Thursday, 2 May 2019
Bills
Professional Engineers Registration Bill 2019
Professional Engineers Registration Bill 2019
Introduction and first reading
The PRESIDENT: I have received the following message from the Legislative Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to establish a scheme for the registration of professional engineers to promote best practice in providing professional engineering services, to provide for the endorsement of registration, to provide protection to consumers of professional engineering services and to make consequential amendments to other Acts and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Mr SOMYUREK: I move, by leave:
That the bill be read a second time forthwith.
Motion agreed to.
Statement of compatibility
Mr SOMYUREK (South Eastern Metropolitan—Minister for Local Government, Minister for Small Business) (17:42): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this Statement of Compatibility with respect to the Professional Engineers Registration Bill 2019.
In my opinion, the Professional Engineers Registration Bill 2019 (the Bill), as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
This Bill establishes a single registration scheme for engineers to promote professional development within the engineering profession; reduce the risk of loss and harm to the public; and give consumers more confidence in procuring professional engineering services.
The Bill will require individuals to be registered in one or more areas of engineering to be able to lawfully provide professional engineering services in Victoria. It is intended that over time, other areas of engineering will be included in the scheme. A register of engineers will be established under the Act.
The Bill ensures consistent eligibility criteria across Victoria for engineers, establishes minimum continuous professional development requirements and provides a three year registration for professional engineers.
The registration scheme will be jointly administered by the Business Licensing Authority (BLA), Consumer Affairs Victoria (CAV) and, in relation to engineers engaged in the building industry, the Victorian Building Authority (VBA), with assessment undertaken by approved assessment entities. Among other things, the Bill will confer on CAV a range of entry and inspection powers to enable CAV the ability to effectively enforce the provisions of the Bill.
The Bill contains provisions to transition engineers currently registered under the Building Act 1993 into the Engineers Registration Scheme when their current registration renewals fall due. The Bill also makes consequential amendments to a range of other Acts.
Human rights issues
Human rights protected by the Charter that are relevant to the Bill
In my opinion, the human rights under the Charter that are relevant to the Bill are:
a. the right to equality as protected by section 8 of the Charter;
b. the right to privacy and reputation as protected by section 13 of the Charter;
c. the right to freedom of expression as protected by section 15 of the Charter;
d. property rights as protected by section 20 of the Charter;
e. rights in criminal proceedings as protected by section 25 of the Charter; and
f. the right not to be punished more than once as protected by section 26 of the Charter.
For the reasons outlined below, I am of the view that the Bill is compatible with each of these human rights.
Equality
Section 8(3) of the Charter provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
Clause 12(2)(c) of the Bill disqualifies a person from obtaining or renewing a registration on the grounds that they are a represented person within the meaning of the Guardianship and Administration Act 1986 (Guardianship Act). A represented person is a person subject to a guardianship or administration order under the Guardianship Act. Persons subject to such orders are persons with disabilities who are unable to make reasonable judgements about certain matters because of intellectual impairment, mental disorder, brain injury, physical disability or dementia.
A represented person is disqualified under clause 12(2)(c) of the Bill because of his or her inability to make reasonable judgements about certain matters, rather than because of his or her disability.
In my view, these disqualification criteria do not limit the right to equality. , To the extent that the provision may be considered to discriminate against represented persons, such discrimination is reasonable and justified because the provisions recognise the fact that a represented person cannot effectively carry out the functions of a professional engineer providing professional engineering services.
Right to Privacy and Reputation
Section 13 of the Charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.
Several clauses of the Bill provide the BLA and VBA with broad powers to access the private information of individuals in order to determine applications for registration, registration renewal, endorsement and endorsement renewal; determine applications for approvals of assessment schemes; and regulate registrations and assessment schemes. Additionally, the Bill provides CAV inspectors with powers of entry, search and seizure that may interfere with the privacy of individuals.
Obtaining, using and sharing the personal information of applicants and registered professional engineers
Division 1 of Part 2 of the Bill sets out the application processes for obtaining registration as an engineer, as well as for the renewal of a registration. An application for a registration or renewal must be accompanied by prescribed information.
It also sets out the process by which the BLA and VBA may conduct inquiries concerning an application to enable it to be satisfied that the applicant is suitable to be granted a registration or have a registration renewed, including in the case of an applicant who wishes to be engaged in the building industry, whether they are a ‘fit and proper person’ within the meaning of the Building Act 1993 to hold an endorsement.
Division 1 of Part 3 sets out the process by which assessment entities may seek to have their assessment schemes approved. As assessment entities can be natural persons, the information sought may also engage the right to privacy.
