Gardner and Board of Professional Engineers of Queensland
[2021] AATA 93
•3 February 2021
Gardner and Board of Professional Engineers of Queensland [2021] AATA 93 (3 February 2021)
Division:GENERAL DIVISON
File Number:2019/6723
Re:Peter Gardner
APPLICANT
Board of Professional Engineers of QueenslandAnd
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:03 February 2021
Place:Brisbane
The Tribunal sets aside the decision under review and in substitution finds that the Applicant shall be registered as a Registered Professional Engineer in the area of Fire Safety in Queensland under the Professional Engineers Act 2002 (Qld) with the condition that such registration is limited to the provision of professional engineering services relating to buildings.
...................[SGD]....................................................
Member D Mitchell
CATCHWORDS
MUTUAL RECOGNITION – application of mutual recognition principles where - mutual recognition of occupations between States – recognition of Certifier – fire safety (previously known as C10 – Accredited Certifier – Fire Safety Engineering Compliance) and Registered Professional Engineer in the area of fire safety between New South Wales and Queensland – the equivalence of occupations – equivalence by condition – decision under review set aside
LEGISLATION
Building and Development Certifiers Act 2018 (NSW)
Building Professionals Act 2005 (NSW)
Design and Building Practitioners Act 2020 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Mutual Recognition Act 1992 (Cth)
Mutual Recognition (Queensland) Act 1992
Professional Engineers Act 2002 (Qld)
Professional Engineers Registration Act 2019 (Vic)Building and Development Certifiers Regulations 2020 (NSW)
Environmental Planning & Assessment Regulation 2000 (NSW)
CASES
Charles and Board of Professional Engineers of Queensland [1999] AATA 948
Medical Board of Queensland and Renton [2006] FCA 947
Sande v Registrar Supreme Court of Queensland and Anor (1996) 134 ALR 560
Schroeder v Australian Securities and Investment Commission [2020] AATA 2453Turner and Registrar Supreme Court Queensland and Ors [2003] AATA 887
SECONDARY MATERIALS
Public Affairs and Policy Advocacy Engineers Australia, Registration of Engineers: The Case for Statutory Registration (May 2020)
The Warren Centre, Fire Safety Engineering: Education Report (2019)
REASONS FOR DECISION
Member D Mitchell
03 February 2021
INTRODUCTION
Mr Peter Gardner (the Applicant) applied for registration with the Board of Professional Engineers of Queensland (the Respondent) in accordance with the provisions of the Mutual Recognition Act1992 (Cth) (Mutual Recognition Act) as a Registered Professional Engineer in the area of Fire Safety.[1] The Applicant sought to rely upon his registration as a C10 – Accredited Certifier - Fire Safety Engineering Compliance in New South Wales.[2]
[1] Exhibit 1, T Documents, T10, pages 77-83, Application for Registration and attachments.
[2] Exhibit 1, T Documents, T10, page 80, Certificate of Individual Accreditation for the period 16 March 2019 to 15 March 2020; Exhibit 6, Certificate of Individual Accreditation for the period 16 March 2020 to 15 March 2021.
On 23 September 2019, the Respondent refused to grant the Applicant registration under the Mutual Recognition Act on the basis that it formed the view that the Applicant’s registered occupation of C10 – Accredited Certifier - Fire Safety Engineering Compliance (C10 – Certifier in Fire Safety Engineering Compliance) with the Building Professionals Board of New South Wales was not equivalent, on the information before it to the occupation of a Registered Professional Engineer Queensland in the area of Fire Safety (RPEQ in fire safety).[3]
[3] Exhibit 1, T Documents, T8, pages 73-74, Refusal to Grant Registration.
The Applicant sought review of that decision by way of an application made to this Tribunal on 17 October 2019.[4]
[4] Exhibit 1, T Documents, T1, pages 2-6, Application for Review.
The application was heard by Microsoft Teams on 26 August 2020. At Hearing the Applicant was represented by Mr Rohan de Meyrick of Counsel, instructed by Lovegrove & Cotton Solicitors and the Respondent was represented by Mr Ben McMillan of Counsel.
THE LAW
The purpose of the mutual recognition legislation of the Commonwealth States and Territories is to promote the goal of freedom of movement of goods and service providers in a national market in Australia. This has been established by enactment of the Mutual Recognition Act 1992 (Cth) and equivalent legislation enacted by participating jurisdictions of which include New South Wales and Queensland.[5]
[5] Queensland enacted its participation via the implementation of the Mutual Recognition (Queensland) Act 1992.
The mutual recognition legislation establishes a scheme for mutual recognition of regulatory standards for goods and occupations throughout the country.
Relevantly, the intention of the mutual recognition scheme in relation to service providers is set out in Sande v Registrar Supreme Court of Queensland and Anor (1996) 134 ALR 560 at 580:
The Act is intended to remove artificial barriers to mobility of services and labour caused by regulatory differences among the States and Territories of Australia. If a person is registered to carry out an occupation in one State or Territory, then he or she should be able to be registered and to carry on the equivalent occupation in any other State or Territory, without undergoing examinations or other assessments with respect to education qualifications and experience. Nevertheless, the Act preserves the right of the State or Territory in which the applying person seeks to practice (described in the Act as the second State) to regulate the manner of carrying on an occupation in that State, so long as the laws of that State apply equally to persons carrying on or seeking to carry on the occupation under the law of the second State: section 17 and 20 of the Act.
The matter before the Tribunal relates to the application for mutual recognition of an occupation which is dealt with by Part 3 of the Mutual Recognition Act. Part 3 relevantly provides:
Part 3—Occupations
Division 1—Preliminary
16 Mutual recognition
(1) The mutual recognition principle as applying to occupations is as set out in this Part.
(2) This Part deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.
(3) In this Part, the first‑mentioned State is called the first State, and the other State is called the second State.
17 Entitlement to carry on occupation
(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a) to be registered in the second State for the equivalent occupation; and
(b) pending such registration, to carry on the equivalent occupation in the second State.
……
Division 2—Entitlement to registration
19 Notification to local registration authority
(1) A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.
……
20 Entitlement to registration and continued registration
(1) A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
(2) The local registration authority may grant registration on that ground and may grant renewals of such registration.
……
23 Refusal of registration
(1) A local registration authority may refuse the grant of registration if:
(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or
(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or
(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
……
Division 4—Equivalent occupations
28 Equivalent occupations
The equivalence of occupations carried on in different States is to be determined in accordance with this Part.
29 General principles
(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States.
…..
31 Declarations by Tribunal
(1) On a review, the Tribunal may make an order that a person who is registered in a particular occupation in a particular State is or is not entitled to registration in another State in a particular occupation, and may specify or describe conditions that will achieve equivalence.
(2) On such a review, the Tribunal may make a declaration that occupations carried on in 2 States are not equivalent, but only if the Tribunal is satisfied that:
(a) the activities involved in the occupations are not substantially the same (even with the imposition of conditions); or
(b) registration in one State should not entitle registered persons to carry on a particular activity or class of activity in the other State, where:
(i) the activity or class of activity is a material part of the practice of a person registered in the first State for the occupation; and
(ii) the activity or class of activity, if carried out by a person not conforming to the appropriate standards, could reasonably be expected to expose persons in the other State to a real threat to their health or safety or could reasonably be expected to cause significant environmental pollution (including air, water, noise or soil pollution); and
(iii) it is not practicable to protect the health or safety of such persons from that threat or the environment from such pollution by regulating the manner in which services in the occupation are provided.
(3) The Registrar or other proper officer of the Tribunal must cause a notice setting out the terms of a declaration under this section to be promptly published in the Gazette.
(4) A declaration made on the basis of paragraph (2)(b) has effect for no longer than 12 months, and the local registration authority must promptly notify appropriate authorities in each other State and the Commonwealth of the declaration.
