Victorian Professional Engineers, mutual recognition and automatic deemed registration

A new era of regulation for engineers in Victoria begins on 1 July 2021 with the commencement of Part 2 of the Victorian Professional Engineers Registration Act 2019 (Engineers Registration Act) and Regulations. This legislation will bring them into closer alignment with Queensland’s regime, where the Professional Engineers Act 2002 (Engineers Act) requires that any person who provides ‘professional engineering services’ in Queensland must be registered as a ‘registered professional engineer of Queensland’.  New South Wales has also introduced new requirements for engineers and others under the Design and Building Practitioners Act 2020 (DBP Act), which aims for broad reform of the NSW building industry.

Victorian registration of professional engineers

A professional engineering service is defined in the Engineers Registration Act to mean an engineering service that requires, or is based on, the application of engineering principles and data

• to a design relating to engineering; or
• to a construction, production, operation or maintenance activity relating to engineering

other than an engineering service that is provided only in accordance with a prescriptive standard (as defined).

The new Act requires engineers who are providers of professional engineering services in prescribed areas of engineering in Victoria to be registered by the BLA.  Currently these areas are:

• Fire safety engineering (by 1 December 2021).
• Structural engineering (by 1 October 2022)
• Civil engineering (by 1 October 2022)
• Electrical engineering (by 1 June 2023)
• Mechanical engineering (by 1 December 2023).

Mandatory registration will be phased in for each area by the date shown above. Applicants for registration are required to satisfy the BLA in relation to several matters. These include:

• possession of requisite qualifications and experience relevant to each area of engineering applied for[1]; and
• evidence that the applicant is not subject to disqualification or cancellation of registration as a professional engineer in Victoria or another State or Territory.

Existing unexpired registrations as a building practitioner in the category of engineer under the Building Act 1993 will automatically be transferred from the Victorian Building Authority (VBA) to the Business Licensing Authority (BLA) for registration and endorsement to engage in the building industry under the Engineers Registration Act.

Significantly, the BLA may refuse registration if it is satisfied that the applicant is not a fit and proper person to provide professional engineering services in an area of engineering. In determining this it may have regard to the factors listed in s 13.

To provide professional engineering services in the building industry, professional engineers’ registration must also be endorsed. ‘Fit and proper’ for the purpose of endorsement of a registration authorising the applicant as a registered professional engineer who is engaged in the building industry will be determined by reference to the requirements of the Building Act 1993. A professional engineer endorsed to work in the building industry will be known as an ‘endorsed building engineer’.

Practitioners should note that specified registration decisions are reviewable by VCAT, and that Part 5 of the Engineers Registration Act creates the following offences:

• to provide professional engineering services without registration;
• to hold out to be registered or endorsed without registration; and
• to provide false and misleading information.

The BLA must publish details relating to registration and endorsement from its Register.

Professional engineers located outside Victoria must also be registered if their services are intended for Victoria. Where another jurisdiction provides for an equivalent occupation, this registration potentially could be achieved through longstanding interjurisdictional mutual recognition arrangements.

Mutual recognition

The Commonwealth Mutual Recognition Act 1992 (MR Act) entitles registered workers including engineers to be registered for an equivalent occupation in another jurisdiction on the basis of their existing registration, without further assessment of their qualifications[2]. Enactment of the MR Act followed an intergovernmental agreement between the Commonwealth and several States and self-governing territories. Several States subsequently enacted legislation formally adopting the MR Act within the meaning of section 51(xxxvii) of the Commonwealth Constitution, in order to ensure the validity of the comprehensive national application of the MR Act. This State legislation included the Mutual Recognition (Queensland) Act 1992 (MR Qld Act) and the Mutual Recognition (Victoria) Act 1998 (MR Vic Act).

Currently, to obtain mutual recognition (MR), a worker must notify the Local Registration Authority (LRA) in the state in which they are seeking registration for the equivalent occupation, apply and pay for an additional state registration.

A Bill to amend the MR Act now seeks to make occupational registration in a second state an even more frictionless process, via a scheme of automatic mutual recognition (AMR).

