This case concerns review of a decision by the NSW Fair Trade Commissioner ("Respondent" or "Commissioner") to cancel the deemed registration of Mr Mohamad Humam Alzaaim (the "Applicant") in respect of four classes of licensed activities under the Design and Building Practitioners Act 2020 (NSW) ("DBP Act") and the Design and Building Practitioners Regulation 2021 (NSW) ("DBP Regulation").
As detailed below, the DBP Act includes a scheme for registration of design practitioners. The DBP Regulation allowed for a transitional period of 'deemed registration' whereby if a person applied to be registered as a practitioner by a certain date, they were 'deemed' to be registered under the DBP Act in a particular class from the date of their application. The Department of Customer Service retained power under the DBP Regulation to cancel a practitioner's registration should certain criteria not be met.
The Applicant is a qualified electrical engineer who runs his own company and works as a design manager. He has over 19 years' experience and has managed the design and construction for all services for large projects in Australia, UAE and Saudi Arabia. According to the Applicant, he represents his clients and company as the "building services technical lead in all meetings" and "deals directly with department heads when reviewing services packages". He is required to complete peer reviews and quality assurance and quality control reviews on all designs across disciplines to ensure they comply with applicable standards and regulations. His qualifications include a degree in Electrical Engineering from the University of Technology Sydney (UTS), as well as diplomas and certificates from TAFE, and he is in the process of becoming chartered with CIBSE (Chartered Institution of Building Services Engineers), headquartered in England. He then plans to apply to Engineers Australia for recognition of his CIBSE qualifications.
On 1 November 2021, the Applicant applied for, and was granted, deemed registration under the DBP Regulation as a (1) design practitioner - drainage; (2) design practitioner - fire Systems (detection and alarm systems); (3) design practitioner - vertical transportation; (4) design practitioner - electrical engineering; and (5) design practitioner - mechanical engineering. His application of 1 November 2022 was also for deemed registration as a professional engineer (electrical, fire safety & mechanical) and as a principal design practitioner (general) but those are not subjects of the present review.
On 8 February 2022, the Respondent issued a Notice of Intent to Cancel the Applicant's deemed registration pursuant to section 52(1)(a) of the DBP Act ("Notice of Intent"). By email to the Respondent, the Applicant stated that he did not understand why he received the Notice of Intent when he had "all the documentation for the electrical discipline, [had] paid all the required fees, completed all the required online modules and completed submitted all my documentation in the specified timing". He also requested confirmation that the electrical discipline is not covered under the Design Practitioner Registration.
By email dated 14 February 2022, the Respondent advised the Applicant that he was eligible for registration in electrical engineering but he received the Notice of Intent because he had not provided proof of approved qualifications or of meeting the requirements for the other four classes.
On 2 March 2022, pursuant to section 52(1)(a) of the DBP Act and clause 101 of the DBP Regulation, the Respondent issued a Notice of Deemed Registration Cancelled ("Notice to Cancel"). The Notice to Cancel was with respect to the Applicant's deemed registration in four classes of design practitioner: drainage, fire systems (detection and alarm systems), vertical transportation, and mechanical engineering. The Notice to Cancel was issued on the grounds that the Applicant had not submitted evidence of an approved qualification in those four classes or, for the class of vertical transportation, a competency assessment from Engineers Australia.
The Applicant requested an internal review of the Notice to Cancel on 9 March 2022, pursuant to section 53 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act").
On 24 March 2022, the Respondent affirmed the original decision to issue a Notice to Cancel ("Decision").
On 11 April 2022, Mr Alzaaim filed his application with this Tribunal for administrative review of the Decision, pursuant to section 63(b) of the DBP Act and section 9 of the ADR Act.
On 1 July 2022, the Respondent notified the Applicant that he was granted registration under the DBP Regulations for professional engineer - electrical engineering, professional engineer - fire safety engineering, design practitioner - electrical engineering; and principal design practitioner. Those four approved classes of registration are not the subject of the present review.
The Applicant's position is that the correct and preferable decision for this Tribunal is to set aside the Decision and replace it with a decision granting him registration as a design practitioner for the four classes of drainage, fire systems (detection and alarm systems), vertical transportation, and mechanical engineering. In his view, the insistence on the qualifications in those classes is inappropriate, when considering universities only teach how to gather information required to complete a design, and the rest is "learning on the job" in the building design industry. He has learned the relevant skills on the job.
