Kirkness and Architects Board Of Western Australia - [2009] WASAT 105

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: ARCHITECTS ACT 2004 (WA)

CITATION: KIRKNESS and ARCHITECTS BOARD OF WESTERN AUSTRALIA [2009] WASAT 105

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)
MR P FAIGEN (SESSIONAL MEMBER)

HEARD: 18 MARCH 2009, ADDITIONAL WRITTEN SUBMISSIONS 26 MARCH 2009 & 31 MARCH 2009

DELIVERED : 28 MAY 2009

FILE NO/S: VR 193 of 2008

BETWEEN: NEIL WILLIAM KIRKNESS
Applicant
AND
ARCHITECTS BOARD OF WESTERN AUSTRALIA
Respondent

Catchwords:

Professional regulation Architects Whether applicant holds a qualification equivalent to accredited course Applicant requested to supply example of undergraduate work Assessment of work by another body Whether subjective performance in course of study should be basis of assessment Whether qualification should be objectively assessed Whether registration Board applied correct approach

Legislation:

Architects Act 2004 (WA), s 16, s 29, s 33, Pt 4
Architects Regulations 2005 (WA), reg 12, reg 12(a)(i), reg 12(a)(ii), reg 12(a)(iii), reg 12(b), reg 13

Result:

Finding the Board's approach erroneous.

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Respondent: Mr P McGowan (Counsel)

Solicitors:

Applicant: Self-represented
Respondent: Metaxas & Hager

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Neil William Kirkness applied for a review of a decision by the Architects Board of Western Australia declining to accept his qualifications to sit an examination for the purposes of registration as an architect. The Board had made its decision based upon advice from the Architects Accreditation Council of Australia that it had been unable to assess Mr Kirkness' South African qualification because he had not submitted sufficient examples of his undergraduate work.
Mr Kirkness submitted that the Board was not entitled simply to rely on the process of assessment by the Architects Accreditation Council of Australia which had no foundation under the Architects Act 2004 (WA) and Architects Regulations 2005 (WA). It was, he submitted, bound to have regard to the information he had supplied, and to make its own assessment.
The Tribunal agreed with Mr Kirkness as to the preliminary question of whether the Board's approach was correct, and directed that the matter be adjourned for further directions as to the hearing of the substantive merits of Mr Kirkness' application.

Introduction

On 9 October 2008, the Architects Board of Western Australia (Board) refused an application by Neil William Kirkness for registration as an architect under s 29 of the Architects Act 2004 (WA) (Architects Act). Mr Kirkness commenced proceedings in this Tribunal for a review of that decision. The matter was set down to be heard on 19 March 2009.
It was clear from the papers filed in the proceedings that, in dealing with Mr Kirkness' application, the Board followed a process which relied upon an assessment by the Architects Accreditation Council of Australia (AACA), and based its decision on the outcome of that process. The Board's response to Mr Kirkness' application to the Tribunal also relied entirely upon the outcome of that process.
At the commencement of the hearing, the Tribunal raised with counsel for the Board a question as to whether the reliance on the AACA process properly fulfilled the Board's role in relation to registration under s 33 of the Architects Act, and reg 12 of the Architects Regulations 2004 (WA) (Regulations), or whether, as Mr Kirkness submitted, the Board was required by the legislation to itself independently assess whether Mr Kirkness met the criteria for registration.
The Board, having assumed that reliance upon the AACA procedure satisfied its obligations under the Architects Act, had not endeavoured to address, in the Tribunal proceedings, the merits of Mr Kirkness' application if the AACA process was not relied upon. The Tribunal was therefore concerned that if, as Mr Kirkness submitted, the Board had misconceived its function, the Tribunal would not have the benefit of the Board's considered view as to the merits of Mr Kirkness' application. The Tribunal determined that the permissibility of the Board's approach to Mr Kirkness' application should be dealt with as a preliminary question. Once that preliminary question was answered, the Tribunal would be in a position to determine what, if any, additional submissions or evidence might be required to enable it to make the correct and preferable decision.
The issue for determination in these reasons is therefore, whether the approach to satisfaction of the requirements of the Regulations adopted by the Board is permissible or not.

