Part 3 Disciplinary proceedings
In this Part:complaint means a complaint about an accredited certifier made under section 21.
disciplinary finding means a finding of unsatisfactory professional conduct or professional misconduct.
professional misconduct, in relation to an accredited certifier, means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the accredited certifier’s certificate of accreditation.
unsatisfactory professional conduct of an accredited certifier means any of the following (whether consisting of an act or omission):
(a) conduct occurring in connection with the exercise of the accredited certifier’s functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier,(b) a contravention of this Act or the Environmental Planning and Assessment Act 1979, or the regulations under either of those Acts, by the accredited certifier, whether or not he or she is prosecuted or convicted for the contravention,(c) a contravention by the accredited certifier of a law (whether or not a New South Wales law, and whether or not the contravention is an offence) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, or involves fraud or dishonesty, whether or not he or she is prosecuted or convicted for the contravention,(d) a failure to comply with a statutory or other duty, or a contractual obligation, imposed on the accredited certifier by or in accordance with a law (whether or not a New South Wales law) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation,(e) the exercise by the accredited certifier of his or her functions as a certifying authority in a partial manner,(f) the wilful disregard by the accredited certifier of matters to which he or she is required to have regard in exercising his or her functions as a certifying authority,(g) a failure by the accredited certifier to comply with any relevant code of conduct contained in the accreditation scheme,(h) a failure by the accredited certifier to comply with a term or condition of the certificate of accreditation,(i) a failure by an accredited certifier to comply with an order of the Board or the Tribunal under this Act,(j) a failure by the accredited certifier, without reasonable excuse, to comply with a direction or requirement under Part 5,(k) wilfully misleading or obstructing the Board in the exercise of any function under this Part or Part 4 or 5,(l) any other improper or unethical conduct of the accredited certifier that indicates that he or she is unfit to properly carry out the duties of an accredited certifier,(m) any other conduct prescribed by the regulations for the purposes of this definition.
20 General provisions concerning disciplinary proceedings
(1) If an accredited certifier has died:(a) a person cannot make a complaint against the accredited certifier, and(b) the Board is not to investigate (or continue to investigate) a complaint made against the accredited certifier or to make an application to the Tribunal for a disciplinary finding against the accredited certifier, and(c) the Tribunal is not to determine an application for a disciplinary finding against the accredited certifier.(2) A complaint against an accredited certifier may be made and dealt with even though the relevant certificate of accreditation has been suspended or cancelled or has lapsed. For that purpose, a reference in this Part to an accredited certifier includes a reference to a person whose certificate of accreditation has been suspended or cancelled or has lapsed.(3) Despite subsection (2), the Board may decide not to investigate or make a decision under section 31 on a complaint (or may decide to terminate an investigation or dismiss proceedings in relation to a complaint) if the person who is the subject of the complaint is no longer an accredited certifier.(4) Despite subsection (2), the Tribunal may decide not to determine an application for a disciplinary finding against an accredited certifier (or may decide to dismiss proceedings for such an application) if the person to whom the application relates is no longer an accredited certifier.
Division 2 Making of complaints and preliminary procedures
21 Procedure for making complaint
(1) A person may make a complaint to the Board against an accredited certifier in respect of the accredited certifier’s professional conduct.(2) A complaint is:(a) to be in writing and in the form (if any) approved by the Board, and(b) to contain particulars of the allegations on which it is founded, and(c) to be verified by statutory declaration.(3) The Board may require the complainant to provide further particulars of the complaint.(4) The Board may decline to deal with a complaint if further particulars are not provided as required under subsection (3).(5) Unless the Board declines to deal with a complaint against an accredited certifier under subsection (4), the Board must, within 28 days after receiving the complaint:(a) inform the accredited certifier of the nature of the complaint, and(b) by notice, invite the accredited certifier to make, within such time (being at least 7 days) as the Board specifies in the notice, such submissions in writing to the Board with respect to the complaint as he or she thinks fit.(6) The Board may, if it considers it appropriate to do so, give a copy of the complaint to the person against whom the complaint is made.