Although the right to privacy is relevant to the provisions governing registration, endorsement, approval schemes and renewal applications, applicants who are seeking to participate in a regulated industry have a diminished expectation of privacy. The information that will be initially sought by the BLA and VBA is only information that is necessary for or relevant to the determination of the applications, and any subsequent exercise of the information-gathering powers are a direct consequence of their application.
Given that there is a reduced expectation of privacy in this context, and the applicants and relevant persons will have given their consent for their information to be checked or verified, in my opinion there will be no limitation on the right to privacy or reputation where the relevant information is obtained, reviewed and shared within the confines of the relevant provisions.
The Register
Clause 28 requires the Licensing Registrar to establish and keep a Register of Professional Engineers that contains certain prescribed particulars. Clause 29 requires that certain information from the register must also be published on the BLA’s website. The information to be listed on both the register and the website will include not only information relating to current registered professional engineers but also matters relating to discipline of those engineers.
The purposes of the register include recording necessary information to monitor compliance with the registration scheme and to allow the BLA, CAV and VBA to fulfil their obligations. The register will also make information about registered professional engineers, or engineers who were previously registered, available to the public. This serves the important purpose of promoting transparency, which will in turn assist consumers to make informed decisions about whether to engage a particular professional engineer.
Clause 28 sets out when the BLA is able to record the information on the register, and provides that the information about a disciplinary or criminal sanction is to remain on the register until the expiry of five years after the sanction ceases to have effect.
Not all of the information disclosed in the register will be of a private nature. Nevertheless, to the extent that the right to privacy is relevant to the information required to be listed on the register, I believe that any interference with that right is lawful and not arbitrary. The particulars which are to be listed on the register and the website are clearly set out in clauses 28 and 29, and their listing is therefore a known condition of any person seeking to be registered as an engineer. The collection and publication of information on the register is necessary for and tailored to ensuring compliance with the registration scheme and promoting transparency, and accordingly does not constitute an arbitrary interference with privacy.
Compliance and enforcement powers of inspectors
Part 6 of the Bill provides for the powers of CAV inspectors to monitor compliance and investigate potential contraventions of the Bill.
Clause 71 requires a registered professional engineer or their employer to keep all documents relating to their practice as a professional engineer and make them available for inspection at all reasonable times. Former registered professional engineers or their employers must also make documents available for inspection in a form and at a place where they can be readily inspected.
Under clauses 71 to 76, registered professional engineers, their employers and certain third parties who have possession, custody or control of documents relating to an engineer’s practice as a professional engineer, can be required to produce documents and answer questions relating to the engineer’s practice as a professional engineer. The Bill also provides for specified public bodies, certain other specified persons or bodies, and authorised deposit-taking institutions to produce information upon request of an inspector for the purpose of monitoring compliance with the Bill or regulations.
Clause 77 permits an inspector, with the written approval of the Director of CAV, to apply to the Magistrates’ Court for an order requiring a person to answer questions or supply information relating to a registered professional engineer’s practice as a professional engineer. Following consideration of evidence, if a magistrate is satisfied that such an order is necessary for the purpose of monitoring compliance with the regime, the magistrate may grant an order requiring supply of information and answers.
The Bill also provides for the entry, search and seizure powers of CAV inspectors. Inspectors may exercise powers of entry to any premises with the consent of the occupier, or where entry to the premises is open to the public. In the case of premises at which a registered professional engineer or their employer is conducting a business of providing professional engineering services, inspectors may, for the purpose of monitoring compliance and only during ordinary business hours, enter and search those premises without consent and seize items and inspect or make copies of documents. For premises that are not those at which a registered professional engineer or their employer is conducting the business, where an inspector believes on reasonable grounds that there is evidence on those premises of a contravention of the Bill or regulations, CAV inspectors may apply to the Magistrates’ Court for a search warrant.
In my view, while the exercise of these compliance and enforcement powers may interfere with the privacy of an individual in some cases, any such interference will be lawful and not arbitrary. As noted above, the purpose of the inspection powers is to enforce compliance with the Bill and relevant registration conditions, to ensure professional engineering services are provided in a competent manner. Engineers and others engaged in providing professional engineering services have a diminished expectation of privacy in the regulatory context, and it is reasonable that they can be required to produce information and permit entry to business premises for compliance purposes. In the case of persons who are not involved in providing professional engineering services, inspectors’ powers to require third parties to answer questions or provide information are limited to those individuals who have control over relevant documents and information, or bodies that are likely to hold relevant information, and only for the purpose of monitoring compliance. If it becomes necessary for enforcement purposes to require any other third party to answer questions or produce information, the Bill only provides inspectors with these powers where a magistrate has first made an order.
