Discipline policy

Purpose

This policy describes the BPC’s approach to the discipline of building and plumbing practitioners, including:

• objectives and role of practitioner discipline
• key principles
• how we identify the appropriate party, and the relevant registration or licence to be impacted by disciplinary action
• our structured approach to practitioner discipline to achieve consistent outcomes
• the purpose of utilising various disciplinary actions.

Scope

Within this policy “practitioner discipline” refers to a formal process, administered by the BPC, where:

• allegations relating to compliance or professional conduct are put to practitioners
• they are given an opportunity to respond
• the BPC then determines what disciplinary action will be taken (if any).

The BPC may discipline registered building practitioners (individuals and companies) and registered or licensed plumbing practitioners (individuals only). Any reference to building practitioners in this document includes endorsed building engineers.

This policy is relevant to employees of the BPC, building and plumbing practitioners, and consumers of building and plumbing services. Unless directly relevant, it excludes:

• immediate suspensions (which can occur prior to disciplinary action taking place)
• capacity to practise issues (when a practitioner is suspended or cancelled, or licence or registration conditions are imposed, due to physical or mental health conditions)
• other enforcement tools used by the BPC to ensure compliance, including cautions, notices and directions
• prosecutions
• injunctions.

Role of practitioner discipline at the BPC

Practitioner discipline is an enforcement tool used to hold practitioners to account and improve overall consumer outcomes.

Practitioner discipline benefits consumers in a variety of ways, including indirectly by promoting and maintaining standards of professionalism, competency, and compliance. While these aligned benefits positively impact consumers, the purpose of practitioner discipline is distinct from that of other processes such as dispute resolution and civil litigation, which address consumer loss and resolve disputes.

Practitioner discipline exists within an established Australian legal framework, which defines the role of disciplinary tribunals and bodies and guides their decision making. The primary purpose of practitioner discipline is protective, with a focus on safeguarding the public, maintaining professional standards, and upholding trust and integrity in the building and plumbing industries.

There is some overlap between disciplinary matters and criminal and civil matters. For example, some disciplinary matters also amount to criminal conduct which can be pursued in the criminal courts, such as building without a permit. However, only practitioner discipline can impact a practitioner’s continued right to work in the industry.

Enforcement discretion and other actions

Formal disciplinary action is not the outcome for every instance of regulatory non-compliance or conduct issue.

Sometimes the objectives of community protection and holding practitioners to account are best served using other regulatory tools.

Practitioner discipline is not designed to directly address individual consumer grievances. The BPC may decide not to pursue disciplinary action where there are multiple parties involved or complex factual circumstances, which make it difficult to ascertain where fault lies for regulatory breaches. Such situations may be best addressed by civil remedies, which are designed to address complex factual scenarios and provide financial compensation.

Objectives of practitioner discipline

Our disciplinary activity aims to ensure that:

• building and plumbing practitioners comply with the legislative framework, including the Building Act 1993 (the Act), regulations and applicable standards (including the National Construction Code).
• industry standards of competency and technical skills are maintained by:
  • using corrective measures to address practitioners whose conduct is sub-standard, where it is anticipated that their conduct can be brought into line in the future, and
  • excluding those who cannot meet these standards from the industry (or making them operate under restrictions).
• practitioner conduct meets reasonable community expectations in relation to professionalism and competency (including adherence to any relevant code of conduct).
• practitioners are held accountable for their conduct, safeguarding the industry’s reputation and reinforcing that unacceptable conduct will face consistently applied consequences.
• the competitive advantage of non-compliance is removed to provide a level playing field for practitioners.

