Articles

By Justin Cotton, Director, and Jordan Davies, Senior Paralegal, Lovegrove & Cotton – Construction and Planning Lawyers

On 1 July 2021 the Professional Engineers Registration Act 2019 (VIC) (‘the Act’) will commence in Victoria requiring Engineers that practise in the construction sector to be registered with the “Business Licensing Authority” (‘the BLA’), and ‘endorsed by’ the Victorian Building Authority (‘the VBA’) and the BLA to practise in the building industry. The BLA will make the “endorsement” and applications for same will be referred to the VBA. The BLA is closely associated with Consumer Affairs Victoria, but is a separate statutory authority.

It is important that engineers providing services in the construction sector are aware of important requirements under the Act including, amongst other things, the requirement to be registered to carry out professional engineering services and to comply with any approved codes of conduct.

 

Why has this legislation been passed?

The existing registration regime for engineers practising in the building industry in Victoria makes it an offence for engineers engaging in domestic building work under a major domestic building contract to represent or imply that they are able to carry out that domestic building work if they are not so registered.[1] In respect of registration, this is a relatively weak provision in the sense that it operates in respect of representations and implications (a ‘holding out’ offence essentially) and only in respect of domestic building work under a major domestic building contract. Engineers working in commercial spheres and those not engaging in domestic building work under such contracts do not fall within the scope of the requirement.

Engineers who provide certificates of compliance to building surveyors must also be registered building practitioners.[2] Again, this is quite a narrow registration requirement, which does not apply to those engineers who do not provide certificates of compliance to building surveyors.

Whilst the practical effect of these provisions is that most engineers operating within the building industry are registered engineers with the Victorian Building Authority, there is no broad based requirement for engineer registration generally.

There are also certain thresholds to be met by engineers who are accredited by professional industry bodies such as Engineers Australia and so forth.

According to the explanatory memorandum of the Professional Engineers Registration Bill 2019 (VIC), the purpose of the legislation is to require engineers who work in certain areas of engineering to be registered.[3]

 

The new registration scheme

The areas of engineering are prescribed by Section 4 of the soon-to-be-in-force legislation, and are as follows:-

1. structural engineering;
2. civil engineering;
3. mechanical engineering;
4. electrical engineering;
5. fire safety engineering;
6. any other prescribed area of engineering.

Under Division 1 of Part 2 of the Act, a professional engineer may apply for registration in their particular area of engineering, or apply for endorsement in the event they are engaged in the building industry.

The endorsement process is distinct from the registration process as it is building industry specific and involves the BLA consulting with and hearing recommendations from the VBA.

Certain criteria must be satisfied for registration or endorsement.

Of note also is that the corporate registration scheme for engineers under the Building Act 1993 will cease, but practitioners must keep their corporate registration valid until 1 July 2021.

 

Requirements and qualifications for registration

Automatic transfer of VBA Building Practitioner Engineer registration

For practitioners that are already registered building practitioners in the category of engineer, registration will automatically be transferred over to the BLA.[4] Registration and endorsement will be automatic. The building practitioner engineer is taken to be registered as a professional engineer under the Act until their registration under the Building Act 1993 (Vic) expires.

The scheme under the transitional provisions in the Professional Engineers Registration Act 2019 (Vic) is quite clearly distinguishable from the transitional scheme for corporate building practitioner registration, which was quite a complex transition. From experience, it can be said there were many internal reviews conducted by the Victorian Building Authority due to practitioners being knocked back for corporate registration.

This is important, because it should mean that this transition is more “automatic” than the “automatic” corporate practitioner registration transition was back in 2018. Whereas the VBA had the power under the transitional provisions in the Building Act 1993 (specifically Clause 4 of Schedule 10) to knock back automatic corporate registration on grounds of director fitness and propriety, the BLA does not have any such powers under the relevant transitional provisions under the Professional Engineers Registration Act 2019 (Vic).

Once the automatic transfer occurs, the BLA will have jurisdiction over a registered professional engineer including for disciplinary action and the like.

 

Assessment Schemes

Otherwise, where practitioners are applying for registration without pre-existing building practitioner registration under the Building Act 1993 (Vic), as mentioned earlier, certain criteria must be met.

In assessing an applicant for registration’s eligibility for registration the BLA will have regard to whether or not the applicant has required qualifications and experience for the particular area of engineering for which the applicant has applied for registration.[5] These qualification and experience requirements will be set out in a relevant approved assessment scheme.

