CITATION: Hirst v New South Wales Architects Registration Board [2008] NSWADT 12 DIVISION: General Division APPLICANT PARTIES: Ronald Austin Hirst RESPONDENT New South Wales Architects Registration Board FILE NUMBER: 073147 HEARING DATES: 03/10/2007 SUBMISSIONS CLOSED: 3 October 2007 DATE OF DECISION: 7 January 2008 BEFORE: Chesterman M - ADCJ (Deputy President); Jose J - Non Judicial Member; O'Carrigan P - Non Judicial Member CATCHWORDS: Architects Act – review of refusal of application for registration MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Architects Act 2003 Architects Regulation 2004 Legal Profession Act 2004 CASES CITED: Colville v NSW Architects Registration Board [2007] NSWADT 146 NSW Architects Registration Board v Cserhalmi [2006] NSWADT 110 S Raward, solicitor REPRESENTATION: P Griffin, solicitor 1. The Respondent's decision on 19 April 2007, rejecting the Applicant's application for full registration as an architect under the Architects Act 2003, is set aside ORDERS: 2. The name of the Applicant is to be restored to the register of architects maintained under section 25 of that Act 3. Any application for costs is to be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party will have a further 28 days in which to file and serve its submissions. The party seeking costs must file and serve any submissions in reply within a further 7 days. The matter will then be decided 'on the papers', subject to the right of either party to apply, with supporting submissions, for a hearing Relevant facts 1 This case is concerned with the scope of the powers conferred by the Architects Act 2003 on the Respondent, the NSW Architects Registration Board, when deciding whether to renew the registration of an architect. 2 Pursuant to sections 7 and 84 of the Architects Act 2003 (hereafter 'the Act'), clause 7 of the Architects Regulation 2004 ('the Regulation') established the NSW Architects Code of Professional Conduct ('the Code'). The text of the Code appears in Schedule 1 of the Regulation. The Act came into force on 1 July 2004. 3 Clause 3 of the Code sets out its objectives, one of which (in subparagraph (a)) is 'to define for the community, architects and clients the reasonable standards of conduct expected from architects in their professional practice'. The specific matters covered in the Code include the following: provision of information to clients and prospective clients, client agreements, deposits and retainers, record keeping, maintaining knowledge of architectural services and professional indemnity insurance. 4 Part 5 of the Code, headed 'Standards concerning professional education', contains clause 17 only. This states as follows: 17. Continuing professional education (1) An architect should take all reasonable steps during each financial year to maintain and improve the skills and knowledge necessary for the provision of the architectural services that the architect normally provides through: (a) such activities that the Board is satisfied demonstrate the maintenance and improvement of the architect's skill and knowledge, or (b) such other means as may be approved by the Board from time to time. (2) Subclause (1) does not apply to any non-practising architect. 5 In 'Information Sheet 2', which was distributed to registered architects in the latter half of 2004, the NSW Architects Registration Board (hereafter 'the Board') referred in general terms to these requirements. 6 In December 2004, the Board distributed a further document entitled 'Board Policy: Continuing professional education'. In this document, the Board, having set out clause 17 of the Code, described what it considered to be the requisite features of continuing professional education ('CPE'). These included a requirement that architects should undertake a minimum of 20 hours of CPE each year, made up of at least 10 hours of informal 'self-directed study and professional activities' and 10 hours of 'structured courses'. 7 This policy document contained the following information regarding compliance with clause 17: Architects are required to declare that they have taken all reasonable steps to maintain and improve the skills and knowledge necessary for the provision of the architectural services that they normally provide when they complete their annual application for renewal of registration. Due to the recent introduction of the Architects Act 2003, for the renewal period beginning 31 March 2005, architects will declare an intention to take all reasonable steps in the coming registration year to maintain and improve the skills and knowledge necessary for the provision of the architectural services that they normally provide. 8 The document also stated that architects should keep records of their CPE activities for at least five years and that the Board might introduce 'audits on a rotational basis' at some future time. 9 A further document distributed by the Board early in 2005, setting out procedures for the annual renewal of registration by registered architects, made reference to these requirements. 10 In a document issued in September 2005, entitled 'Information Sheet 7 – Architects and CPE', the Board stated that 'as a condition of annual renewal of registration', architects would be required to declare that they had 'taken all reasonable steps … to maintain and improve the skills and knowledge necessary for the provision of architectural services that the architect normally provides'. 