MODULE 01

Question 1

WHAT ARE THE SOURCES OF THE LAW (IN CONTEXT OF AN ARCHITECT)?

Answer 1

The work of an architect sits at the intersection of a wide range of areas of law.
– Building law
– Planning and development law
– Architects Acts
– Contract law
– Tort law
– Consumer legislation
– Corporations law
– General business law
All of an architect’s different legal obligations come from two sources of law: legislation and common law.

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Question 2

WHAT IS LEGISLATION ?

Answer 2

Legislation is law made by the parliaments of Australia
(Commonwealth or state).

Question 3

DESCRIBE THE HIERARCHY IN LEGISLATION ?

Answer 3

Legislations consists of statutes, which are also called acts. These set out the core legal obligations.
Underneath each act sit regulations, which set out more detail about technical and administrative matters.
Underneath the regulations are statutory instruments, such as codes and guides, that set out finer details.

Question 4

WHO CAN PASS LEGISLATION, ACTS / STATUES, REGULATIONS , CODES AND GUIDES & OTHER STATUATORY INSTRUMENTS ?

Answer 4

While acts and regulations must be passed by parliament, other statutory instruments can sometimes be passed by a minister without going back to parliament.

Question 5

WHAT IS COMMON LAW ?

Answer 5

The second source of law is common law, which consists of thousands upon thousands of court judgments going back to England in the middle ages. In common law countries like the UK and Australia, courts are bound by precedent.

This means that courts must follow the legal doctrines set out in past court judgments of higher courts. This is supposed to lead to consistency.

These common law cases create the bedrock of our law, including doctrines like negligence and breach of contract. They also interpret and apply legislation.

Question 6

HOW DOES COMMON LAW CHANGE /EVOLVE ?

Answer 6

Common law changes in two ways:

It evolves gradually over the years, by High Court
judgments responding to changes in the community and creating new precedents, but that change is conservative and slow.

It can also be changed by legislation: that is, by parliaments creating new laws that override the common law.

Question 7

WHAT ARE THE THREE KINDS OF LEGAL CONSEQUESCES WHEN AN ARCHITECT BREACHES THEIR LEGAL OBLIGATIONS ?

Answer 7

1) Civil claims
2) Disciplinary proceedings (by AIA or the regulating body under which the architect is
registered)
3) Criminal prosecutions

Question 8

WHAT ARE CIVIL CLAIMS ?

Answer 8

Civil claims are when someone who has suffered a loss sues an architect to recover compensation for their loss.
The loss claimed could be repair costs, or financial loss, or injury-related damages.

Question 9

HOW / WHERE DOES A PLAINTIFF MAKE A CIVIL CLAIM ?

Answer 9

To make a claim, the plaintiff needs to bring legal proceedings in a court.

There are alternative forums to the courts—for example consumer tribunals like QCAT (the Civil and Administrative Tribunals in Queensland ) or VCAT ( Civil and Administrative Tribunals in Victoria),

or alternative dispute resolution mechanisms like arbitration

or expert determination.

Question 10

WHAT ARE DISCIPLINARY PROCEEDINGS ?

Answer 10

Along with a civil claim, an unhappy client or a registration body like the states’ Architects Registration Boards can also bring disciplinary proceedings
against an architect.

Question 11

HOW DO ARCHITECTS’ REGISTRATION BODYS’ MAKE DECISIONS ON A DISCIPLINARY PROCEEDING ?

Answer 11

There will be a hearing like a mini-trial,
or based on written submissions.

Question 12

WHAT ARE SOME OF THE PENALTIES IMPOSED ON THE ARCHITECT IF THE ARCHITECT IS FOUND TO HAVE BREACHED HIS LEGAL OBLIGATIONS ?

Answer 12

Some possible penalties include:
– Order to pay compensation or fines
– Suspension of registration
– Cancellation of registration
– Attaching conditions to ongoing registration (e.g. further education)

Question 13

WHAT IS CRIMINAL PROCECUTION FOR AN ARCHITECT ?

Answer 13

A criminal prosecution is where a government enforcement body (e.g. Safework NSW)
prosecutes you for breach of certain legal obligations.

There will be a hearing in front of a court and the court will make a decision.

Question 14

WHAT ARE THE POTENTIAL CONSEQUESCES FOR AN ARCHITECT FOR CRIMINAL PROCECUTION ?

Answer 14

Potential consequences include order to pay a fine (noting that a court can fine an individual or a company, or both), or even imprisonment.

However, note that fines and imprisonment are only possible for some specific breaches, for example, breaches of safe design requirements.

Question 15

How long does an architect’s legal liability last?

Answer 15

architect retains some level of liability forever.

the risk of being sued does decrease considerably the more time has gone by,

Some ‘limitation of action’ laws prevent some late claims, but these are state-based and highly variable.

