Engineering update: Queensland regulator gets new powers, and the threat of corrupt conduct for unregistered professionals

There have been a number of important developments for corporations, governments and individuals who provide, undertake or supervise (including remotely) professional engineering services in Queensland.

First, the Board of Professional Engineers Queensland (BPEQ) has recently been granted enhanced investigative and enforcement powers that are comparable to Australia’s most significant regulatory watchdogs.

Second, the Queensland Crime and Corruption Commission (CCC) recently declared that the carrying out of unregistered professional engineering services could amount to corrupt conduct under its legislation. These developments are a timely reminder of the need for those organisations or individuals employing or providing services in the engineering industry to review their compliance with the Professional Engineers Act 2002 (Qld) (the PE Act).

The BPEQ remains an active regulator

The BPEQ, now in its 90th year as the regulator of professional engineering services in Queensland, continues its commitment to protecting the public and setting the standard of engineering. It is evident that the engineering profession has also educated itself on the registration obligations arising from the PE Act, as the number of engineers registered with the Board has more than doubled in the past 10 years, with nearly 16,000 engineers currently holding Registered Professional Engineer of Queensland (RPEQ) status.

It should be recalled that the principle obligation under the PE Act is for registration as a RPEQ and that sanctions for non-compliance apply to individuals. Throughout 2020, the BPEQ has reported on a number of instances of disciplinary proceedings for individuals who have failed to meet the engineering standards required of them resulting in a finding of "unsatisfactory professional conduct" for the purposes of the PE Act. As at 30 June 2020, the BPEQ also had one prosecution for non-compliance with the PE Act ongoing in the Magistrates Court.

New powers of the BPEQ

The Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020 granted substantial new powers to the BPEQ under the PE Act that will come into effect from1 March 2021. The newly acquired regulatory powers of the BPEQ are comparable to those enforcement and deterrence powers provided to ASIC, ACCC and other significant regulatory bodies and provides the BPEQ with:

• the ability to conduct compliance audits of professional engineers, as well as people who are claiming to be professional engineers;
• greater investigatory powers, including search and seize powers, and the ability to compel a broader range of evidence; and
• the ability to impose a condition on a professional engineer’s registration without their consent.

Corrupt conduct and unregistered professional engineering services

It is an offence under section 115 of the PE Act for a person who is not a RPEQ, or directly supervised by a RPEQ to provide professional engineering services. As noted above, the BPEQ can and will take prosecutorial action in the Magistrates Court for non-compliance with the PE Act.

In an important development for those who employ, contract or otherwise provide services in the engineering industry, the CCC have recently formed the view that the provision of professional engineering services when not registered or directly supervised by a RPEQ could also constitute "corrupt conduct" for the purposes of the Crime and Corruption Act 2001 (Qld) (the CC Act).

Section 15 of the CC Act establishes the tests for "corrupt conduct". We understand that the CCC have interpreted section 15(1) as the applicable test when considering the conduct of unregistered professional engineering services. This test involves conduct that:

1. adversely affects, or could adversely affect, directly or indirectly, the perform of functions of a unit of public administration or a person holding an appointment;
2. results, or could result, directly or indirectly, in the performance of functions in a way that:
   1. is not honest or is not impartial;
   2. involved a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or
   3. involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and
3. would, if proved, be a criminal offence or a disciplinary breach providing reasonable grounds for terminating the person's service.

Having regard to each element in turn:

1. it is arguable that unregistered engineering services do not necessarily have to be substandard to adversely affect the performance of a function. Presumably, where there is a requirement for registration when providing a professional engineering service or function to a unit of public administration, and that registration requirement is not met, then it could adversely affect the performance of that function because the public might reasonably expect that a person providing professional engineering services would hold the appropriate registration, or be appropriately supervised by a RPEQ.
2. where a person holds themselves out dishonestly to be a RPEQ where that is not the case, this element would appear to be clearly satisfied. What is less clear, however, is how an unregistered engineer might, in the absence of dishonesty, engage in conduct which involves a "breach of the trust" placed in that person, either knowingly or recklessly. For example, could an administrative failure to renew a RPEQ registration be considered a "breach of the trust"?
3. in circumstances where conducting professional engineering services without registration is an offence under the PE Act, this element would appear to be clearly satisfied if proved.

We are not aware of any current or historic corruption investigations conducted by the CCC into the provision of engineering services, however the CCC has recently written to the chief executive officers of the 77 local governments in Queensland informing them of its interpretation of the interrelation between the PE Act and the CC Act.

While it is noteworthy that the CCC has taken this step, in practice we consider that the CCC is likely to continue to focus on only the most serious and systemic types of corrupt conduct and that most complaints involving engineers are likely to be referred to the BPEQ for investigation using its enhanced new powers. Nevertheless, the CCC may monitor how the BPEQ deals with the complaints, and may require them to report regularly regarding the progress of the complaint as well as providing advice and directions where appropriate.