2024 NSW Building Bill Open Forum Recording and Question Summary

Building Bill 2024 Open Forum for Architects – Q&A

This consolidated summary captures the key elements of questions and answers presented at the Building Bill 2024 Open Forum for Architects held at the NSW Teachers Federation Auditorium on Monday 26 August 2024. Note this has been abridged and is not a direct transcript.

Facilitator:
Elizabeth Carpenter, NSW Chapter President, Australian Institute of Architects

Respondents:
Tom Kearney, Executive Director, Policy & Programs, Building Commission NSW
Caitlin Maxwell, Policy Manager, Building Commission NSW

Elizabeth Carpenter
There is an extraordinary number of questions, which is great. Some of them are double ups, but I will start, and we will see how we go with them and try and get through all of them.

I will start with this one. I think you have already talked about this, but it is probably a good one to reiterate. With the Architects Act and regulations being repealed, how will the new standard of competence for architects be defined under the new bill? What will become of the New South Wales architects Code of Professional Conduct? And look, I think also going with this question, there is another one, which is about the wording of “may” and “must,” and so in the Act, there’s actually a reference to “may” look at the architect’s code of conduct. But the question was, should that not be a must?

Caitlin Maxwell
I am happy to take that one. So, you are completely right, Elizabeth, most of the detail will sit in the supporting regulations in terms of the Code of Conduct. What we intend to do is lift and shift the code of conduct as it currently sits [to the new legislation]. What we intend to do is to put the code of conduct in the supporting regulation. That would be a specific licensing regulation where we will provide a lot of detail about the broader regulatory framework for all our different license holders, including architects.

Elizabeth Carpenter
So, the question of, under the draft Bill, the Minister “may” consult the ARB on the Architect’s Code of Conduct, should this not be a must? That is actually currently in the draft Act.

Caitlin Maxwell
So that is a piece I will take back to the team. This is why we consult, because having multiple people go through the drafting with a fine-tooth comb is helpful for us to notice some of those unintended consequences of the drafting. I will have to look at that in more detail, but very much happy to take that feedback on.

Elizabeth Carpenter
Okay, so now just moving into a quite a specific question, can you please confirm that only registered architects can design or direct the design of apartments above three floors. Quite a few people have asked questions like that.

Caitlin Maxwell
So, we understand the that is intent of the Housing SEPP. We are not proposing to change how that operates [that is under the responsibility of the Minister for Planning and Public Spaces].

Elizabeth Carpenter
Okay, given that building designers will now be licensed like architects, but not bearing the responsibility of Architects, why would prospective architects undertake degrees and postgraduate training when they can simply go to TAFE and do a diploma with less responsibility and all the privilege?

Caitlin Maxwell
Our intent is to provide advice to government that the same work should require the same competencies and qualification requirements. So, we know that architects have done an exceptional job in creating your standing in the industry, and that requires a high level of competencies and qualifications. We do not intend to diminish that. So, if work is being done on the same scope, that in principle, the qualification and competency requirements should be the same there.

Elizabeth Carpenter
So how will the new licensing structure differentiate between architect and building designer unrestricted, which is the crux, really, isn’t it?

Caitlin Maxwell
So, I think we can acknowledge that there is a need to maintain that existing distinction between the role of an architect in the industry and the role of a building designer. As I said before, the intent is that where persons are doing the same work, we would see that the qualification and competency requirements should be the same.

Under the proposed unrestricted building designer license, if a person can demonstrate the same qualifications and competencies as architects are required to demonstrate, they would be eligible to apply for an unrestricted license.

As I have said, we are not recommending changes to the Housing SEPP [which is the responsibility of the Minister for Planning and Public Spaces]. There is also the point around the preservation of the title architect and those protections will remain. A person who is registered with the architect’s board would be the only person able to use that term architect.

Elizabeth Carpenter
The next question that we are looking at is, what is driving the inclusion of the Architects Act code of conduct as part of the building bill? This structure does not seem to exist anywhere else.

Tom Kearney
So, the government took to the election a commitment to introduce a single, consolidated building bill to simplify building legislation. So, with that, our directive was to scope it up, shape it and seek feedback on it. And that is what we are doing right now. We have put a proposal on the table, and we are seeking feedback on that.

I understand your comments and concerns, and I sense the concerns in the room, and that’s feedback that we can take back the government. This is a draft proposal.

Elizabeth Carpenter
The other question which is quite interesting is about mutual recognition. So, this change will make New South Wales the only state without an Architects Act, possibly watering down the regulation of architects in New South Wales in the perceptions of other states and may affect mutual recognition entitlements. Has the commissioner considered this and what steps will the commissioner take to avoid loss absolutely?