Right to freedom of expression
Section 15(2) of the Charter provides that every person has the right to freedom of expression. Section 15(3) of the Charter provides that special duties and responsibilities are attached to the right to freedom of expression and that the right may be subject to lawful restrictions reasonably necessary to respect the rights of other persons or for the protection of national security, public order, public health or public morality.
Offence to make certain representations
Clause 68 of the Bill provides that it is a criminal offence for a person who is not registered as an engineer in a particular area of engineering to represent that they are registered to provide professional engineering services in that area of engineering. Further, the clause also restricts representations that they are an endorsed building engineer, that they are a professional engineer or that they are registered.
It may be that the right to freedom of expression extends to certain kinds of commercial expression. However, commercial expression is generally afforded a lesser degree of protection under the right compared with political or artistic expression. Restrictions on commercial expression are likely to be subject to less scrutiny generally on the basis that commercial expression serves a private, rather than a public, interest. Also, as with other forms of expression, commercial expression is subject to section 15(3) of the Charter. In these cases, the provision aims to protect consumers from being misled and so is necessary for the protection of the public interest.
In light of the fact that these new sections serve to protect consumers from being misled by persons who are providing professional engineering services but who are not appropriately registered or qualified, these provisions do not in my view limit the right to freedom of expression. They do not fall within the protected scope of section 15(2) of the Charter, or in the alternative, they fall within the exceptions to the right in section 15(3) of the Charter, as reasonably necessary to respect the rights of other persons and for the protection of public order and public health.
Provision of assistance when search warrant executed
Clause 84 will enable an inspector to be authorised by warrant to require a person to provide reasonable and necessary assistance or information to enable information in electronic or digital format to be accessed from the premises the subject of the warrant.
These provisions enable appropriate oversight and monitoring of compliance with the Bill. They only allow an inspector or the Director to require information, documents or assistance to the extent that it is reasonably necessary to determine compliance or non-compliance with the Bill. A warrant issued under clause 84 compelling the provision of information or assistance can only be issued if a magistrate is satisfied that an inspector has reasonable grounds to believe a contravention has occurred and after consideration of the rights and interests of the parties to be affected by the warrant.
The assistance of the persons to whom these provisions relate is necessary to conduct investigations into whether the regulatory obligations of the Bill are being complied with.
Although an engineer or other person at premises from which professional engineering services are being provided may not wish to offer information in respect of the provision of those services, their cooperation is essential to ensuring the effectiveness of the regulatory scheme. The assistance of those responsible for, and familiar with, the processes and operations of the engineer’s practice is necessary to enable investigations into regulatory compliance.
Right to property
A number of provisions in the Bill provide for the seizure of documents and things and may therefore interfere with the right to property. Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.
Search and seizure powers of inspectors
The Bill provides that CAV inspectors may, for the purpose of monitoring compliance, enter any premises with consent and examine and seize anything found on the premises believed to be connected with a contravention of the Bill or regulations, provided the occupier consents to the seizure. The Bill also provides, in the case of premises at which a registered professional engineer or their employer is conducting a business of providing professional engineering services, that an inspector may enter and seize or secure against interference anything believed to be connected with a contravention of the Bill or regulations. In addition, seizure of items may occur in accordance with a search warrant issued by a magistrate where there are reasonable grounds to believe that there is a thing connected with the contravention of the Bill or regulations on any premises.
In each provision that permits inspectors to seize or take items or documents, the powers of inspectors are strictly confined. For example, before items are seized with consent, inspectors must first inform the occupier that they may refuse to give consent and that anything that is seized may be used in evidence. Where a magistrate issues a search warrant, only things named or described in the warrant, or things that are of a kind which could have been included in the search warrant, are permitted to be seized, and the rules in the Magistrates’ Court Act 1989 that govern the use of search warrants will apply. Entry and seizure without consent or warrant is only permitted at premises at which an engineer or their employer is conducting a business providing professional engineering services, and the powers of inspectors are appropriately circumscribed to only permit seizure of, or secure against interference, material necessary to investigate breaches of the Bill.
Embargo notices
Where a search warrant authorises the seizure of a thing that cannot, or cannot readily, be physically removed, clause 87 of the Bill provides for an inspector to issue an embargo notice prohibiting a person from selling, leasing, transferring, moving, disposing of or otherwise dealing with the thing or any part of the thing. Performing a prohibited act in relation to a thing, where a person knows that an embargo notice relates to the thing, is an offence. Further, the Bill renders any sale, lease, transfer or other dealing with a thing in contravention of clause 87 void.