11 A document headed '2006 Annual Board Newsletter', distributed early in 2006, contained a statement to the same effect, relating specifically to the 'renewal period' of registration commencing 31 March 2006. 12 The Applicant in these proceedings, Mr Ronald Hirst, commenced practising some years ago in New South Wales as a registered architect. On 17 March 2006, the Board received an application by him for renewal of his registration, which was 'full registration' under s. 17 of the Act (see [25] below). The Board granted this application. 13 In a letter to Mr Hirst dated 19 April 2006, Ms Kate Doyle, who is the Registrar of the Board, set out the Board's requirements regarding CPE. Her letter then stated: We have determined that based upon your current circumstances you have been granted an exemption from the CPE obligations in the 2005 registration year. However, this exemption is only for the 2005 registration year, so that while you remain in the full registration (that is, practising) category of the Register, in the coming years you will have to meet these obligations, regardless of the number of hours worked per week. 14 In December 2006, the Board distributed a revised version of Information Sheet 2. It subsequently distributed a revised version of Information Sheet 7. In the latter document, it announced some changes in its requirements in this field, including introduction of the phrase 'Continuing Professional Education/Development' ('CPE/CPD'). 15 On or about 28 March 2007, Mr Hirst applied to the Board for renewal of his registration, using the form issued by the Board for this purpose. At designated places on the form, he stated that he was the 'nominated architect' for a corporation entitled Hirst Architects Pty Ltd and that he had appropriate professional indemnity cover. 16 In a section headed 'Continuing Professional Education/Development', the application form stated that 'as a requirement for annual renewal of registration, practising architects should maintain and improve the skills and knowledge necessary for the provision of architectural services that the architect normally provides'. It then stated, in bold type: 'This section must be completed by the Registrant. Tick the appropriate box.' The form then enabled an applicant for registration, by ticking one of two boxes provided, to indicate that he/she had either undertaken a minimum of 20 hours CPE/CPD, at least 10 hours of which were formal, or taken reasonable steps to comply with the obligation to maintain appropriate skills and knowledge, without meeting this minimum requirement of 20 hours. This section of the form concluded with the following sentence in bold type: 'Please note that your application for annual renewal will not be accepted unless your CPE/CPD obligations are met or that (sic) the Board deems that exceptional circumstances apply.' 17 Mr Hirst did not tick either of the two boxes in this section of the form. In an accompanying declaration headed 'Notes relating to continuing professional education', he set out reasons why in his opinion the Act and the Regulation did not require registered architects to declare that they had complied with clause 17 of the Code. 18 Mr Hirst's application was accompanied by a cheque for the stipulated fee and by a further declaration. In the declaration, he confirmed various matters required under s. 24 and Part 4 of the Act and under the Regulation. The provisions of s. 24 appear below. 19 In a letter dated 19 April 2007 to Mr Hirst, Ms Doyle stated that the Board had received his application, but did not accept his submission that there was no legally binding requirement for him to satisfy the Board that he had 'completed a specified amount of CPE/CPD' in the preceding 12 months. Having advanced various arguments in the support of the Board's stance, she indicated that an architect could apply for exemption from the Board's requirements and that it would determine any such application on a discretionary basis. She concluded as follows: The Board is entitled to reject an application for renewal if the appropriate box in the Continuing Professional Education/Development section of the application has not been ticked by the applicant architect. The Board invites you to complete this section and re-submit it for assessment in the usual manner. 20 In a response dated 26 April 2007, Mr Hirst noted that the Board had removed his name from the Register as at 19 April 2007. He claimed that the Board had acted beyond its powers in so doing. He then set out detailed arguments in support of this position, referring to a number of provisions of the Act and the Regulation. He concluded by resubmitting his application with the accompanying cheque and indicating that unless the Board immediately reinstated his name, he would apply to the Tribunal for reinstatement under s. 31 of the Act. 21 In a letter dated 2 May 2007 to Mr Hirst, Ms Doyle noted that in the resubmitted application the declaration regarding CPE was still not completed. She said that the Board's position remained unchanged and that therefore the resubmitted application was rejected. Mr Hirst received this letter on 4 May 2007. 22 In a further letter dated 7 May 2007 to Mr Hirst, Ms Doyle advised that since his name was no longer on the NSW Register of Architects, he could no longer be the nominated architect for Hirst Architects Pty Ltd. She enclosed a form whereby this company could nominate a registered architect in the full practising category as the architect responsible for the provision of architectural services and stated that, if this form was not completed and returned to the Board by 31 May 2007, the company could no longer be known as an architect corporation and its name would be removed from the list maintained by the Board. 