Under the Act the BLA is empowered to approve certain assessment schemes administered by assessment entities that apply for approval under Section 35 of the Act.

In assessing an application, the BLA will have regard to reports from assessment entities.

 

Fitness and propriety

Like registration requirements for registration as a Building Practitioner with the Victorian Building Authority under the Building Act 1993 (Vic), the registration scheme under the Professional Engineers Registration Act 2019 (Vic) requires that applicants be “fit and proper”.

Fitness and propriety is an overriding consideration under Section 12 of the Act in that, regardless of whether the applicant has requisite qualifications and experience, is not subject to disqualification or cancellation of professional engineering registration in another state, and has complied with any other prescribed requirement, if the BLA deems the applicant is not fit and proper, it may refuse to allow registration.

Fitness and propriety is to be assessed having regard to:-

• Whether the person has been convicted of any indictable offences or offences relating to the provision of professional engineering services;[6]
• Any suspension of professional engineering registration in any Australian jurisdiction;[7]
• Whether the applicant or a body corporate of which they were an officer has been insolvent;[8]
• Whether the applicant has ever failed to comply with orders of a Tribunal or Court in relation to obligations under the Act or in relation to the provision of professional engineering services.[9]

These are similar to some of the considerations contained in Sections 171D and 171E of the Building Act 1993 (Vic).

A professional engineer who applies for registration may appeal any adverse finding in relation to that application.[10]

It is important for practising engineers in Victoria to be mindful of these requirements for registration as the Act proscribes the carrying out of professional engineering services for particular areas of engineering without registration.

 

Offences under the Act pertaining to registration

Relevantly, Section 67 of the Act provides that it is an offence to provide professional engineering services in a particular area of engineering unless the person is registered as a practising engineer in that area of engineering.

Section 68 also proscribes one from holding out or representing they are able to practise in an area of engineering if they are not registered or endorsed.

This therefore means that when the provisions of the new Act come into effect on 1 July 2021, those engineers who provide professional engineering services in the building sector may be committing multiple offences if they do so without being registered and/or endorsed under the Act.

Each of the above-mentioned offences attracts a maximum pecuniary penalty of 500 penalty units, which, as of May 2021, amounts to $82,610.

 

Disciplinary jurisdiction

The Director of the BLA may take disciplinary action against a registered professional engineer under the Act. Similar to grounds under the Building Act 1993, disciplinary action may be taken if the registered professional engineer:-

• contravenes the Act or regulations under the Act or a prescribed law;
• engages in unsatisfactory professional conduct;
• no longer meets eligibility criteria for registration;
• is no longer a fit and proper person;
• has obtained registration, or any required insurance, on the basis of information or a document that was false or misleading;
• has failed to comply with a condition of the registered professional engineer’s registration;
• has failed to comply with an undertaking given to the Director under this Act, or to the Victorian Building Authority under the Building Act 1993;
• has not paid a fee or other amount required to be paid under the Act or a prescribed law.

After the Director is of the opinion there are grounds to take disciplinary action, show cause must be given to the professional engineer[11] affording the professional engineer the opportunity to respond.[12]

After the show cause period, the Director may either decide to take disciplinary action by referring the matter to VCAT for the disciplinary proceeding[13] or take no further action.[14]

It follows that VCAT itself has carriage of the disciplinary proceeding upfront, rather than a process of merits review (such as under the Building Act 1993 regime), where it would ‘step into the shoes of the original decision maker’. Under the Professional Engineers Registration Act 2019 (Vic), the VCAT is the tribunal of fact that makes the disciplinary decision. It has jurisdiction regardless of whether or not the professional engineer continues to be registered after the proceedings have commenced.[15] In exercising its jurisdiction, the VCAT is empowered by the Act to[16]:-

• order the registered professional engineer to pay a penalty of not more than the equivalent of 200 penalty units (a fine);
• reprimand the registered professional engineer;
• impose conditions on the registered professional engineer’s registration (including requiring auditing of the engineer’s practice of engineering);
• vary any conditions on the registered professional engineer’s registration;
• suspend or partially suspend the registered professional engineer’s registration for a stated period;
• cancel the registered professional engineer’s registration;
• disqualify, indefinitely or for a stated period, the registered professional engineer from obtaining registration as a registered professional engineer;
• order that a registered professional engineer do or do not do something;
• require a registered professional engineer undergo a specified course of training within a specific period; and/or
• order payment to the Director compensating for all, or a part of, the Director’s reasonable costs of any investigation about the matter the subject of the proceeding, including the costs of preparing for the proceeding.