Background to the application

Mr Kirkness obtained a Bachelor of Architecture from the University of Cape Town (UCT) in 1984. He became a member of the Royal Institute of British Architects Part 3 (RIBA) in 1986, and holds a Master of Business Administration from the UCT which he obtained in 1987. He was registered as an architect with the South African Council for Architects in 1985. While in South Africa, Mr Kirkness was a member of the South African Institute of Architects and holds current membership of RIBA and the Australian Institute of Architects.
Mr Kirkness arrived in Australia in 1996. Since his arrival, he has worked in Queensland and Western Australia on government and private architectural projects.
On 2 July 2008, Mr Kirkness wrote to the Board, advising he wished to apply for registration as an architect under s 29 of the Architects Act. On 8 July 2008, the Registrar of the Board, Ms Nicole Kerr, wrote to Mr Kirkness advising him that he was not eligible to register in Western Australia until he had successfully completed the Architectural Practice Examination (APE) and that 'in order to undertake the APE, you need to have an approved architectural qualification'. The letter continued:
I understand that the Architects Accreditation Council of Australia (AACA) has been unable to complete an assessment of your architectural qualification through APE process due to insufficient documentation. AACA has recommended that you apply to undertake the AACA national programme of assessment in order to meet the academic requirements to apply for registration in Australia. Upon successful completion of this programme, you will then have to complete the APE before being eligible for registration.
Ms Kerr provided a witness statement which explained the context of the matters referred to in her letter. She explained that, as Registrar of the Board, she is also a council member of the AACA. The AACA is a body made up of the Chair and Registrar of each State and Territory Registration Board. It is charged with establishing and overseeing processes for the APE, National Programme of Assessment (NPrA), Review of Academic Equivalence (RAE), Migration Assessments (MA) and Accreditation of Australian Tertiary Schools of Architecture.
The AACA publishes the National Competency Standards in Architecture (NCSA) which defines core competencies required for registration. The NCSA sets out the competency standards that the Australian Schools of Architecture need to achieve in order to attain accreditation and forms the basis of RAE, NPrA and APE assessments. The NSCA also provides the basis for the Board's continuing professional development framework.
The RAE, undertaken by AACA, is a process whereby people with overseas academic qualifications have their qualifications assessed to determine if they are equivalent to Australian qualifications. Ms Kerr explained that the RAE uses a system of competency based assessment through an interview process, in which the assessors examine the content of the course leading to the qualification to determine the extent to which it delivers the competencies required. The interview is usually coordinated by the Registration Board in the State or Territory in which the candidate resides. The AACA publishes a guide for candidates of APE, RAE and NPrA. The preamble to that guide includes the following observation:
AACA has the responsibility of facilitating a process of competency assessment and the maintenance of the national competency standards in architecture on behalf of the profession. AACA is not, however, a registration authority and can only make recommendations to the various registration authorities regarding their assessment of competence in respect of eligibility for the purposes of registration. The decision to register lies solely with the registration authorities while admission to membership of the Royal Australian Institute of Architects (RAIA) is the prerogative of the institute.
AACA endorses the professional responsibility of tertiary institutions for the determination of course structure and teaching methods and supports these institutions in their assertion of independence in such matters.
The RAE application form sets out the documents to be included with the application, the RAE procedure, assessment outcomes and appeals processes as well as other matters. Amongst the documents required to be submitted are the degree or diploma in the original language, official transcripts of educational courses completed and various other documents. The procedure is explained as follows:
The RAE assessment requires you to attend an interview with an RAE panel. The interview is usually held at the office of the architect's registration board in the State/Territory in which you are living.
The Interview
AACA will notify the Board when the preliminary evaluation has been completed. The Board in turn will advise you of the time and place of the interview. Allow four to six months for this process.
It is important that you bring to the interview an adequate portfolio of academic material completed as a student as this is a review of academic equivalence not of work experience. This material should include original degree certificates and course transcripts, projects, drawings, and other documentation illustrating course work undertaken in obtaining academic qualifications.
In addition, you are required to bring to the interview one A4 photocopied duplicate of EVERY document presented to the assessors at the interview (eg degree certificate, course transcript, projects, drawings). This duplicate set will remain with AACA. You and the assessors will jointly certify the documentation certified by you. If you do not provide an exact duplicate set of documentation presented, the interview will be concluded and you will need to apply for a second interview. An additional fee will apply.
The assessors will retain the duplicate set and forward it to AACA at the conclusion of the assessment process. AACA will retain the duplicate set for such period as AACA considers appropriate. The duplicate set provided may be disposed of at the expiration of the appeal period and would not normally be retained for a period in excess of 12 months.
If the documentation presented at the interview is insufficient for an assessment to be made, the interview will be concluded. You will need to reapply for a second interview when you have the required documentation. An additional fee will apply.
The recommendations of the RAE panel are referred back to AACA. AACA will write directly to you with its decision, normally within two or three weeks of the interview.
Ms Kerr received a letter from the AACA on 25 March 2008 advising her that the AACA had completed a provisional academic assessment of the qualifications of Mr Kirkness, and requesting her to arrange a Review of Academic Equivalence Committee to 'validate the provisional assessment' of his qualifications.
The AACA also publishes information to assessors that outlines the interview process to be followed. That information includes the following:
2ASSESSMENT POLICY
The AACA assessment of an overseas qualification in architecture is done in two stages. Firstly, preliminary evaluation of the course of study is made by the AACA Secretariat in Canberra based on reports of visits to the school provided by consultants, precedent assessments and other information available to it. This is the Provisional Academic Assessment. This is followed by a Review of Academic Equivalence (RAE) conducted by a panel comprising a minimum of two AACA approved Assessors and convened on behalf of AACA by the Architects Registration Authority in the State or Territory in which the candidate is resident. The purpose of the RAE is to validate, or otherwise, the Provisional Academic Assessment.
