The changing landscape of the regulation of professional engineers in Australia: how is your organisation impacted?

New registration requirements in New South Wales and Victoria took effect on 1 July 2021

We've previously highlighted the regulatory regimes to be introduced by the Design & Building Practitioners Act 2020 (NSW) (DBP Act) and Professional Engineers Registration Act 2019 (Vic) (PER Act). With respect to the engineering profession, the DBP Act and PER Act (and associated regulations) seek to largely replicate the regulatory scheme that has been in place for engineers in Queensland for a number of years. However, unlike the Queensland regime, which includes up to 26 classifications of engineers, the DBP Act and PER Act are currently limited to professional engineering services conducted in the building industry only.

The following registration requirements came into effect on 1 July 2021:

• New South Wales – registration is required for practitioners who undertake professional engineering services on Class 2 buildings (apartments) or mixed use buildings that include Class 2.
• Victoria – registration will be phased in for certain prescribed areas of engineering, as identified on the Consumer Affairs Victoria website. Practitioners who are already registered with the Victorian Building Authority as a building practitioner in the "engineer" category will have their registration automatically transferred.

Mutual recognition, automatic deemed registration and the carrying out of professional engineering services in Australia

The standardisation of laws applying to the engineering profession in Australia continues to be a moving feast. At present, under the Commonwealth Mutual Recognition Act 1992 (MR Act), where an engineer duly registered in one state seeks to practice in another state they are required to apply and pay for an additional registration in that other state. However, going forward under the scheme proposed in the Mutual Recognition Amendment Act 2021 (MRA Act) passed in May, the concept of "automatic deemed registration" is to be introduced. The effect of this new concept will be that an engineer registered in one state will be taken to be registered in another state without being required to seek additional recognition (as is the case at present).

The regime proposed by the MRA is not without its critics. Both New South Wales and Victoria have enacted legislation exempting engineers from the MRA Act provisions for a period of 12 months, with Queensland also yet to commit to the regime. In considering the proposed MRA Act, the Board of Professional Engineers of Queensland (BPEQ) recently stated that:

"AMR is a sound proposal in theory but first requires a standardised regulatory framework for engineers across jurisdictions. The proposed AMR scheme may undermine the effectiveness of Queensland’s registration scheme and pose risks to the public and profession."

The willingness of the BPEQ to protect its regime for registration was recently demonstrated in an appeal brought in the Federal Court of Australia from a decision of the Administrative Appeals Tribunal. In Professional Engineers of Queensland v Gardner [2021] FCA 564 the Court considered whether a "Certifier – fire safety" qualification in New South Wales entitled a practitioner to be registered as a fire safety engineer in Queensland. The Court, in allowing the appeal and overturning the decision of the Administrative Appeals Tribunal to recognise the New South Wales qualification for the purpose of the Queensland registration regime, found that:

"Having regard to the respective regulatory regimes, NSW requires one occupation to be registered and Queensland another. No amount of conditioning could convert the occupation of “Certifier – fire safety” into the separate occupation of practising professional engineer in the area of 'Fire'".

and

"a person who is registered as a 'Certifier – fire safety' in NSW is not entitled to registration in Queensland as a 'registered professional engineer'."

Next steps for professional engineers

Given the evolving nature of Commonwealth and State legislation applicable to the practice of professional engineering in Australia, we recommend that you:

• Review the registration requirements that may apply to your organisation or individuals within your organisation who conduct professional engineering services within Queensland, New South Wales or Victoria, particularly in the building industries.
• Be prepared for the impact of the proposed "automatic deemed registration" regime on your organisation.

For further information or advice on how your business may be impacted by these changes, please contact a member of our team.