinks fit.”
Unfortunately, we “the public” get one or two lines. “The certifier issued a complying development certificate that was not complying development pursuant to the SEPP”…….. and has had his accreditation suspended for 5 years. “The certifier issued a construction certificate with the incorrect BCA Classification”…….and has been fined $10,000. In practice, these case studies are not particularly helpful because they lack detail. Legal precedent in the disciplinary process would provide guidance and education for all certifiers on the standards that are expected by “the public”. The BP Act review is preparing a certification guide to assist certifiers. Good idea, but it needs to be supported by transparency in the decision making process of disciplinary decisions.
The BPB Disciplinary Committee is made up of experienced and highly qualified industry professionals and regularly makes decisions on the professional decisions made by certifiers. The types of decisions that practicing certifiers are required to make on a daily basis. However, as a practising certifier and I find it extremely frustrating that these decisions cannot be accessed and used by Certifiers for professional development and educational purposes. Currently on the BPB website there are only 4 decisions available for the public and certifiers. Even in the published cases, the information is a brief summary, and in most cases, the lack of detail raises more questions than answers. Why are the full investigation reports not made public? They are a significant resource for the public, council’s and accredited certifiers.
Of course, there is nothing stopping an Accredited Certifier seeking their own legal advice on any particular issue. However, it needs to be recognised that a majority of certifiers work within a small business environment and simply do not have the resources and finances to refer to a legal professional on a regular basis. In addition, the fact that the disciplinary decisions are not published in full means the legal professional will be relying on either the issue having been dealt with by a court through an appeal process or their own judgment. This reduces the value of the advice provided by the legal professional, further discouraging the certifier to seek out and pay for the legal advice.
Education?
The functions of the BPB as outlined in S.77 of the Building Professionals Act relate to investigations, disciplinary action, prosecution, accreditation of certifiers. In statute, the Board is not required to provide any professional support or education for accredited certifiers, nor is the provision of education an objective of the BP Act. The provision of education and support should be entrenched in statute. Placing the need for education and professional support in statute will go some way to preventing the current situation we find ourselves in. 17 years after the creation of Accredited Certifiers in law, we are discussing what it is the Accredited Certifier and Principal Certifying Authority actually do. In 2004 the Quality of Construction Act introduced mandatory critical stage inspections. In 2015, there is still no clear guidance on what a certifier must do when undertaking an inspection other than to record the inspection and make a statement as to whether or not the work was satisfactory (EP&A Reg Cl. 162B(4)(f))
Whilst there is a limited enquiry line service provided by the BPB, BPU, Codes SEPP team and BASIX, these services are not provided by practicing accredited certifiers and any verbal advice can be dismissed by the BPB disciplinary committee. Advisory and review panels would be welcomed, but again, the advice they provide needs to be guided by legal precedent that is created and published by the disciplinary committee and where appropriate, reinforced by the courts.
15.8 – Certifying Fees
Certifiers being required to establish and publish their fee structure is inconsistent with any market based professional service. Engineer’s, surveyors, architects are not required to publish their fees. As a small business this would be a significant impost and would create significant issues in managing workload. For example, I work across several local government areas, in regional areas as well as Sydney. In the regional areas, some council’s do not publish their certification fees as part of their statutory fees and charges document and instead choose to state “Due to the competitive nature of the
services involved, these fees are not disclosed as this may place Council at a commercial disadvantage. Particulars in relation to these fees may be obtained by contacting Council's Customer Service Centre”. Other council’s may publish their fees. In any case, the variation in fees for similar services across the council areas can vary significantly. I vary my fees depending on the Council area and certification fees charged by the council, council attitude to private certifiers “invading their turf” and complexity of development consents generated by the council. There are also case by case factors that will influence a certifier to vary their fees including managing professional risk, current workload, staffing levels, financial position of the business such as overheads and debts and reputation of the potential client and/or builder. Small business needs flexibility. That is why small business is successful and that is why many people are happy to be involved in small business. Limiting flexibility in pricing a professional service by legislating the publication of fees makes the business of certification even less attractive than it currently is.
15.9 Competitive Neutrality
“It is also important that certifiers in a council operate as a separate commercial unit from the council’s compliance area which is understood to be the case”.
This is not the case, particularly in regional areas where there is little or no separation between the compliance and certification functions of the council staff. Council’s still lodge around 40% of complaints against certifiers and it would make an interesting statistic to see how many of those complaints are generated and signed on behalf of Council by Council Accredited Certifiers.
In relation to development assessment and certification, despite clear advice from the BPB and NSW Department of Planning, many Council’s continue to offer certification fee discounts where the DA and CC are lodged concurrently. A more disturbing fact is the willingness of many council’s to offer a simpler development application assessment process in cases when the CC is lodged with council with the DA. There is a strong argument that there should be a separation between development assessment and certification. There is a perceived and potential conflict of interest when the DA and CC are lodged concurrently and the DA and CC are signed by the same council officer. The draft report simply states the competitive neutrality issue cannot be addressed. This report is prepared on behalf of the state government with the goal of creating statutory reform. Whilst the principles of competitive neutrality do not apply to Local Government, the NSW State Government is a signatory to the Competition Principles Agreement, 11 April 1995 and therefore the State must not create legislation that places the public sector at a competitive advantage over the private sector. This principle should be acknowledged in this report so that it is considered throughout the reform process.
Kind regards
Tim Stenning
Accredited Certifier