For example, claims for breach of contract generally must be made within six years from when the cause of action arose, otherwise the right to claim expires.
Another example is the Building Act in Victoria which provides a limit of 10 years from issue of certificate of occupancy.

Statutory limits like these all have exceptions. This means that, after six to 10 years from
completion, the risk of claims becomes quite low, but it never reduces to zero.

Question 16

WHAT ARE SOME KEY AREAS OF THE LAW FOR AN ARCHITECT ?

Answer 16

Negligence

Contract

Architects Acts

National Construction Code

Safe design legislation

Overview of other laws : breach of confidence (confidential information) , defamation actions,

Statues relevant to Architect’s work :
Misleading and deceptive conduct under the Competition and Consumer Act 2010 ,
Architect’s company or corporation, it will be regulated by the Corporations Act 2001
Intellectual property rights under The Copyright Act 1968 (Cth)

state-based laws on planning and development,

security of payment laws,

domestic building contracts

product safety.

Question 17

WHAT IS NEGLIGENCE ?

Answer 17

Ask what a reasonable architect would have done in the same circumstances. If
an architect fails to meet that standard, they have been negligent .
An architect must, as a minimum, do what a reasonable architect
would do (DUTY OF CARE)

An architect who fails to practice his Duty of Care has been negligent.

Question 18

WHAT IS A CONTRACT ?

Answer 18

A contract is a legally binding agreement between two or more parties.

For Architect’s contracts must be in writing. Oral contracts are unlawful.

Question 19

WHAT PREVAILS IF THE CONTRACT HAS A HIGHER STANDARD OF DUTY OF CARE OR THE MINIMUM REASONABLE DUTY OF CARE FOR AN ARCHITECT ?

Answer 19

For any work related to that contract, the higher standard of the contract prevails.

Question 20

HOW CAN AN ARCHITECT TERMINATE / GET OUT OF A CONTRACT ?

Answer 20

First, if the contract says that the architect can terminate their services, following the
procedures in the contract.

Second, if the client agrees to let the architect terminate (and it is
important to document the fact that the client agreed).

Third, if the client commits a ‘material’ breach of contract (a breach that undermines the
agreement in some fundamental way).

Question 21

WHAT ARE THE FIVE KEY REQUIREMENTS OF ARCHITECT’S ACTS ?

Answer 21

Use of term ‘architect’

Insurance

Continuing professional development (CPD)

Contracts - failure to have a written contract is an offence under most Architects Acts.

In some states and territories, the Architects Act also stipulates specific matters that the
contract must cover -eg. how fees are calculated, the scope and nature of
architectural services, how variations will be made, and how the contract may be terminated.

Other Architects Act requirements -
Some acts specifically require an architect to advise the client on the likelihood of achieving the client’s stated objectives having regard to the client’s stated budget and time requirements (this is to stop architects allowing clients to incur substantial fees on projects that cannot realistically be completed).

An important requirement is to act fairly and impartially when administering a building contract.

Some acts require an architect to provide services with reasonable promptness and in accordance with any agreed program.

Lastly, some acts require architects to keep proper records of architectural services for a
stipulated period of time after completion—for instance six years in NSW or 10 years in Victoria— and allow clients a reasonable opportunity to inspect and copy them.

Question 22

What are some common examples of findings of unprofessional conducts by Architects ?

Answer 22

• Failing to enter into a written agreement with the client in compliance with the Code

– Failing to take all reasonable steps to maintain skills and knowledge (that is, the 20 hours of CPD)

– Failing to give timely and accurate advice (especially on the likelihood of achieving the
client’s budget and time requirements).

Question 23

WHAT ARE THE TWO WAYS TO COMPLY WITH THE NCC ?

Answer 23

1) Deemed to Satisfy requirement

2) Performance Solution

Question 24

WHAT IS SAFE DESIGN LEGISLATION ?

Answer 24

All states and territories have legislation on safety that includes some level of obligation for designers of buildings and structures. In most jurisdictions, this is called the Work Health and Safety Act.

The basic requirement is that designers of buildings (whether architects or not) must ‘ensure so far as is reasonably practicable’ that the building is ‘designed to be safe and without risks to health and safety’.

Question 25

UNDER SAFE DESIGN LEGISLATION, IN ALL STATES (EXCEPT VICTORIA) WHAT ARE THE TWO TYPES OF REPORTING DESIGNERS MUST PROVIDE ?

Answer 25

The first is to provide ‘adequate information’ to ‘each person’ who ‘gives effect to’ the design concerning the purposes it was designed for, any calculations or testing, and any conditions necessary to use it safely. (Note that this one does not have to be in the form of a report—the information could be contained on drawings, for instance).

The second requirement is to provide a ‘written report’ on construction hazards
which ‘are only associated with the particular design’.