24 October 2005
Your Ref: 22561/2
Consumers’ Association of Western Australia
Locked Bag 14
Cloisters Square WA 6850
Department of Consumer and Employment Protection
219 St George’s Terrace
PERTH WA 6000
ATTENTION: Gary Newcombe
Re Builders Registration Board (“Board”) Consultation Draft – Acts Amendment (Licensing Boards & Consumer Protection) Bill 2005 (“BRA”)
We are in receipt of a copy of your letter DOCEP to Paul Marsh Builders Registration Board (“BRB”) of 31st August 2005 (“August Letter”).
We, the Consumers’ Association of Western Australia (“CAWA”) thank you for the opportunity to provide comment.
CAWA has now been able (under some pressure) to formulate a response given below. CAWA has chosen to make a three part response, the second part of which substantially responds to the Key Issues as set out in the August letter. The third part directs comment to some particular sections of BRA not addressed by the Key Issues.
Although CAWA does not have a working knowledge of the other Boards and committees involved (to be under the DOCEP umbrella) the opinions herein may be transferable to some or all of those entities.
The first part address, or re-addresses, CAWA’s concerns with the philosophy of the board change from Independent Board to effectively DOCEP or government. In broad terms we maintain our opposition to this move.
PART ONE – Philosophy
Underlying our comment is a fundamental belief that a balanced independent board of seven/eight members representing the diverse views of the industry and consumer groups is best placed to perform its historical functions overseeing the building industry. It sits outside of Government and is not subject to Government jurisdictions or departmental monetary controls.
The argument that the Board only represents the Industry is negated by the balance of industry and consumer representation on the Board.
BRA is we understand part of a broad approach to review various Boards, Tribunals & Committees (“Boards”), arising from and addressing concerns arising from the Gunning and Temby Reports. To the extent that this approach is novel in Western Australia it is an unproven experiment. Scientific experimental method usually requires a ‘control’ by which variables can be measured. To this extent, for example the Board might be left independent to provide some measure of the effectiveness of the Boards brought under the DOCEP umbrella.
Such an approach could provide an effective Public Service – v – Independent Board comparison to guide future attitudes or legislation. This would truly say Government is trying to achieve the best outcome.
Historical evidence with WA (Finance Brokers Board) does not clearly support the move. We are not aware of any difficulties with the BRB.
Further, historical or anecdotal evidence from Eastern States consumer groups suggest the Queensland model of an independent, self funded board – the equivalent of the BRB (and originally based on the WA BRB) is the most effective in meeting consumers’ needs. It appears that the recently replaced NSW model was found to be especially problematic with prosecution, compliance, licensing and education being fragmented as is proposed by this legislation.
CAWA ask why it is that at a time when Government in general is opening Government utilities to competition there appears (with BRA) a movement almost in the opposite direction. Is it not possible to address issues arising from Gunning & Temby by methods other than that proposed? We are of the opinion they can be and would be prepared to assist and address those questions if requested.
BRA as it is set up emasculates the Board and turns it into possibly a disinterested, uninformed cipher with a very narrow range of responsibilities.
In CAWA’s view the Board in any event should have (a) Access, or preferably be provided with information from all levels as to what is occurring day to day. Without full information as to investigations, prosecutions, judgments, disputes, educational initiatives mediations etc it will be operating blind or in isolation. To that extent it will not be able to fully and properly assess applicants, be able to impose realistic conditions and be able to advise anyone let alone the Commissioner as to the education and information programs for consumers, licensees and industry.
The Board has considerable diverse technical expertise which requires continual input from the widest sources.
The Board must be able to educate themselves by participation in all aspects of the process. The best way in our view to achieve that is to participate, allowing full advantage of the Boards extensive experience. They must be able to see and take note of the results of their activities.
CAWA sees a basic tenet of Gunning to be in favour of centralized responsibility and therefore power. Centralized power and responsibility has frequently been seen as a problem rather than a solution. To prevent the problems of centralized responsibility/power Australia for example has a Federal House of Representatives and Senate to provide Government as to agreed powers (the Australian Constitution) – then there are the Sates with their own (usually) two tiered system and then Local Government. Within the States there is the Legislative Assembly, Legislative Council, Executive and Judiciary.