23 On 16 May 2007, Mr Hirst instituted the present proceedings in the Tribunal. In his application, he indicated that he sought review of the Board's decision of 2 May 2007 to reject his resubmitted application for renewal of his registration as an architect. 24 At the hearing on 3 October 2007, however, Mr Raward, who appeared for Mr Hirst, argued that, as stated in Mr Hirst's letter of 26 April 2007 to the Board, the relevant decision was made on 19 April 2007. Mr Raward said that before writing the letter of 26 April, Mr Hirst had ascertained from the Board's website that his name had been removed from the Register on 19 April. Mr Griffin, counsel for the Board, confirmed that this was indeed the date on which Mr Hirst's name was removed. Relevant statutory provisions 25 The written and oral submissions put before the Tribunal referred to sections 7, 8, 17, 20, 21, 22, 24, 28, 31, 32, 53 and 84 of the Act. So far as relevant, these sections are as follows: 7. Establishment of code of professional conduct (1) The regulations may establish a code of professional conduct setting out guidelines that should be observed by architects in their professional practice ... 8. Effect of code of professional conduct The provisions of a code of professional conduct are a relevant consideration in determining for the purposes of this Act what constitutes proper and ethical conduct by an architect. 17. Full registration as architect (1) An individual is entitled to be registered as an architect if: (a) the Board is satisfied that the individual is of good fame and character, and (b) the individual has the necessary qualifications for registration as an architect, and (c) the Board is satisfied that the individual has acquired such practical experience required by the Board as a prerequisite for entry to the examination referred to in paragraph (d), and (d) the individual has, to the satisfaction of the Board, passed an examination in architectural practice arranged or approved by the Board. (2) Registration under this section is full registration . (3) An entitlement to full registration does not prevent conditions being imposed on that registration in accordance with this Act. 20. Power to refuse or impose conditions on full registration (1) The Board may refuse to register a person who would otherwise be entitled to full registration if: (a) the person is bankrupt, has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, has compounded with his or her creditors or made an assignment of his or her remuneration for their benefit, or (b) the person has been convicted of an offence under Part 2, or (c) the person has been convicted of any other offence, either in or outside the State, and the Board is of the opinion that the circumstances of the offence are such as to render the person unfit in the public interest to practise architecture, or (d) the person's registration, licence, accreditation or certification under an architects registration law has been cancelled or suspended because of conduct that would (if it occurred in New South Wales and the person were an architect under this Act) authorise cancellation or suspension of the person's registration under this Act. (2) As an alternative to refusing to register a person under subsection (1), the Board may grant the person registration subject to conditions if the Board considers that refusal of registration is not warranted and that the person should be granted registration subject to appropriate conditions. (3) Conditions of registration may relate to the duration of registration, the aspects of the practice of architecture in which the person may be engaged, and any other matters, as the Board thinks appropriate…. 21. Restrictions on registration of de-registered persons (1) A person must not apply for registration (and any such application must be rejected) if: (a) the person's registration is cancelled under this Act, or (b) the Tribunal or the Supreme Court orders that the person not be re-registered (a registration prohibition order)… 22. Application to registration of Licensing and Registration (Uniform Procedures) Act 2002 (1) For the purposes of this Act, the Board may grant: (a) full registration under section 17, or (b) temporary registration under section 18…. 24. Removal of architect's name from the Register (1) The Board must remove an architect's name from the Register if: (a) the architect has died, or (b) the architect has requested the Board in writing to remove his or her name from the Register, or (c) the architect has failed to pay the approved fee for annual registration in accordance with section 28, or (d) the Tribunal or the Supreme Court has ordered that the architect's registration be cancelled. (2) The Board may remove an architect's name from the Register if: (a) the architect does not possess the qualifications in respect of which he or she is registered, or (b) the architect becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (c) the architect has been convicted of an offence under Part 2, or (d) the architect is convicted in New South Wales of an indictable offence that is punishable by imprisonment for 12 months or more, or if he or she is convicted elsewhere than in New South Wales of an indictable offence that, if committed in New South Wales, would be an offence so punishable, or (e) the architect has been registered by means of any false or fraudulent representation or declaration made either orally or in writing, or (f) the architect has become a mentally incapacitated person. (3) Action is not to be taken under subsection (2) unless the Board: (a) has caused notice of the proposed action to be given to the architect, and (b) has given the architect at least 28 days within which to make written submissions to the Board in relation to the proposed action, and (c) has taken any such submissions into consideration. 