Certifiers must avoid both actual and perceived conflicts of interest

Certifiers must demonstrate independence and observe strict compliance with their statutory obligations and the Code of Conduct.

Even if the legislation (or case law) doesn't expressly make a particular scenario an actual conflict, it may give rise to a perceived conflict and so must be avoided, as per the Code of Conduct.

Unsure if a particular situation could be perceived as a conflict of interest? Consider how an outside observer might see it, and discuss it with your colleagues.

Questions for certifiers to test their knowledge

Answers are below the list of questions.

1. Can a certifier act as principal certifying authority (PCA) for a cousin’s development?
2. Can a certifier carry out a critical stage inspection on the PCA’s behalf, if the certifier helped design the development?
3. Can a certifier tell an applicant how to amend building plans to meet Building Code of Australia (BCA) deemed-to-satisfy provisions?
4. Can a certifier suggest possible ways to meet BCA performance requirements?
5. Can a certifier carry out contract work for a council while also working as a private certifier in that council area?
6. Can a certifier issue certificates for a development where his/her colleague is related to the applicant? The colleague works in a different part of the company.

Answers

1. Although cousins are not included in the definition of ‘related to’ in section 68 of the BP Act, certifiers who issue certificates to a cousin or other close relative may have an actual conflict of interest or be reasonably perceived to have one.
2. The BP Act conflict of interest provisions refer to the issue of Part 4A certificates and CDCs, but not to critical stage inspections. However, having been involved in the project design brings the certifier’s independence into question, and the objectivity and outcome of the inspection. This risk is ultimately taken by the PCA when relying on the certifier's inspection report to issue the occupation certificate.
3. Yes. This is not a conflict of interest, as provided under by clause 17(a) of the BP Regulation provided it complies with clause 18, which lists circumstances where certifiers may act without having a conflict of interest.
4. No. Although it is not a conflict for a certifier to advise that a performance solution will be required, it is a conflict to propose possible solutions. A certifier who offers such advice (i.e. in a consultancy capacity) may not issue certificates for that development.
5. Only if the certifier has obtained an exemption from the Board. If not, the situation is a conflict of interest.
6. Under section 68(b) of the BP Act, the certifier and colleague are related because they have the same employer. Although the certifier isn't directly related to the applicant, the situation could give rise to a perceived conflict depending on the exact circumstances (e.g. whether the colleague has a pecuniary interest in the development, and the amount of interaction and information flow between different parts of the company).

Resources

Conflict of interest provisions are set out in sections 66-71 of the Building Professionals(BP) Act 2005, and clause 7AA and clauses 17-18A of the BP Regulation. Our website also has more information about conflicts of interest.