The Bill enables an inspector, for the purpose of monitoring compliance with an embargo notice, to apply to the Magistrates’ Court for an order requiring the owner of the thing, or the owner of the premises where it is kept, to answer questions or produce documents, or any other order incidental to or necessary for monitoring compliance with the embargo notice or clause 87. An inspector may also, with the written approval of the Director of CAV, apply to a magistrate for the issuing of a search warrant permitting entry to where the embargoed thing is kept for the purposes of monitoring compliance with an embargo notice.
To the extent that the restriction on selling, leasing, transferring, moving, disposing of or otherwise dealing with the thing that is subject to an embargo notice constitutes a deprivation of property, any such deprivation is for the purposes of ensuring that enforcement action under the Bill is not frustrated due to disposal of evidence. These restrictions can only occur in clearly circumscribed circumstances, and monitoring of compliance with embargo notices is subject to the supervision of the Magistrates’ Court. Any such deprivation will therefore be lawful and will not limit section 20 of the Charter.
Requirements for retention and return of seized documents or things
Clause 90 of the Bill imposes a number of requirements that inspectors must comply with where they have retained possession of a document or item in accordance with any of the seizure or retention powers conferred by the Bill. These requirements will ensure that a person is provided with a certified copy of any documents seized or taken from them, and that inspectors take reasonable steps to return documents or things to the person from whom it was seized either if the reason for their seizure no longer exists, or in any event return them within three months unless an extension is granted by a magistrate.
In my opinion, for the reasons outlined above, any interference with property occasioned by the Bill is in accordance with law and is therefore compatible with the Charter.
Rights in criminal proceedings
Presumption of innocence—reverse onus
The right in section 25(1) of the Charter is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that he or she is not guilty of an offence.
Clause 67, which makes it an offence to provide professional engineering services without registration, could be perceived as creating a reverse onus in that it provides two exceptions to the operation of the main body of the offence. However, clause 67 does not require a defendant to raise evidence in support of their defence in relation to any aspect of the offence, but instead requires the prosecution to prove all elements of the offence, including that:
• a person provided professional engineering services in an area of engineering; and
• that person was not registered in that area of engineering; and
• that person did not provide the professional engineering services in accordance with a prescriptive standard; and
• that person did not provide the professional engineering services under direct supervision.
Clause 80(3), which makes it an offence not to comply with a requirement of an inspector when entry is effected into premises without consent or a warrant (other than the permanent place of residence of a person), enables a person to raise a defence of ‘reasonable excuse’ in response to a requirement to produce documents or answer questions under clause 80(1), relating to entries without consent or warrant.
Clause 92(2) of the Bill makes it an offence for the occupier of a premises where an inspector is exercising a right of entry for compliance enforcement purposes, or an agent or employee of the occupier, to, without reasonable excuse, refuse to comply with a requirement of the inspector. These requirements include giving oral or written information to the inspector, producing documents to the inspector, and giving reasonable assistance to the inspector.
Clause 94 enables a person to raise a defence of ‘reasonable excuse’ in response to a requirement by an inspector more broadly under Part 6 of the Bill dealing with enforcement.
By creating a ‘reasonable excuse’ exception, the offences in clauses 80, 92 and 94 may be viewed as placing an evidential burden on the accused, in that it requires the accused to raise evidence as to a reasonable excuse. However, in doing so, these offences do not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution who must prove the essential elements of the offence. I do not consider that an evidential onus such as this provision limits the right to be presumed innocent, and courts in other jurisdictions have taken this approach.
For these reasons, in my opinion, clauses 67, 80, 92 and 94 do not limit the right to be presumed innocent.
Right to protection against self-incrimination and the right to a fair hearing
Section 24 of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. It also addresses the ability to exclude persons from hearings if permitted by law, and requires hearings to be public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.
Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against himself or herself or to confess guilt. This right is at least as broad as the common-law privilege against self-incrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to or subsequent to the charge being laid.
These rights are relevant to clauses 84, 93 and 98, which applies to the enforcement powers of CAV inspectors provided by Part 6 of the Bill.
Clause 84 of the Bill will enable a warrant issued by a Magistrate under clause 77 of the Bill to authorise an inspector to require a person to provide reasonable and necessary information or assistance. Clause 84 of the Bill provides that it is not a reasonable excuse for a natural person to refuse or fail to provide information or assistance that a person is required to provide under clause 84 if the provision of the information or assistance would tend to incriminate the person.
The purpose of issuing a search warrant under clause 84 is to enable a search to be undertaken of specified premises for information or a thing connected with a contravention of the Act. The process is predicated upon evidence of a contravention not yet being in the possession of an inspector, and in the ordinary course of investigative action, a request for assistance made by an inspector under clause 84 would precede any decision to charge or not to charge a person with an offence under the Act.