The Respondent's position is that that the correct and preferable decision for this Tribunal is that the Applicant is not entitled to be registered as a design practitioner under the DBP Act and DBP Regulation for the four classes of drainage, fire systems (detection and alarm systems), vertical transportation, and mechanical engineering because he has not met the qualifications criteria set out in the DBP Act and DBP Regulation. As such, the Respondent submits that the Tribunal should affirm the Respondent's Decision.
For the reasons that follow, and having considered all the circumstances, I find that the Decision to cancel the Applicant's registration as design practitioner in three of the four classes should be affirmed, namely drainage, vertical transportation and mechanical engineering. As for the cancellation of registration for the class of design practitioner - fire systems (detection and alarms), the Decision should be set aside and remitted for reconsideration.
[2]
Relevant Legislation and Regulations
The DBP Act and the DBP Regulation commenced on 1 July 2021. Their provisions are intended to improve the quality and compliance of design documentation and to strengthen accountability across the NSW building and construction industry. They established a new registration scheme for design and building practitioners and professional engineers who work on class 2 (i.e. multi-storey or mix-use) buildings and buildings with a class 2 component. The scheme mandates that practitioners apply for and obtain registration if they intend to declare that their 'regulated designs' or building work comply with the Building Code of Australia.
The Second Reading Speech contained the following background (Design and Building Practitioners Bill 2019, New South Wales, Parliamentary Debates, Legislative Council, 19 November 2019, pp. 1778-83).
[D]esign and building practitioners are a critical part of the building and construction industry, an industry that is a vital contributor to the growth of the State's economy. The industry employs more than 300,000 people, representing more than 8 per cent of its workforce and accounting for nearly 10 per cent of the State's industry output. While supporting growth, this Government is strongly committed to ensuring the quality and safety of buildings through effective regulation and enforcement... This bill delivers on that commitment by introducing a number of new requirements, which will ensure that key practitioners are held accountable for their work across the planning, design and construction stages.
… the bill makes it a requirement that any practitioner who makes a compliance declaration must be registered and qualified to do so.
… the bill imposes a new obligation on any practitioner who prepares a regulated design for building work… to lawfully declare that the design complies with the Building Code of Australia…
… only registered design practitioners will be able to issue a design compliance declaration and prepare or coordinate and supervise the preparation of a regulated design. To emphasise the seriousness of these obligations, any practitioner who fails to make a declaration or who makes a declaration when they are not registered will face a maximum penalty of $165,000 as a body corporate or $55,000 in any other case…
… This bill … introduces a comprehensive registration system that will ensure that only persons who are competent, suitably qualified and properly insured will be able to perform the declaration functions proposed by this new scheme. Clause 35 of the bill enables the regulations to make provision for or with respect to classes of registration....
… the Secretary will be afforded a broad range of grounds under which they must refuse an application, such as … where the registration does not comply with the requirements of the bill. The registration procedure reflects other, longstanding licensing and registration schemes which Fair Trading is well equipped with administering so that consumers have more certainty about the registration of persons within the building sector.
… the secretary will also be able to impose conditions on the suspension or cancellation of a registration in addition to conditions that can be issued on a registration that is in force….
The bill also sets up an important head of power under the regulations to enable a recognition procedure to be established for persons or classes who are already registered as practitioners under other licensing schemes. This … allows the regulations to provide for the qualifications, knowledge, skills, experience and, importantly, the insurance requirements necessary for all recognised practitioners to hold in order to be able to issue a compliance declaration under the bill... The specifics of this recognition procedure will be developed in close consultation with key stakeholders and detailed in the regulations. Consideration will also be given to leveraging existing inter-jurisdictional licensing frameworks for engineers so that they may be recognised as design practitioners for the purposes of the bill. This approach will avoid imposing unnecessary duplicative registration and licensing requirements on some practitioners and ensure consistency across the sector.
The bill provides that any person who is aggrieved by a decision of the secretary can apply to the tribunal…. This provision is key to ensuring that registered practitioners have procedural rights and can review decisions made about their registration….
Section 10(a) of the DBP Act provides that a person must not make a design compliance declaration unless the person is a registered design practitioner and the person's registration authorises the person to provide a declaration as to the matters to which the declaration relates.
Part 5 of the DBP Act deals with registration of practitioners. Section 42 of the DBP Act provides that the DBP Regulation may make provision for or with respect to classes of registration as a practitioner.
Section 43 of the Act provides that a person may apply to the Secretary of the Department of Customer Service to be registered as a practitioner. The application must be in an approved form and accompanied by information or evidence that the Secretary reasonably requires to assess the application. Section 44 provides for the Secretary to require an applicant to provide specified information relevant to the investigation of the application.
