(2003) 216 CLR 277
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
(2015) 258 CLR 173
Qiu v Building Professionals Board [2013] NSWADT 289
R v Secretary of State for Home Department
Source
Original judgment source is linked above.
Catchwords
(2003) 216 CLR 277
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50(2015) 258 CLR 173
Qiu v Building Professionals Board [2013] NSWADT 289
R v Secretary of State for Home Department
Judgment (33 paragraphs)
[1]
Introduction
In reviewing the action of the Board against the applicant under s 48 of the BDC Act we consider that it is appropriate to have regard to the factors in Qiu at [98] as adapted to the BDC Act together with proportionality, and the nature of the proceedings. It is not necessary to consider the presence of a fraudulent or dishonest intent and deliberation on the part of the applicant.
We also consider that is appropriate to evaluate our findings made in relation to the four Complaints in respect of the Putney development together as they relate to the issue of the same CDC by the applicant. It would be artificial to separately evaluate these findings when they are each particular aspects of the unsatisfactory professional conduct of the applicant in relation to the same CDC.
[2]
The objectives of the BDC Act
The objectives of the BDC Act are set out s 3 and relevantly include the recognition "that certification work is an important public function with potential impacts on public health, safety and amenity and to ensure that it is carried out impartially, ethically and in the public interest", "appropriate scrutiny and review of actions taken by (accredited certifiers), and "a framework to permit the continuous improvement of the carrying out of certification work".
[3]
The nature, width and extent of the conduct constituting the unsatisfactory professional conduct
[4]
What consciousness the applicant had and displayed of its obligations under the relevant statute and to the owners
[5]
The Putney development
The failures of the applicant in the issue of the CDC for the Putney development were extensive as they encompassed:
1. the issue of the CDC without compliance with the privacy requirements for the windows in bedrooms 2 and 5 and the rear balconies, and the size requirements for the rear terraces;
2. the issue of the CDC without compliance with the requirements of the BCA for BCA classification, balustrades, a pool safety barrier, and general BCA compliance;
3. the failure to endorse structural engineer's drawings and stormwater plans, and to include the correct BCA classification;
4. the omission of some conditions and the misstatement of other conditions specified under Division 2A of the EPA Regulation, and the inclusion of an unauthorised condition.
In so far as there was no compliance with the requirements of the BCA for balustrades and a pool safety barrier, the applicant in issuing of the CDC compromised the safety of people.
We found that each of the failures was an obvious error which a careful accredited certifier would not have made. Further, we found that the applicant did not provide any convincing explanation for his conduct. The fact that the applicant genuinely believed his decision was a correct decision and genuinely believed that he was not issuing a CDC for the swimming pool does not provide an answer for his conduct because, as specified in paragraph (a) of the definition of unsatisfactory professional conduct in s 19(1) of the BP Act, the applicable standard is "the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier". Similarly, expressing surprise that a qualified architect would issue drawings without drawing in a required balustrade does not provide an answer for his conduct.
We agree with the Board's findings:
1. the extent and range of the applicant's actions demonstrate a lack of understanding and/or sufficient application of a certifier's statutory role and public duties in assessing an application for a CDC;
2. the conduct demonstrates that the applicant does not possess a proper appreciation of his statutory role and professional duties under the EPA Act in assessing an application for a CDC, nor did he apply these requirements to the extent and in the manner required by the legislation and that expected of a public official carrying out a statutory role.
[6]
The Glendenning development
The failures of the applicant in the issue of the CDC for the Glendenning development were extensive as they encompassed the issue of the CDC without compliance with the requirements of the BCA for structural design, emergency egress, access for people with a disability, fire-fighting equipment and emergency lighting, energy efficiency, the suitability of materials, and health and amenity.
We found that each of the failures was an obvious error which a careful accredited certifier would not have made. Further, we found that the applicant did not provide any convincing explanation for his conduct.