Caitlin Maxwell
We do not propose any changes to how mutual recognition operates. We do know that this would be a change from other jurisdictions, which do have the standalone Architects Act. We acknowledge the feedback we are hearing about that, and again, as Tom has said, that will be included in our advice to government. But operationally and from a regulatory perspective, we are not proposing any changes to how the regulatory framework operates, including mutual recognition.

Elizabeth Carpenter
I guess the other question here is, why the rush? Where is the market failure that justifies the wholesale repeal of an act that was originated 103 years ago?

Tom Kearney
The government has made commitments around being ready to introduce legislation in 2024, there’s been a long journey to get to this point with multiple periods of consultation.

Elizabeth Carpenter
There is still a question of, why? Is streamlining the regulatory process sufficient reason? What is the driving force behind this decision? Could it be related to the housing crisis?

Tom Kearney
The housing crisis is a factor on this. As Caitlin articulated, there are nine existing building related pieces of legislation that are out there, some of which with different definitions, many of which with different requirements, different enforcement regimes. The intention is to bring it together into a single framework that’s simpler and easy to understand, and also introduces, as I touched on earlier, some enhancement to building qualifications, such as continuous professional development to make sure that the trades maintain a continuous cycle of skill development.

We want to make sure that the public maintains trust in the building industry, which is a key element of addressing the housing crisis in New South Wales.

Elizabeth Carpenter
Look the next question was, the special provision of the draft bill is three pages long. The current Architects Act is fifty-three pages long. How would this bill ensure the high standard importance of architects is maintained and articulated to the public?

Caitlin Maxwell
It is a good call out, and that reflects the work that has been done to consolidate and streamline legislation. So, we have currently got, I think, around three hundred pages or 250 pages or so across the draft building bill, BCE bill and insurance bill, that is a consolidation of at least 550 or 600 pages of legislation across the broader acts that we’re proposing to repeal and transfer in.

I think we can all agree that anything that can provide more clarity and more streamlined legislation for consumers and practitioners is going to add benefit. I appreciate there is going to be feedback on exactly how we do that, and that is what we are seeking through this process.

Elizabeth Carpenter
So, the DPP Act and the Building Commission relate to class two and three buildings. The Architects Act currently sits outside this. And the architects work on multiple BCA building classes, not just two and three. How do other building classes come into this?

Caitlin Maxwell
Again, we are not proposing any changes to that current operation. Architects are able to work on all classes of buildings – that would not change. Our proposal for expanding licensing requirements for building designers would only apply to residential building work.

Elizabeth Carpenter
One question here was with, does moving items that were previously in the Architects Act into the regulations weaken them?

Caitlin Maxwell
If there are any specific provisions that are proposed to be moved out of the Act into the regulations, that the AIA considers shouldn’t be the case, we would welcome a submission on that.

Elizabeth Carpenter
Yeah, I think that is to do with the three pages and the fifty-three pages, the fact there is a lot of information in the Act which is not currently now captured in the draft building bill.

Caitlin Maxwell
Just to clarify that, Elizabeth, it is captured, it is just integrated into the broader provisions throughout the rest of the Act and the and the BCE bill, so the drafting does not need to be just picked up and brought across, it is intended to be integrated. Otherwise, we would just have the acts cut and pasted together top to bottom. That is the broader piece of consolidation that we are proposing as part of this work.

Elizabeth Carpenter
One question here is, how does the consumer understand and make a decision between the architect and the building designer?

Caitlin Maxwell
That goes back to the previous points been raised about maintaining that existing distinction between the role of an architect and the role of a building designer. The detail will be worked through in the supporting regulations, but our intent and the advice that we will provide to government is that there does need to be existing distinctions between those two roles [architects and building designers] preserved in the new framework.

Elizabeth Carpenter
So, if there are no changes proposed the Architects Act, why is it being repealed?

Tom Kearney
I covered that, before in my response to the question about the motivation behind developing a single consolidated building bill that covers a whole range of building professionals, not just tradies, but architects, designers and other building professionals too.

Elizabeth Carpenter
Does this change make it easier for the commissioner to make changes to the regulatory environment for architects without needing to consult industry or pass legislation. The ARB New South Wales will no longer be report directly to the minister and will instead report to the commission.

Tom Kearney
The regulatory requirements would remain. We are not proposing to remove or change the role of the ARB in terms of how it functions or how it is regulated.

Elizabeth Carpenter
Why wasn’t an expansion of the Architects Act and legislation considered so that all building designers conform to the highest standards of the architect’s code of conduct in the NSCA?

Caitlin Maxwell
What we are proposing is that building designers who wish to do the same work as architects and obtain an unrestricted licence should meet the same qualifications as architects. We are seeking feedback on that. We want to make sure we are understanding industry’s concerns. All of the feedback that will be provided to us is something that will inform the advice we provide to government.