(5) The local registration authority is to give effect to the decision on the review, and must thereafter act in conformity with the decision in relation to other persons seeking registration.
Section 4 of the Mutual Recognition Act provides that unless the contrary intention appears:
conditions, when used in relation to occupations, means conditions, limitations or restrictions.
equivalent, when used in relation to occupations, has a meaning affected by Division 4 of Part 3.
occupation means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted.
In this matter the Applicant is seeking mutual recognition of his registration as a C10 – Certifier in Fire Safety Engineering Compliance in New South Wales to provide him with registration as a RPEQ in fire safety in Queensland. The main issue before the Tribunal is whether the mutual recognition principles apply and if so whether occupational equivalence exists between the two occupations, or whether it can be achieved with the imposition of conditions.
The Professional Engineers Act 2002 (Qld) (Professional Engineers Act) governs registration of professional engineers in Queensland as either a practising professional engineer or a non-practising professional engineer.[6] A person may apply for registration as a registered professional engineer for an area of engineering[7] including the area of fire safety.
[6] Section 7B of the Professional Engineers Act 2002 (Qld).
[7] Section 8(1) of the Professional Engineers Act 2002 (Qld).
The object of the Professional Engineers Act is out lined in section 3 as follows:
The main objects of this Act are –
(a) to protect the public by ensuring professional engineering services are provided by a registered professional engineer in a professional and competent way; and
(b) to maintain public confidence in the standard of services provided by registered professional engineers; and
(c) to uphold the standards of practice of registered professional engineers.
Section 115(1) of the Professional Engineers Act makes it an offence for persons other than practising professional engineers, to carry out professional engineering services.
Section 115(3) of the Professional Engineers Act further makes it offence for a person who is a practising professional engineer to carry out professional engineering services in an area of engineering other than an area of engineering for which the person is registered.
The exception being where a person carries out that service under the direct supervision of a practising professional engineer who is registered in the areas of engineering and who is responsible for the service.[8]
[8] Section 115(2) and 115(4) of the Professional Engineers Act 2002 (Qld).
The dictionary set out in Schedule 2 of the Professional Engineers Act relevantly provides:
practising professional engineer means a registered professional engineer who carries out, or is responsible for the carrying out of, professional engineering services.
professional engineering service means an engineering service that requires, or is based on, the application of engineering principles and data to a design, or to a construction, production, operation or maintenance activity, relating to engineering, and does not include an engineering service that is provided only in accordance with a prescriptive standard.
prescriptive standard means a document that states procedures or criteria— (a) for carrying out a design, or a construction, production, operation or maintenance activity, relating to engineering; and (b) the application of which, to the carrying out of the design, or the construction, production, operation or maintenance activity, does not require advanced scientifically based calculations.
On seeking mutual recognition, the Applicant held registration as a C10 – Certifier in Fire Safety Engineering Compliance issued by the Building Professionals Board of New South Wales pursuant to the Building Professionals Act 2005 (NSW). That registration was renewed on 16 March 2020, expiring on 15 March 2021.
Section 121(1) of the Building and Development Certifiers Act2018 (NSW) (Certifiers Act) repealed the Building Professionals Act 2005 (NSW) with effect from 1 July 2020. The transitional provisions of the Certifiers Act relevantly provide that:[9]
(1). Subject to the regulations, an existing certificate of accreditation[10] that is in force immediately before the repeal day-
(a) is taken to be registration in the corresponding class (as prescribed by the regulations) granted under this Act, and
(b) continues, unless it is sooner surrendered by the holder or suspended or revoked under this Act, in force for the unexpired portion of its term, and
(c) cannot be renewed.
[9] Section 3 of Schedule 1 to the Building and Development Certifiers Act 2018 (NSW).
[10] Existing certificate of accreditation is defined by section 2 of Schedule 1 of the Building and Development Certifiers Act 2018 (NSW) as a certificate of accreditation under the Building Professionals Act 2005 (NSW).
The Applicant’s C10 – Certifier in Fire Safety Engineering Compliance accreditation, as from 1 July 2020 is taken to be registration as a “Certifier – fire safety” under the Certifiers Act.[11] The Tribunal notes that throughout the decision reference to C10 – Certifier in Fire Safety Engineering Compliance applies equally to the new classification of Certifier – fire safety.
[11] Section 4 of Schedule 1 to the Building and Development Certifiers Regulation 2020 (NSW).
The Parties agreed at Hearing,[12] which was confirmed in their post-hearing written submissions[13] that it is appropriate for the Tribunal to decide this matter based on the law and delegated legislation as in place at the present time. This position had regard to the decision of the Tribunal in Schroeder v Australian Securities and Investments Commission [2020] AATA 2453 where Thomas J and Deputy President McCabe held at [30]:
Ordinarily, the Tribunal applies the law that was applicable at the time of the original decision: see Frugtniet at [14] per Kiefel CJ, Keane and Nettle JJ; see also Shi at [134] per Kiefel J; see also Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 670-671 per Smithers J. But that is not inevitably the case. Re Costello and Secretary, Department of Transport [1979] AATA 184; (1979) 2 ALD 934 - and the decisions of courts and the Tribunal which followed it - make clear that where there has been a change in the law, the Tribunal must have regard to (a) the nature of the decision under review and (b) the terms of the amending legislation when determining whether the Tribunal should apply the new law, or the old: at 943. If the statute makes clear the Tribunal should apply the new law instead of the old, so be it.
[12] Transcript, pages 2-5.
[13] Applicant’s Written Submissions, page 1, paragraph 4; Written Submissions on behalf of the Respondent, page 2, paragraph 7, and Applicant’s Reply Submissions, page 1, paragraph 1.
The Tribunal agrees that it is appropriate to consider the present matter having regard to the Certifiers Act and notes that substantively the role in question has not significantly changed, rather it is the qualification requirements that have changed. The Tribunal is of the view that the outcome of this matter would be the same had it have been considering the Building Professionals Act 2005 (NSW).
The objects of the Certifiers Act are set out in section 3 as:
The objects of this act are as follows –
(a) to provide for the registration of persons to carry out certification work and the accreditation of persons to carry out other regulated work,
(b) to recognise that certification work is an important public function with potential impacts on public health, safety and amenity and to ensure that it is carried out impartially ethically and in public interest,
(c) to provide for the approval of certain bodies corporate as accreditation authorities to exercise accreditation functions under this Act,
(d) to ensure appropriate scrutiny and review of actions taken by persons exercising functions under this Act and the certification legislation,
(e) to provide a framework to permit the continuous improvement of the carrying out of certification work.
Relevantly, the Certifiers Act provides that a person can apply for a grant of registration[14] for a class of certification work that may be prescribed by regulations.[15]
[14] Section 8 of the Building and Development Certifiers Act 2018 (NSW).
[15] Section 6 of the Building and Development Certifiers Act 2018 (NSW).
Section 4 of the Certifiers Act provides that:
certification work means the following—
(a) the exercise of a function of a certifier (including a principal certifier) specified in section 6.5 of the Environmental Planning and Assessment Act 1979,
(b) the determination of an application for a strata certificate within the meaning of the Strata Schemes Development Act 2015,
(c) the inspection of swimming pools under Division 5 of Part 2 of the Swimming Pools Act 1992 and the issuing of certificates of compliance and notices under that Division,
(d) the exercise of any other function of a registered certifier under the certification legislation or under another Act or law,
(e) any other work of a kind prescribed by the regulations,
but does not include work of a kind that is excluded from this definition by the regulations.