We agree with the Board's findings:
1. the extent and range of the applicant's actions demonstrate a lack of understanding and/or sufficient application of a certifier's statutory role and public duties in assessing an application for a CDC;
2. the conduct demonstrates that the applicant does not possess a proper appreciation of his statutory role and professional duties under the EPA Act in assessing an application for a CDC, nor did he apply these requirements to the extent and in the manner required by the legislation and that expected of a public official carrying out a statutory role.
[7]
The loss or damage and prejudice in consequence of the conduct constituting the unsatisfactory professional conduct
[8]
The Putney development
We are satisfied that there was no actual loss, damage or prejudice arising from the conduct of the applicant.
[9]
The Glendenning development
We are satisfied that there was no actual loss, damage or prejudice arising from the conduct of the applicant.
[10]
The circumstances in which the conduct constituting the unsatisfactory professional conduct took place
[11]
The Putney development
We agree with the Board's characterisation of the circumstances in which the conduct of the applicant took place. The conduct constituting the unsatisfactory professional conduct took place in the course of the applicant carrying out his functions as an accredited certifier. There are no mitigating circumstances which excuse the errors made by the applicant.
[12]
The Glendenning development
We agree with the Board's characterisation of the circumstances in which the conduct of the applicant took place. The conduct constituting the unsatisfactory professional conduct took place in the course of the applicant carrying out his functions as an accredited certifier. There are no mitigating circumstances which excuse the errors made by the applicant.
[13]
The efforts made to correct the situation and what measures have been taken by the applicant
[14]
The Putney development
We agree with the Board's finding that the applicant could not take any corrective action.
[15]
The Glendenning development
We agree with the Board's finding that the CDC was surrendered following the Council raising its concerns about the CDC.
[16]
The effect upon the applicant
We accept the evidence of the applicant as to the effect of the Board's investigation, the Board Decision, the proceedings and the Tribunal Decision upon him. We do not consider that the impacts upon his family and his employer are matters which should be taken into account in determining the appropriate action under s 48 of the BDC Act.
[17]
Whether the applicant has been seen to have engaged in any similar conduct
[18]
Antecedents
We have had regard the disciplinary action against the applicant on 3 May 2016 as required by s 48(2)(a) of the BDC Act. We reject the applicant's submission that little or no weight to this disciplinary action. We accept the respondent's submission that there is similarity between the conduct the subject of the 22 January 2016 investigation report and the conduct constituting the unsatisfactory professional conduct in respect of the Putney development. We regard this disciplinary action as significant not only because of its similarity with, but also its temporal proximity to, this conduct in respect of the Putney development. The CDC for the Woolwich development had been issued on 27 November 2015 which was less than 12 months prior to the CDC for the Putney development.
[19]
Attitude, building history and future compliance
We accept that the applicant assisted the Board and participated cooperatively with its investigations.
Until the Tribunal Decision the applicant in the first Freixas statement and in giving oral evidence disputed many of the complaints in respect of the Putney development and the Glendenning development. The applicant should have accepted that he made several obvious errors. However, we accept the evidence of the applicant that he has learnt from the Tribunal Decision, particularly in respect of his knowledge and application of the Codes SEPP for CDCs, and that he is currently undertaking the UTS short course.
We reject the Board's submission as to the credibility of the applicant based on his evidence about the practice his employer not to endorse plans in the third Freixas statement in relation to the finding in the Tribunal Decision at [96]. The Board did not seek an oral hearing where it could have tested this evidence.
[20]
The penalty range
We accept the applicant's submission that there is no "penalty range" under s 31(4) of the BP Act. However, it is clear that in general terms paragraphs (a) to (l) disclose an increasing severity of action upon an accredited certifier.
We have not found the past decisions of the Board and the Tribunal particularly helpful as they all were determined having regard to the particular findings they made. We note that there are instances of fines having been imposed in respect of failures in relation to the issue of CDCs.
[21]
Deterrence - personal and general
We consider that personal and general deterrence are important considerations in these proceedings. Notwithstanding the disciplinary action against the applicant on 3 May 2016 arising out of the Woolwich development, the applicant has engaged in unsatisfactory professional conduct in issuing a CDC in relation to Putney and Glendenning developments within a period of just over 9 months, and with the period of just over 5 months after completing the Complying Development Course. This demonstrates a failure to alter his practices so as to attain "the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier" specified in s 19(1)(a) of the BP Act.