The recommendations of the RAE are referred back to AACA for endorsement and AACA notifies the Applicant of the final decision.
Where the RAE considers the qualification not equivalent, the Applicant will have to undertake further tertiary study or the National Program of Assessment (NPrA). In the case of the former, the Applicant will be advised of the specific areas in which further study is considered necessary.
It is most important that RAE Assessors themselves understand exactly the process and purpose of recognition of overseas qualifications in architecture and their specific role in this procedure.
...
5PREPARATION FOR THE RAE INTERVIEW
5.1Documentation
RAE Assessors will receive documentation for each Applicant prior to the day of interview so that they may study the available information and form an opinion as to how the interview might be approached.
Applicants will have been advised to prepare themselves to discuss the projects they present at interview in terms of the following contexts of the NCSA The National Competency Standards in Architecture:
All contexts of Unit 1 Design; Context 2.1 of Unit 2 Documentation; and Context 3.1 of Unit 3 Project Management.
5.2Strategy
It is important that RAE Assessors allow sufficient time before each interview to meet and discuss their joint strategy for the interview and note any particular areas of concern or uncertainty.
5.3Provisional Academic Assessment
The AACA Report on the course of study undertaken by the Applicant, attached to each submission, should be read carefully. It is based on information on International tertiary education standards and systems and on the recommendations made by Australian architects following AACA commissioned visits to individual schools to the major migrant source countries. Preliminary classifications are validated where possible by precedent assessments and these sources together determine the Provisional Academic Assessment stated on the RAE Report form.
The task of the RAE Panel is to confirm or refute this advice on the basis of evidence presented by the Applicant.
5.4RAE Recommendations
The recommendation of the RAE must concern the course of study that the Applicant has completed and its equivalence, or otherwise, with an accredited current Australian course in architecture.
6.CONDUCT OF THE RAE INTERVIEW
The interview will normally be of approximately one hour in duration.
Each RAC Panel shall consist of at least two Assessors, preferably one academic and one practitioner.
...
An RAE interview was arranged for Mr Kirkness on 18 April 2008 for one hour. By letter dated 10 April 2008, Ms Kerr confirmed that appointment. The letter advised that:
On the basis of the interview, the review of academic equivalence will make recommendation to the AACA which will decide whether your architectural academic qualifications are equivalent to those from an accredited course of architecture in Australia.
...
The final decision on the assessment of your qualification is made by AACA and the Registration Board cannot tell you the recommendations of the review of academic equivalence. AACA will write directly to you when the assessment has been finalised, and advise what further action is required in order to become eligible for registration as an architect in Australia.
The AACA interview panel was made up of Mr Brian Wright and Mr Patrick Pinder.
Mr Wright is a former chairman of the Board and former President of the AACA from 2002 to 2007. Mr Pinder, in his witness statement, said that he had been undertaking reviews of academic equivalence since April 2004 and had been involved in approximately 13 such interviews. Both Mr Pinder and Mr Wright provided witness statements for the purposes of the proceedings. Mr Pinder said that he had been a registered architect since 1964 and had been in private practice up until 2000 when he joined the staff of Curtin University as a halftime lecturer, a position he held for six years. Mr Wright's' witness statement gave no information as to his involvement with course accreditation or the requirements of Australian university degrees in architecture.
It is apparent that both Mr Wright and Mr Pinder considered that Mr Kirkness had not presented sufficient examples of his student work to enable them to complete their assessment. Accordingly, the interview was terminated on the basis that Mr Kirkness should be given an opportunity to locate more examples of his student work.
According to Mr Wright, Mr Kirkness was informed at the commencement of the interview that the RAE was about what he had done at university, not what he had done postgraduation and that 'we would not make a decision because the final decision was always made by AACA'. Mr Wright said:
In the first part of the process, the AACA assess a candidate's course of study and looks at previous RAE candidates that have come from that course. The AACA has built up a record of courses from around the world and will give a preliminary assessment of the course based on past experience. However, the RAE process is very much about the particular candidate so that even though the candidate may have gone to a school that in the past was assessed as of sufficient standard the RAE is not about the school, it is about the candidate, the course that the candidate did and how the candidate performed in that course.
In his witness statement, Mr Pinder said:
One of the requirements of the RAE is that the duration of a course must be 5 years fulltime study. Over such a period there is quite a quantity of material that I expect the candidate would have prepared to get the qualification and it is that material that I am interested to see. It is unlikely I would see 100% of it, but I expect to see sufficient to get a good indication of the candidate's competencies in the various areas of the overall course.
...
I think the university Mr Kirkness attended was reputable. There have been instances where both Brian Wright and I have seen applicants from different periods from the same university whose qualifications were supposedly the same where the quality of work was vastly different between two applicants, so we usually are very careful about looking at what the particular candidate has produced as opposed to what somebody else might have produced to get an equivalent qualification.
On 22 April 2008, the Board sent a further letter to the applicant confirming a follow up interview arranged for 5 May 2008. That letter again advised that the final decision of the assessment of Mr Kirkness' qualifications would be made by the AACA. Mr Wright and Mr Pinder were not satisfied at the second interview that Mr Kirkness had shown sufficient student material for them to complete an assessment. They completed a panel report, which is a pro forma document. The outcome of the report was that it had not been possible to reach a reliable conclusion about the academic competence of the applicant due to the fact that sufficient evidence of student work could not be obtained. The thrust of the report was that the assessors have concluded the interview without making any recommendation.
On 6 June 2008, the Registrar of the AACA wrote to Mr Kirkness that the AACA had been unable to complete an assessment of his architectural qualification through the RAE process due to insufficient documentation and in particular, Mr Kirkness' inability to produce an acceptable student portfolio. Accordingly, the AACA recommended that Mr Kirkness apply to undertake the AACA national programme of assessment to meet the academic requirements to apply for registration. It was following that letter that Mr Kirkness wrote to the Board seeking registration and Ms Kerr provided her response of 8 July 2008 referred to above.