This clause of the Bill is directed to addressing the increasing prevalence of storage of business documents and information in digital or electronic format, including “off-site” storage in cloud networks. Commonly, access to such information is subject to security requirements such as passwords or encryption technology. If a trader were able to refuse to provide a necessary password or de-encryption key to access business documents the regulatory scheme would increasingly become unable to be effectively administered.
The information or assistance contemplated under clause 84 is for the purpose of enabling access to information concerning an alleged contravention of the Bill. A duty to provide such information or assistance is consistent with the reasonable expectations of persons who participate in a regulated activity with associated duties and obligations. Moreover, it is necessary for regulators to have access to such information to ensure the effective administration of the scheme.
The Bill does not limit section 25(2)(k) in this respect, because the person required to assist an inspector is not a person who has been charged with a criminal offence. While there is no formal restriction on the use of the powers after a person has been charged, this reflects that, in practice, the execution of any search warrant occurs before any action for a contravention of the Bill or regulations is taken. The purpose of this action is to gather evidence in relation to the contravention. In addition, the person is not being required to testify against himself or herself because they are not giving evidence in court. Finally, the person is not being required to confess guilt. While the information the person provides may enable an inspector to obtain evidence that incriminates the person, the giving of that information, such as a computer password or similar, is not in itself a confession of guilt.
Further, it is important to recognise that the purpose of abrogating the privilege against self-incrimination in relation to the giving of assistance is to access information stored in digital or electronic format. While the Bill refers to accessing ‘information’ in clause 93(3), the information when accessed would amount to a pre-existing document. As noted below, the privilege against self-incrimination is significantly weaker for pre-existing documents, reflecting that they do not require a person to testify against themselves.
Even if the Bill could be said to limit section 25(2)(k), the limitations are reasonable and justified because of the fact that the investigation could be blocked by non‐disclosure of the relevant information (such as a password to access a computer). If a person has locked hard copy business documents in a cupboard, an inspector would not need the person’s assistance in breaking into the cupboard, under warrant, to seize that evidence and the person has no right to try to block the inspector from breaking into that cupboard. If the person has also ‘locked’ business records inside a computer through encryption, the person should not, simply because of their use of more sophisticated technology, now be empowered to stymie investigations by refusing to divulge the electronic key to that evidence.
While it was held in Rean application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 that a derivative use immunity would apply where a person was required, under coercion, to provide an encryption key, it is important to recognise the nature of the Bill differs from that Act in that the purpose of that Act was to facilitate the investigation of serious organised crime, while the Bill has a regulatory and protective purpose. Reflecting this, the maximum penalties available under the Bill are considerably lower than the offences in relation to which the Major Crime (Investigative Powers) Act 2004 apply, with no terms of imprisonment being available for contraventions.
Further, unlike orders made under the Major Crime (Investigative Powers) Act 2004 which do not have any express requirements regarding access to encrypted data, there is also the safeguard that the magistrate issuing the search warrant will have discretion not to include such a power in the warrant where the inspector applying for the warrant has not made out an adequate case for the need for such a power.
Accordingly, the Bill does not provide a use immunity in relation to material seized as a result of the disclosure of a password. To do so would undermine the central point of the new power, to enable inspectors to access material that has been intentionally hidden or encrypted. As I have noted, a person who locked records in a cupboard cannot prevent an inspector from accessing those records under a search warrant. Where the person has simply used a more technologically sophisticated form of locking device (computer encryptions), they should not have any greater power to stymie an investigation.
There are no less restrictive means available to achieve the purpose of enabling regulators to have access to relevant digital or electronic information. To excuse the provision of information and assistance to enable access to digital or electronic records would significantly impede the regulator’s ability to investigate and enforce compliance of the scheme in the contemporary business environment.
To the extent that clause 84 of the Bill could enable a person’s right to protection against self-incrimination and a right to a fair hearing to be limited in compliance with a warrant authorising an inspector to require information, which is likely to be minimal, I consider this to be reasonable and justifiable.
Clause 93 provides that it is a reasonable excuse for a person to refuse or fail to give information or do any other thing that the person is required to do under Part 6, if the giving of the information or the doing of the thing would tend to incriminate the person. However, this protection does not apply to the production of a document that the person is required to produce under Part 6, and is therefore a limited abrogation of the privilege against self-incrimination.
The privilege against self-incrimination generally covers the compulsion of documents or things which might incriminate a person. However, the application of the privilege to pre-existing documents is considerably weaker than that accorded to oral testimony or documents that are required to be brought into existence to comply with a request for information. I note that some jurisdictions have regarded an order to hand over existing documents as not constituting self-incrimination.