Elizabeth Carpenter
Will all designers in practice need to obtain a license? Currently, only key leaders are required to be registered as a nominated architect in practice to provide architecture services. Or would the employees be able to continue to operate as building designers without any license?

Caitlin Maxwell
This question applies both to architects and building designers. In our broader licensing framework, we do intend that a person can work unlicensed under the supervision of a license holder. So that would be in the same way that currently someone could work without holding an architect’s registration, as long as they work in the appropriate supervision framework. We would intend to continue that current process. Likewise, for all our other licensed classes, a builder, a tradie, we have spoken about today, they would be able to continue working unlicensed as long as a license holder supervises them. So therefore, in the same way for building designers, we would see that they would be able to work unlicensed if under the supervision of an appropriate license holder.

Elizabeth Carpenter
Because there are so many questions, do we not need more time to do this? Because obviously there is so many unanswered questions. So yes, is there more time?

Tom Kearney
We have extended consultation till 8 September. I certainly recognize that there is a lot to process, and there will no doubt be a lot of feedback for us to take on in our briefings for government. So, we are working backwards from the Government’s commitment of introducing legislation in this calendar year and trying to make that work, and working with practitioners and working with industry to help them understand the reforms. The webinars, the briefings, sessions like tonight, are all part of that, helping people to understand what is on the table.

I think what we can all agree that we want is stronger oversight of how design work is done. These are our proposals for how we can achieve that. We acknowledge that there are other methods of doing that, and the feedback you have provided for alternate proposals is something we will take to government.

Elizabeth Carpenter
One of the questions here which puts that quite succinctly, is what is the advantage to New South Wales, the construction industry, and the consumer, in repealing the Architects Act?

Tom Kearney
A simpler, more consistent regulatory framework, while addressing a number of the key regulatory issues we have discussed.

Elizabeth Carpenter
Another one is an observation will be the profession of architecture is being diluted by being included with trades. Can you comment? And another question that came up was, why does the architect act the same as the plumbers act?

Caitlin Maxwell
I think Tom has spoken, you know, consistently around the broader objectives of consolidating the legislation. So, I will not reiterate that, but the broader piece around what we are really hearing clearly is that need for distinction for the role of an architect in the industry. And again, I would like to reiterate that is the intent to retain that existing distinction and acknowledge the distinct role of architects in the industry. That is why we are proposing to retain the existing regulatory framework for architects, the preservation of the use of the title architects, the role of registration via the Architects Registration Board, all these key elements. The substance of what makes you architects is not something we are proposing to change.

Elizabeth Carpenter
There are quite a few questions about the universities. So, will the regulation and certification of architectural education institutions change? And then also, how will the new Bill affect the accreditation of university architecture degrees in New South Wales?

Caitlin Maxwell
So again, we are not proposing any changes to how those frameworks currently operate. The Architects Registration Board currently has powers to play a role in that accreditation process for university courses. Those functions and powers of the board will be preserved in the new legislation. Likewise, the National competency of framework as it currently operates, we are not proposing any changes there. There would continue to be that national harmonization and that that detail would, of course, be provided in the regulations.

Elizabeth Carpenter
With the architect act being repealed, who would have future control over policy changes, does this shift away from the ARB and to the building Commissioner, e.g., changes the licensing code of conduct? And that is a question, I suppose, of over time, will there be a gradual change?

Caitlin Maxwell
The intent is to retain the existing operation of the Architects Registration Board in overseeing the registration of architects and all those powers that I spoke to earlier. There is no intent to change how that currently operates.

Elizabeth Carpenter
I think generally, most of the questions have been picked up. There are a few which I am sure I have probably missed, but just to let you know that there is an email address that you can send your more questions to: policy@architecture.com.au.

So, we would strongly encourage all to provide feedback to the institute, to both inform the Institute’s submission, but also please lodge your own submission by the 9th of September.

So probably the most important focus, which I think has been evident tonight, is the request for a substantial extension of time so that the addition to consider all of that additional information that you’ve been asking about, which probably does mean that the bill cannot be introduced in November this year because there are still so many unanswered questions that need to be clarified. So, I think it is up to everyone to put in their submissions, so then these guys can actually have informed feedback for the bill, and we can actually ultimately provide a robust outcome for the built environment, which is what we all do want to achieve.

The Institute will be focusing the next two weeks to get it by the ninth but then obviously the first point of the question is, please, more time, so then there can be additional feedback because, you know, there’s so many questions, and obviously there’s so much clarity that is still required.

Thank you very much for coming. It is, I think the number of questions has indicated the passion and the importance of this issue. So, thank you very much. Tom and Caitlin for coming tonight.