[22]
Proportionality
We have been conscious of the importance the action to be taken against the applicant under s 31(4) of the BP Act should be proportional to the nature of the improper conduct viewed as a whole.
[23]
The nature of the proceedings
The structure of the Board Decision means that there is no separate finding as to the appropriate action to be taken against the applicant for each of the four Complaints in respect of the Putney development or the four Complaints in respect of the Putney development as a whole, and the Complaint in respect of the Glendenning development.
[24]
Preliminary matters
We have considered the following three preliminary matters before determining the action to be taken against the applicant:
1. whether the failure of the Board to decide the action to be taken against the applicant separately in respect of each Complaint constitutes an error;
2. whether the application by the Board of the disciplinary penalty guidelines constitutes an error;
3. the purpose of ordering the payment of an amount of money under s 48(c) of the BDC Act.
[25]
Whether the failure of the Board to decide the action to be taken against the applicant separately in respect of each Complaint constitutes an error
We consider that the failure of the Board to decide the action to be taken against the applicant separately for the four Complaints in respect of the Putney development as a whole, and the Complaint in respect of the Glendenning development, constitutes an error. As made clear in Stirling the general common law rule that ensures that a court or tribunal stipulates a penalty for each count of charged conduct is an important one and should be applied, where applicable, in disciplinary proceedings should have been applied by the Board in deciding what action to be taken against an accredited certifier who is found guilty of unsatisfactory professional conduct or professional misconduct under s 31(4) of the BP Act. In this case this rule should not have been applied to each of the four Complaints in respect of the Putney development because as we have found they arise out of the same CDC.
As the action to be taken against the applicant in the Board Decision relates to findings of Board as to his conduct in relation to the Putney, Liverpool and Glendenning developments some of which we have found not to constitute unsatisfactory professional conduct, we have decided to set aside the Board Decision under s 63)(3)(c) of the ADR Act.
[26]
Whether the application by the Board of the disciplinary penalty guidelines constitutes an error
The functions of the Board included under s 77(d) of the BP Act "the taking of disciplinary action against accreditation holders".
Policy guidelines promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [54]. In principle, there is no reason why administrative decision-makers cannot develop a general policy in relation its functions: Carroll v Sydney City Council (1989) 15 NSWLR 541 at 550.
However, a policy must not be treated as a fetter on the exercise of administrative discretion. The policy must not preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: R v Secretary of State for Home Department; Ex parte Venables [1998] AC 407 at 497, cited in NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at [17].
We disagree with the applicant's submission that the Board did not have authority to make the disciplinary penalty guidelines. As an administrative body exercising the function under s 77(d) of the BP Act of "the taking of disciplinary action against accreditation holders" the Board was entitled to develop guidelines for the exercise of its discretion under s 31(4) of the BP Act. The analogy with Pt 3 Div 4 of the CSP Act is inapt as there is no relevant comparison between the Board exercising administrative powers in a disciplinary context and court imposing sentences for criminal offences.
We also disagree with the applicant's submission that the Board unlawfully fettered its discretion in applying the disciplinary penalty guidelines. Notwithstanding, its conclusion "in accordance with the Guidelines, a penalty within Category E is appropriate" the Board carefully examined the various factors relevant to the exercise of its discretion under s 31(4) of the BP Act. However, it is unnecessary to consider this matter further as we also accept the submissions of the parties that we are not bound by the disciplinary penalty guidelines. We have not taken them into account other than to understand the Board Decision.
[27]
The purpose of ordering the payment of an amount of money under s 48(c) of the BDC Act
We disagree with the applicant's submissions made in relation to s 31(4)(f) of the BP Act:
1. a fine is to be characterised as "punitive action";
2. the applicant "did nothing to deserve punishment" in respect of the Putney development;
3. "To impose a fine for failing to comply with a statutory or other duty is unnatural";
4. "Pecuniary penalisation is a function directed as deliberately non-compliant conduct and not disciplinary proceedings".