The Mutual Recognition Amendment Bill 2021 (MRA Bill) was passed by the Senate in May 2021, and is also due to commence on 1 July 2021.[3]  Its key feature is a new Part 3A, ‘Automatic deemed registration to carry on activities covered by occupations’.

What is automatic deemed registration (ADR)?

Automatic deemed registration means that a person who is registered for an occupation in their home state (a person’s primary state of residence or work) is taken to be registered in the second state for the purposes of carrying on those activities permitted under their home state registration.[4] The registered person will not be required to pay extra fees or meet any additional requirements for the issue or renewal of a registration to undertake permitted activities in the second state.

States and LRAs will be required to make available to each other relevant information about a registered person and prepare and publish guidance on the operation of ADR, consistent with the existing MR arrangements. However, the Bill’s amendments do not prevent a person from seeking MR under the existing MR arrangements (in Part 3 of the MR Act).

Impact of MR amendments

While the AMR amendments appear likely to reduce some red tape for workers already registered in their home State, it remains to be seen how frictionless in practice the new scheme will make occupational registration in a second state. Protective measures associated with the AMR scheme include:

• the person will have to meet requirements relating to insurance, fidelity funds, trust accounts or the like, as well as other applicable requirements such as working with children checks, that are designed to protect the public, consumers and others.
• States may also require notification of intent to work in their jurisdiction.
• A Minister in the second state may declare that specific registrations are exempt from AMR in their jurisdiction where they determine there is a significant risk to consumer protection, or the health or safety of workers or the public.

The red-tape cutting potential of the amendments is also limited by their scope. Notably,

amendments made by this Bill do not apply to a pre-adoption State, that is, a participating State that has not referred to the Commonwealth Parliament the power to amend the MR Act and has not adopted the MR Act as amended by the MRA Act. This means that an unamended version of the MR Act will continue to apply to any pre-adoption State until that state adopts the amendments made by this Bill. Further, the AMR scheme does not extend to registrations issued in New Zealand.

Meanwhile, LRAs and the courts will likely continue to devote significant attention to the issue of whether or not an occupation is in fact ‘equivalent’ for the purposes of MR, as in Board of Professional Engineers of Queensland v Gardner [2021][5], a case which turned on whether a ‘Certifier – fire safety’ registered in New South Wales was equivalent to a Registered Professional Engineer in the area of Fire Safety in Queensland. Here, the Federal Court set aside a decision of the Administrative Appeals Tribunal and affirmed the decision of the Board to decline to register Mr Gardner.

It will also be interesting to see whether the BLA, as the new Victorian LRA for professional engineers, seeks to use the character requirements of the Building Act 1992 in respect of endorsement to exclude from the Victorian building industry any applicants for registration via MR who are not of good character, but who nevertheless have obtained equivalent occupational registration in another jurisdiction.[6]

At least the new Victorian regime for registration of professional engineers, and the activities it authorises, together with New South Wales’s new legislation covering the building profession, should provide some assistance in more readily ascertaining occupational equivalence for the engineering profession.

[1] The Engineers Registration Act also creates In Part 3 a scheme for assessment of engineers seeking registration by an assessment entity – an approved professional engineering body. Under s 53, the BLA must publish information about these entities on the internet.

[2] This reading of MR Act ss 17 and 20(2) was confirmed by Victorian Building Authority v Andriotis [2019] HCA 22 (Andriotis). Mr Andriotis was a NSW-registered waterproofer who applied for registration in Victoria.

[3] State legislation will follow if the MRA Bill passes the Commonwealth Parliament: for example, the Mutual Recognition (Victoria) Amendment Bill 2021 was introduced to the Legislative Assembly in May 2021. Note that it introduces a new section 4(3) of the MR Vic Act which provides for termination of adoptions under s 51 (xxxvii) of the Commonwealth Constitution.

[4] The amendments will not disrupt existing national registration schemes such as the legal practice scheme for legal practitioners (under Legal Profession Acts or Legal Profession Uniform Law as adopted in certain states); or existing state-based automatic mutual recognition schemes, such as the NSW scheme for electrical trade work licences.

[5] FCA 564 (28 May 2021) per Logan J.

[6] In Andriotis, false information concerning work experience had been provided to the NSW authority.