The primary purpose of the abrogation of the privilege in relation to documents is to facilitate compliance with the scheme by assisting inspectors to access information and evidence that is difficult or impossible to ascertain by alternative evidentiary means. Taking into account the protective purpose of the Bill, there is significant public interest in ensuring that professional engineering services are being provided in compliance with the provisions of the Bill and the regulations.
There is no accompanying ‘use immunity’ that restricts the use of the produced documents to particular proceedings. However, any limitation on the right in section 25(2)(k) that is occasioned by the limited abrogation of the privilege in respect of produced documents is directly related to its purpose. The documents that an inspector can require to be produced are those connected with an engineer’s practice as a professional engineer, and for the purpose of monitoring compliance with the Bill or regulations. Importantly, the requirement to produce a document to an inspector does not extend to having to explain or account for the information contained in that document. If such an explanation would tend to incriminate, the privilege would still be available.
Further, clause 71 of the Bill creates an obligation for registered professional engineers and their employers to keep all documents relating to the practice as an engineer available for inspection, and for former registered professional engineers to make documents relating to the engineer’s practice as a professional engineer available for inspection. The duty to provide those documents is consistent with the reasonable expectations of persons who operate a business within a regulated scheme. Moreover, it is necessary for the regulator to have access to documents to ensure the effective administration of the regulatory scheme.
There are no less restrictive means available to achieve the purpose of enabling inspectors to have access to relevant documents. To excuse the production of such documents where a contravention is suspected would allow persons to circumvent the record-keeping obligations in the Bill and significantly impede inspectors’ ability to investigate and enforce compliance with the scheme. Any limitation on the right against self-incrimination is therefore appropriately tailored and the least restrictive means to achieve the regulatory purpose.
Sections 125 and 126 of the Australian Consumer Law and Fair Trading Act 2012 (ACLFTA) requires the production of information, documents or evidence. These sections are applied by clause 98 of the Bill, reflecting that both the ACLFTA and the Bill affect the regulation of the engineering profession. Inspectors administering the Bill will have been appointed under the ACLFTA and will be responsible for administering both the ACLFTA and the Bill. The approach of applying the provisions from the ACLFTA ensures that there can be a consistency of approach when investigating engineers in relation to matters under the ACLFTA and the Bill. The analysis contained in the Statement of Compatibility for the Australian Consumer Law and Fair Trading Bill 2011 (as it then was) of what are now sections 125 and 126 in relation to the protection against self-incrimination is equally applicable when considering the application of those sections to the Bill and its regulation of the engineering profession.
For the above reasons, I consider that to the extent that clauses 84, 93 and 98 may impose a limitation on the right against self-incrimination, that limitation is reasonable and justified under section 7(2) of the Charter.
Right not to be punished more than once
Section 26 of the Charter provides that a person has the right not to be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law.
Clause 12 of the Bill sets out the eligibility criteria for applications to be registered as an engineer and renewal applications. According to these criteria, an applicant may be refused registration in circumstances including where that person has previously been convicted or found guilty of certain indictable offences. Similarly, consideration of an application for an endorsement under clause 14 may give rise to similar considerations.
The right in section 26 of the Charter has been interpreted as applying only to punishments of a criminal nature and does not preclude the imposition of civil consequences for the same conduct.
I do not consider that the consequences under these clauses are punitive so as to engage section 26. Their purpose is not to punish the convicted person, but to protect the integrity of the registration regime by ensuring that only appropriate persons are able to be registered. Disqualification is based solely upon the fact of a conviction or finding of guilt for particular kinds of offences, rather than a consideration of the individual offending of the relevant person. However, the kind of offending which is caught is either the standard criteria employed across a number of occupational licensing schemes regulated by the BLA and other laws that impose specific obligations on persons providing professional engineering services. These provisions are therefore targeted at, and consistent with, one of the purposes of establishing the registration scheme, namely to effectively regulate the engineering profession by ensuring that no unfit persons are granted registration.
Accordingly, I am of the opinion that the eligibility criteria are compatible with the right in section 26 of the Charter.
Clause 60 enables VCAT to take disciplinary action against a registered professional engineer. Such action can be taken where VCAT is satisfied that a registered professional engineer has contravened the Bill or regulations, including where a person has been convicted or found guilty of an offence. Where an action under clause 60 follows a conviction for an offence under another provision, a question arises as to whether a disciplinary action constitutes double punishment for the purposes of the right in section 26 of the Charter.