28. Annual registration fees (1) An architect must, on or before 31 March of each year following the year in which the architect was first registered, pay to the Board the approved fee for annual registration. (2) The Board must cause an architect's name to be removed from the Register if the architect has failed to pay the approved fee for annual registration by the due date. (3) A person whose name has been removed from the Register for failure to pay the approved fee for annual registration is entitled to re-registration if the person pays to the Board any unpaid annual registration fee or fees together with any approved fee for late payment…. 31. Tribunal may review certain registration decisions (1) A person may apply to the Tribunal for a review of any of the following decisions of the Board under this Part: (a) a decision to refuse the person full registration as an architect, (b) a decision to impose conditions on the full registration of the person, (c) a decision to remove the person's name from the Register… 32. Definitions In this Part: … disciplinary finding means a finding of unsatisfactory professional conduct or professional misconduct. professional misconduct means: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension of an architect or the cancellation of an architect's registration, or… unsatisfactory professional conduct means any of the following:… (b) a failure by the architect to comply with a provision of any code of professional conduct established by the regulations and in effect under section 7, (c) any failure without reasonable excuse by the architect to comply with a direction, order or requirement of the Board, Tribunal or Supreme Court, … 53. Definitions In this Division: … disciplinary action means any of the following actions (whether or not taken under this Part): (a) the suspension or cancellation of the registration of an architect, (b) the refusal to register a qualified person as an architect, (c) the removal of the name of an architect from the Register, (d) any direction or order made by the Board or Tribunal in respect of an architect following a disciplinary finding in respect of the architect ... 84. Regulations (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) Without limiting subsection (1), the regulations may make provision for or with respect to the following: … (g) requirements for architects, architect corporations, architect firms or persons providing architectural services using an architect to have professional indemnity insurance, … 26 Reference was also made to the following statement in the Introductory Note to the Code: A failure to comply with the Code will constitute unsatisfactory professional conduct for the purposes of the Architects Act 2003 and may be grounds for disciplinary action under Part 4 of that Act. 27 Part 4 of the Act, comprising sections 32 to 58 inclusive, is headed 'Complaints and disciplinary proceedings'. It is principally concerned with the Board's powers to receive, investigate and deal with complaints against architects and with the Tribunal's power to determine applications by the Board for disciplinary findings following the investigation of complaints. 28 The competing submissions in this case focused on three questions relating to the clauses of the Code and the process of renewal of registration. It is convenient to consider each of these questions separately. Does clause 17 of the Code impose mandatory requirements? 29 Mr Raward argued that clause 17 of the Code did not treat the fulfilment of CPE/CPD obligations as mandatory requirements. It stated only that architects 'should' take the steps to which it referred, not that they 'must' do so. It was relevant also that clause 17 only required 'reasonable steps' to be taken. 30 It followed, in Mr Raward's submission, that statements made by the Board (for example, in Information Sheet 7 and in the form of application for renewal of registration) to the effect that fulfilment of these obligations was a pre-requisite of renewal were in conflict with the Act and the Regulation. The Board, he said, had no power to attribute mandatory status to a statutory obligation that, properly interpreted, was not mandatory at all. 31 The Tribunal does not accept these arguments. Instead, it attributes significance, as Mr Griffin urged, to the fact that all the other clauses of the Code use the term 'should' rather than 'must'. It is beyond argument that some at least of these obligations could not be meaningfully imposed except as mandatory requirements. This is the case, for instance, with the obligation imposed by clause 16(1) to take out insurance. Yet the words used in this provision are as follows: 'Subject to any requirements of the Act or the Regulation, an architect should … maintain a policy of professional indemnity insurance …' (emphasis added). Mr Hirst did in fact tick a box on the application form to indicate compliance with this requirement. 