Section 6.5 of the Environmental Planning and Assessment Act 1979 (NSW) provides:
6.5 Functions of certifiers (including principal certifiers)
(cf previous s 109E)
(1) A certifier has the following functions in relation to building work—
(a) issuing construction certificates for building work,
(b) carrying out inspections of building work (but only if the certifier is the principal certifier or the inspection is carried out with the approval of the principal certifier),
(c) issuing occupation certificates (but only if the certifier is the principal certifier),
(d) issuing compliance certificates (but only if the certifier is the principal certifier when the certificate is an authorised alternative to an occupation certificate).
Note—
Section 6.27 requires a principal certifier who issues an occupation certificate to ensure that a building manual is provided to the owner of the building.
…..
(4) A certifier also has any other functions conferred or imposed on the certifier under this or any other Act.
Note—
A certifier has the function of issuing complying development certificates under Part 4.
(5) A certifier must not issue a certificate under this Part—
(a) in any case in which this Part provides that the certificate is not to be issued, or
(b) in any case in which the function of issuing the certificate is not conferred on the certifier by this Part.
Maximum penalty—Tier 3 monetary penalty.
(6) The Minister may provide guidance to certifiers on the exercise of their functions under this Part.
Classes of certification work have been outlined in Schedule 1 to the Building and Development Certifiers Regulations 2020 (NSW) (Certifiers Regulations) which commenced on 1 July 2020. Relevantly, a class of certification work is “certifier – fire safety”[16] and it is made clear that this class corresponds with the previous C10 category of accreditation.[17]
[16] Clause 2(1)(g) to Schedule 1 of the Building and Development Certifiers Regulations 2020 (NSW).
[17] Clause 4 to Schedule 1 of the Building and Development Certifiers Regulations 2020 (NSW).
Clause 11 of Schedule 1 to the Certifiers Regulations provides:
(1) A registered certifier who holds a certifier—fire safety class of registration is authorised to issue a compliance certificate under the Planning Act for performance solutions for the following to the extent that fire safety is involved—
(a) the design of building work,
(b) constructed building work.
(2) Building work involves fire safety for the purposes of subclause (1) if it relates to—
(a) fire safety systems and components of fire safety systems, or
(b) the safety of persons in the event of fire, or
(c) the prevention, detection and suppression of fire.
(3) In this clause—
fire safety system has the same meaning as in the Building Code of Australia.
Schedule 2 to the Certifiers Regulations sets out the minimum qualifications and experience required to be granted registration as a Certifier – fire safety as:
9 Certifier—fire safety
(1) Pathway 1
(a) Qualifications
Must be registered on the National Engineering Register as a professional engineer with fire safety engineering listed as an area of practice.
(b) Experience
No additional experience other than that required for registration in accordance with paragraph (a).
(2) Pathway 2
(a) Qualifications
Degree (other than an associate degree) in fire safety engineering from an Australian university.
(b) Experience
3 years recent relevant practical experience.
Relevantly, clause 23 of Schedule 2 to the Certifiers Regulations provides:
23 Additional pathway—all classes of registration
(1) In addition to any other pathway set out in this Schedule, a person has the qualifications and experience required to be granted registration in a particular class if—
(a) immediately before the repeal of the Building Professionals Act 2005, the person held a certificate of accreditation in a category that corresponds to that class of registration, and
(b) the person has held a certificate of registration in that class continuously since that repeal with no period since the repeal during which the person was not registered that is longer than 3 months or such longer period as the Secretary may allow in a particular case.
(2) For the purposes of this clause, clause 4 of Schedule 1 specifies which class of registration corresponds with a category of accreditation.
Consequently, despite the qualification requirements set out in Schedule 2 to the Certifiers Regulations, clause 23 effectively grandfathers those persons who held a certificate of accreditation prior to the repeal of the Building Professionals Act 2005 (NSW) into the new scheme set out in the Certifiers Act. As such, those persons found to have been suitable to hold the C10 – Certifier in Fire Safety Engineering Compliance prior to 1 July 2020 have been recognised to be suitable to continue to hold such registration as a Certifier – fire safety.
Schedule 3 to the Certifiers Regulations sets out that the minimal knowledge and skills required to be granted registration as a Certifier – fire safety as:
9 Certifier—fire safety
(1) Knowledge Must know and understand the following—
(a) the science of fire,
(b) the principles of fire engineering, including fire engineering processes and methodologies,
(c) relevant fire engineering guidelines, including the International Fire Engineering Guidelines,
(d) fire engineering models and tools,
(e) the design, planning and construction requirements relevant to this class of registration and appropriate techniques used for construction,
(f) the Building Code of Australia (volumes 1 and 2), including documents adopted by reference in the Building Code of Australia, to the extent they are relevant to this class of registration,
(g) inspection requirements relevant to this class of registration.
(2) Skills Must be able to do the following—
(a) apply scientific and engineering principles to evaluate strategies to protect people and their environment from the consequences of fire,
(b) anticipate the behaviour of materials, structures, machines, apparatus and processes when exposed to fire,
(c) assess a fire engineering design and determine whether a performance solution complies with the relevant performance requirements of the Building Code of Australia,
(d) apply relevant fire engineering guidelines, including the International Fire Engineering Guidelines,
(e) apply fire engineering models and tools,
(f) participate in the development of a fire engineering brief,
(g) establish and implement an inspection regime to—
(i) monitor compliance and verify design assumption during construction, and
(ii) certify compliance of completed building work,
(h) plan and conduct inspections of building work relevant to this class of registration to assess compliance,
(i) recognise inconsistencies and contradictions between regulatory instruments and engineering principles or the relevant requirements (relevant to this class of registration) and determine the appropriate solution,
(j) develop testing programs, including interpreting and auditing test results, relevant to this class of registration,
(k) critically review research data to assess its limitations and applications,
(l) interpret, apply and assess compliance with the Building Code of Australia.
ISSUES
The issues before the Tribunal are:
(a)whether the mutual recognition principles set out in the Mutual Recognition Act have application; and if so;
(b)whether the occupation, Registered Professional Engineer in the category of Fire Safety, for which the Applicant sought registration in Queensland by mutual recognition, is an equivalent occupation to that of a Certifier – fire safety for the purposes of section 17 of the Mutual Recognition Act; and if not;
(c)whether equivalence can be achieved by the imposition of conditions; and
(d)whether the Applicant should be registered in Queensland as a Registered Professional Engineer in the category of Fire Safety.
EVIDENCE
Applicant’s Evidence
The Applicant provided a written statement dated 18 February 2020 outlining his professional qualifications and experience and why he was seeking mutual recognition in Queensland as a Fire Safety Engineer RPEQ.[18] The Applicant described his current work as:[19]
15. In summary, my NSW and Victorian accreditation/registration allows me to undertake fire engineering assessment of qualitative and quantitative aspects of existing and proposed buildings. It allows me to undertake performance-based solutions in fire safety engineering. It also allows me to undertake inspections of existing buildings or buildings under construction for the purposes of verifying that what has been build complies with any fire safety engineering solution.
[18] Exhibit 3, Applicant’s Witness Statement dated 18 February 2020.
[19] Exhibit 3, Applicant’s Witness Statement dated 18 February 2020, page 3, paragraph 15.
Within the Applicant’s written statement, he drew the Tribunal’s attention to (and provided an exert of) the Building Professionals Board Accreditation Scheme provided by Fair Trading New South Wales that set out the requirements in place to be registered as a Category C10 - Accredited Certifier – Fire Safety Engineering Compliance.[20] The Tribunal will not reproduce the accreditation statement in this decision however notes that the speciality knowledge and skills sections are consistent with those set out in Schedule 3 of the Certifier Regulations. Further the Accreditation Statement provided that the relevant NER[21] registration equivalency was “Occupational Category of Professional Engineer in the General Area of Practice of Fire Safety Engineering”.[22]
[20] Exhibit 3, Applicant’s Witness Statement dated 18 February 2020, Attachment 2, pages 24-26.