Section 45(1) of the DBP Act provides that the Secretary may grant or refuse an application to be registered as a practitioner, and Section 45(2) provides that the person may be registered as a practitioner "of a class that the Secretary considers appropriate even if the application is for a different class of registration." Section 45(3) provides that the Secretary "must refuse to register a person as a practitioner" if:
(a) the application for registration does not comply with this Act, or
(b) the Secretary is of the opinion that the applicant does not have the qualifications, skills, knowledge and experience to carry out the work for which the applicant is seeking registration, or
(c) the Secretary is of the opinion that the person … is not a suitable person to carry out the work for which the applicant is seeking registration, or
(d) the person… is under the age of 18 years, or
(e) the person is a mentally incapacitated person, or
(f) the person… is an undischarged bankrupt, or
(g) on a ground prescribed by the regulations for the purposes of this section.
Section 45(4) requires the Secretary to give the applicant written notice of a decision to grant or refuse registration.
Section 47 states that the regulations may make provision for or with respect to the requirements for registration, including by providing for the "qualifications, registration or recognition by professional bodies, skills, knowledge and experience for registration, including for particular classes of registration."
Section 52(1) of the DBP Act is the provision which provides for cancellation:
The Secretary may, by written notice given to a practitioner, vary, suspend or cancel the practitioner's registration on the following grounds -
(a) the practitioner is not entitled to be registered,
(b) the practitioner fails to comply with a condition of registration,
(c) in the opinion of the Secretary, the practitioner … is not a suitable person to be registered or registered as a particular class of practitioner,
(d) the practitioner … has contravened this Act or a regulation made under this Act, whether or not the practitioner or director is prosecuted or convicted for the contravention,
(e) the registration was granted in error,
(f) the Secretary has decided to suspend or cancel the registration under Part 6,
(g) the practitioner has applied for the registration to be cancelled or suspended,
(h) a ground prescribed by the regulations.
Section 106 of the DBP Act provides for the Secretary and Minister to delegate the exercise of any of their functions to any person employed in the Department of Customer Service or authorised by the DBP Regulation.
Section 107 of the DBP Act provides for regulations to be made as necessary or convenient to carry out or give effect to the DBP Act. Notably, section 107(2)(a) anticipates that such regulations could be with respect to: "the qualifications, skills and experience required for registration, including the approval of training and the approval of persons to conduct the training or to assess persons undergoing the training". Section 107(5A) states that the regulations may exempt persons, work or registrations for a maximum period of 12 months. Section 107(6) provides that a regulation may create an offence punishable by a penalty not exceeding 200 penalty units (for a body corporate) or 100 penalty units in any other case.
The DBP Regulation commenced on 1 July 2021. Part 4 deals with registration of four types of practitioners: design practitioner, principal design practitioner, professional engineer and building practitioner.
Clause 34 provides that for purposes of section 107(2)(a) of the Act, the Secretary may require an applicant for registration as a practitioner to have successfully completed recognised training. Training is "recognised training" for purposes of the cause if it is (a) recognised by the Secretary, and (b) conducted in accordance with conditions of the recognition. A person may apply in writing to the Secretary for training to be recognised. Completion of recognised training however does not, per Clause 34(7) "replace the need for the applicant to have the qualifications, experience, knowledge and skills required by Schedule 2".
Part 9 of the DBP Regulation contains "Savings and transitional provisions".
In Clauses 94 to 96, there are three "alternative pathways" for persons to apply to qualify for registration as "design practitioners - fire systems classes" if they apply before 30 June 2022. These are set out in further detail below.
Clause 97 contains alternative pathways for professional engineers and certain design practitioners for those who apply before 30 June 2022.
Clause 98 then defines a transitional period to mean the period beginning 1 July 2021 and ending on 28 February 2022. Pursuant to clause 100, certain persons who applied to the Secretary to be registered as a practitioner in a particular class of registration during this transitional period, are deemed to be registered.
Under clause 101, the Secretary may permit a practitioner who is deemed registered to continue to be registered, or cancel their registration. Clause 101(2)(b) requires the Secretary to cancel a practitioner's registration if a ground referred to in section 45(3) of the Act applies to the person. If the Secretary decides to cancel the registration, the date of deemed registration ends on the date on which the Secretary gives the practitioner written notice of that decision.
Schedule 1 to the DBP Regulation sets out the different classes of registration for purposes of section 42 of the Act. This includes the five classes of design practitioner for which the Applicant in the present case applied, namely:
1(f) design practitioner - drainage
1(h) design practitioner - electrical engineering
1(k) design practitioner - fire systems (detection and alarm systems)
1(p) design practitioner - mechanical engineering
1(r) design practitioner - vertical transportation
Part 2 of Schedule 1 contains a description of each class. The descriptions for each of the above classes are set out in the relevant portions of this decision.