In the BRA plan the functions (a broad comparison) of Legislative Assembly, Legislative council and Executive are combined in one person, the Commissioner.
This was previously spread to the many heads of the Board and Registrar. Why do we ignore the perfectly good example of our own Westminster System? The Government’s own Cabinet (collective) decisions? Boards for Companies? This system pervades society and for good reason.
PART TWO – Key Issues from August letter seriatim:
Included here is comment on two preliminary issues dealt with in the August letter bottom of page 2 and top of page 3.
- “Whether the attached Amended Act to implement recommended model achieves its goals whilst being practical and appropriate.”
CAWA’s response is a tentative yes. Tentative, because many of the sections (which we have looked at) in CAWA Valdene Buckley’s Joan Milne’s and John Robertson’s view, have problems. We do not propose here or in Part 3 to detail all those problems or questions as the view pertains to over half of the sections – our response would be prolix. Also a very significant problem is lack of regulations.
(b) The Statement last paragraph August letter Page 2 and top Page 3 –
No adequate response can be made as the Regulations are required so as to make full sense of the whole. This is an important matter. An uninformed response involving guessing is patently inadequate and wasteful of time and resources. To provide proper and adequate input it is imperative that CAWA be in receipt of the regulations with proper time to consider and provide a response. This comment pervades and applies to all subsequent comment herein. CAWA is disappointed and hamstrung by the lack of information re the regulations.
Key Issue 1 – Board Membership
- Attachment as received by CAWA being August letter is not referable to Board but to Painters Registration Board.
- To the extent that the correct attachment “C” differs from Section 54 of BRA the following may be incorrect.
Section 5A provides for 8 members to sit together perhaps in an even number – what are the provisions for a tied vote?
CAWA notes that the “Review of Boards and Committees in DOCEP Portfolio – Final Report April 2005 (“Final Report”) mentions only 7 members but fails to mention a “Union Member”
- BRA Section 5.5A (1) (b) – this alludes to the possibility of two consumer representatives but not in clear terms. It should state clearly that at least one preferably two persons are appointed to representCONSUMER’S interests; – Can the present terminology exclude a consumer representative? In CAWA’s view it could and to that extent is defective.
- As to BRA S.5A (1) (a) – the Legal practitioner should not only be not a licensee but also not associated with any of the groups named in Section 5A (1) (b) & (c).
Key Issue 2 – Investigative Powers
The following comments are general and subject to comment on specific sections of BRA inclusive of the Schedules.
The powers of investigators as put in BRA and BRA Schedule 2 are breathtaking in their extent. Whilst these provisions may be necessary from time to time the effect could be draconian.
As a generalization these powers should only be used after taking legal advice. This applies to all powers including those requiring a warrant. This is especially so as the term “reasonable grounds” or the like as appears in BRA Schedule 2 is effectively a legal term and its interpretation varies depending on the case. BRA Section 12 AD – compliance checks without warrant deserves extra mention.
BRA Section 12 AD has the clear capacity to be used to harass licensees and MUST in our view be exercisable either (a) as part of a routine (and therefore time determinable at least to the month) inspection or (b) on reasonable grounds subject to a legal OK.
A key question generally as to the Investigative Sections – 12AA, and 12 AC is as to whom oversees exercise of these functions? As it is it appears all power [except S.12AA (2)] is in the hands of the Commissioner. This is a lot of power in one set of hands – why can’t the Board use its extensive experience?
Key Issue 3 – Public Warnings
BRA Section 20 C – Public Warnings
This contains a power to do not only good, but enormous damage if exercised on a perhaps innocent party without adequate investigation.
What is the foundation of a (complaint?) leading to a warning? We feel that a decision to issue a warning should go to the Board.
This power we feel should be hedged with Regulation as to its usage to prevent possible bad outcomes.
There should be some criteria set as to what “In the Public Interest” is.
Key Issue 4 – Warning Notice
Reference to Key Issue 4 at Page 4 of the August letter erroneously refers to Section 12 AD – it is in fact Section 12 AE.