[21] Being the National Engineers Register.
[22] Exhibit 3, Applicant’s Witness Statement dated 18 February 2020, Attachment 2, page 24.
Further, within the Applicant’s written statement, he also drew the Tribunal’s attention to (and provided a exert of) a Fire Safety Engineering – Education Report provided by the Warren Centre.[23] The Applicant made reference to the following exert:[24]
12.3. Queensland (QLD)
Queensland is currently the only Australian Jurisdiction to apply a comprehensive registration system for engineers. Registration as a RPEQ is formal recognition of the qualification and competency of an engineer.
Applying for mutual recognition of registration Applications under Mutual Recognition will be accepted from engineers registered with another state’s engineer registration authority, such as NSW Building Professionals Board, Victorian Building Authority, Northern Territory Building Practitioners Board. (NOTE: By-passing the strict educational requirements of CPEng and NER).
[23] Exhibit 3, Applicant’s Witness Statement dated 18 February 2020, Attachment 3, pages 27-28.
[24] Exhibit 3, Applicant’s Witness Statement dated 18 February 2020, Attachment 3, page 27.
At Hearing the Applicant appeared by Microsoft Teams and provided evidence under affirmation. In response to questions asked by his Counsel, the Applicant:[25]
·Confirmed his name and that the views he expressed in the two statements he provided throughout the Tribunal process were true and correct to the best of his knowledge and recollection.
·Said that in his professional capacity as a current C10 – Certifier in Fire Safety Engineering Compliance in New South Wales he has worked on a number of infrastructure projects which included tunnel projects. He said: “... it is the norm for a fire engineer to be involved in these structures or whatever you want to call them. It is the norm because fire engineering knowledge and implementation is very necessary for that environment. Tunnels.”
[25] Transcript page 28.
On cross-examination the Applicant:[26]
·When asked whether he described himself as a fire safety engineer on the basis of his post-graduate qualifications, said “I base it on the definition of a fire safety engineer in the Environmental Planning and Assessment Regulation. And the definition of a fire safety engineer is a C10 and now it currently is listed under the new term, but up until July this year, a C10.”
·Confirmed that he does not hold an under-graduate degree in engineering rather he holds a post-graduate degree in engineering.
·Confirmed he had not sought registration in Queensland pursuant to the normal assessment process.
·When asked had he done any work pursuant to his C10 classification outside of the building industry, said he has been involved in oil, plant refineries and food refineries, which are mostly structures but are also buildings.
·When asked whether the extent that, that work relates to structures if he understood that it was regulated under the Building Professionals Act formerly and now under the building and development legislation, said “Yes”.
·Confirmed that he does not undertake fire safety work in relation to resource legislation and mining legislation.
[26] Transcript, pages 29-31.
The Tribunal asked the Applicant a number of questions to establish a better understanding of the role of a C10 – Certifier in Fire Safety Engineering Compliance. The Applicant explained that the role of a C10 – Certifier in Fire Safety Engineering Compliance was to provide a report at the beginning of the building process (before building starts) and then again at the end of the building process to certify compliance with the fire safety plans. The Applicant explained that the intent of the initial legislation, which has been expanded by the new legislation is to provide additional levels of responsibility on the certifier to the public on top of their role in the various field. What they are certifying is their own work, that is that their initial report has been complied with.[27]
[27] Transcript, pages 31-32.
The Applicant told the Tribunal that a construction certificate or building permit cannot be issued until a fire engineer report has been received and further the legislation requires that an occupation certificate cannot be issued until the inspection report of the fire engineer has been provided. He said the same applies to structural, mechanical and electrical engineering.[28]
[28] Transcript, page 32.
When asked whether he considered that the role and tasks he could undertake as a C10 – Certifier in Fire Safety Engineering Compliance had changed since 1 July 2020, the Applicant told the Tribunal that he considered there had been no change. He said he had been keeping abreast of all of the legislative changes and that the skills required of a fire engineer are exactly the same. The Applicant said that those people who were registered prior to 1 July 2020 could continue to renew under the new legislation and would not have to undertake any new assessment.[29]
[29] Transcript, page 33.
When asked whether if he was granted registration in Queensland whether he would see his role in Queensland as being any different to that of which he undertakes in New South Wales, the Applicant said “No”. The Applicant told the Tribunal there were two reasons for this view, firstly that fire engineering is basically providing performance solutions in accordance with the Building Code of Australia (which is an Australia-wide document)t and also to follow the International Fire Engineering Guidelines. Secondly the work in every state is the same, so while the building legislation differs slightly, the work itself is the same.[30]
[30] Transcript, page 33.
Evidence of Mr Peter Glodic
The Tribunal understands that the Applicant disputed the relevance of evidence provided by Mr Glodic in relation to the different educational requirements for registration as a C10 – Certifier in Fire Safety Engineering Compliance and RPEQ in fire safety.[31] The Respondent conceded that the educational requirements for these registrations are irrelevant to the application of the mutual recognition principles.[32] The Tribunal agrees that the educational requirements relating to the two registration processes are not relevant in this matter.[33] As such the Tribunal does not consider it necessary to deal with the evidence or contentions made in relation to educational requirements for the relevant registrations in any detail within this decision.
[31] Applicant’s Written Submissions.
[32] Written Submissions on behalf of the Respondent, page 9, paragraphs 49-50.
[33] See Charles and Board of Professional Engineers of Queensland and Anor [1999] AATA 948.
Ahead of the Hearing the Respondent filed a report authored by Mr Peter Glodic dated 10 July 2020. In relation to the comparison of the roles/authorities conferred on a C10 – Certifier in Fire Safety Engineering Compliance and RPEQ in fire safety, Mr Glodic provided:[34]
93. The process as I understand it, and in terms of the activities undertaken by a C10 Accredited Certifier, do resemble in part that of the activities of an RPEQ in Fire Safety. However, the C10 Accredited Certifier only pertains to the Building code of Australia (BCA) i.e. for buildings. Further, a C10 Accredited Certifier is not required under the BPB Accreditation Scheme to undertake inspections.
94. In short, the C10 Accredited Certifier has the role of issuing Compliance Certificates and undertaking some of the professional engineering services that an RPEQ in Fire Safety could perform.
Conversely, the RPEQ in Fire Safety undertakes Professional Engineering Services, as defined under the PE Act noted previously herein, for all buildings, and also non-buildings i.e. tunnels, and includes inspections of the same.
95. Therefore, the C10 licence is not equivalent to an RPEQ in Fire Safety in this aspect.
[34] Exhibit 5, Report of Peter Glodic, pages 16-17, paragraphs 93-95.
In relation to a comparison of the service each registered occupation offers to the public, Mr Glodic provided:[35]
146. The service provided to the public appears to be similar when comparing the BPB Accreditation Scheme to that of the definition of Professional Engineering Services, per the Professional Engineers Act 2002 (Qld).
147. In the context of Fire Safety Engineering, the BPB Accredited Scheme Statement lists among other processes and tools, the International Fire Engineering Guidelines (IFEG), Fire Engineering Briefs and Fire Engineering Designs. These processes and services would be expected and required by the public in either jurisdiction.
148. The problem, however, does not lie with the role/scope, it lies with the very foundations for which the accreditation is made and hence the appropriateness and therefore application of the Mutual Recognition sought by the Applicant.
[35] Exhibit 5, Report of Peter Glodic, pages 23-24, paragraphs 146-148.
At Hearing, Mr Glodic gave evidence via Microsoft Teams under affirmation. Based on the evidence provided by Mr Glodic, the Applicant advised the Tribunal that they no longer sought to press any previously raised concerns regarding conflict of interest.[36]
[36] Transcript, pages 26-27.
In response to questions asked by the Respondent’s Counsel, Mr Glodic:[37]
·Confirmed his name and that he is a registered professional engineer in Queensland.
·Confirmed that he authored the report prepared in July 2020 and that it was his CV that was attached.
[37] Transcript, pages 11-12.
On cross-examination, Mr Glodic:[38]
·When asked why he believes as set out in his report at paragraphs 93 and 94 that a C10 – Certifier in Fire Safety Engineering Compliance can only in New South Wales provide services in relation to buildings as opposed to tunnels, said, “That’s my understanding from the documents I’ve read.”
·When put to him that the definition of building work in the New South Wales Environmental Planning and Assessment Act appear to include not just the building but also any structure or part of a structure, including a temporary structure, or a part of a temporary structure and asked if that was the case, then would not the role of a C10 – Certifier in Fire Safety Engineering Compliance and the ambit of their authority not be limited to just buildings but also to structures, said it comes down to the definition of structure which he does not believe from that definition pertains to tunnels. He thinks that a structure would be a control tower for example but not a tunnel.
·Confirmed that he is both a C10 accredited certifier – fire safety engineer compliance under the New South Wales scheme as well as an RPEQ in fire safety in Queensland.
·Was unable to confirm whether he issued compliance certificates for all of the projects he listed as having undertaken in New South Wales in his CV.
·Said he was not aware of what the roles and responsibilities of other certifiers outside of the fire safety speciality in New South Wales were when asked in the context of them requiring a report from an accredited fire safety engineer or a C10 – Certifier in Fire Safety Engineering Compliance saying the building was fire compliant before they were able to provide their certification.
[38] Transcript, pages 12-21.
The Tribunal asked Mr Glodic some clarification questions.[39] Mr Glodic told the Tribunal that for the projects listed in his report (he was referring to those undertaken by him in New South Wales as a C10 – Certifier in Fire Safety Engineering Compliance) that the report is provided prior to construction, in that he produced the fire engineer report at that stage and may or may not be asked for a compliance certificate. At this stage no inspection can be undertaken as nothing is built – it is still in the design stage.[40]
[39] Transcript, pages 21-22.
[40] Transcript, page 21.
When asked by the Tribunal to explain the different between roles of a Queensland professional engineer and of the C10 – Certifier in Fire Safety Engineering compliance, Mr Glodic said:[41]
What I have said is that, and my understanding is that for all building work it’s the same activities. [The Applicant] would prepare a fire engineer brief, a fire engineer report and issue that report, a C10 will issue compliance certificates, on this very question, where required, and RPEQ doesn’t do that, which Mr de Meyrick pointed out from a statutory point of view, it’s not required in Queensland.
… And my understanding is that a C10 can only work on buildings but not, you know, infrastructure, tunnels, oil and gas, you know, and that’s – that information was provided to me as being up for debate about structure, but I don’t believe it – the intent is certainly in tunnels, that’s just my opinion.
[41] Transcript, page 22.
When asked then if what he is saying is that the Queensland scope extends further than buildings, if the scope was limited to buildings whether there would be a difference, Mr Glodic said: “No. Only in terms of the compliance certificate, which is actually the C10’s role and RPEQ doesn’t have to do that statutory role. So, if you remove the non-buildings then the roles and process would be much the same.”[42]
[42] Transcript, pages 22-23.
On re-examination by the Respondent’s Counsel, Mr Golic:[43]
·Confirmed that a person who attains registration as an RPEQ in fire safety in Queensland is entitled to undertake professional engineering work in this field of fire safety outside the building industry.
·Said such industries include oil, mining, gas, power generation and tunnel infrastructure.
·Said that in his experience the work of an RPEQ in fire safety is not restricted or limited by operation of any regulation or legislation in Queensland in the terms of the type of engineering work that they are entitled to do – other than to the speciality of fire safety.
[43] Transcript, pages 23-24.
On further cross-examination, when asked if the other industries he listed in which an RPEQ can undertake fire safety engineering work, also applies to a C10 – Certifier in Fire Safety Engineering Compliance in New South Wales as long as they are relating to buildings or structures, Mr Glodic said he agreed with buildings however his view is that structures is up for question as to him the definition of structure does not mean panels.[44]
[44] Transcript, page 25.
CONTENTIONS
At the Hearing of this matter both the Applicant and Respondent were represented by Counsel. It was apparent from the outset that up until the filing of the Respondent’s Preliminary Written Submissions on 25 August 2020 (the day prior to the Hearing) the Respondent and Tribunal was not in receipt of the Applicant’s current registration as a C10 – Certifier in Fire Safety Engineering Compliance. Further, prior to those submissions the issue of the repealing of the Building Professionals Act and commencement of the Certifiers Act and consequential transition of the Applicant’s registration as a C10 – Certifier in Fire Safety Engineering Compliance to Certifier – fire safety does not seem to have been raised. These issues were discussed at the outset of the Hearing, noting that the Applicant had provided evidence of his continued registration.[45] The Tribunal considered the most appropriate way to progress the matter was to seek written closing submissions from the parties to provide the opportunity for these matters to be fully engaged with.
[45] Exhibit 6, Applicant Certificate of Individual Accreditation: Fair Trading, Building Professionals Board.
Applicant’s Written Submissions
In the Applicant’s written submissions dated 17 September 2020, the Applicant drew the Tribunal’s attention to the definitions of “building work” and “building” provided by the Environmental Planning and Assessment Act 1979 (NSW). Those definitions provide:[46]
“building work” means any physical activity involved in the erection of a building.[47]
“building” includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associate structure within the meaning of the Local Government Act 1993.[48]
[46] Applicant’s Written Submissions, page 2, paragraph 6.
[47] Section 6.1 of the Environmental Planning and Assessment Act 1979 (NSW).
[48] Section 1.4 of the Environmental Planning and Assessment Act 1979 (NSW).
The Applicant contended that it is clear that the role of a Category 10 Accredited Certifier – Fire Safety Engineering Compliance in New South Wales that the ambit of their authority is not limited to just buildings but extends to any and all “structures”.[49]
[49] Applicant’s Written Submissions, page 4, paragraph 17.
The Applicant further contended:[50]
24. Ultimately in answer to some questions from the Tribunal (T.21 to 23) Mr Glodic conceded (at T22[45] to 23[10]) that “fundamentally the two roles are definitely very similar” and that if the scope was limited to buildings there would be no difference. For the reasons referred to above including reference to the wide definitions of “building” and building work” from the Regulations, the Tribunal should conclude that Mr Glodic was wrong about a C10 certifier being limited to “buildings”. However, even if this submission is rejected, it is quite clear that equivalence could be achieved with a limitation to buildings, such that Mutual Recognition is still required to be given.
…
35. It is submitted that the occupations of “Fire Safety Engineer RPEQ (Qld)” and “Category 10 Accredited Certifier – Fire Safety Engineering Compliance” in NSW are relevantly equivalent within the meaning of the MR Act.
36. For the reasons set out herein and in the Applicant’s Statement of Issues, Facts and Contentions, the Application should be upheld and the Tribunal should declare that the Applicant is entitled to mutual recognition as sought.
[Emphasis added]
[50] Applicant’s Written Submissions, pages 5 and 8, paragraphs 24 and 35-36.
Respondent’s Written Submissions
The Respondent provided written submissions dated 2 October 2020 setting out the following contentions:[51]
[51] Written Submissions on behalf of the Respondent, pages 4 and 7-10, paragraphs 20 and 40-59. Noting footnotes have been excluded.
20. Mr Glodic’s opinion as to the authority of registered certifiers in New South Wales to work on tunnels is immaterial to the determination of the present application. Even if tunnels are “buildings” or “structures” for the purposes of the New South Wales legislative regime, there was no dispute that Mr Gardner’s work as a certifier is limited to work regulated under the Certifiers Act and Certifiers Regulation.
…..
40. The Applicant is not currently registered as a professional engineer in New South Wales. As such he is not entitled to registration as a RPEQ under the MR Act.
41. Section 19(1) of the MR Act provides:
A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.
42. Section 20(1) of the MR Act relevantly provides:
A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
43. In Medical Board of Queensland v Renton [2006] FCA 947, Dr Renton, a medical practitioner registered in New South Wales, sought registration in Queensland as an Intensivist. New South Wales did not maintain a register of specialist practitioners. Queensland did maintain such a register. The Tribunal had found that Dr Renton’s appointment in New South Wales entitled him to work as an intensivist and was therefore likely to be able hold himself out as such a specialist. On appeal, the Federal Court set the Tribunal’s decision aside. Justice Kiefel, as Her Honour then was, held:
Persons who may be carrying on the profession of intensivist elsewhere, but not registered under a statutory scheme which includes the registration of that specialist profession, would need to fulfil the requirements of the Queensland Act. I do not consider this result to be inconsistent with the objectives of mutual recognition. It follows from the requirement of equivalence of occupation the subject of registration. The mutual recognition principle has no operation where one State does not provide for the registration of an occupation or profession.
(emphasis added)
44. New South Wales has a registration scheme for the occupation of “certifier – fire safety”. However, there is no scheme for the registration of professional engineers in New South Wales.
45. Therefore, applying the reasoning in Renton, the mutual recognition principle has no operation in the present case and the Applicant has no entitlement to registration as a RPE in Queensland pursuant to the MR Act.
……
50. The ‘mutual recognition principle’ is, relevantly, that a person who is registered in the first state for an occupation is entitled after notifying the local registration authority of the second state for the equivalent occupation to be registered in the second state for the equivalent occupation.
51. The general principle for assessing the equivalency of occupations under the Mutual Recognition Act is that “the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions.”.
52. Noting the Respondent’s primary submission that the mutual recognition principle has no operation in the circumstances of the present case because New South Wales does not have a registration scheme for professional engineers, if the Tribunal considers it should apply the mutual recognition principle to determine whether or not the occupations of “certifier – fire safety” and a RPE are equivalent, the Respondent submits the Tribunal would find they are not.
53. Despite the fact that Mr Gardner is entitled, pursuant to his registration as a certifier – fire safety in New South Wales, to do similar work to that of a RPE in the area of fire safety in Queensland, the scope of that work in New South Wales is limited by operation of the Certifiers Act and Certifiers Regulation as set out above.
54. The work of an RPEQ is not so limited by operation of the Professional Engineers Act.
55. The Professional Engineers Act does not define or restrict the activities of registered professional engineers. As was noted in Charles and the Board of Professional Engineers of Queensland [1999] AATA 94, “the only activity regulated by the [Professional Engineers] Act is that undertaken by those who are not registered as professional engineers.” The Act does not constrain the range of activities a Registered Professional Engineer may undertake in their work.
56. As such, while the work activities of these occupations may be largely similar, the nature of the roles are fundamentally different.
57. In Turner and Registrar Supreme Court Queensland and Ors [2003] AATA 887, the Tribunal considered whether registration as a conveyancer was equivalent to that of a solicitor for the purposes of registration as a solicitor in Queensland. The Tribunal found, in essence, that although the activities of a conveyancer largely fall within the activities of a solicitor, to restrict the role of a solicitor to the occupation of a conveyancer by the imposition of conditions would be an extreme result rendering him something other than a solicitor.
58. Applying the reasoning in Turner, the work of a Registered Professional Engineer in fire safety may be restricted by the imposition of conditions on registration to make the scope or allowed work similar to that of a “certifier – fire safety”. However, the Respondent respectfully submits that the result would be to render the registrant something other than a Registered Professional Engineer.
59. Such an approach would be inconsistent with the approach of the Tribunal in Charles and Turner and the Federal Court in Renton.
The Respondent’s final contention was that the decision should be affirmed on the basis that that a Certifier – fire safety is not an equivalent occupation to a Registered Professional Engineer Queensland in the area of fire safety and that equivalence cannot be achieved by the imposition of conditions.[52]
[52] Written Submissions on behalf of the Respondent, page 10, paragraphs 60-62.
Applicant’s Reply Submissions
In the Applicant’s Reply Submissions dated 9 October 2020, the Applicant contended:[53]
3. It is apparent from the collective legislative provisions and role descriptions that the NSW C10 role is an Engineering role, and this has not changed despite the new, current description of the occupation previously known as C10 Accredited Certifier – Fire Safety Engineering Compliance. (See further paragraphs 31 to 36 of our Statement of Issues, Facts, and Contentions).
4. At Paragraphs 54 to 56 the Respondent suggests that the work of an RPEQ is not limited by the operation of the Professional Engineers Act. However, this work must still be registered engineering work within the specific category of engineering that the registration pertains to. It is not as if an engineer in Queensland has an unfettered ability to practice over a broad field of engineering if they do not have registration in the correct category.
5. At paragraph 56 the Respondent tries to make an illusory distinction between the “work activities” and the “nature of the roles” of the two occupations under comparison. In fact, there is no proper distinction to be made in that regard.
6. For the reasons set out herein, and in the Applicant’s previous substantive Written Submissions and Statement of Issues, Facts and Contentions, the Application should be upheld and the Tribunal should declare that the Applicant is entitled to mutual recognition as sought.
[53] Applicant’s Reply Submissions, pages 1and 2, paragraphs 3-6.
The Tribunal notes that in the Applicant’s Statement of Issues, Facts and Contentions he contended that:[54]
30. The Applicant's witness statement will explain that such mutual recognition and registration in Queensland will be of great commercial and practical value to him and his business. Without such registration he would be at a distinct disadvantage to fellow professionals practicing the same occupation in Queensland.
31. The issue of compliance certificates is not, in a practical sense, necessarily the most important function for a C10 accredited Fire Engineer in NSW. However, the C10 accreditation has become a near mandatory pre-requisite registration in NSW for the provision of services in the nature of fire engineering assessments, associated design and construction services, and fire safety investigation work.
32. The more specific reasons for refusal by the BPEQ seem to be based on the primary ground that the Board regards "fire engineers" in NSW (under the C10 Accreditation) as not being "engineers" as such, but rather the Board regards them as "certifiers". This is by virtue of fire engineers in NSW being accredited as a category of accredited certifier.
33. In simple terms, this appears to be an argument that if a practitioner is "accredited as a certifier" in NSW, then the mutual recognition scheme would not allow Queensland to register a "certifier" as an "engineer", albeit as a "fire engineering certifier" because a certifier is not the same occupation/function as an engineer. In other words, there is no "apples to apples" equivalence, and this holds true even if the certifier is qualified in fire engineering.
34. In response to this, the Applicant submits that a C10 accredited certifier in NSW is a fire engineer. The accreditation in NSW is termed as a "C10 Accredited Certifier - Fire Safety Engineering Compliance".
35. The NSW Accreditation Scheme at page 38 when read in context describes this occupation / role as engineering based. This is reflected in Clause 3 of the Environmental Planning & Assessment Regulation 2000 which defines a "fire safety engineer" as follows: "means a person holding Category C10 accreditation under the Building Professionals Act 2005."
36. This suggests that a C10 accredited engineer in NSW is a qualified engineer who is also required to certify their engineering design or consultancy work. However, the certification function is complementary to but does not in any way negate the fire engineering design work that the NSW occupation also encompasses.