Schedule 2 to the DBP Regulation sets out the "qualifications, experience, knowledge and skills" required for each class of practitioner covered by the DBP Act for purposes of sections 47(2) and 107(2)(a) of the Act.
Schedule 2, clause 2(2) explains that if more than one pathway is shown, the minimum qualifications, experience, knowledge and skills required to be granted registration are the qualifications, experience, knowledge and skills specified in one of those pathways.
The use of the word "accredited" in Schedule 2, in relation to a qualification, means accredited under the Washington Accord 1989 that is established and maintained by the International Engineering Alliance. Use of "accredited program" means a program accredited by Engineers Australia. In the Schedule, when "NVR approved qualification or a unit of competency", and the Tribunal understands "NVR" to mean National VET (Vocational Education and Training) Regulator.
Schedule 2, section 2(4) of the DBP Regulation states:
If a pathway specifies successful completion of a competency assessment, that pathway is available only if -
(a) The Secretary has made a competency assessment available, or
(b) The Secretary has approved a person or body to conduct the competency assessment.
Schedule 2, section 3 provides that for the purposes of sections 47(2) and 107(2)(a) of the Act, the Secretary may, "despite the provisions of this Schedule, grant registration in a class of registration as a practitioner to a person if the Secretary is satisfied that -
(a) the person's qualifications, experience, knowledge and skills are at least equivalent to the qualifications, experience, knowledge and skills specified for that class, or
(b) a qualification specified by this Schedule for a particular class of registration is combined with another qualification or major not specified by this Schedule and the combined qualification is at least equivalent to the qualification specified for that class.
(c) for registration as a professional engineer the person has the qualifications, knowledge and skills specified for the class of registration in this Schedule …
The specific qualifications, knowledge, skills and experience for each class that the Applicant has applied for are extracted from the DBP Regulation and set out below in the relevant portions of this decision.
[3]
Jurisdiction to Review the Decision
According to section 9 of the ADR Act and sections 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), the Tribunal has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.
Section 63(b) of the DBP Act gives this Tribunal jurisdiction, as it provides for an aggrieved person to apply to the Tribunal under the ADR Act for an administrative review of "a decision of the Secretary to suspend or cancel registration".
In determining an application for administrative review, section 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review (Shi v Migration Agents Registration Authority [2008] HCA 31).
The Tribunal makes its own decision in place of the Respondent's and there is no presumption that the decision of the Respondent is correct (McDonald v Director General of Social Security (1984) 1 FCR 353 at 357). In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or to remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal (ADR Act, section 63(3)).
Under section 38(2) of the CAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
The standard of proof that applies is the civil standard, that is, on the balance of probabilities. These are not adversarial proceedings and accordingly no burden of proof falls on either party. (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] to [34]).
Under section 38(4) of the CAT Act the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
[4]
Material before the Tribunal
The Tribunal has had regard to the following material provided by the parties.
The documentary material from the Applicant comprised:
1. NCAT Application filed on 11 April 2022, attaching
1. the Respondent's 24 March 2022 internal review determination affirming the original decision of 2 March 2022 to cancel the Applicant's deemed registration as a design practitioner in the classes of drainage, fire systems (detection and alarm systems), vertical transportation and mechanical engineering; and
2. email from the Applicant dated 10 April 2022 urging the Tribunal to review his application and consider it from the point that all universities only teach how to gather information required to complete a design, leaving the rest to 'learning on the job'.
1. The Applicant's documents filed on 14 July 2022, setting out his background, training, professional experience, understanding and knowledge. He also provided the following attachments which he submits show that all subjects in the respective disciplines "do not give prospective Building Services Engineering students the tools, knowledge or know-how to be able to correctly complete a design within each respective discipline" and although engineering degrees are thorough and detailed, they are "not suited towards the Building Services Industry" but rather provide knowledge to enable students to find the standards, regulations and guidelines to be followed, but all engineers within the building services industry learn how to complete building services designs in the "workplace working with experienced engineers":
1. Attachment A: Electrical Engineering - chart showing comparison of courses at UTS, UWS and UNSW;
2. Attachment B: Mechanical Engineering - chart showing comparison of courses at UTS, UWS and UNSW;
3. Attachment C: Hydraulic Engineering - chart showing comparison of courses at UTS, UWS and UNSW; and
4. A USB containing electronic versions of the three charts.
At the hearing on 26 August 2022, the Applicant appeared via telephone to make submissions and to answer questions from the Tribunal. During the hearing he submitted via email (copied to the Respondent):
1. Academic transcript from his Bachelor of Engineering in Electrical Engineering and Diploma in Engineering Practice from UTS;
2. Academic transcript from TAFE Certificate III in Electrotechnology Electrician; and
3. an Arabic language fire defence certificate from the Abu Dhabi government (without translation).