This provision is peculiar in that a warning notice can only issue after failure to comply with the Act and will tolerate a continuing breach without allowance for prosecution.
CAWA understands (but does not know) that this section is intended for minor matters only. If that is the case the section might be amended so as to say it will apply to such sections (relating to minor matters) as are adverted to in the Regulations – or similar control.
Could there not be a clear element of education or re-education possible especially about the contentious activity? Such education and continuing education of licensees is in CAWA’s view important for properly informed and up to date licensees.
If Section 12 AE is intended for substantial breaches then it appears defective in disallowing later prosecution.
In any event to effectively tolerate continuing breaches even of a minor nature does not appear wise – possibly breeding contempt for the Act – “If I can get away with this why not other matters?”
As in Key Issue 3 above, CAWA feels a warning from the Board would carry more weight.
CAWA notes that the Electrical licensing Board has the power to investigate minor disciplinary issues that will not lead to loss of licence. Consumers are keen to see that minor matters are investigated.
Key Issue 5 – Suspension Licence
This is an immense power and has the clear possibility of inflicting financial damage on a licensee greater than perhaps any inflicted by SAT on a prosecution.
CAWA asks – what are reasonable grounds? Where does the belief come from? “Beliefs” and even “reasonable grounds” likely appear not substantial enough in view of the possible large financial consequences. A builder/licensee should be treated fairly.
Could there be or should there be an expansion to involve “in the Public Interest” as a basis for invocation of the section? (With suitable clarification of the term Public Interest)
Again we feel Board involvement is preferable to take advantage of their undoubted expertise.
Additionally – is there any basis for concern that SAT will be able to undoubtedly comply with the implied time frames involved?
Key Issue 6 – Conciliation Powers
CAWA disagree with the use of conciliation. In CAWA’s view conciliation has in its experience often been colored with bias actual or apprehended. All too often it is used to “lean” on a consumer to take a lesser deal to achieve settlement.
In CAWA’s view mediation is preferable as a means of settlement generally and particularly to overcome the above objections.
Mediation if used should not be compulsory. However the advantages of mediation versus Building Disputes Tribunal proceedings should be pointed out to prospective Tribunal litigants. Receipt of a pamphlet on advantages of mediation might be made a necessary precursor to initiation of Tribunal proceedings.
In CAWA’s view responsibility/control and provisions for mediation should lie within the Building Disputes Tribunal as opposed to DOCEP. This is more particularly so as BRA S46 allows for Building Disputes Tribunal to make regulations for mediation but not conciliation.
Key Issue 7 – Classes of Licence
CAWA do not understand the issue. BRA S46 relates (as above noted) to Building Disputes Tribunal and its Regulations for the purposes of BRA Part 4.
In any event CAWA does not support the idea of classes or tiers of Licenses by regulation or otherwise
CAWA notes that BRA S.10 itself does not allow granting of classes of licenses – nor does it allow for conditions to be applied to licenses. BRA S.10 should allow for the Board to issue licenses on condition which CAWA feel is a superior way of achieving full accuracy in licensing.
Key Issue 8 – Period of Licence
In CAWA’s view a three year period is not an inappropriate period, however there should be consumer certainty that a building part built through the re-licensing period will be finished.
In CAWA’s view it would be of great value to tie re licensing to continuing relevant education. This could provide some sort of assurance that licensees were “up to date”.
Key Issue 9 – Annual Reports and Further Reports
In CAWA’s view the proposal as outlined in August letter page 5 is inappropriate.
CAWA say that a report on operations will allow parliamentary review from the base of that report. Without this the Board and the Commissioner may sink into ineffective obscurity until (perhaps serious) complaint is made. We have difficulty with the concept of the Board (confined to very narrow activities by BRA as proposed) making a report on an organization for which it is not substantially responsible.
To have perhaps a Commissioner’s report alone or perhaps Commissioner’s plus Board’s report also have difficulty.
This could be solved by a Board report where the Board has taken a much broader role, even if only consultative in part.