Principles of practitioner discipline

We consider the following principles when making disciplinary decisions:

• the purpose of disciplinary action is protective. The BPC takes the disciplinary action that best protects the community by safeguarding industry standards and appropriately holding the practitioner to account for their conduct.
• when setting disciplinary penalties, our critical objectives are:
  • specific deterrence which means deterring the individual from repeating specific behaviour
  • general deterrence which means deterring others within the industry from the same conduct
  • public protection which requires that standards of professionalism, integrity and competence are maintained, and harmful practitioner conduct is addressed.
• procedural fairness requirements:
  • a reasonable opportunity to respond is provided. Practitioners are appropriately informed of allegations against them (including the provision of relevant evidence)
  • impartiality requires that BPC delegates act free from actual or perceived bias
  • evidence based decision-making which requires decisions to be founded on relevant and credible evidence, leading to logical conclusions
  • transparency and consistency. We are guided by established policies, decision-making guidelines and processes, and relevant information is disclosed to practitioners. Delegates may exercise their own professional judgement and discretion, whilst acting in accordance with the Act and accounting for relevant policy guidance.
  • proportionality requires that disciplinary action reflects the objective seriousness of the conduct in question and avoids penalties that are arbitrary or excessive
  • totality is considered where there is more than one disciplinary ground relating to a particular site or factual circumstances, or more than one type of sanction is being considered. This ensures that sanctions imposed are considered on an aggregate basis, to ensure unjust outcomes do not occur.

Formal disciplinary processes

When a formal disciplinary process is necessary, we follow a course of action which is detailed within the Act.

The Act establishes different administrative processes for the discipline of:

• registered building practitioners (individuals and companies)
• registered or licensed plumbing practitioners (individuals).

The show cause process is our mechanism for taking formal disciplinary action against building practitioners. It provides information regarding the procedural aspects of how the show cause process is conducted.

The inquiry process is our mechanism for taking formal disciplinary action against current or former registered or licensed plumbing practitioners. It provides information regarding the procedural aspects of how the inquiry process is conducted.

Considerations for taking disciplinary action

Before determining whether disciplinary action is appropriate, several key factors are considered to ensure fairness, consistency, and alignment with the objectives of practitioner discipline. The following section outlines these considerations, beginning with the limitation period and extending through to how disciplinary outcomes are identified and applied.

Limitation period

To ensure procedural fairness, we generally do not discipline practitioners where the conduct occurred more than five years prior.

The Act does not prescribe a specific limitation period for taking disciplinary action against building or plumbing practitioners.

Generally, we will not initiate an investigation to support a disciplinary proceeding against a building or plumbing practitioner where the conduct occurred more than five years prior. This is due to evidentiary concerns, as well as procedural fairness concerns, including potential impact on a practitioner’s right to be heard.

When special circumstances exist, we may initiate an investigation where the conduct occurred more than five years prior. Relevant considerations include:

• when the conduct has been detected and reported to the BPC
• when a consumer has taken possession of a property
• when a contract or work has concluded
• patterns of conduct that extend beyond five years
• whether the effects of conduct persist (and no attempt has been made to address these effects)
• where significant consumer harm has occurred
• the integrity of the regulatory scheme is impacted
• there have been protracted attempts by the consumer to resolve the matter
• there is clear and compelling evidence not eroded by time.

Further, relevant to such cases is a consideration of whether the seriousness of the offending conduct and public interest factors outweigh any likely prejudice to the practitioner.

Taking disciplinary action against an individual or company building practitioner

Depending upon the relevant factual circumstances and what course best serves the objectives of practitioner discipline, we take disciplinary action against:

• an individual building practitioner,
• a company building practitioner, or
• both.

For plumbing discipline, action may only be taken against individuals.

In circumstances involving a registered building company, we consider factors such as:

• the degree of knowledge, control, and culpability of all relevant parties.
• legal matters such as contractual obligations and the builder named on the building permit.
• the likelihood that the company can safely continue to operate to a professional and competent standard.
• the consumer impact of taking disciplinary action against the company and whether doing so is in the public interest.
• the concept of totality, when considering disciplinary action against both a building company and an individual. This ensures that the aggregate of any penalties imposed is not disproportionate to the overall seriousness of the conduct but also meets deterrence requirements.