As indicated in Craig, the protection of the public or the public interest may justify a fine which is intended to bring home to the registered certifier the seriousness of the certifier's departure from professional standards, and intended to deter the certifier from any further departure. A fine may also be intended to emphasise to other registered certifiers, or to reassure the public, that a certain type of conduct is not acceptable professional conduct.
[28]
Action for unsatisfactory professional conduct in respect of the Putney development
We disagree with the applicant's submission that a caution and completion of the UTS advanced building regulation course is the appropriate action to be taken against him. He made obvious errors. Notwithstanding the disciplinary action against the applicant on 3 May 2016 arising out of the Woolwich development, he engaged in this unsatisfactory professional conduct within a period of just over 5 months, and with the period of just over one month after completing the Complying Development Course.
It is appropriate that the applicant be reprimanded, to make a determination requiring him to pay to the Commissioner, as a penalty, $10,000.00 within one month, and to impose a condition on his registration as a registered certifier that he undertakes the UTS advanced building regulation course within the next 12 months. As he has already been cautioned under the BP Act, it is inappropriate that he be cautioned again. Further, it is appropriate that he be required to pay to the Commissioner, as a penalty, $10,000 within one month. This requirement is intended to bring home to him the seriousness of his departure from professional standards, and intended to deter him from any further departure. This requirement is also intended to emphasise to other registered certifiers, or to reassure the public, that the conduct in which he engaged is not acceptable professional conduct. Also as he has clearly lacked an understanding of his obligations as an accredited certifier, it is appropriate that he undertakes the UTS advanced building regulation course within the next 12 months.
[29]
Action for unsatisfactory professional conduct in respect of the Glendenning development
We disagree with the applicant's submission that a caution and completion of the UTS advanced building regulation course is the appropriate action to be taken against him. He made obvious errors. As we have found the applicant made obvious errors. Notwithstanding the disciplinary action against the applicant on 3 May 2016 arising out of the Woolwich development, the applicant engaged in this unsatisfactory professional conduct within a period of just over 9 months, and with the period of just over 5 months after completing the Complying Development Course.
It is appropriate that the applicant be reprimanded, to make a determination requiring him to pay to the Commissioner, as a penalty, $10,000.00 within one month, and to impose a condition on his registration as a registered certifier that he undertakes the UTS advanced building regulation course within the next 12 months. As he has already been cautioned under the BP Act, it is inappropriate that he be cautioned again. Further, it is appropriate that he be required to pay to the Commissioner, as a penalty, $10,000 within one month. This requirement is intended to bring home to him the seriousness of his departure from professional standards, and intended to deter him from any further departure. This requirement is also intended to emphasise to other registered certifiers, or to reassure the public, that the conduct in which he engaged is not acceptable professional conduct. Also as he has clearly lacked an understanding of his obligations as an accredited certifier, it is appropriate that he undertakes the UTS advanced building regulation course within the next 12 months.
[30]
Conclusion
We do not consider that it is necessary to reprimand the applicant more than once in respect of our several findings that is guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the BP Act. Similarly, it is only necessary that he undertakes the UTS advanced building regulation course on one occasion.
We do consider that there should be separate penalties of $10,000.00 for each of the Putney and Glendenning developments, and accordingly the applicant should be required to pay to the Commissioner, as a penalty, $20,000.00 within one month. There will no suspension of the registration of the applicant as a certifier under s 50(1)(a) of the BDC Act unless the applicant fails to pay the balance of $10,000.00 within one month.
[31]
Decision
We order that the Commissioner for Fair Trading, Department of Customer Service be substituted as the respondent.
We have decided to set aside the Board Decision and in its place the correct and preferable decision is that:
1. the applicant be reprimanded under s 48(b) of the BDC Act;
2. the applicant be required under s 48(c) of the BDC Act to pay to the respondent, as a penalty, $20,000.00 within one month;
3. a condition be imposed on the registration of the applicant as a registered certifier under s 48(d) of the BDC Act that he undertakes the UTS advanced building regulation course within the next 12 months.
