The Architectural Practice Bill 2008 (SA) (“the Bill”) was introduced into the Legislative Council on 26 November 2008. The Bill has not been passed but will continue to be considered when Parliament is next in session beginning 3 February 2009.

According to the South Australian Minster for Urban Development and Planning, Paul Holloway, the Bill’s object is to ‘strengthen competition for architectural services within South Australia’ and to remove the ‘anti-competitive provisions’ of the 70 year old Architects Act 1939 (SA) (“the existing Act”). The Bill will replace and repeal the existing Act when it commences.

Specifically, the Bill would establish provisions in relation to:

• Establishing the Architectural Practice Board of South Australia (“the Board”) and the procedures and processes relevant to it
• The registration of architects and architectural businesses together with provisions for disciplinary action against registered architects and registered architectural businesses in prescribed circumstances
• The powers of inspectors, and
• Proceedings before the Board and a right of appeal to the District Court in prescribed circumstances.

Comparison with the existing Architect’s Act 1939 (SA)

The Bill expands upon the legislative framework of the existing Act and contains the following key differences. Under the Bill:

• The Board will only consist of seven members instead of nine, with a significant reduction in the number of registered architects on the Board from six under the existing Act to three (section 5)
• Companies providing architectural services must register as a ‘registered architectural business’ instead of registering as ‘an architect’ under the existing Act. Bodies corporate are also eligible to register as an architectural business. (Part 3, Division 3). The Registrar must maintain a Register of Architectural Businesses in addition to a Register of Architects (section 5)
• Additional requirements are imposed on persons wishing to register as an architect, including the requirement to be a ‘fit and proper person’ (section 28(1)(d)), compared with the existing Act’s requirement of ‘of good character’
• The requirements to be met for reinstatement on the Register after being removed are stricter and more stringent, including the discretion to require an applicant to obtain additional qualifications or experience specified by the Board (section 31)
• Subject to the exceptions in section 41, persons, partnerships or bodies corporate who ‘illegally hold themselves out as architects’ may attract penalties as high as $50,000 or imprisonment for 6 months (Part 3, Division 4). The maximum penalty under the existing act is only $500
• ‘Professional misconduct’ under the existing Act will be known as ‘unprofessional conduct’ (defined in section 3), which is defined to encompass a much wider range of conduct, for example ‘improper or unethical conduct in relation to professional practice’ and ‘incompetence or negligence in relation to the provision of services as an architect’. ‘Unprofessional conduct’ that occurred before the commencement of the Bill and/or ‘unprofessional conduct that occurred outside South Australia or the Commonwealth’ is also captured by the provisions, and
• Only three members are required to hear charges of unprofessional conduct, as compared to the existing Act’s requirement of seven members. Further, it is only mandatory to have one registered architect, out of a panel of three presiding members (section 48).

The Bill contains further provisions which are not present in the existing Act. Some key provisions include:

• The inspectors’ powers under Part 4, Division 2 of the Bill. Subject to exceptions, inspectors are granted wide powers, including powers to:

• The obligation to report the unprofessional conduct of an architect or architectural business under section 46. Any person who provides services ‘through the instrumentality of a registered architect’ must submit a written report to the Board if the person is of the opinion that the architect has engaged in unprofessional conduct. Failure to report attracts a penalty of $10,000
• The Board having the disciplinary power to disqualify a registered architect or registered architectural business from registration ‘permanently’ (section 47(6)(a))
• The evidentiary provision in section 69, which states that an allegation of impropriety brought against a registered architect or registered architectural business ‘must be accepted as proved in the absence of proof to the contrary’. This provision shifts the burden of proof onto the registered architect or registered architectural business, and
• The heavy penalties contained in the Bill. Penalties can be as high as $75,000 (sections 54 and 55) and in some circumstances, as severe as imprisonment of up to 6 months (sections 18(3), 38, 39, 54 and 56).