The actions that may be taken by VCAT under clause 60 are of a regulatory nature and are for the purpose of protecting the integrity of the registration scheme by ensuring there is appropriate accountability, rather than being aimed at punishing the engineer. VCAT’s powers under the Bill are supervisory and protective in nature and any such disciplinary action under the Bill does not amount to a finding of criminal guilt. Further, even if some of the actions that may be taken against a registration scheme under clause 60 amount to a sanction, those sanctions are not of a criminal nature and the right in section 26 of the Charter does not preclude imposition of civil consequences for the same conduct.
I therefore consider that clause 60 does not engage section 26 of the Charter.
Conclusion
I consider that the Bill is compatible with the Charter because, to the extent that some provisions may limit human rights, those limitations are reasonable and demonstrably justified in a free and democratic society.
GAVIN JENNINGS MLC
Special Minister of State
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Mr SOMYUREK: I move:
That the bill be now read a second time.
Incorporated speech as follows:
Prior to the 2014 election, the Victorian Labor Government committed to ‘work with relevant stakeholders on the introduction of a mandatory, statutory registration scheme and work with other jurisdictions to develop a nationally consistent registration scheme for engineers’.
The government subsequently brought forward an Engineers Registration Bill to the last Parliament, but it lapsed when the Parliament expired. Despite this, the government remains determined to deliver on its commitment, particularly in light of the recent structural problems with the Opal Tower in Sydney which highlights the problems that can occur with poor engineering. The Bill I present today substantially replicates the 2018 Bill, while also containing some minor and technical amendments to improve terminology.
A registration scheme for engineers is an integral part of the government’s plan for infrastructure. We have already established Infrastructure Victoria and the Office of Projects Victoria, and appointed the Chief Engineer, to ensure Victoria’s infrastructure is world class. We also have many new major projects under way including the Melbourne Metro Rail Tunnel, the West Gate Tunnel and the Level Crossing Removal project.
But the Andrews Labor Government’s investment in infrastructure is bringing with it an important challenge: a need for suitably qualified and experienced engineers to develop and oversee these projects.
However, it is not just in infrastructure where engineers are critical to the state’s future economic development. Engineers are central to driving greater innovation and productivity growth across the whole economy, from manufacturing to new energy technologies.
This was brought home in the recent Victorian State of Engineering Report, released in October 2018. That report found that engineering-enabled industries are responsible for more than 600,000 jobs and contribute nearly a quarter of Victoria’s gross state product.
Despite the fundamental role in the economy that engineers have, the often complex nature of their work and the importance of their work in ensuring public safety, most engineers are not required to hold any kind of formal registration or licence. This stands in contrast to almost all other professionals in Victoria, including lawyers, doctors, nurses, architects and teachers.
At the moment in Victoria, only engineers engaged in the building industry need to be registered, and even then, coverage is limited to civil, electrical, mechanical and fire safety engineering. Such limited coverage means that only a small proportion of engineers in Victoria has had their qualifications and experience scrutinised.
Further, the engineering profession is increasingly globalised. Many of Australia’s trading partners have recognised this and have begun to establish engineering registration schemes as an important tool to help promote exports of their engineers’ services. A government-backed registration scheme will help give Victorian engineers the edge they need to compete in this global marketplace by giving prospective purchasers of their services the assurance that the engineer they engage is suitably qualified and experienced, and will comply with well-recognised and internationally understood professional benchmarks.
The government has undertaken extensive consultation with stakeholders, and I would like to thank those stakeholders for their input into the Bill. The professional associations representing engineers have expressed strong support for the introduction of a registration scheme, and many of those same associations have also expressed an interest in becoming assessment entities as the registration scheme rolls out to their areas of engineering.
This brings me to the key features of the Bill.
The Bill in detail
The engineers registration scheme that the Bill proposes will at its onset regulate five areas of engineering including civil engineer, structural engineer, mechanical engineer, electrical engineer and fire-safety engineer. A separate endorsement will apply for professional engineers who are ‘engaged in the building industry’. Feedback from stakeholders indicates that these areas of engineering cover most of the engineers operating in Victoria. Further, these areas cover about 80 per cent of engineers registered under the Queensland Professional Engineers Act 2002. Registration in these specified areas will be rolled out progressively, with the regulations able to specify when professional engineers in an area of engineering require registration through the use of the exemption power. However, the Bill enables other areas of engineering to be prescribed by regulation. Over time, it is expected that the scheme will expand to cover other areas of engineering.
Once rolled out to a particular area of engineering, the registration scheme established by the Bill will prohibit any person from providing professional engineering services in that particular area of engineering unless they are either registered in the area, working under the direct supervision of a professional engineer registered in the area, or working in accordance with a prescriptive standard such as an Australian standard.