[32]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[33]
Amendments
22 July 2020 - [80] Third sentence: "the applicant" removed.
[82] Third sentence: "the applicant" removed.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 July 2020
Parties
Applicant/Plaintiff:
Freixas
Respondent/Defendant:
Commissioner for Fair Trading, Department of Customer Service
On 20 March 2020, we made a decision in these proceedings that the applicant is guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the Building Professionals Act 2005 (NSW), and made orders for the filing of any further evidence, and submissions including whether an order should be made dispensing with a hearing, on the action to be taken against him: Freixas v Building Professionals Board (No 1) [2020] NSWCATOD 27 (the Tribunal Decision).
These reasons for decision should be read with, and use the same abbreviations as in, the Tribunal Decision with the exception that in these reasons for decision the decision made by the Board made on 29 January 2019 is referred to as "the Board Decision".
The proceedings have been affected by the Building and Development Certifiers Act 2018 (NSW) (BDC Act), which commenced on 1 July 2020.
The applicant tendered his statement dated 29 April 2020 which we have admitted into evidence (ex A6) (the third Freixas statement).
The respondent tendered the investigation report for complaint no 136-15 dated 22 January 2016 which we have admitted into evidence (ex R9) (the 22 January 2016 investigation report).
The parties provided the following submissions:
1. the applicant's submissions on s 31(4) of the BP Act dated 29 April 2020;
2. the submissions of the respondent dated 14 May 2020;
3. the applicant's reply submissions on s 31(4) of the BP Act dated 26 May 2020.
These reasons for decision address the following issues:
1. whether an order should be made dispensing with a hearing;
2. what action should be taken against the applicant.
The submissions of the applicant
The applicant made the following submissions:
1. none of the aims and objectives of the BP Act are necessarily achieved by simply imposing "penalties" on certifiers or causing them hurt and public embarrassment when they bona fide attempt to carry out their certification work but make errors along the way. Where a certifier acts bona fide, ethically and with impartiality, but makes mistakes, punitive action is generally just not appropriate. Corrective action is appropriate. People should not be discouraged from becoming or practising as certifiers in the construction industry;
2. the disciplinary penalty guidelines are irrelevant and unlawful as they fetter the discretion of the Board and the Tribunal rather than free each body to take appropriate action under s 31(4) of the BP Act, and refers to Pt 3 Div 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) which confers power on the Court of Criminal Appeal to give a guideline judgment to be taken into account by courts sentencing offenders,;
3. the approach of the Board to group together all the conduct of the applicant into a single decision that attempted to aggregate all its findings leaving him unable to determine what action had been taken with respect to any individual matter was erroneous in law;
4. consistency in decision making is in the public interest. Where a certifier has issued CDCs in circumstances where the decision was not infected with any lack of integrity, dishonesty or conduct calculated to give personal gain or deliberately intended to avoid the law, the Board has routinely determined disciplinary action by way of caution and reprimand and without the imposition of a fine;
5. the Tribunal should proceed as follows:
1. set aside the Board Decision. Having regard to the Tribunal's finding inter alia in respect of the Liverpool development, the Board's decision on penalty is not helpful. It imposed a $30,000 fine for all Complaints;
2. examine each matter and take appropriate action with respect to each Complaint; and
3. having regard to the principles of proportionality and totality ensure that the actions taken are appropriate;
1. identifies 16 factors for the determination of appropriate action under s 31(4) of the BP Act, 15 of which are derived from Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3 (Cohen) and a further factor being the "nature of proceedings";
2. addresses factors 2 to 9 in respect of each of the four Complaints in respect of the Putney development and the Complaint in respect of the Glendenning development, and submits that:
1. as to the issue of the CDC for the Putney development without compliance with the requirements of the BCA for balustrades, "It is surprising that a qualified architect would issue drawings without drawing in a required balustrade";
2. a caution is the is the correct and preferable action in respect of each Complaint;
3. when the findings of the Tribunal made in relation to the four Complaints in respect of the Putney development are viewed together, the conduct of the applicant is deserving of correction but not by fine. This correction can be achieved by imposing a caution for all of the findings. The applicant did nothing to deserve punishment;