32 An even clearer indication that the obligations imposed in the Code are mandatory is given by the statement in s. 32 of the Act that a failure by an architect to comply with a provision of the Code constitutes unsatisfactory professional conduct (see [25] above). This statement is repeated in the Introductory Note to the Code (see [26]). It is incompatible with the proposition that the Code, through using the term 'should' rather than 'must', imposes obligations which fall short of being mandatory. 33 This conclusion is not in any way contradicted by the use of the phrase 'take all reasonable steps' in clause 17(1). The intent of the clause, when read in conjunction with section 32 of the Act, is not that any architect who fails during a financial year to 'maintain and improve the skills and knowledge necessary for the provision of the architectural services' that he or she 'normally provides' is for that reason alone guilty of unsatisfactory professional conduct. As the Board recognised in the literature that it distributed, there may be legitimate grounds – for example, long-term illness or pregnancy – on which an architect may fairly claim that he or she should not be expected to have undertaken any significant quantity of CLE activities during a given year. But an architect who has evidently failed to 'take all reasonable steps' in this regard will be in breach of what in the Tribunal's judgment must be interpreted as a mandatory obligation imposed by clause 17(1), and must therefore, on account of the explicit wording of s. 32, be held to have engaged in unsatisfactory professional conduct. Does the Board have power to reject an application for renewal of registration on the ground of insufficient evidence of compliance with clause 17(1)? 34 The argument most strongly pressed by Mr Raward and indeed by Mr Hirst himself (in his declaration accompanying his application for registration and his letter of 26 April 2007 to the Board) was that the duties and powers conferred on the Board by the Act and the Regulation did not include a duty or a power to reject an application for renewal of registration on the ground that the applicant did not provide evidence of compliance with clause 17(1) in the manner stipulated by the Board. 35 Mr Hirst and Mr Raward referred in this connection to sections 17, 20, 21, 24 and 28 of the Act (for the relevant parts of these sections, see [25] above). They argued that nowhere in these sections was non-compliance with clause 17 of the Code spelt out as a ground on which the Board was required or empowered to refuse to re-register an architect or to remove an architect from the Register. 36 Mr Griffin agreed that none of these sections contained a clear provision to this effect. He submitted, however, that an architect who did not comply with the obligations relating to CPE imposed by clause 17 of the Code could be said to lack 'the qualifications in respect of which he or she is registered', in which event the Board would have power under s. 24(2)(a) to remove his or her name from the Register. 37 In the Tribunal's opinion, there are evident difficulties with this submission, which Mr Griffin did not press strongly. The phrase 'qualifications in respect of which he or she is registered' in s. 24(2)(a) clearly refers to the requirement in s. 17(1)(b) that a person seeking registration must have 'the necessary qualifications for registration as an architect'. These 'necessary qualifications' are defined in s. 16 as being (a) prescribed 'architectural qualifications', (b) completion of a course of study that has been accredited by the Board as meeting prescribed criteria, or (c) passing an examination arranged or approved by the Board. Clause 4 of the Regulation prescribes various university degrees in architecture as 'architectural qualifications'. Clause 5 contains criteria to be applied by the Board in accrediting courses of study. Nowhere do these provisions of the Act and the Regulation refer expressly or by implication to courses or other activities falling within the scope of CPE. 38 Mr Griffin argued further that even if no duty or power to reject an application for renewal of registration on ground of non-compliance with clause 17 of the Code could be identified within the provisions to which Mr Hirst and Mr Raward referred, the Board still had a duty not to ignore a breach by an architect of the obligations imposed by this clause. Mr Griffin submitted that under clause 17(1)(a), the Board had to be 'satisfied' from time to time that architects had taken 'all reasonable steps' to engage in CPE of the requisite nature 'during each financial year'. It was quite appropriate, he said, that the Board, which had only limited financial resources, should make use of the process of annual renewal of registration in order to discharge in an effective and convenient manner this duty imposed on it by the Code. 39 In the Tribunal's opinion, however, considerations such as these do not warrant the inference that the provisions which expressly require or empower the Board to refuse to reregister an architect or to remove an architect from the Register are supplemented by an implied power to take one or other of these steps solely on the ground of insufficient evidence of compliance with clause 17 of the Code. As was argued by Mr Hirst and Mr Raward, there are two compelling reasons why this inference should not be drawn. 