On 15 July 2008, solicitors acting for Mr Kirkness wrote to the Board asserting that the Board was acting contrary to the Architects Act by delegating to a nonstatutory entity, namely AACA, the power to determine whether a person is entitled to become a prospective applicant for registration as an architect. The solicitors called upon the Board to provide an appropriate form of application for registration and a copy of any delegation by the Board to AACA that might have been made pursuant to s 16(2) of the Architects Act. The Board's solicitors replied on 24 July 2008, denying any abdication of the Board's statutory responsibility as the decisionmaker in relation to applications for registration. By letter dated 30 July 2008, the Registrar forwarded a form of application to Mr Kirkness' solicitors. The completed application was returned to the Board by Mr Kirkness' solicitors by letter dated 28 August 2008. That letter addressed the particular requirements of the Regulations in relation to registration and how Mr Kirkness asserted he met those qualifications.
On 21 August 2008, the Board wrote to the AACA seeking its advice. The response of the AACA contained in a letter dated 3 September 2008 was as follows:
Your Board seeks AACA's response on the following queries:
1.Is Mr Kirkness' qualification equivalent to an accredited architectural course in Australia?
Response:
AACA has been unable to complete an assessment of Mr Kirkness' South African qualification due to the fact that Mr Kirkness has been unable to provide sufficient documentation for a decision to be reached.
2.If your answer is no to question 1, on what basis was it determined that Mr Kirkness' qualification was not equivalent?
No response required.
3.Has Mr Kirkness attained an acceptable standard in relation to the practice of architecture?
Response:
AACA cannot comment as Mr Kirkness has not undertaken the National Program of Assessment.
4.If your answer is no to question 3, on what basis was it determined that Mr Kirkness' standard in relation to the practice of architecture was not acceptable.
No response required.
On 10 October 2008, the Board's solicitors wrote to Mr Kirkness' solicitors advising that the Board had resolved to reject his application on the grounds that Mr Kirkness does not satisfy the requirements of reg 12(a)(i), (ii) or (iii). The letter enclosed the Board's reasons which recited the Board's entitlement to have regard to the advice of the AACA and set out the AACA's response to the Board's questions. Having done so, it continued:
On the basis of the AACA's advice the Board concluded that under [reg] 12(a)ii [sic], the applicant has not satisfied the onus of demonstrating that he holds a qualification that is equivalent to an architectural education course that has been accredited by the Board under section 10(c).
Furthermore, the 'Board was not satisfied that the applicant satisfied reg 12(a)(iii)' because of his failure to undertake the NPrA.