1. addresses factors 10 to 16 in respect of the four Complaints in respect of the Putney development and the Complaint in respect of the Glendenning development collectively, and submits that a caution is the is the correct and preferable action for the following reasons:
1. as to prior conduct, the Tribunal should give little or no weight to the disciplinary action in respect of the Woolwich development when determining the correct and preferable decision;
2. as to attitude, the Tribunal should proceed on the basis that the applicant has assisted the Board and participated cooperatively with its investigations;
3. as to future compliance, the Tribunal can infer that the applicant will continue to co-operate with the Board;
4. as to the penalty range, there is no "penalty range" under s 31(4) of the BP Act. To impose a fine for failing to comply with a statutory or other duty is unnatural and extra care must be taken to ensure that a fine is not levied in circumstances where a criminal contravention does not form part of the basis of liability or where the conduct warrants deterrence by fining;
5. as to deterrence, it is wrong and misguided for the Tribunal to have regard to the disciplinary penalty guidelines. A better guide to the type of action which should be taken in relation to the issuing of two CDCs which are defective for reasons associated with the BCA and development standards are past cases involving similar conduct, and in particular Hallal v Building Professionals Board [2016] NSWCATOD 78 (Hallal) where the certifier was fined $10,000 and reprimanded in respect of conduct relating to 16 defective CDCs, 26 findings of unsatisfactory professional conduct and 79 sub-allegations, and subsequently reprimanded in 2019 in respect of conduct relating to 6 defective CDCs;
6. as to the effect on the applicant, in the third Freixas statement the applicant gives evidence of the catastrophic financial situation he and his employer faces as a result of the fine (and other "penalties") in the Board Decision, and particularly so in light of the COVID-19 pandemic. Further, the applicant has also provided references from Ms Bo Ram Choi and Ms Rusbridge, who both have known him for over 10 years, and who attest to his good character and the impact the Tribunal Decision will have on his personal reputation, his company's reputation and impact upon family stress (with his mother currently undergoing cancer treatment);
7. as to proportionality and totality, as the Tribunal has made five disciplinary findings the task of determining the action to be taken in relation to each finding should be carried out, and there then may need to be an adjustment to ensure principles of proportionality and totality are adhered to;
8. as to the nature of the proceedings, there was only one way the applicant could impugn the Board's findings and that was by exercising his one review right of the one decision and one penalty. The conduct of the Board in merging the complaints in relation to the Putney, Liverpool and Glendenning developments into a one decision and one penalty is a relevant factor to the Tribunal's re-exercise of the s 31(4) discretion;
1. the order of the Tribunal should be that the applicant is cautioned and that he undertake the educational course nominated by the Board.
General principles in disciplinary proceedings against professionals
It is well-established that the purpose of disciplinary proceedings against a legal practitioner is to protect the public. The purpose is not to punish the practitioner in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practice from practising or by the making of orders which will secure the maintenance of proper professional standards. Further, both the public and the legal profession will be protected by orders which will assure the public and members of the legal profession generally that appropriate standards are being maintained within the profession: Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 (Ziems) at 286.
In Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 (Craig) at [44]-[48] the basis upon which orders are made by professional disciplinary tribunals and the distinction between orders made for the protection of the public, on the one hand, and the imposition of punishment under the criminal law, on the other, was examined:
44 A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.
45 While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.
46 In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt [New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177] shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.
47 In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
48 I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for."
Principles applied in disciplinary proceedings under the BP Act
The system of accreditation and discipline under the BP Act has been established to protect the public from the harm that might flow from incompetence, lack of diligence or lack of integrity in the performance of the important public responsibilities exercised by certifiers. The orders to be made in the event of an adverse disciplinary finding must serve those objectives. The personal impact of the order on the offender is a minor consideration: Building Professionals Board v Boulle [2008] NSWADT 80 (Boulle) at [57].