40 The first of these reasons is simply that to deny renewal of registration to an architect, or to remove his or her name from the Register, even if for a short period only, is a measure with very serious consequences for the architect concerned. A power discerned chiefly by inference from the terms of a code of conduct appearing in the schedule to a regulation is too weak a foundation for such a measure. 41 The second reason is that Part 4 of the Act expressly establishes procedures whereby the Board, if it knows or suspects that an architect has not complied with clause 17, may ensure that his or her breach or breaches of the mandatory requirements of this clause, if proven, are appropriately dealt with. This follows from the provisions in s. 32 to the effect that such breaches constitute unsatisfactory professional conduct and may indeed amount to professional misconduct. 42 As provided in Part 4, the Board may in these circumstances make a complaint against the architect under s. 34, whereupon it is obliged (subject to certain exceptions) to investigate the complaint under s. 39, then to proceed in accordance with s. 43. As explained in the Tribunal's judgment in NSW Architects Registration Board v Cserhalmi [2006] NSWADT 110 at [49 – 67], s. 43 requires the Board to take one of three steps: (a) dismiss the complaint under s. 43(5); (b) make a finding of unsatisfactory professional conduct and impose one or more of the relatively low-level 'penalties' listed in s. 43(4); or (c) apply to the Tribunal under s. 42(2) or (3) for a finding of unsatisfactory professional conduct or professional misconduct and the imposition of one or more of the wider range of penalties listed in subsections (2) and (3) of s. 47. 43 It is significant in the present context that the penalties that the Board may impose under s. 43(4) do not include suspension or cancellation of registration. These most serious measures are only available to the Tribunal under s. 47(3). 44 The terms of s. 18(5), which were not mentioned in the parties' submissions, give further support of an indirect nature to the Tribunal's conclusion that the Board lacked power to reject Mr Hirst's application for renewal of registration. Section 18(1) authorises the Board to grant 'temporary registration' to persons whom the heading to the section describes as 'overseas architects', provided certain conditions are fulfilled. Under s. 18(5), the Board may 'cancel a person's temporary registration for any reason that the Board considers proper'. In strong contrast, the regime governing full registration, as already demonstrated, confers no general power of cancellation on the Board. 45 Consistently with this conclusion, the Tribunal agrees with Mr Hirst and Mr Raward that the statements that have been put out from time to time by the Board (for example, in Information Sheet 7 and in the form of application for renewal of registration) to the effect that fulfilment of the CLE requirements stipulated in Clause 17 of the Code is a pre-requisite of renewal of registration are in conflict with the Act and the Regulation. 46 It does not necessarily follow, however, that the Board lacks power to require registered architects to notify it from time to time regarding their compliance with clause 17. The existence of any such power is not immediately apparent in the legislation (it is not to be found, for instance, in the outline of the Board's functions provided in s. 61). But it would appear arguable at least, as Mr Griffin submitted (see [38] above), that clause 17 implicitly imposes a duty on the Board to ascertain from time to time what CLE activities (if any) have been undertaken by registered architects. Indeed, the presence of the phrase 'during each financial year' could be taken to imply that a requirement of annual notification is appropriate. 47 If this line of argument is correct, the Board would seem not to exceed its powers merely by requiring that architects applying for re-registration should at the same time declare that they have taken all reasonable steps of the type required by clause 17, as elaborated by the Board pursuant to subparagraphs (a) and (b) of this clause. It could indeed be argued that a registered architect who does not comply with such a requirement will have been guilty of a 'failure without reasonable excuse … to comply with a direction, order or requirement of the Board' within the meaning of s. 32 of the Act, and on that ground to have engaged in unsatisfactory professional conduct. What the Board may not do, however, is to make compliance with any such requirement a condition of re-registration. 48 The Tribunal wishes to emphasise that it has not reached any firm conclusions regarding the matters canvassed in the two preceding paragraphs. It did not hear argument on these specific aspects of the Act and the Code. 49 In view of the Tribunal's ruling on the principal question discussed in this section of its judgment, it is bound to hold that the Board's decision on 19 April 2007 to reject Mr Hirst's application for renewal of his full registration as an architect was beyond the scope of the Board's powers and must therefore be set aside. Did the Board comply with the statutory requirements of procedural fairness set out in s. 24(3) of the Act? 50 Having reached the conclusion just stated, the Tribunal strictly does not need to rule on a further submission advanced initially by Mr Hirst and at the hearing by Mr Raward. This was that the Board, in rejecting Mr Hirst's application, did not adhere to the requirements of s. 24(3) of the Act. These requirements are to the effect that, before taking any action under s. 24(2), the Board must (a) cause notice of the proposed action to be given to the architect, (b) give the architect at least 28 days within which to make written submissions to it in relation to the proposed action, and (c) take any such submissions into consideration. 