The powers of VCAT are therefore extensive. It is therefore important that professional engineers subject to any disciplinary proceedings under the new legislative scheme ensure they consult with lawyers experienced in practitioner advocacy.

Furthermore, building industry professional engineers will be captured under Section 179 of the Building Act 1993 (Vic) giving the Victorian Building Authority jurisdiction to take disciplinary action, and this is by operation of Section 127 of the Professional Engineers Registration Act 2019 (Vic).

Reviewable decisions

In respect of an adverse finding by the BLA and a decision by it to apply to VCAT for a disciplinary proceeding, there is therefore no option for merits review or a review on ‘the facts’ under the Professional Engineers Registration Act 2019 (Vic), as VCAT has conduct of the disciplinary proceeding. Registration under the Professional Engineers Registration Act 2019 (Vic) does not fall within the meaning of ‘licence’ under the Business Licensing Act 1998 (Vic) and accordingly is not reviewable under Section 25 of that Act. As with any decision by a statutory authority or tribunal of fact, a decision by VCAT is reviewable through the Supreme Court’s inherent jurisdiction or under the Administrative Law Act 1978 (Vic) for errors of law, breach of natural justice, or grounds of reasonableness.

As building industry professional engineers will be captured under the VBA’s jurisdiction to take disciplinary proceedings,[17] Section 128 of Professional Engineers Registration Act 2019 (Vic) amends the Building Act 1993 (Vic) to include within the definition of a “reviewable decision” under that Act a decision by the Victorian Building Authority to suspend the endorsement of a professional engineer or to take disciplinary action against the professional engineer.[18] Reviewable decisions can be reviewed internally by the Victorian Building Authority,[19] or an appeal can be taken directly to the Victorian Civil and Administrative Tribunal (‘VCAT’).[20] If the internal review option is taken, and the adverse finding is upheld in the review decision, the review decision may be reviewed by VCAT.[21]

These Building Act 1993 provisions, naturally, do not apply to registered engineers that do not engage in the provision of services in the building industry and that are therefore not “endorsed”. For building industry professional engineers, then, there is an overlap of jurisdiction between the VBA and the BLA in terms of disciplinary powers; the former pertaining to “endorsement” for the building industry, and the latter pertaining to “registration” as a professional engineer.

Conclusion

There are therefore some substantial changes for professional engineers that will apply from 1 July 2021.

It will be important for existing registered engineers under the Building Act 1993 (Vic) to be mindful of the stricter regime for registration under the new legislation. It will also be important to be mindful of the new changes to the Building Act 1993 and that disciplinary action by the Authority will come within the scope of a reviewable decision under the Building Act by way of a new Section 184A. It will be prudent, in the event a professional engineer is subject to any disciplinary proceedings under the new legislative scheme, to consult with lawyers experienced in practitioner advocacy.

For prospective engineers intending to provide services in the building industry, it will be important to be mindful of the new regulatory scheme and the new process for registration.

For practitioners concerned about their obligations and the consequences of the new regulatory scheme, it will be prudent to consult with an experienced construction lawyer.

 

[1] Building Act 1993 (VIC), s169A, s3.

[2] Building Act 1993 (VIC), s 238.

[3] Professional Engineers Registration Bill 2019 Explanatory Memorandum, 1.

[4] Professional Engineers Registration Act 2019 (Vic) s 107.

[5] Professional Engineers Registration Act 2019 (Vic), s 12(2).

[6] Professional Engineers Registration Act 2019 (VIC), s 13(a).

[7] Ibid, s 13(b).

[8] Ibid, s 13(c).

[9] Ibid, s 13(d).

[10] Ibid, ss 26 – 27.

[11] Ibid, s 56.

[12] Ibid, s 57.

[13] Ibid, s 60.

[14] Ibid, s 59.

[15] Ibid, s 61.

[16] Ibid, s 62.

[17] See above, and also s 127 of the Professional Engineers Registration Act 2019 (Vic).

[18] The new section will be Section 184A of the Building Act 1993 (Vic).

[19] Building Act 1993 (Vic), s 185.

[20] Ibid, s 186(3).

[21] Ibid, s 186(1).