Later on 26 August 2022, the Applicant sent to the Respondent and the Tribunal, via email, his hearing speaking notes, in the form of annotations to the Respondent's written submissions and annexures of 29 July 2022. The same document was received at the Tribunal via post on 28 September 2022.
The documentary material from the Respondent comprised:
1. The Respondent's materials under section 58 of the ADR Act, filed on 7 June 2022:
1. The Applicant's Application for External Appeal, dated 11 April 2022;
2. Notice of Deemed Registration cancelled [Design Practitioner Registration: DEP0002040], dated 2 March 2022;
3. Notice of Intent to Cancel [Design Practitioner Registration: DEP0002040], dated 8 February 2022;
4. Email chain between the Applicant and the Respondent titled 'NSW Fair Trading Notice of Intent to Cancel - DEP0002040 - Mohamad Alzaaim', dated between 8 and 14 February 2022;
5. Email chain between the Applicant and the Respondent titled 'NSW Fair Trading Cancellation Notice - DEP0002040 - Mohamad Alzaaim', dated between 2 and 9 March 2022 [with attachment: Notice of Deemed Registration Cancelled];
6. Email from the Respondent to the Applicant titled 'Internal Review Application - Mohamad Alzaaim' dated 10 March 2022;
7. Email from the Respondent to the Applicant titled 'Internal Review Determination - Mohamad Alzaaim' [with attachment: Internal Review Determination' dated 24 March 2022;
8. E-mail chain between the Applicant and the Respondent titled 'Re: Internal Review Determination - Mohamad Alzaaim' dated between 24 March 2022 and 10 April 2022;
9. E-mail chain between the Applicant and the Respondent titled 'NSW Fair Trading Notice of Intent to Cancel - DEP0002040 - Mohamad Alzaaim' dated between 10 April and 11 April 2022;
10. Digital National Police Certificate dated 23 September 2021 (showing now disclosable court outcomes or outstanding matters within the records of police services in Australia;
11. TAFE Diploma: Certificate III Electrotechnology Electrician awarded to the Applicant on 31 December 2009;
12. Construct NSW: Online Course Certificate of Completion on "Navigating the Design and Building Practitioners (DBP) legislation" awarded to the Applicant on 30 October 2021;
13. Construct NSW: Online Course Certificate of Completion on "The value of Australian Standards" awarded to the Applicant on 30 October 2021; and
14. UTS Degree, Bachelor of Electrical Engineering and Diploma in Engineering Practice, awarded to the Applicant on 7 January 2015.
1. The Respondent's materials filed on 7 June 2022 also included a Statement of Ricki Manwaring dated 7 June 2022. Ms Manwaring is a Regulatory Business Analyst with the Licensing Program at Government Technology Platforms (GTP) within the Department of Customer Service. Her statement describes the sequence of events that occur when an individual applies for a registration under the DBP Act, including provision of information, documents and payment. Based on what she sees in the system, she recounts the application history of Mr Alzaaim, showing that on 1 November 2021 he applied for 1-year registration as (i) a professional engineer (electrical, fire safety, mechanical), (ii) a design practitioner (drainage, fire systems (detection and alarm systems), vertical transportation, electrical engineering and mechanical engineering) and as a Principal Design Practitioner. Ms Manwaring also provided copies of the data and documentation that he provided electronically in connection with his application.
2. The Respondent's submissions of 29 July 2022, maintaining that the correct and preferable decision is that the Applicant is not entitled to be registered as a practitioner under the DBP Act and DBP Regulation for the four classes in question, and attaching:
1. Annexure 1: information about the Diploma in Hydraulic Services Design (CPC50620) available at TAFE NSW;
2. Annexure 2: information about the Diploma of Fire Systems Design (CPC50509) available at both a State and Commonwealth level;
3. Annexure 3: information about the competency assessments for vertical transportation provided by Engineers Australia;
4. Annexure 4: statement from 2007 showing that Engineers Australia is a recognised engineering body that operates a professional standards scheme.
On the day of the hearing, the Respondent also provided a copy of the Instrument of Approval of Persons or Bodies to Conduct Competency Assessments under the DBP Regulation approving Engineers Australia to conduct certain competency assessments under the DBP Regulation. The Respondent also submitted the Second Reading Speech for the DBP Act, and a list of delegations made pursuant to the DBP Act and DBP Regulation.