The relevant provisions of the Architects Act and Regulations

The Board is charged with the function of administering the scheme of licensing and registration of architects described in Pt 4 of the Architects Act, of accrediting architectural education courses and of performing a number of related functions. Under s 16, the Board has a power of delegation. That power is not relevant for present purposes.
Section 29 provides that a natural person is to be registered under the Architects Act if the person satisfies the Board that he or she complies with the requirements prescribed by the regulations.
Section 33 deals with applications for registration and licences. It prescribes that an application for registration should be in writing in a form determined by the Board and accompanied by the required fees. By s 33(2), an applicant is required to provide the Board with any further information the Board might require in a particular case, and if necessary to verify the information by statutory declaration. The Board can require the attendance of an applicant before the Board for the purpose of satisfying the Board on any matter relevant to the application. Section 33(4) provides:
In considering any application for registration or for the grant of a licence the Board may -
(a)have regard to any information or advice received from the Architects Accreditation Council of Australia, or any other body selected by the Board, in relation to any applicant who has obtained or sought to obtain qualification in a place other than this State; and
(b)pay the fees or disbursements necessary to obtain that advice.
Section 33(5) provides that any registration or licence fee paid with an application is to be returned to the applicant if that registration is not granted.
Registration requirements are set out in reg 12 of the Regulations. It provides:
For the purposes of section 29(b), the requirements in relation to a natural person are that the person -
(a)either -
(i)holds a qualification obtained as a result of the successful completion of an architectural education course that has been accredited by the Board under section 10(c);
(ii)holds a qualification that in the opinion of the Board is equivalent to such a qualification (after having regard to the advice of the Architects Accreditation Council of Australia where relevant); or
(iii)has otherwise attained a standard in relation to the practice of architecture that is acceptable to the Board (after having regard to the advice of the Architects Accreditation Council of Australia where relevant);
(b)has been assessed as eligible to sit, and has passed, the examinations mentioned in regulation 13;
(c)has not been convicted of an offence, whether in this State or elsewhere, the nature of which renders the person unfit to be a registered person; and
(d)is otherwise a fit and proper person.