Financial penalties that may be imposed against companies significantly exceed those which may be imposed against individual practitioners (by fivefold), in recognition of the larger financial capabilities, resources, and consumer impacts of companies. However, the availability of increased financial penalties is not a relevant consideration for whether we choose to discipline a company.

Identifying the registration or licence impacted

When we commence a disciplinary process, we identify the relevant registration, licence, or class of work to be impacted by the proposed disciplinary action.

Where practitioners hold the ability to work in more than one area or capacity, we consider factors such as:

• the practitioner’s history in all relevant areas, including disciplinary history and experience in the industry.
• if the matter relates to a technical issue and/or if knowledge and expertise in one area of work would impact their ability to work in other areas or roles.
• whether there are concerns that the conduct impacts their overall fitness to work in any capacity in the industry.
• differences in the levels of risk, legal obligation, and community interaction that may exist between relevant areas of work or roles.

Determining the appropriate disciplinary action

Where a disciplinary ground is proven, we consider a range of factors when determining disciplinary outcomes, including:

• culpability and conduct related factors
• the objective seriousness of the offending
• actual or potential consequences of the conduct and the non-compliance
• any actions taken by the practitioner to remedy the non-compliance, with greater weight given to restorative actions taken prior to the disciplinary process
• applicable principles of practitioner discipline.

The table below summarises some key considerations when imposing disciplinary action. This list is not exhaustive, and other factors may be considered.

In addition to considering these factors across a range of grounds, there are also key requirements, such as for reporting, administration, and compliance with directions, which may require a disciplinary response to ensure the functioning of the regulatory scheme. These matters may be subject to actions, including financial penalties and suspensions, regardless of the culpability and risk factors.

Disciplinary actions

Once a formal disciplinary process has taken place, there are a variety of disciplinary actions which may be imposed. The following sections summarise these actions, their role and purposes.

1. Practitioner Reprimands

A reprimand may be used as a formal expression of disapproval or condemnation of a practitioner’s conduct or non-compliance. Reprimands are published on the disciplinary register to communicate the BPC’s position to the practitioner, the industry, and the consumer.

Reprimands may be commonly used:

• when a concern is identified and deemed not detrimental enough to require a financial penalty or suspension. In such cases, a reprimand may be used where there is reason to signal disapproval of the conduct and may be paired with other corrective actions, such as training.
• in addition to substantive penalties (suspensions or financial penalties). In such cases, a reprimand may highlight the underlying conduct, for example, where the conduct is intentional or reckless.

2. Conditions

A condition may be applied to a practitioner’s registration or licence to protect consumers or uphold public safety. This may generally be imposed in less serious cases, where the practitioner is considered capable of continuing to practise safely and competently under specific restrictions.

Conditions may also be used to address identified gaps in practitioner’s technical knowledge or experience. These are not typically imposed on plumbing practitioners, as targeted disciplinary action can be used to confine their work to specific classes, without affecting their broader accreditation.

3. Exams or training

The requirement of successfully completing examinations or training may be imposed when the contravention is attributed to a deficiency in the practitioner’s technical, regulatory, or legal knowledge to avoid future harm. This involves completion of required courses, training, or (for plumbing practitioners) sitting an examination.

4. Directions

A direction may be issued to a building practitioner to take a specified action, such as rectifying or completing particular building work. In building matters, a direction may also require a practitioner to refrain from undertaking certain activities.

Directions are generally used for limited purposes, such as requiring a practitioner to report on actions taken. They are not typically a first resort for addressing non-compliant building work, as they have practical limitations. Where available, other tools – such as a direction to fix – are preferred to compel rectification.

5. Financial penalties

Financial penalties may be regularly imposed to reinforce accountability, eliminate unfair advantages from non-compliance, deter industry misconduct and build consumer trust by demonstrating that unacceptable conduct has consequences. We consider a variety of corrective and deterrent reasons for the imposition of a financial penalty, including:

• the corrective benefits of a financial penalty, which reinforces an individual practitioner’s accountability for their conduct
• the need to level the playing field by aiming to remove any financial benefit derived from non-compliance
• the general deterrence value of imposing a financial penalty and the role this plays in upholding professional standards and promoting compliance
• the need to demonstrate to consumers that certain conduct is not tolerated and to promote trust in the industry.

Penalties may be up to 150 penalty units (PU) per disciplinary ground for an individual building practitioner; up to 750 PU per disciplinary ground for a company building practitioner; and up to 100 PU per inquiry for a plumbing practitioner.

5.1 Relevant Factors

When considering the appropriate level of the financial penalty, some relevant factors include:

• the severity of the breach and its significance to the regulatory regime
• the individual practitioner’s circumstances including their disciplinary history and whether any financial penalties have been imposed previously (and, if so, whether they have been paid within time or at all)
• the practitioner’s financial circumstances, which are relevant to ensuring the financial penalty has a meaningful impact and furthers the objectives of disciplinary action but is not excessive.

In circumstances where a contravention has been caused by an administrative oversight and there have been no significant consequences, a modest financial penalty may be appropriate for a first occurrence.

However, in some instances, even where a breach has been caused by a genuine administrative oversight, a significant financial penalty may nevertheless be required, to highlight the severity of the matter to the practitioner, the industry and consumers, for example, commencing building work without the required insurance.

6. Suspensions

The BPC can suspend a practitioner’s participation in the industry, for a fixed period, as a protective mechanism to the public, if they pose a current risk in areas such as health, safety, and financial harm (to consumers and other industry participants) – e.g. serious misconduct or patterns of non-compliance (which may be lower order misconduct), but with aggravating factors like recklessness, negligence or deliberate behaviour.

Suspensions may also serve corrective purposes, encouraging practitioners to reflect and improve their conduct, such as in technical, administrative, and professional practices. While general and specific deterrence are relevant to all disciplinary actions, including suspensions, these principles are outlined in the 'Principles of practitioner discipline' section and are not repeated here.

Suspension of a registration or licence may be up to three years for building practitioners and up to twelve months for plumbing practitioners. It is acknowledged that a suspension may have a serious financial impact upon practitioners. As such, serious consideration is given by decision-makers when determining whether suspension is appropriate. This includes consideration of whether a suspension will completely prevent a practitioner from participating in the building and/or plumbing industry, or whether the practitioner will be able to continue working in a capacity that does not require the suspended registration or licence.

A practitioner’s engagement with the disciplinary process – e.g. denial of wrongdoing or unwillingness to change their behaviour – may inform the decision.

The discipline framework also provides for specific approaches to suspensions for building and plumbing.

6.1 Immediate suspension

The BPC has the power to immediately suspend building and plumbing practitioners where urgent risks or public interest demands it. Immediate suspensions are typically imposed at the same time as a formal disciplinary process is initiated. They may be used in circumstances where it is inappropriate for the imposition of a suspension to be delayed while a formal disciplinary process occurs – these fall outside the scope of this policy position. Immediate suspensions may be followed by formal disciplinary process, including further suspension.

6.2 Suspended suspension (plumbing)

The operation of a suspension or cancellation of a plumbing practitioner may be suspended, provided that the practitioner complies with specified conditions or a specific period elapses. This is like the concept of a 'suspended sentence' in a criminal proceeding.

The BPC may consider factors such as regulatory history, patterns of conduct, any mitigating circumstances and the impact on consumers and industry participants when determining if it is appropriate to give the practitioner an opportunity to correct their behaviour by using a suspended suspension. Suspended suspensions will not be used where the conduct or breach is severe or immediate public protection is required.

6.3 Partial suspension (building)

A partial suspension is intended to send the same message as a full suspension about the seriousness of the issue. However, it is utilised for practical reasons, where a full suspension is not preferable as it would cause significant consumer or industry disruption.