22 Initial assessment of complaints by Board
(1) After the period for making submissions on a complaint under section 21 (5) (b) has expired, the Board is to assess whether the complaint should be dismissed or investigated.(2) The Board in its assessment of a complaint is to take into account any submissions received in accordance with section 21 (5) (b).(3) If the Board is of the opinion that the complaint should be investigated, the Board is to arrange for the investigation of the complaint.
The Board may dismiss a complaint at any time (including during the investigation of the complaint) for any of the following reasons:(a) if further particulars of the complaint are not given, or the complaint or the further particulars are not verified, as required by the Board,(b) if the Board is of the opinion that the complaint is trivial, vexatious, frivolous, misconceived or lacking in substance or has not been made in good faith,(c) if the complaint has been dealt with previously by the Board (or by an accreditation body under the Environmental Planning and Assessment Act 1979 as in force before the commencement of this section) or another complaint has already been lodged in respect of the same matter,(d) if the Board considers that there is or was a satisfactory alternative means available to the complainant of resolving the matter the subject of the complaint and the complainant does not have a reasonable cause for not pursuing the alternative means,(e) if the Board is of the opinion that the complaint deals with matters that do not constitute professional misconduct or unsatisfactory professional conduct,(f) if the Board is of the opinion that the matter could be appropriately dealt with by conciliation (regardless of whether the parties agree to undertake conciliation) and the Board does not consider that the complaint needs to be investigated,(g) if the complaint relates to a matter that occurred more than 3 years before the making of the complaint.
(1) If the Board thinks it appropriate to do so, the Board may recommend to a complainant and the accredited certifier the subject of the complaint that they undertake conciliation of the complaint (whether or not the complaint has been dismissed or is being investigated).(2) The Board may arrange for one of its officers to assist in conciliation of a complaint.(3) The Board is not prevented from investigating a complaint because the parties to the complaint agree to undertake conciliation of the complaint.(4) Evidence of anything said or of any admission made during the conciliation process is not admissible in any proceedings before a court, tribunal or body.(5) A document prepared for the purposes of, or in the course of, the conciliation process (or a copy of such a document) is not admissible in any proceedings before a court, tribunal or body.(6) This section does not apply to evidence or a document if the persons who attended, or were named during, the conciliation process and, in the case of a document, all persons named in the document, consent to admission of the evidence or document.(7) A person cannot be required (whether by subpoena or any other procedure) to produce evidence or a document that is inadmissible in evidence in proceedings before a court, tribunal or body because of this section.
25 Reference of complaint to another person or body for investigation
(1) The Board may, at any time while dealing with a complaint, refer the complaint (or part of the complaint) to another person or body if it appears that the complaint (or part) raises an issue that requires investigation by the other person or body.(2) However, the Board may continue to deal with the matter the subject of the complaint if it appears to the Board that the matter raises an issue of professional misconduct or unsatisfactory professional conduct of an accredited certifier.
(1) A complaint may be withdrawn at any time by the complainant.(2) However, the Board may continue to deal with the matter the subject of the complaint if it appears to the Board that the matter raises an issue of professional misconduct or unsatisfactory professional conduct of an accredited certifier.
Division 3 Investigation of complaints
27 Investigation by Board of complaints
(1) The Board must, subject to this Part, conduct an investigation into each complaint made to it under this Part.(2) The Board may deal with one or more complaints about an accredited certifier in an investigation.(3) If during an investigation of any one or more complaints it appears to the Board that there is a matter in respect of which another complaint could have been made against the accredited certifier concerned or another accredited certifier, the Board may deal with the matter in its investigation as if a complaint had been made about it under section 21.(4) If the Board decides to deal with a matter under subsection (3) as if a complaint had been made about it under section 21, the Board must give notice in writing to the accredited certifier concerned of the nature of the matter being investigated and inform the accredited certifier that the matter is being treated as a complaint.(5) For the purposes of subsection (3), the Board may deal with a matter that could have been the subject of another complaint:(a) whether that complaint could have been made instead of or in addition to any complaint that was in fact made, and(b) whether or not that complaint could have been made by the same complainant.
28 Investigation into complaint to be conducted expeditiously
(1) An investigation by the Board is to be conducted as expeditiously as possible.(2) In particular, the Board is to give priority to dealing with complaints that in its opinion may involve issues that pose a threat to public safety.(3) However, the Board may defer investigation of a complaint if the parties to the complaint have agreed to conciliate the complaint and the Board thinks that it is appropriate to await the outcome of conciliation.