All of the above-referenced evidence was admitted to the record, without objection from either side. The Respondent confirmed that there was no application for lodgement of confidential information under section 59 of the ADR Act and no expectation of the hearing requiring a private session.
[5]
Issues for Determination
The Tribunal must decide, for each of the four classes of registration in question, whether there are sufficient grounds to cancel the deemed registration under section 52 of the DBP Act, having regard to any relevant factual material, and any applicable written or unwritten law.
For each class, the Tribunal must consider whether the Applicant is entitled to be registered. That includes a determination for each class as to whether he meets the qualifications, skills, knowledge and experience to carry out the work for which the applicant is seeking registration, as set out in the DBP Regulation (DBP Act, sections 45(3)(b), 47(2), 52).
The relevant qualifications, skills, knowledge and experience are different for each class of registration. They are separately outlined and considered for each class in the sections that follow.
[6]
First Issue to be Determined: Is the Applicant entitled to be registered in the class of Design Practitioner - Drainage?
[7]
Description of Work
Section 11 of Schedule 1 to the DBP Regulation provides that a "registered design practitioner - drainage class of registration" is authorised to do the following -
(a) prepare or vary a regulated design in relation to stormwater drainage and roof drainage systems for a building with a rise in any number of storeys,
(b) make a design compliance declaration for the regulated design.
[8]
Requirements for Registration
Section 9 of Schedule 2 to the DBP Regulation sets out the requirements to be registered in the class of design practitioner - drainage, as follows:
(1) Qualifications. Must have 1 of the following--
(a) an NVR approved diploma in hydraulic services design,
(b) Registration as a professional engineer in the class of professional engineer - civil or professional engineer -mechanical,
(c) an accredited 4 year full-time or equivalent part-time undergraduate bachelor's degree in civil engineering or mechanical engineering or engineering with a major in civil engineering or mechanical engineering,
(d) an accredited postgraduate master's degree in civil engineering or mechanical engineering or engineering with a major in civil engineering or mechanical engineering,
(e) a non-accredited qualification that has been assessed as being equivalent to an accredited qualification in subparagraph (c) or (d):
(i) for a qualification that was conferred by an Australian university or tertiary institution - by an Australian signatory to the Washington Accord, or
(ii) for a qualification that was conferred by a foreign university or tertiary institution - by an assessing authority for the skilled occupation of civil engineer or mechanical engineer,
(2) Knowledge. Must know and understand the following -
(a) the Act and this Regulation,
(b) the Environmental Planning and Assessment Act 1979, including regulations made under that Act, to the extent that the legislation is relevant to this class of registration,
(c) the Building Code of Australia, Volumes 1 and 2, including documents adopted by reference in the Building Code of Australia, to the extent that the documents are relevant to this class of registration,
(d) building design, including methods, materials and planning, to the extent that this knowledge is relevant to this class of registration.
(2) Skills. Must be able to do the following -
(a) interpret, apply and assess compliance with the relevant requirements of the Building Code of Australia,
(b) apply and assess compliance with relevant standards relating to the design of a building, including materials, finishes, fittings, components and systems of a building, to the extent that the standards are relevant to this class of registration.
In contrast to the other three classes of registration at issue in this case, there are no alternative pathways set out in the DBP Regulation for registration in the class of design practitioner - drainage.
[9]
Application to Mr Alzaaim
The Respondent submits that the Tribunal should affirm the Decision with respect to the class of design practitioner - drainage because Mr Alzaaim is not entitled to be registered in that class. It submits he lacks the relevant qualifications set out in Section 9 of Schedule 2 to the DBP Regulation.
Mr Alzaaim himself does not claim to have an NVR approved diploma in hydraulic services design, or to be registered as a professional civil or mechanical engineer, or to hold a bachelor or master's degree, in civil or mechanical engineering, or major in either of those fields. Accordingly, he does not meet the qualifications set out in Section 9(1)(a), (b), (c) or (d).
Section 9(1)(e) sets out a process for non-accredited qualifications to be assessed as being equivalent to an accredited qualification. For a qualification conferred by an Australian tertiary university or institution, the assessing authority can be an Australian Signatory to the Washington Accord. For a foreign qualification, the assessing authority would an assessing authority for the skilled occupation of civil engineer or mechanical engineer. Mr Alzaaim does not claim to have relevant non-accredited qualifications in drainage and has not submitted any such qualifications for assessment by relevant authorities under Section 9(1)(e).