51 The Tribunal has, however, held that the Board's action in rejecting Mr Hirst's application for renewal of registration did not fall within s. 24(2) (or indeed within s. 24(1)). It follows that the Board was not obliged to comply with s. 24(3). The Tribunal's orders 52 By virtue of s. 31 of the Act, this matter comes before the Tribunal in proceedings for review of a 'reviewable decision' of an administrator, as defined in s. 8 of the Administrative Decisions Tribunal Act 1997. Under s. 63(1) of the latter Act, the Tribunal is to 'decide what the correct and preferable decision is having regard to the material then before it'. Under s. 63(3), one of the forms of order that it may make is that the reviewable decision of the administrator should set aside and a different decision be substituted. 53 The Tribunal orders as follows: (a) that the Respondent's decision on 19 April 2007, rejecting the Applicant's application for full registration as an architect under the Architects Act 2003, is set aside; and (b) that the name of the Applicant is to be restored to the register of architects maintained under s. 25 of that Act. 54 For reasons stated in Colville v NSW Architects Registration Board [2007] NSWADT 146 at [2 – 3], costs in proceedings of this nature are governed by s. 88(1) of the Administrative Decisions Tribunal Act 1997. This states that costs may only be awarded if there are 'special circumstances warranting an award of costs'. 55 The Tribunal makes the following directions regarding costs. Any application for costs is to be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party will have a further 28 days in which to file and serve its submissions. The party seeking costs must file and serve any submissions in reply within a further 7 days. The matter will then be decided 'on the papers', subject to the right of either party to apply, with supporting submissions, for a hearing. Concluding observations 56 In the Tribunal's opinion, the decision that its interpretation of the Act calls for in these proceedings suggests that the Act, as currently drafted, does not authorise the Board to deal in an appropriate way with situations where an architect is or may be failing to comply with the CPE/CPD requirements imposed by clause 17 of the Code. At present, all that it appears to be able to do is as follows: first, indicate to the architect concerned that a failure of this nature constitutes unsatisfactory professional conduct under s. 32 of the Act; then, if the matter cannot be resolved to its satisfaction through further communications with the architect, set in train the disciplinary processes contained in Part 4 of the Act. 57 It would seem desirable at least to confer on the Board an express power to obtain from architects, as part of the process for renewing registration, a statement regarding their obligations under clause 17. A more difficult issue to resolve is what steps it should then be empowered to take if an architect either (a) refuses without reasonable justification to supply this statement or (b) clearly indicates in the statement that he/she has failed to comply with the clause. 58 In the former situation, there would be strong grounds for characterising the architect's behaviour as unsatisfactory professional conduct, or possibly even professional misconduct. It would amount to straight-out defiance of a legally authorised requirement imposed by the Board with a view to ensuring, in the interests of both the profession and the general public, that registered architects consistently maintain appropriate levels of professional development. 59 To deal with the latter situation, one possibility would be to confer on the Board the power to stipulate that the architect concerned should engage, during the coming year, in a more extensive range of CPE/CPD activities than would normally be required, with a view to remedying the deficiencies of the previous year. If further non-compliance occurred, action under Part 4 might well be required. 60 Another feature of the Act that, in the Tribunal's opinion, merits reconsideration is the provision in s. 32 that any act or omission by an architect amounting to a breach of the Code constitutes unsatisfactory professional conduct. Unless the Tribunal's interpretation of the term 'should' in the Code (see [29 – 33] above) is incorrect, this has the consequence that any infringement by an architect of a wide range of professional obligations – some of which are obviously more important than others – potentially exposes him or her to disciplinary action under Part 4. In legislation governing the legal profession, the equivalent provision provides more flexibility. Section 498(1) of the Legal Profession Act 2004 states only that a breach of the legal profession rules 'is capable of being' unsatisfactory professional conduct or professional misconduct. 61 In conclusion, the Tribunal wishes to make it clear that these suggestions for reform of the Act are tentative only. These matters of legislative policy were not addressed to any material extent in the course of these proceedings. 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