The Bill will also prohibit unregistered people from representing that they are a registered professional engineer, can provide professional engineering services or are an endorsed building engineer.
The registration scheme is based on a co-regulatory registration model which will be managed by the Business Licensing Authority (BLA), with support from Consumer Affairs Victoria (CAV), approved assessment entities, and the Victorian Building Authority (VBA). Reflecting its important new role, membership of the BLA will be expanded to include a person who has qualifications and experience in the field of engineering.
The Victorian scheme is modelled closely on the Queensland scheme. However, some differences exist due to differences in legislative requirements in the two jurisdictions. For example, engineers engaged in the building industry in Victoria must hold professional indemnity insurance to underpin certification requirements under section 238 of the Building Act 1993.
Under the co-regulatory model, the BLA will approve assessment entities. Before doing so, the BLA will be able to seek the advice of the Chief Engineer. Assessment entities will have to satisfy the BLA that they will be capable of undertaking a range of different matters related to the assessment of an applicant for registration, including assessing qualifications and competencies, ensuring audits of continuing professional development and providing independent and authoritative assessments in a timely fashion. The Bill also sets out the process for revoking an assessment entity’s approval if they fail to meet these requirements.
After an engineer is approved by the assessment entity, they may then apply to the BLA to be registered. The BLA will also take over registration functions for engineers engaged in the building industry from the VBA once the scheme comes into effect.
Before deciding to register an applicant, as well as considering the report of the assessment entity, the BLA will assess whether the engineer meets a number of other eligibility criteria. In addition, the BLA will be able to check a range of probity matters. Where an engineer wishes to be engaged in the building industry, the Bill establishes a process where the VBA can check a range of building-related probity matters in relation to applicants for building industry endorsements, including whether the engineer has the required insurance under the Building Act 1993. The VBA will then report their assessment to the BLA.
If satisfied that a person is eligible for registration, the BLA will add the person to the Register of Professional Engineers. This register will enable consumers to check details of the registered professional engineer, including conditions on the registration, as well details of disciplinary matters up to five years old. This will further assist consumers to choose high quality engineering services.
Registration will be valid for a period of three years, and the BLA may impose conditions on the registration. After three years, an engineer may renew their registration by applying to the BLA and paying a registration fee. It is expected that a condition for renewal is completion of continuous professional development of 150 hours over the last three years. In addition, it is expected that assessment entities will also have to conduct regular audits of CPD.
If an application for a registration or registration renewal is refused by the BLA, or a condition is imposed, the applicant will be able to seek review of the decision by the Victorian Civil and Administrative Tribunal (VCAT).
Engineers who are already registered under the Building Act will have those registrations recognised under the new scheme. Further, because engineers who have been registered under the Building Act in the past may not have the necessary qualifications to meet assessment scheme standards, they will be given up to 5 years to complete any necessary training.
The Bill also sets up a disciplinary system that will see CAV or the VBA taking the lead, depending on whether an engineer has an endorsement. Where an engineer has been engaged in both building-related and non-building related engineering, if the engineer is an endorsed building engineer, the VBA will take the lead on investigating and disciplining the engineer in relation to the endorsement.
This dual regulator approach has been proposed to ensure that the VBA can continue to carry out ‘end to end’ investigations of non-compliant building work. Endorsed building engineers will be subject to the disciplinary grounds of the Building Act in relation to their endorsement. They will be subject to the grounds in the Professional Engineers Registration Act in relation to their registration. Disciplinary sanctions for engineers under the Bill will be similar to those available under the Building Act to ensure that engineers face consistent outcomes regardless of whether their misconduct was building-related or not.
Disciplinary procedures will be slightly different. It is expected that CAV will generally apply directly to VCAT for disciplinary action in relation to a registration, while the VBA will use the show cause process in the Building Act 1993 in relation to an endorsement. In practice, outcomes from these processes are likely to be consistent, because engineers who are dissatisfied with a proposed sanction imposed by the VBA may apply to VCAT for a review of that sanction.
The Bill also sets out a range of entry powers available to the Director of Consumer Affairs Victoria. It also applies a range of powers under the Australian Consumer Law and Fair Trading Act 2012 to ensure courts can order redress or make a range of other orders consistent with other consumer Acts administered by CAV. The VBA will rely on entry powers under the Building Act 1993 in relation to engineers who have a building industry endorsement.
The engineers registration scheme proposed by the Bill will: help to promote professional development within the engineering profession; reduce the risk of loss and harm to the public; and give consumers more confidence in procuring engineering services. It will also improve opportunities for the export of engineering services by Victorian engineers.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (17:42): I move, on behalf of my colleague Mr Rich-Phillips:
That debate on this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.