Mr Kirkness' contentions

Mr Kirkness claims that he satisfies either reg 12(a)(ii) or (iii). In relation to reg 12(a)(ii), he contends that the bachelor of architecture awarded by UCT has been commonly recognised as equivalent to accredited Australian courses. He points to the academic assessment issued by the AACA in relation to his application which recites that 'the University of Cape Town and the University of Witwatersrand are pre-eminent and have programmes of international quality in a number of fields' and that the bachelor of architecture at UCT enjoys a provisional classification 1A by the AACA, Classification 1A means that the 'qualifications appear to be equivalent to a current Australian qualification in architecture and appear to satisfy the NCSA'. Furthermore, in addition, Mr Kirkness relies upon a statement of Professor Leon van Schaik AO, a professor of architecture at RMIT University in Victoria, who was an external examiner at UCT in the late 1970s to the mid1980s. He expressed a view that the standards at the school at UCT were on par with the best of the provincial British schools at the time and equivalent standards to the University of Pennsylvania. He indicated that he had 'never encountered a graduate from UCT who had any problems with equivalence in the USA, the UK or here'. Mr Kirkness also relies on the fact that his qualification was recognised for membership of the RIBA. He further contends that the approach of seeking to assess individual performance of a student in obtaining a qualification, rather than the equivalence of the course leading to that qualification, is a flawed approach to the question posed by reg 12(a)(ii).
In relation to reg 12(a)(iii), Mr Kirkness relies upon a number of testimonials from senior and experienced architects in Australia with whom he has worked who attest to the standard of work done by him, and in particular, its favourable relationship to work expected of a registered architect in Australia. Those testimonials were supported by portfolios of work undertaken by Mr Kirkness in recent years in Australia. He contends that the Board is obliged to have regard to those materials, rather than simply requiring that he undertake the NPrA to demonstrate the required standards.

The Board's contentions

The Board contends that it is entitled to rely upon the assessment of the AACA and the RAE process in assessing whether or not the requirements of reg 12(a)(ii) and (iii) are met.
In the alternative, counsel for the Board suggested at the hearing, that the Board was entitled to have regard to the AACA processes in order to determine whether a candidate 'has been assessed to eligible to sit' the examinations provided for in reg 13 and has thus satisfied reg 12(b).

Can the Board rely on the AACA process exclusively?

The Board submits that simply because a course includes units which bear the same titles as units of study at an accredited institution, the Board cannot be satisfied that the content of the units in each case are equivalent. Rather, the Board contends, it is necessary to 'assess a product of the applicant's work as an undergraduate', and to assess 'what lies behind the qualification'.
We accept that a mere label on a particular academic unit may be insufficient to satisfactorily identify the content of the course, or the competencies required to be demonstrated in the course. Some analysis of the nature of the comments contained in the academic assessment by the AACA of the UCT Bachelor of Architecture degree is undoubtedly called for. That analysis, in this case, led to a conclusion that the degree was 'provisionally' assessed as equivalent. However, in our view, reg 12(a)(ii) requires an objective assessment of the equivalence of a qualification (in this case a degree course), rather than the subjective performance of an applicant in obtaining the qualification. The question is whether the applicant 'holds a qualification'. The approach by the Board, and the RAE process as described by Mr Pinder and Mr Wright, leads to the proposition that two architects holding the same qualification from the same the university obtained at the same time may, on a subjective assessment of their work, receive different determinations as to whether they satisfy reg 12(a)(ii).
That different outcome may arise simply because of the serendipity as to what particular examples of work, and in which particular units in which the work was done, that the applicant may have retained. The point is starkly illustrated by the evidence relied upon by Mr Kirkness in these proceedings contained in the witness statement of Mr John Gilbert Kirkman. Mr Kirkman studied architecture at UCT at the same time as Mr Kirkness, and at one stage, they were in the same class. They both graduated with the same degree, one year apart. Mr Kirkman undertook the RAE interview process and presented a portfolio containing a small proportion of his student work, four or five drawings. He said that the greater part of the portfolio was work carried out after graduation. He was thereafter accepted to sit the examinations under reg 13.
We do not accept that it can be said that Mr Kirkman and Mr Kirkness do not hold the same qualification. Either that qualification is regarded as equivalent to an accredited Australian course, or it is not.
The Board relies on the fact that it is entitled to have regard to the advice of the AACA in considering whether a qualification is equivalent to an accredited Australian qualification. That is undoubtedly so, at least where that advice is relevant.
In this case, the advice of the AACA was that it was unable to form a view as to the equivalence of the course, by reason of the inadequate sample size of Mr Kirkness' student work. The Board acknowledges, contrary to the suggestion in its correspondence to the contrary, that it is the decisionmaker in relation to registration, and that it has no power to delegate the authority to make decisions to the AACA. In this case, the Board simply did not independently address the question on the basis of the materials provided by Mr Kirkness. It cannot suggest that it relied upon the advice of the AACA, since that advice was completely noncommittal. What in fact the Board did, and what it maintains in these proceedings it was entitled to do, was to treat the RAE process as the only manner by which the question of equivalence under reg 12(a)(ii) could be determined. That is not the correct approach.
The same is true in relation to reg 12(a)(iii). Mr Kirkness has provided a significant body of material to support his claim that he has attained a standard in relation to the practice of architecture that should be acceptable to the Board. The Board is required to consider that material to determine whether or not Mr Kirkness satisfies reg 12(a)(iii). There is no basis, consistent with its obligations under the Architects Act and Regulations, on which the Board can simply determine that the only manner of satisfying reg 12(a)(iii) is by requiring an applicant to undergo the NPrA. Mr Kirkness submitted that the NPrA is 'an entry level course' that takes about six months. The eligibility for that course identified in the guide to applicants published by the AACA tends to support that proposition. The eligibility requirements are a year 12 pass or a year 10 pass with a minimum two years fulltime tertiary study, or a year 12 English pass and a minimum of seven years work experience in architecture, planning, building, or other related fields, three of which must be in an architect's office. A demonstration of competence through submissions of the type contemplated by the NPrA appear to be a sensible requirement against those basic eligibility requirements. Where, however, a person has been practicing in architectural firms for a long period of time and holds a well regarded, five year, university architecture degree, an assessment based upon actual architectural work undertaken would seem logically to provide a sound basis upon which to assess the standard of architectural work a particular candidate has achieved. In this case, the Board declined to have regard to the materials submitted by Mr Kirkness.
In our view, the Tribunal, standing in the shoes of the Board, must have regard to both the materials submitted by Mr Kirkness in relation to his claim to have satisfied reg 12(a)(ii) and materials which relate to his claim to have satisfied reg 12(a)(iii).