As a function of the Board specified in s 77(b) of the BP Act is "the promotion and maintenance of standards of building and subdivision certification and design in New South Wales", we would add that the system of accreditation and discipline under the BP Act has also been established for this purpose.
The purpose of disciplinary proceedings under the BP Act is protection of the public, not to punish the person concerned, in a criminal sense. The public, in the context of disciplinary proceedings against accredited certifiers, is a wide conception, including the local community directly affected by a development and the wider community which has an interest in the general amenity of the community as well as the maintenance of consistent standards across the community. It also includes the present and future clients of accredited certifiers: Building Professionals Board v Hans (No 2) [2008] NSWADTAP 48 at [155]-[156].
In Qiu v Building Professionals Board [2013] NSWADT 289 (Qiu) at [98], drawing on the earlier decision in Cohen at [45], the predecessor of the Tribunal identified factors relevant to consideration of appropriate disciplinary orders under the BP Act:
"98. That case involved disciplinary proceedings against a licensed home building contractor. In addition to factors of deterrence, personal and general; and the importance of upholding the objectives of the relevant legislation, the following considerations might be relevant:
(a) the nature, width and extent of the contraventions
(b) the loss or damage and prejudice in consequence of the contraventions
(c) the circumstances in which the contraventions took place
(d) whether the licensee has been seen to have engaged in any similar conduct
(e) the presence of fraudulent or dishonest intent and deliberation on the part of the licensee
(f) the extent of carelessness or wilfulness of the conduct
(g) the efforts made to correct the situation and what measures have been taken by the licensee
(h) what consciousness the licensee had and displayed of its obligations under the relevant statute and to the owners
(i) the effect upon the licensee
(j) antecedents
(k) attitude, building history and future compliance
(l) the penalty range."
The general common law rule that ensures that a court or tribunal stipulates a penalty for each count of charged conduct is an important one and should be applied, where applicable, in disciplinary proceedings. The reasons for this rule include that by sentencing for separate offences, the court makes it clear to the public what the penalty for each offence is, thus assisting in the process of general deterrence. Further, adherence to this rule prevents conduct from one charge being used as an aggravating factor in assessing the penalty for another charge. However, this rule may not apply in all disciplinary proceedings. There are some cases, where the charged conduct is constituted by a course of behaviour as opposed to a set of separate events. In these circumstances where the facts of the case are so inextricably interwoven as to make it difficult to meet a clear standard of prescription, a global penalty may be applied: Stirling v Legal Services Commissioner [2013] VSCA 374 (Stirling) at [72]-[75].
It has been held in the context of disciplinary proceedings against a legal practitioner that the decision of a tribunal to impose a 6 month suspension following a decision of professional misconduct involves the exercise of a discretion. It is necessary for the tribunal, in arriving at the second decision, to evaluate and weigh a broad range of factors, including the findings in its reasons in relation to the first decision and the second decision, the numerous penalty options available to it and the practitioner's personal circumstances. The determination of the appropriate penalty option or options is not a mechanical process. The tribunal has to balance competing considerations and choose between the various penalty options. This entails assessments of fact and degree and the making of a value judgment. There is no unique 'right' answer which is able to be identified by the application of principle: Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa) at [44].
We consider that general principles in disciplinary proceedings against professionals in Ziems at 286, Craig at [44]-[48], Stirling at [72]-[75] and Khosa at [44] apply equally to the determination of action against the applicant under s 31(4) of the BP Act following our finding that he is guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the BP Act.
Recent decisions of the Tribunal have been guided by consideration of these factors: Hallal; Levick v Building Professionals Board [2018] NSWCATOD 125; Treble v Building Professionals Board [2019] NSWCATOD 34; Lilli v Building Professionals Board [2019] NSWCATOD 119; Murrant v Building Professionals Board [2019] NSWCATOD 130; Boyce v Building Professionals Board (No 2) [2020] NSWCATOD 14.
The key consideration in assessing the appropriate action is that of proportionality. The action should be proportional to the nature of the improper conduct viewed as a whole: Cohen at [62].