The Respondent has pointed out that there is a "readily available" Diploma in Hydraulic Services design at TAFE NSW, with course code CPC50620, an outline of which was attached as Annexure 1 to the Respondent's submissions. The Applicant noted that this is a 2.5 year online course that only resulted in a career opportunity as a Hydraulic Designer or Hydraulic Consultant, not an engineer and he also queried how practical skills in drainage could effectively be taught online. He analysed the course offerings, and noted that of the 14 core subjects, only one (CPCCM5010) relates to building drainage and two relate to storm water (CPCM5012, CPCPPS5032). Among the elective courses only one subject related to drainage, namely the inspection of plumbing and drainage systems (CPCPPS5015), which again he questioned could be effectively taught online.
At the hearing, the Respondent suggested that an appropriate route for a practitioner with practical experience in draining but who lacks any of the five qualifications in Section 9 would be to apply to TAFE for an assessment of his qualifications as equivalent to an accredited qualification. This could lead to fulfilment of section 9(1)(e). Alternatively, it might be possible to apply for TAFE to grant exemptions on particular subjects that would lead to an NVR approved diploma in hydraulic services design such that not all subjects would need to be completed for a diploma under section 9(1)(a). The Respondent submitted, however, that so long as the Respondent failed to meet the criteria in section 9 of Schedule 2 of the DBP Regulation, he was not entitled to registration in the class of Design Practitioner and the Decision refusing registration in respect of that class should be affirmed. The Respondent noted that such a decision would not prevent the Applicant from working on projects with drainage, simply that he would need to work with a design practitioners registered for drainage.
In his submissions the Applicant pointed out that no universities offer a specific bachelor of hydraulic engineering course. He studied the course outlines of the civil and mechanical engineering courses at UTS, UNSW and UWS. He noted that while there are specific elective modules within those courses that will give a student the chance to be considered as a hydraulic engineer, none of the subjects relate to the building services industry. The subjects offered do not "give a prospective hydraulic engineer the tools, knowledge, explanation, or the required experience to correctly complete the hydraulic designs within a building services project." The Applicant listed the types of designs and skills and knowledge of relevant Australian standards that are needed in the building services industry, but reiterated his point that the university subjects do not "give perspective building services engineering students the tools, knowledge or know-how to be able to correctly complete a design within each respective discipline. Although the engineering degrees within each university a very thorough and detailed, they are not suited towards the building services industry." He stated that the universities provide the knowledge to enable each student to find the standards, regulations and guidelines to be followed. All engineers within the building services industry then learn how to complete building services designs within their respective disciplines in the workplace, working with experienced engineers.
This was part of the Applicant's general experience that after completion of this bachelor of engineering course, he "realised that not one module within this course was related to the building services industry", that is, it did not prepare him to be able to "complete maximum demand calculations, power distribution, power supply, substation design, protection, cables sizing, AS/NZS standards, lighting designs, lighting protection designs, earthing, alternate power sources, etc." It only gave him the insight on how to find the relevant information required to complete an electrical design and the rest was learnt from seniors and mentors in the office. He reviewed all the relevant bachelor of engineering courses (mechanical / hydraulic / electrical) at UTS, UNSW and UWS found that "not one course actually include[d] any teaching material or modules required for a building services design in each respective discipline." He says he has spoken to his peers within the industry from the different disciplines, who "agreed that the university courses completed in various universities in NSW did not provide them with the tools required to complete a design in their respective disciplines. However, it gave them the knowledge and know-how to correctly find the information to proceed with the design(s) and find which standards and regulations apply that need to be complied with.
At the hearing, the Tribunal explained to Mr that its role was to interpret and apply the existing legislation and regulations and not to critique the scheme or apply a different set of rules that others might consider more appropriate.
In respect of the registration requirements for the class of Design Practitioner - Drainage, there are only five types of qualification enumerated in Section 14 of Schedule 2. Mr Alzaaim has not provided evidence that he meets any one of those five qualifications. The Tribunal therefore concludes that the Applicant is not entitled to registration as a design practitioner in the class of drainage and affirms the Decision in respect of the cancellation of the deemed registration in the class of design practitioner - drainage.
[10]
Second Issue to be Determined: Is the Applicant entitled to be registered in the class of Design Practitioner - Fire Systems (detection and alarm systems)
[11]
Description of Work
Under section 16 of Schedule 1 of the DBP Regulation, a registered design practitioner who holds a design practitioner - fire systems (detection and alarm systems) class of registration is authorised to do the following -
(a) prepare or vary a regulated design in relation to a fire detection and alarm system or an emergency and intercommunication system for a building,
(b) make a design compliance declaration for the regulated design.