Ready identification of responsibility (seemingly achieved at present by entrusting a huge range of responsibility to the Commissioner) in CAWA’s view might be more acceptable if the Board acts (in effect up front) with concurrence and not necessarily on the recommendation of the Commissioner. The Commissioner being the proposed person statutorily required to take responsibility would remain responsible. Unless this is done it would promote the Board into carping about its lack of power and inability to oversee the Act functioning properly. The relationship between the Commissioner and the Board would need to be very clearly defined.
Reports will help make the Board and DOCEP accountable and interested in the results of its activities. It should have full information available to make such report.
PART 3 – Comment on BRA Particular Sections
- BRA Section 24A – CAWA has concerns in relation to the general purpose fund the first of which relates to the question of conflict, whereby it appears that it is the Minister who in fact has the real power. CAWA regards this as unsatisfactory and feel that the Board again should have power and for the “buck” to stop there.
Where is the accountability for these funds? Who reports on this fund? In CAWA’s view there should be transparency in terms that the funds be used for the building industry benefit i.e. there should be no variance in use from the present. CAWA feels strongly that the Board should be involved.
- BRA Section 4(4) (5) and (6) of these sub-sections – Exemptions CAWA asks
- How much scope does this allow – appears extraordinarily wide – should be expressed at least as limited to promote the spirit and intent of the Act.
- The regulations might allow any person to be exempt. What if an exemption relates to a licence? Does this allow the Commissioner to provide an exemption in relation to a licence? Surely that must be the province of the Board.
- How long should exemptions be allowed?
- This is an extraordinary power for the e.g. Commissioner to make a mokery of the Board.
- The power is far too wide and needs to be severely hedged to prevent abuse.
3. BRA Section 7
CAWA regards this as an important section especially in that it is unsatisfactory to the Board because:
- The Board will be unable to direct or control staff and worse will have not ability to compel provision of staff adequate for its functions. Without adequate staff it may well be unable to function.
- Who is the Chief/Executive Officer? This terminology is not defined as it should be. Section 111 (3) definition is not adequate.
- The addition of Chief Executive Officer adds more layers devolving to less accountability.
- The Board needs to be able to direct its own staff so that it has the liberty to seek/obtain information free of constraints of the Commissioner and DOCEP staff.
4. BRA Section 8
- This section disempowers the Board almost entirely leaving it with ONLY the licensing functions and minor ability in relation to education and minor investigative power under Section 12AA.
A Board with such narrow duties, and Department fed for information, in the outcome can only become disinterested and possibly dangerous because of it.
- To carry out its remaining function the Board still requires a large (preferably compellable) information base – see final Report page 18 Para 14.10.
- It appears the Board has no power to cancel, suspend, annul, impose conditions, provide temporary licenses or provide exemptions. The Board should have clear power in all of these respects.
- Renewal of a licence should be tied to education of the licensee.
5. BRA Section 10
CAWA takes the opportunity to repeat that there should not be tiers or classes of licenses.
6. BRA Section 12AA
CAWA asks why the Board with its extensive experience is cut out of this power. It is the case of many heads makes for wiser decisions.
7. BRA Section 23 Reports
CAWA feels that the Commissioner might report to the Board and his report become part of the Board report.
The Board report can only be as good as the information it relies upon. If the information to the Board relies fully on the Commissioner without the Board having staff of its own to research and produce independently its information; the Board may be fed insufficient, slanted or incorrect information.
The Board should not be subject to direction by either the Minister or the Commissioner
CAWA suggests that monies collected from industry licenses should go to support that industry and it should be a Board responsibility to oversee this and report on this as part of its Annual Report.
CAWA has produced this letter under some pressure and as a result appreciates the difficulties of producing good legislation. This is good reason for there to be further consultations and consideration and for BRB to be left outside as previously suggested to fully test the experiment.
CAWA points out that the Gunning drive for centralized responsibility ignores the problems with centralized power, which in the time honored tradition is avoided by split responsibility and a series of checks and balances.
Again CAWA thanks you for the opportunity to contribute.
President Consumers’ Association of Western Australia.
Enquiries to J N Robertson
Phone 9384 5814