Division 4 Procedure after investigation of complaint
29 Report of investigation to be given to accredited certifier
(1) If an authorised officer is appointed by the Board to investigate a complaint, the authorised officer is to submit a written report to the Board on the results of the investigation.(2) The report may contain a recommendation of the authorised officer who prepared it that the Board give consideration to taking certain action in respect of the accredited certifier concerned.(3) On receiving the report, the Board is to give a copy of it to the accredited certifier who is the subject of the complaint with a notice that states that the accredited certifier may make written submissions to the Board within 28 days after the date of the notice.(4) The Board must take into account any submissions received in accordance with subsection (3).(5) If the Board requires an authorised officer to undertake further investigation of a complaint after the furnishing of a report under this section, this section applies to that further investigation.Note. An example of when section 29 (5) would operate is if the Board adjourned a meeting at which a complaint was being considered to enable further investigation of the complaint to be carried out. (See section 30 (3) (b)).
30 Conduct of meeting dealing with complaint
(1) The Board may, if it considers it appropriate to do so, hold one or more meetings to consider a complaint.(2) At any such meeting, the Board:(a) may inform itself on any matter in such manner as it thinks fit, and(b) may receive written or oral submissions, as it thinks fit, and(c) is to proceed with as little formality and technicality, and as much expedition, as the requirements of this Act and the proper consideration of the complaint permit, and(d) is not bound by rules of evidence, and(e) may take evidence on oath, and(f) may allow the accredited certifier concerned to be present or be represented by a legal practitioner or other person or may deal with the complaint in the absence of the accredited certifier.(3) Such a meeting:(a) is to be held in the absence of the public, and(b) may be adjourned for any reason by the Board, including to enable further investigation to be carried out in relation to the complaint concerned.(4) For the purposes of this section, a member of the Board may administer an oath (or, if the meeting is being conducted by a committee that is exercising delegated functions, by a member of the committee).
31 Decision after investigation of complaint
(1) After the Board has completed an investigation into a complaint against an accredited certifier, the complaint is to be dealt with in accordance with this section.(2) The Board may apply to the Tribunal for a disciplinary finding against an accredited certifier under Division 5 if it is satisfied that there is a reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of unsatisfactory professional conduct or it may instead exercise the functions conferred on it by subsection (4).(3) However, the Board must apply to the Tribunal for a disciplinary finding against an accredited certifier under Division 5 if it is satisfied that there is a reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of professional misconduct.(4) If the Board is satisfied that the accredited certifier is guilty of unsatisfactory professional conduct (but not professional misconduct), the Board may take any one or more of the following actions:(a) caution or reprimand the accredited certifier,(b) by order impose such conditions on the accredited certifier’s certificate of accreditation as it considers appropriate,(c) order that the accredited certifier complete such educational courses as are specified by the Board within the time specified by the Board,(d) order that the accredited certifier report on his or her practice as an accredited certifier at the times, in the manner and to the persons specified by the Board,(e) order the accredited certifier to pay to the Board a fine of an amount not exceeding 100 penalty units within the time specified by the Board,(f) order that no further action is to be taken by the Board in relation to the complaint if satisfied that the accredited certifier is generally competent and diligent and that no other material complaints (whether or not the subject of a disciplinary finding) have been made against the accredited certifier.(5) The Board is to dismiss the complaint against the accredited certifier if it is satisfied that the accredited certifier is not guilty of either unsatisfactory professional conduct or professional misconduct.(6) An order of the Board under this section takes effect on a date specified in the written statement of the decision given under section 32 or, if a statement is not required to be provided under that section, on a date specified in a notice in writing served on the person the subject of the complaint. Any such date must be a date occurring on or after service of the statement or notice on the person the subject of the complaint.
32 Board to give statement of decision
(1) The Board is to provide a written statement of a decision made under section 31 to the complainant and the accredited certifier concerned, and must do so as soon as practicable after the decision is made (bearing in mind the public welfare and seriousness of the matter).(2) The statement of a decision must:(a) set out any findings on material questions of fact, and(b) refer to any evidence or other material on which the findings were based, and(c) give the reasons for the decision.(3) The Board is not required to include confidential information in any such statement. If a statement would be false or misleading if it did not include the confidential information, the Board is not required to provide the statement.(4) When confidential information is not included in the statement of a decision provided to a person or the statement is not provided to a person because of subsection (3), the Board must give a confidential information notice to the person.(5) A confidential information notice is a notice that indicates that confidential information is not included or that the statement will not be provided (as appropriate) and gives the reasons for this. The notice must be in writing and must be given within one month after the decision is made.(6) This section does not affect the power of a court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to a court.(7) In this section:confidential information means information that:
(a) has not previously been published or made available to the public when a written statement of a decision to which it is or may be relevant is being prepared, and(b) relates to the personal or business affairs of a person, other than a person to whom the Board is required (or would, but for subsection (3), be required) to provide a written statement of a decision, and(c) is information:(i) that was supplied in confidence, or(ii) the publication of which would reveal a trade secret, or(iii) that was provided in compliance with a duty imposed by an enactment, or(iv) the provision of which by the Board would be in breach of any enactment.
33 Person may apply to Tribunal for a review of disciplinary finding of Board
A person in respect of whom the Board has made a disciplinary finding may apply to the Tribunal for a review of that finding and any action taken by the Board under section 31 (4).
Division 5 Role of Tribunal in complaints process
34 Tribunal may make certain disciplinary findings
(1) If an application is made to the Tribunal under section 31 for a disciplinary finding in relation to an accredited certifier, the Tribunal is to determine whether or not the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct.(2) If the Tribunal finds that the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make any one or more of the following decisions:(a) caution or reprimand the accredited certifier,(b) direct that such conditions as it considers appropriate be imposed on the accredited certifier’s certificate of accreditation,(c) order that the accredited certifier complete such educational courses as are specified by the Tribunal,(d) order that the accredited certifier report on his or her practice as an accredited certifier at the times, in the manner and to the persons specified by the Tribunal,(e) order the accredited certifier to pay to the Board a fine of an amount, not exceeding 1,000 penalty units, specified in the order,(f) order the accredited certifier to pay to the complainant such amount (not exceeding $20,000) as the Tribunal considers appropriate by way of compensation for any damage suffered by the complainant as a result of the unsatisfactory professional conduct or professional misconduct,(g) suspend the accredited certifier’s certificate of accreditation for such period as the Tribunal thinks fit,(h) cancel the accredited certifier’s certificate of accreditation,(i) order that the accredited certifier cannot re-apply for a certificate of accreditation within such period (including the period of his or her lifetime) as may be specified by the Tribunal.(3) If the Tribunal finds that the accredited certifier is not guilty of unsatisfactory professional conduct or professional misconduct, it is to dismiss the application.(4) The Tribunal may not make an order under subsection (2) (f) without the consent of the complainant and the making of any such order does not affect any right of the complainant to bring an action to seek additional compensation.
The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.
36 Appeals to Appeal Panel against decisions and orders of the Tribunal
An order or other decision made by the Tribunal under this Division may be appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 by a party to the proceedings in which the order or decision is made.
37 Confidential information in statement of reasons
(1) The Tribunal is not required to include confidential information in the statement of reasons given under section 89 or 117 of the Administrative Decisions Tribunal Act 1997. If a statement would be false or misleading if it did not include the confidential information, the Tribunal is not required to provide the statement.(2) When confidential information is not included in the statement of a decision provided to a person or the statement is not provided to a person because of subsection (1), the Tribunal must give a confidential information notice to the person.(3) A confidential information notice is a notice that indicates that confidential information is not included or that the statement will not be provided (as appropriate) and gives the reasons for this. The notice must be in writing and must be given within one month after the decision is made.(4) This section does not affect the power of a court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to a court.(5) In this section:confidential information means information that:
(a) has not previously been published or made available to the public when a written statement of a decision to which it is or may be relevant is being prepared, and(b) relates to the personal or business affairs of a person, other than a person to whom the Tribunal is required (or would, but for subsection (1), be required) to provide a written statement of a decision, and(c) is information:(i) that was supplied in confidence, or(ii) the publication of which would reveal a trade secret, or(iii) that was provided in compliance with a duty imposed by an enactment, or(iv) the provision of which by the Tribunal would be in breach of any enactment.
Division 6 Publicising disciplinary action
In this Division:accredited certifier includes a former accredited certifier.
disciplinary action means any of the following action:
(a) any action taken by the Board under section 31 (4) or by the Tribunal under section 34 (2) in respect of an accredited certifier,(b) the suspension of, or imposition of conditions on, a certificate of accreditation under Division 3 of Part 2.
39 Publicising disciplinary action
(1) The Board must publicise disciplinary action taken against an accredited certifier (including the name and other identifying particulars of the person against whom the disciplinary action was taken).(2) The Board may publicise disciplinary action taken against an accredited certifier in any manner the Board thinks fit.(3) Without limiting subsection (2), it is sufficient compliance with subsection (1) if the Board ensures that the information referred to in subsection (1) is placed on the register of disciplinary action required to be kept under this Division.(4) The requirement to publicise disciplinary action applies only to disciplinary action taken after the commencement of this section. However, the Board may publicise disciplinary action taken under the Environmental Planning and Assessment Act 1979 before the commencement of this section in accordance with this Division.(5) This section extends to disciplinary action taken outside this State, to the extent that the particulars of that disciplinary action are known to the Board.
40 Register of disciplinary action
(1) The Board must keep a register of disciplinary action taken against accredited certifiers.(2) The register is to include the following:(a) the name and other identifying particulars of the person against whom the disciplinary action was taken,(b) particulars of the disciplinary action taken.(3) The Board is to ensure that the register is made available to the public, free of charge, at the Board’s offices during ordinary office hours and in any other manner that the Board directs.(4) The Board may, on request, provide information recorded in the register to members of the public in any other manner.(5) The Board may correct any error in or omission from the register.(6) The requirement to keep a register of disciplinary action applies only to disciplinary action taken after the commencement of this section. However, the Board may include in the register disciplinary action taken before the commencement of this section, or publicise such action in any other manner, in accordance with this Division.(7) This section extends to disciplinary action taken outside this State, to the extent that the particulars of that disciplinary action are known to the Board.
41 Quashing or variation of disciplinary action
(1) If disciplinary action is quashed or varied on appeal or review after the action was publicised by the Board under this Division, the result of the appeal or review is to be publicised with equal prominence by the Board.(2) If the disciplinary action was recorded in the register kept by the Board under this Division, any reference to that disciplinary action is to be removed from the register or varied, as appropriate.
42 Liability for publicising disciplinary action
(1) No liability is incurred by the State, the Board, the Director or any person acting at the direction of the Board or Director in respect of anything done in good faith for the purpose of:(a) publicising disciplinary action under this Division, or(b) exercising the functions of the Board under this Division.(2) No liability is incurred by a person publishing in good faith disciplinary action, or a fair report or summary of disciplinary action, recorded in a register kept by the Board, or otherwise publicised by the Board, under this Division.(3) In this section:liability includes liability in defamation.
(1) The provisions of this Division are subject to any order made by the Tribunal under section 75 of the Administrative Decisions Tribunal Act 1997.Note. Section 75 of the Administrative Decisions Tribunal Act 1997 allows the Tribunal to make an order prohibiting or restricting the disclosure of information.(2) If disciplinary action involves the suspension or cancellation of the certificate of accreditation held by a person because of the infirmity, injury or mental or physical illness of the person, the reason for the suspension or cancellation, and any other information relating to the infirmity, injury or mental or physical illness of the person, is not to be recorded in the register kept under this Division or otherwise publicised.(3) Despite subsection (2), the name and other identifying particulars of the person against whom the disciplinary action was taken, and the kind of disciplinary action taken, must be publicised, and recorded in the register kept under this Division, in accordance with the requirements set out in this Division.
44 Duty of confidentiality of client communications
(1) An accredited certifier must comply with a requirement under this Part or Part 4 or 5 to answer a question or to produce information or a document despite any duty of confidentiality in respect of a communication between the accredited certifier and a client.(2) Subsection (1) applies only if the client is the complainant or consents to the disclosure of the communication concerned.(3) An accredited certifier may disclose a matter to the Board or the Tribunal in breach of any such duty of confidentiality if the Board or Tribunal is satisfied that it is necessary for the accredited certifier to do so in order to rebut an allegation in the complaint.