[54] Exhibit 2, Applicant’s Statement of Issues, Facts and Contentions, pages 6-7, paragraphs 31-36.
CONSIDERATION
Presently, there is no national approach to the registration of professional engineers. Queensland has been the trail blazer in this regard with the implementation of the Professional Engineers Act 2002 (Qld). Victoria has followed suit having passed the Professional Engineers Registration Act 2019 (Vic) under which registration will commence from 1 July 2021. The Tribunal notes that New South Wales has via the Design and Building Practitioners Act 2020 (NSW) taken steps to put in place a scheme that amongst other defined practitioners requires registration of professional engineers. The Design and Building Practitioners Act 2020 (NSW) does not come into effect until 1 July 2021. The associated regulations have not yet been made, as such any limitation of the scope of application to kinds of building work has not been finally established.[55] It is unclear how this legislation will interact with the legislative scheme that currently regulates persons who are registered Certifiers – fire safety in New South Wales.
[55] A draft of the Design and Building Practitioners Regulation 2020 has been released for public consultation: <Design and Building Practitioners Regulation 2020 (nsw.gov.au)>.
The Respondent’s primary contention is that as the Applicant is not currently registered as a professional engineer in New South Wales (given that no such specific registration exists) the Mutual Recognition Act does not apply and he is not entitled to registration as a RPEQ in fire safety in Queensland.
This argument by the Respondent is interesting given that the evidence of the Applicant and Mr Glodic both established that the activities authorised to be undertaken by C10 – Certifier in Fire Safety Engineering Compliance is very similar to that of RPEQ in fire safety when looking solely at building work. The main difference tending to be the issuing of certificates by a C10 – Certifier in Fire Safety Engineering Compliance which is not required as part of the functions of a RPEQ in fire safety. The Respondent has based this contention relying on the decision of Justice Kiefel (as Her Honour then was) in Medical Board of Queensland v Renton [2006] FCA 947 (Renton).
Noting that the background of the Renton case as set out in the Respondent’s Written Submissions reproduced at paragraph 57 above, the Tribunal notes the relevance of the following points made by Kiefel J:
…….. Sande v Registrar of the Supreme Court of Queensland (1996) 134 ALR 560, 565 had held that the Commonwealth legislation should be applied in a practical common sense manner, regard being had to the substance of a matter and to the substantial equivalence of the occupation.[56]
…..
As French J pointed out in Board of Examiners v Lawrence at [64] - [65], it is registration for an occupation in the State of original qualification that is the subject of recognition under the Mutual Recognition Act. The question which must be asked when a person invokes the provisions of that Act is - what is the occupation for which that person is registered in the first State? That question is to be answered by reference to the terms of the registration in the first State informed by, or read with, the statutory provisions under which registration is effected. The objective of mutual recognition is to allow the legal entitlement to carry on an occupation in one State to be recognised and the like legal entitlement for an equivalent occupation conferred in the second State. [57]
The objective of the mutual recognition principle does not prevent a conclusion that there is no equivalent occupation, as French J recognises (at [67]). Sande v Registrar was a case in which there was no equivalent occupation in the second State. The applicant had been registered in South Australia as a conveyancer but the law of Queensland had ceased to recognise it as a profession, one for which registration could be obtained. In the present case it may be said that the registration of a medical practitioner in either New South Wales or Queensland would entitle a person to registration in that occupation in the other State. The question which here arises is whether the occupation the subject of registration under the New South Wales Act is equivalent to the profession of intensivist for which registration may be obtained under the Queensland Act. Equivalence is tested, pursuant to s 29(1), by determining whether the activities authorised to be carried out under each registration are substantially the same, or may be so with the imposition of conditions. That question is to be determined by reference to the terms and statutory context of the registration in each State, as French J observed (at [68]).[58]
…….
…… In my respectful view the requirements of equivalence of occupation under the Mutual Recognition Act are not met by considering whether a person may carry out in the first State activities associated with the profession for which registration is sought in the second State. The enquiry is as to whether the statute under which registration is granted in the first State itself authorises the activities of the profession in the second State. For the mutual recognition principle to operate, an affirmative answer is required. In the present case the answer must be negative.[59]
…….
…… The construction which I consider the Mutual Recognition Act requires has the effect that a person who is not registered as an intensivist in another State cannot achieve registration in that profession in Queensland. This may apply to other professions. Persons who may be carrying on the profession of intensivist elsewhere, but not registered under a statutory scheme which includes the registration of that specialist profession, would need to fulfil the requirements of the Queensland Act. I do not consider this result to be inconsistent with the objectives of mutual recognition. It follows from the requirement of equivalence of occupation the subject of registration. The mutual recognition principle has no operation where one State does not provide for the registration of an occupation or profession.[60] …..
[emphasis added]
[56] Medical Board of Queensland v Renton [2006] FCA 947 at [23].
[57] Medical Board of Queensland v Renton [2006] FCA 947 at [27].
[58] Medical Board of Queensland v Renton [2006] FCA 947 at [28].
[59] Medical Board of Queensland v Renton [2006] FCA 947 at [31].
[60] Medical Board of Queensland v Renton [2006] FCA 947 at [33].
The Tribunal considers that the points made by Kiefel J outlined above are applicable in this matter however led to a different conclusion. In Renton, Kiefell J was dealing with a situation where there was no formal registration requirements in any state outside of Queensland for registered medical practitioners to also be registered in a specialist stream in order to have such specialities recognised or attributed to the work or role they were undertaking. Such specialities were recognised by the employer of the particular medical practitioner.
In Renton there was no registration for the specialist qualification of an intensivist in any state other than Queensland, whereas in the present matter it can be said that the occupation of fire safety engineer is registered in New South Wales, albeit by a different name.
The Tribunal considers that the existence of a regulatory scheme albeit in a haphazard manner is in place in New South Wales is evidenced in a number of different ways.
Firstly, the Environmental Planning & Assessment Regulations 2000 (NSW) presently defines fire safety engineer to mean a person registered under the Certifiers Act whose registration authorises the person to exercise the function of a fire safety engineer.[61]
[61] Regulation 3 of the Environmental Planning & Assessment Regulations 2000 (NSW).
Secondly, the initial accreditation held by the Applicant was C10 – Certifier in Fire Safety Engineering Compliance, and while that description has changed under the Certifiers Act and Regulations the knowledge and skills required have not shifted from being engineering focused.
Thirdly, the Fire Safety Engineering – Education Report prepared by the Warren Centre sometime between July 2018 and prior to the enactment of the Certifiers Act and Regulations was provided with the “aim … to prepare the ground for future work to promote a positive evolution of fire safety engineering education and the associated accreditation processes.[62] The Report overall calls for a more consistent approach to recognition and regulation of Fire Safety Engineers,[63] it provides that:[64]
6.2.1 REGISTRATION PATHWAYS
Fire safety engineers are generally required to be registered in some form or another in each of the states and territories in which they will be practicing, although not every state and territory has such a scheme or requirement. In some states the process is referred to as accreditation and in other certification. These state-based schemes are different to and separate from the accreditation processes of the individual professional bodies, although in some states achieving accreditation through one of the professional bodies is one route to registration. A summary of the requirements in some states is given in Table 1, overleaf. Note the different terminology used in the different states for what should in principles be a similar process. In Queensland there is a licensing system, and in Victoria there is a registration process. In Tasmania there is an accreditation process and in New South Wales there is a process for accreditation as a certifier.
