Creating a Best Practice Registration Regime 4

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Thursday, September 10th, 2015
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All key building practitioners would ideally be registered – a list that includes engineers, residential and commercial builders, architects, draftspersons, building surveyors, building inspectors, electricians and plumbers.

What should the registration eligibility criteria be?

A combination of apposite qualifications and experience, registration would be renewed annually and all registrants would be insured. Qualifications would be robust rather than token – accredited by reputable tertiary institutions or by government accredited agencies and carefully vetted training providers. For those professions that currently require degrees, the status quo would remain; there would be “no dumbing down” of entry qualifications.

For those professionals that currently don’t require degrees, the qualifications would evolve toward best practice qualifications; there has to be a move to a higher qualification benchmark rather than an expedient lowest common denominator criteria. Whilst our neighbours in advanced economies like Singapore are beefing up their education standards we are flatlining and in some areas going back on account of tertiary fiscal cut backs.

What  would the practitioner oversight and probity regime look like?

It must be run by government. Back in the the late 1990s, New South Wales set up a scheme called Building Surveyors Allied Professionals. It was an industry sector registration body for NSW certifiers. The scheme failed as it did not have sufficient fiscal resources to fund an effective auditing and probity regime. The function returned to the Building Professions Board, a government body which has to date registered building surveyors.

The Board would have to comprise the full gamut of concerned  parties – peers of good repute nominated by professional bodies that represent the particular practitioner fellowship. But equally, there must be very strong consumer representation and those representatives must indeed represent a genuine consumer constituency. Ideally, one of the representatives would be someone who has experienced the pain and stress of a building  dispute; that would provide real perspective. After all, a registration and probity regime is there to protect the public, not the industry, hence it will not be able to in terms of a best practice sense protect the public absent a sufficient number of consumer representatives, some of whom may well be of the outspoken consumer advocacy persuasion.

The auditing regime

You can have all the laws in the world, but if you don’t have the resources to enforce those laws then the law has no more clout than a paper back novel. The 1920s prohibition laws failed because they couldn’t be effectively enforced in light of resource constraints. In fact the prohibition era was a legislated backdrop for a proliferation of crime. Those who had the appetite and nefarious dexterity for vice were presented with perfect conditions to capitalise and germinate as the law enforcement regime was benign and sometimes complicit in the proliferation of vice. A best practice auditing regime has to be well-funded, audits have to be mandatory and annual, and the auditors have to be totally independent and removed from any influence that could compromise their objectivity.

The best auditing regime I have witnessed is the legal services auditing regime for lawyers who operate trust accounts. We are audited annually by independent auditors and it is a “user pays” system. If you want to operate a trust account as a lawyer, you pay for the auditors. This approach to auditing has two compelling virtues:

  • Proactivity

It is proactive and preemptive rather than reactive. Building practitioner auditing on the other hand is by and large reactive and/or crisis driven. It follows that the audits occur once the damage has occurred – once the problem has festered and often generated a measure of human misery. The regime for lawyers is such that it can nip the problem in the bud, somewhat like the removal of a polyp early in its gestation rather than at a time when something once benign has morphed into a more sinister iteration.

  • User Pays – no cost to government or the taxpayer

The self-funding virtue is paramount, particularly in post-GFC  “China decline yet China dependant” economies such as NZ and Australia, where cash strapped Crown bodies are cutting back. Building control departments are unlikely to obtain significant cash injections from Treasury. It thus follows that practitioners in the future – as is the case with other professionals like lawyers – may need to underwrite the auditing and registration regimes. And yes, that would be an additional cost to business, albeit a tax deductible expense, but there is a precedent – the antipodean legal fraternity.

We lawyers accept it; we accept that we have to pay for our policing body and the notion of government paying for same would be an anathema to us. It is now the status quo and it won’t change. In the building fraternity, a determination and a failure to change the funding model for the registration and probity regime will more or less guarantee that auditing regimes will be underfunded and inadequate, and if our economies were to deteriorate, tax revenue will drop and funding of probity regimes could well diminish. Latvia is a case in point.

The Powers of the Board

Of course the powers of the Board would have to be potent and designed to ensure that the public is protected; that after all is the mandate of the law. The “usual suspects” of fining, cancellation and suspension powers would need to be entrenched, but there would also need to be legislated criteria for the differentiation of that which is considered to warrant serious censure vis a vis that which requires less than serious censure. Some Acts of Parliament do this well, like the legal practice Acts, but others lack clear definitions of serious misconduct and that which is considered to be unprofessional conduct but falls short of that which is heinous.

The differentiation of serious vs. less serious conduct by way of legislative guidance is important as it helps decision makers with their judicial and quasi-judicial deliberations. Absent regulatory guidance, the task of the decision maker can be challenging as there is a mountain of case law on point and lay decision makers (those who do not have legal qualifications) can very easily pen decisions that are flawed at law and susceptible to appeal and decision reversal. It is so very important to get it right in the first place.

As practitioner misconduct law revolves around the paramount maxim of public protection, decisions should reflect and give oxygen to this maxim. So if a decision maker were to identify that a respondent lacked competence, yet was not a recidivist but by the same token harboured the potential for self-improvement, the tonic may well be the imposition of extra education tailored to the area of knowledge deficiency. In some instances, to better protect the public, an improvement in the skill sets of the practitioner may be better engineered courtesy of extra education rather than penalty without upskilling. It follows that legislation should arm decision makers with powers that are fashioned to provide such capability.

Should CPD be mandatory?

Of course it should; it’s a no-brainer. Mandatory continued professional development should be one of the hallmarks of a best practice practitioner registration regime. The training should be annual, compulsory and provided by accredited training authorities. Training refresher courses should traverse building regulations, technical competencies and some ethics. Such training is mandatory for lawyers and although we may find it tedious at times,we are always better for the experience. Again, the naysayers will contend that it is an extra cost imposition for business. As lawyers we get that, but to be frank we don’t begrudge it, for it just comes with the territory.

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4
  1. Mark Whitby

    Good article Kim.

    As regards insurance accompanying all other registered building practitioners, I wonder why builders are not insured in the same manner as all other with professional indemnity insurance.

    And I noticed that your list of those who need to be registered did not include Soil Report Writers and Building Consultants,

    Mark

    • kim lovegrove

      Good pick up Mark, soil or geo tech consultants should be in the loop and absoultely building consultants should too. Building consultants often determine the outcome of building cases and the destiny of those involved. It was an oversight on my part not to mention them as currently there is no means by which independant scrutiny can occur in circumstances where questions are raised as regards the professionalism or more precisly lack of, in given circumstances. As building consultants perfom such a vital role it also follows that they should be insured and indemnified for acts, errors and ommissions just like any other member of the building practitioner fellowhip. Furthermore often the professional metomorphis of a profession involves the regsitration and the accreditation of same. Thank you for taking the time to chime in with your obervations.

  2. Antony Fendt

    You are absolutely correct, Kim, all building professionals should be registered and their competence managed.

  3. John prendergast

    An excellent article which nails the greatest problem facing our industry. This industry is probably one of the oldest in the world and has legislation/laws/rules going back centuries and yet we cannot get this simple thing right.

    Why not because there is too much interference from our industry to the law makers. It is interesting that the minister has just appointed a new co commissioner to the VBA in Victoria and I remember at one of his last meetings as minister for planning, held at the then BC, he was convinced the compulsory CPD and registration of practitioners must come in. That was many years ago.

    For some reason the building industry is scared to become a profession and not just a job!