Eligibility to sit Regulation 13 examinations

The Board submits that, even if the applicant had been able to demonstrate that his qualification was equivalent to a qualification for which accreditation had been granted, it was still necessary for the Board to be satisfied that the applicant was 'eligible to sit' the examinations mentioned in reg 13. It submits that the assessment under reg 12(b) is not a right that flows from having satisfied reg 12(a), but rather is an additional requirement.
We do not accept those submissions. The reference to eligibility to sit the examinations can only sensibly be a reference to having satisfied the qualification requirements set out in reg 12(a)(i), (ii) or (iii). There is no suggestion that the Board considered that, in dealing with Mr Kirkness' application, it was assessing his eligibility to sit the national examination paper. Rather, it was purporting to assess his qualification under reg 12(a). There is no basis to conclude that there exists some other criteria for registration beyond being qualified under reg 12(a), and passing the examination required under reg 12(b).

Conclusion

The approach taken by the Board is no doubt intended to achieve consistent national standards for registration of architects. That is a laudable objective. In pursuing that objective, however, in our view the Board has failed to properly apply the requirements of the Act and Regulations, and has adopted an approach which disregards the approach to registration required under reg 12(a). The Board has elevated an entitlement to have regard to the advice of the AACA where relevant to an entitlement to rely exclusively on the advice of the AACA, even where that advice is simply that the AACA has made no assessment.
It now falls to the Tribunal, in the shoes of the Board, to make its own determination as to whether Mr Kirkness meets the requirements of reg 12(a)(ii) or (iii). Mr Kirkness submits that, on the information he has provided to the Tribunal, that assessment should now be made in his favour. Because, however, the Board has approached its preparation for the hearing on the assumption that the AACA advice should determine the matter, and has therefore not addressed substantive materials provided by Mr Kirkness, it is appropriate that the matter be listed for directions to determine how the application should now proceed.

Order

The matter is set down for directions at 10.30 am on 9 June 2009 in order to consider the further hearing of the substantive merits of the application.

I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT