Queensland drawing new lines more obligations for architects

6 mins  31.10.2018 Sian Keast and Emma Page

This article was first published by LexisNexis in the Australian Construction Law Bulletin.1

Similar to many other professions, architects have legal obligations to ensure that their work meets professional standards. Architects may also have civil liability to a range of parties in respect of their architectural services. Below we explore the framework applicable to architecture in Queensland and some recent developments that will expand obligations for architects.


What is the legislative framework applicable to architects in Queensland?

The architecture profession is regulated separately in each state and territory. Queensland has one of the more regimented frameworks for the architecture profession. The legislative framework for architects in Queensland consists of:

  • the Architects Act 2002 (Qld)
  • the Architects Regulation 2003 (Qld)
  • the Board of Architects of Queensland’s (the Board) Code of Practice (the Code)

The Architects Act requires all architects in Queensland to be registered and to comply with continuing professional development requirements. It establishes the Board and grants the Board the power to investigate and discipline architects. An architect may be disciplined by the Board, for conduct in carrying out architectural services, if the architect:

  • has behaved in a way that constitutes unsatisfactory professional conduct
  • has failed to comply with a provision of the Architects Act or
  • has been convicted of an offence against an Act of the state, the Commonwealth or another state related to the practice of architecture

“Architectural services” is defined under the Architects Act as “services about architecture ordinarily provided by an architect.”2

What are an architect’s professional standards?

The Code sets out the professional standards architects are to meet. It is admissible as evidence in
disciplinary proceedings brought before the Board to provide evidence of appropriate conduct of an architect. Obligations under the Code include:

  • acting honestly and with reasonable care
  • complying with applicable laws, statutory rules and statutory codes
  • providing services with reasonable promptness
  • not signing as checked, approved or supervised any drawings or other documents which have not been checked, approved or supervised

The Code is based upon the Architects’ Model Statutory Code of Professional Standards and Conduct prepared by the Architects Accreditation Council of Australia and the Royal Australian Institute of Architects.

The Board has recently proposed a revised Code, which is awaiting approval from the Board following a consultation period. The revised Code sets out more detailed obligations in respect of the supervision of non-registered people’s work, safe and secure record keeping and contributing to the improvement of sustainable, safe and heritage protected environments. The revised Code also imposes a duty to report a suspected breach of the Architects Act, the Architects Regulation and the Code to the Board, as well as a requirement to not act in a way that brings the profession into disrepute.

Architects as superintendents

An architect is sometimes engaged by the owner or principal to act as superintendent or certifier under a building contract. If the architect does not perform that role properly (including fairly and impartially), the architect could potentially be liable:

  • to the principal both under the contract and for damages for negligence
  • to the contractor for negligence in exercising the function of certification

In addition to potential civil liability, a failure to perform superintendent functions properly could potentially be the subject of disciplinary proceeding pursuant to the Architects Act. In February this year, the Queensland Supreme Court held that work performed by an architect for liquidators, which consisted of analysing the work of quantity surveyors to determine whether progress payments had been properly calculated during the construction of a unit block, met the definition of “architectural services” under the Architects Act.3 The Code appears to recognise the possibility for at least some superintendent functions to fall within the scope of architectural services as it requires architects to:

  • act with fairness and impartiality in administering building contracts
  • not show favour or disfavour to any party to a building contract

Architects and nonconforming building products

As readers will be aware, there have been significant changes in legislation throughout Australia this year following a number of tragic events involving nonconforming building products. Some of these changes introduce new obligations for architects in Queensland.

On 11 September 2018, obligations under Pt 6AA of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) with respect to nonconforming building products were extended to apply to architects. An architect now has the following new obligations:

  • ensuring that products used in designs are not nonconforming building products
  • ensuring, when the design is given to another person, that the design is accompanied by the required information for that product
  • not specifying a building product that the architect knows or ought to reasonably know is the subject
  • of a recall order in their designs or
  • if a building product specified in their design becomes the subject of a recall order, the architect must at their own expense inform each person that the design has been given to of the recall and either amend the design or give a written notice specifying an alternative building product

Separately, the Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld) (the Regulation) came into effect on 1 October 2018. It imposes certain obligations on architects who are included in the definition of “building industry professionals” under the Regulation. Under the Regulation, an architect who prepares and signs a statement about whether or not the building is a private building that has combustible cladding must within 5 business days after signing the statement:

  • give the statement to the owner of the building
  • give a copy of the statement to the Queensland Building and Construction Commission and the relevant local government
  • The architect must also keep a copy of the statement for at least 5 years after the statement was signed.

Private buildings are defined to include most commercial buildings and multi-unit residential buildings, but to exclude private homes. The definition requires that the building:

  • is a class 2, 3, 4, 5, 6, 7, 8 or 9 building of either type A or type B construction
  • has been the subject of a building development approval given after 1 January 1994 but before 1 October 2018, for building work to:
    • build the building or
    • alter the cladding on the building
  • is owned by one or more private entities, or a private entity jointly holds more than a 50% interest in the building

Various financial sanctions under the QBCC Act apply to a failure by an architect to comply with these obligations. Some of these are significant: for example, the maximum penalty for noncompliance with the duties under Pt 6AA of the QBCC Act is currently $130,550 (being 1000 penalty units). In addition:

  • these new obligations are likely to meet the definition of “architectural services” under the Architects Act and therefore an architect who does not comply may be subject to investigation and disciplinary consequences by the Board
  • noncompliance with these obligations may result in or contribute to an architect being sued for negligence by the client (building owner), occupier or subsequent owner

Architects must be across changes

It is important for all architects who perform services in Queensland to familiarise themselves with the scheme which applies to the performance of architectural services generally, as well as the recent changes that are directed at reducing the serious safety risks posed by nonconforming building products. Furthermore, architects accepting superintendent or certifier roles in Queensland should be aware that their conduct in that role may potentially be subject to both civil and disciplinary proceedings. These developments highlight the importance of architects ensuring that their professional under-
standing and skill base have foundations as strong as those of their best designs.

1. Queensland drawing new lines — more obligations for architects — (2018) 30(3) ACLB 126.
2. Architects Act 2002 (Qld), Sch 2.
3. Re Bexalaw Pty Ltd (in liq) [2018] QSC 13; BC201800525.

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