Table 1 – Summary of Requirements to practice in some states in Australia
[62] The Warren Centre, Fire Safety Engineering: Education Report (2019) [5] < align="left">[63] The Warren Centre, Fire Safety Engineering: Education Report (2019) < align="left">[64], The Warren Centre, Fire Safety Engineering: Education Report (2019) [45]-[46]. < cellpadding="0" cellspacing="0">
State
Requirement to Practice
Relevant Legislation
Qualifications or Experience Required
Comments
QLD
Registration leading to licensing
Compulsory registration of engineering professionals is requir3ed under the Professional Engineers Act 2002 (QLD)
Assessment of qualifications and experience for registration is based on the same criterial as for accreditation by one of the professional organisations.
Mutual recognition bypasses the strict educational requirements for accreditation via one of the professional organisations.
NSW
Accreditation as a certifier
Engineers wishing to issue certificates related to construction or compliance must be accredited by the Building Professionals Board under the Building Professionals Act 2005 (NSW).
Educational requirements include a degree of any kind, including an associate degree awarded after a period of studies of usually two years.
The Accreditation process enables persons without a three or four-year engineering or science degree to be accredited in NSW.
…….
Fourthly, Engineers Australia as the profession’s peak body in their May 2020 report titled “Registration of Engineers: the Case for Statutory Registration.”[65] call for a uniform registration system for professional engineers and acknowledges that the current status across Australian jurisdictions is as follows:[66]
Australia does not have a uniform registration system for engineers.
oQueensland is the only jurisdiction with mandatory and comprehensive registration.
oSouth Australia and Western Australia have no registration or licensing provisions of any kind.
oIn NSW, the ACT, Tasmania and Northern Territory, the registration or licensing regimes are for engineers involved in the building sector only. The regimes do not cover other areas of engineering like mechanical, electrical, aeronautical.
oVictoria passed the Professional Engineering Registration Act in 2019, which will come into force in July 2021.
[65] Public Affairs and Policy Advocacy Engineers Australia, Registration of Engineers: The Case for Statutory Registration (May 2020) < 855843 Policy - Registration of Engineers Brochure V7.pdf (engineersaustralia.org.au)>.
[66] Public Affairs and Policy Advocacy Engineers Australia, Registration of Engineers: The Case for Statutory Registration (May 2020) [13] 1.2 < 855843 Policy - Registration of Engineers Brochure V7.pdf (engineersaustralia.org.au)>.
The Tribunal considers that in this instance the Renton case is distinguished on the basis that there is recognition of the profession or trade of engineers in fire safety and relevant registration/certification process in place in New South Wales. As such the present matter is not a matter where the Mutual Recognition principles do not apply.
Consequently, the Tribunal must now consider whether the occupation, Registered Professional Engineer in the category of Fire Safety, for which the Applicant seeks registration in Queensland by mutual recognition, is an equivalent occupation to that of a C10 – Certifier in Fire Safety Engineering Compliance (Certifier – fire safety) for the purposes of section 17 of the Mutual Recognition Act and if not whether equivalence can be achieved by the imposition of conditions.
The Applicant contended that the C10 – Certifier in Fire Safety Engineering Compliance role is an engineering role. The Applicant asks the Tribunal not to put weight on the issuing of compliance certificates providing that this is not something that is always completed however noted that C10 – Certifier in Fire Safety Engineering Compliance accreditation “has become a near mandatory pre-requisite registration in NSW for the provision of services in the nature of fire engineering assessments, associated design and construction services and fire safety investigation work.”[67] The Tribunal refers to the remainder of the Applicant’s contentions on this point as set out in paragraph 60 above.
[67] Exhibit 2, Applicant’s Statement of Issues, Facts and Contentions, page 7, paragraph 31.
In determining equivalence of occupations, the Tribunal must take a common sense approach and look at the requirements, authorisations and limitations placed on the first occupation to then see if there is an equivalent occupation in the second State.
The Tribunal accepts that a person carrying out the role of a C10 – Certifier in Fire Safety Engineering Compliance is required to give consideration to engineering principles. This is clearly set out by Schedules 2 and 3 to the Certifiers Regulations which provide the qualifications and experience and knowledge and skills that are required by a person to be registered as a Certifier – fire safety.
The conditions placed on a C10 – Certifier in Fire Safety Engineering Compliance when performing functions whilst using their registered title pursuant to the definition of certification work is set out in section 4 of the Certifiers Act. The scope of a C10 – Certifier in Fire Safety Engineering Compliance is limited by the Certifier Act, Certifier Regulations and Environmental Planning and Assessment Act 1979 (NSW) and any other certification legislation. All of which relate to the construction of buildings and the building industry.
While the Certifier Act is not registering persons as professional engineers, it is registering them as specialist certifiers who undertake in the fire safety category what can in the Tribunal’s view be considered to be akin to the services described by the Professional Engineers Act as professional engineering services. Mr Glodic confirmed in his evidence that this is in fact the case.
The Tribunal does not accept the Applicant’s contention that the Environmental Planning and Assessment Act 1979 (NSW) definition of building extends to all structures and hence incorporates tunnels and other structures. Rather the Tribunal interprets the definition to when considered in totality, to be referring to buildings and any associated structure to those buildings.
While the Applicant correctly pointed out that the role of a RPEQ in fire safety is not unfettered, it is only limited to the extent of providing professional engineering services as defined by the Professional Engineers Act in relation to the area of engineering for which the person is registered. Outside of this limitation there are no other legislative limitations on the exercise of professional engineering services by a practising professional engineer.[68]
[68] As per Charles and the Board of Professional Engineers of Queensland [1999] AATA 948 at [120] and [121].
As such the Tribunal considers that registration as a C10 – Certifier in Fire Safety Engineering Compliance or as it is now known Certifier – fire safety, is not an equivalent occupation to that of a RPEQ in fire safety in that it is limited to activities related to buildings. Based on the evidence outline above provided by the Applicant and Mr Glodic and the above consideration in determining that the Mutual Recognition principles applied, the Tribunal finds that equivalence can be achieved by the imposition of a condition.
The evidence of Mr Glodic at Hearing was clear that in his view, which was provided to the Tribunal on behalf of the Respondent as expert evidence, when asked if the scope of the role of C10 – Certifier in Fire Safety Engineering Compliance was limited to buildings whether the role would be different to that of a of RPEQ in fire safety, the answer was no. Mr Glodic said, “So if you remove the non-buildings then the roles and process would be much the same.” As such the Tribunal does not accept the Respondent’s contentions that placing such a condition on the C10 – Certifier in Fire Safety Engineering Compliance would render the Applicant as something other than a Registered Professional Engineer in fire safety. The Tribunal considers that in considering the present circumstances the decisions in Turner and Registrar Supreme Court Queensland and Ors [2003] AATA 887 and Renton are distinguishable.
Outside of the above consideration, no other matters as to why the Applicant should not be registered as a Registered Professional Engineer in the category of Fire Safety in Queensland with the condition that such registration is limited to the provision of professional engineering services relating to buildings were advanced.
CONCLUSION
For the reasons set out above, the Tribunal finds that pursuant to the principles of the Mutual Recognition Act, the role of C10 – Certifier in Fire Safety Engineering Compliance/Certifier – fire safety can be taken to be an equivalent occupation to that of RPEQ in the category of Fire Safety where a condition is imposed limiting the activities to be carried out to that of professional engineering services as they relate to buildings.
Accordingly, the Tribunal sets aside the decision under review and in substitution finds that the Applicant shall be registered as a Registered Professional Engineer in the area of fire safety in Queensland under the Professional Engineers Act 2002 (Qld) with the condition that such registration is limited to the provision of professional engineering services relating to buildings.
I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
..............[SGD].....................................................
Associate
Dated: 03 February 2021
Date of hearing: 26 August 2020 Counsel for the Applicant:
Solicitors for the Applicant:
Mr Rohan de Meyrick
Lovegrove & Cotton
Counsel for the Respondent: Mr Ben McMillan Solicitors for the Respondent: Board of Professional Engineers of Queensland
1
5
0