For example:

• a building surveyor may be permitted to close off current building permits but not issue new ones.
• a domestic builder may be suspended from entering new domestic building contracts but permitted to complete existing contracts.

7. Cancellations

The BPC may cancel a registration or licence in the most serious cases. Cancellation means that the registration or licence is terminated. Should the person wish to re-apply to re-enter the industry, they are required to pass the relevant knowledge and experience assessments and/or probity requirements (once any relevant period of disqualification has lapsed).

The primary objective is to remove practitioners from the industry that pose an unacceptable risk. Further, cancellation is used to send a clear message about safeguarding professional standards and integrity.

We may cancel a practitioner for a variety of reasons, including:

• the practitioner is no longer a fit and proper person, such as serious issues with honesty, integrity or respect for compliance obligations
• bringing the reputation of the industry into disrepute
• serious compliance obligations breaches, such as:
  • building without a building permit
  • failing to maintain appropriate insurance
  • a domestic builder taking money without a compliant domestic building contract
  • non-compliance with a VCAT or dispute resolution order
  • carrying out plumbing work requiring a compliance certificate, when not licensed in the required class.

Cancellation may occur following a single grave incident or following a pattern of conduct, such as repeated incompetence or negligence over a period. A singular incident may lead to cancellation, for example, where the breach was intentional or reckless, or where it led to significant life or safety risk or consequence. In such cases, the practitioner’s continued involvement in the industry may represent an unacceptable risk of harm to consumers, the industry and the built environment.

8. Disqualifications

Disqualification of a registration or licence is when a practitioner is prohibited from applying for an accreditation for a defined period of time and is used in the most serious cases. A period of disqualification will usually accompany a cancellation, unless the cancellation is for discrete circumstances and it is anticipated the practitioner is capable of remedying the conduct in the immediate future. Due to the serious nature of cancellation, a period of disqualification is usually required for a practitioner to be rehabilitated or to address technical shortcomings.

Disqualification from being registered or licensed can be imposed for up to three years. This may also extend to disqualifying a person from being a nominee director or prevent a company from involving a specific registered building practitioner in its operations during that period.

Review of Decisions

Building practitioner decisions

Building practitioners may seek internal or external review of a decision to take disciplinary action (known as ‘the reviewable decision’).

• An internal review is conducted by a BPC employee who was not involved in the reviewable decision.
• An external review is conducted by VCAT.

An application for internal or external review puts the reviewable decision on hold, except in the case of a decision to immediately suspend registration.

The availability of internal and external review depends on the following factors:

• If the reviewable decision was made by a Commissioner or the Chief Executive Officer, a building practitioner may apply for VCAT review. Internal review is not available.
• If the reviewable decision was made by any other person within the BPC, a building practitioner may apply for internal review. Following the internal review, the practitioner may apply for further review to VCAT.
• If the disciplinary action was to immediately suspend, suspend, or cancel registration, a building practitioner may apply for review directly to VCAT without first applying for internal review. In other words, the building practitioner can choose whether to seek internal review or external review.

To apply for internal review, a building practitioner should submit an application using the BPC form, fully stating the grounds for review. An internal review application must normally be submitted within 28 days of being given the reviewable decision, although an extension of time may be granted in some cases. An extension application should be submitted as soon as possible, using the applicable BPC form.

An internal review must be decided within 28 days of the application being made. This period cannot be extended. For this reason, substantial new evidence provided during the review period cannot always be accommodated.

For information about applying to VCAT, refer to the VCAT website. For VCAT review following an internal review, the VCAT application must be made within 14 days of the end of the review period. For applications direct to VCAT, the application must be made within 28 days of the reviewable decision.

Plumbing practitioner decisions

Plumbing inquiry outcomes do not have an internal review pathway. Plumbing practitioners can apply to VCAT for a review of the BPC’s disciplinary decision or alternatively seek legal advice regarding their review rights.