[12]
Requirements for Registration
Section 14 of Schedule 2 to the DBP Regulation, sets out the requirements to be registered in the class of Design Practitioner - Fire Systems (detection and alarm systems), via two pathways, as follows:
(1) Pathway 1
(a) Qualifications. Must have an NVR approved Diploma of Fire Systems Design (CPC50509), including successful completion of the following units of competency -
(i) CPCPCM4013A Produce 2-D architectural drawings using CAD software,
(ii) CPCSFS5003A Develop plans and methodology for fire systems design projects,
(iii) CPCSFS5008A Create detailed designs for fire detection and warning systems,
(iv) CPCSFS5011A Provide design documentation and review and support fire system installation processes,
(v) CPCSFS5013A Support commissioning process and finalise fire systems design projects.
(b) Knowledge. Must know and understand the following -
(i) the Act and this Regulation,
(ii) the Environmental Planning and Assessment Act 1979, including regulations made under that Act, to the extent that the legislation is relevant to this class of registration,
(iii) the Building Code of Australia, Volumes 1 and 2, including documents adopted by reference in the Building Code of Australia, to the extent that the documents are relevant to this class of registration,
(iv) fire systems technology and components,
(v) building design, including methods, materials and planning, to the extent that this knowledge is relevant to this class of registration.
(c) Skills. Must be able to do the following -
(i) interpret, apply and assess compliance with the relevant requirements of the Building Code of Australia,
(ii) apply and assess compliance with relevant standards relating to the design of a building, including materials, finishes, fittings, components and systems of a building, to the extent that the standards are relevant to this class of registration,
(iii) design fire safety systems to protect people and their environment from the consequences of fire,
(iv) anticipate the behaviour of materials, structures, machines, apparatus and processes when exposed to fire.
(2) Pathway 2
(a) Qualifications. Must have an engineering degree from an Australian university or a qualification under an accredited program and successful completion of the following units of competency -
(i) CPCSFS5001A Define scope and hazard level of fire systems design projects,
(ii) CPCSFS5002A Research and interpret detailed fire systems design project requirements,
(iii) CPCSFS5003A Develop plans and methodology for fire systems design projects,
(iv) CPCSFS5005A Research and evaluate fire system technologies and components,
(v) CPCSFS5008A Create detailed designs for fire detection and warning systems,
(vi) CPCSFS5011A Provide design documentation and review and support fire system installation processes,
(vii) CPCSFS5013A Support commissioning process and finalise fire systems design projects.
(b) Knowledge. Must have the knowledge referred to in subclause (1)(b)
(c) Skills. Must have the skills referred to in subclause (1)(c).
In addition to the above, clauses 94 and 95 of the DBP Regulation create alternative pathways, on condition that the person applies for registration as a Design Practitioner - Fire Systems (Detection and Alarm Systems) before the end of 30 June 2022. Clause 94 sets out "alternative pathway 1" for design practitioners - fire systems classes as follows:
(2) The person may, instead of meeting the qualifications specified in a qualifications pathway in Schedule 2 for the class of registration, satisfy the Secretary of the following -
(a) the person has enrolled or completed -
(i) a prescribed qualification, or
(ii) the units of competency specified in Schedule 2 for the relevant class,
(b) the person has a level of competency that would enable the person to carry out work that is permitted to be carried out by a design practitioner of the relevant class.
(3) A person to whom this clause applies -
(a) must complete the diploma, include the units of competency, no later than 3 years after the date on which the person is granted registration, and
(b) is permitted to hold registration for a period of 1 or 3 years.
(4) It is a condition of registration that person to whom this clause applies who is granted registration as a design practitioner must -
(a) provide evidence to the Secretary of the completion of the diploma and the units of competency within 7 days after completing the diploma and the units, and
(b) if the person is no longer enrolled in the diploma or a particular unit of competency - notify the Secretary within 7 days after the person ceases to be enrolled.
(5) A person who is registered by the operation of this clause is, during the registration period, prohibited from -
(a) being authorised as an appropriate practitioner to provide documents on behalf of a registered building practitioner under clause 16 or 17,
(b) applying for registration as a principal design practitioner under the Act.
…
Clause 95 sets out "alternative pathway 2" for design practitioners - fire systems classes as follows:
(2) The Secretary may, despite the provisions of Schedule 2, grant registration in the class if the Secretary is satisfied that -
(a) the person has the experience, knowledge and skills specified for the class of registration in Schedule 2, and
(b) the person holds the following class of accreditation under the Building and Development Certifiers Act 2018, Part 5 as an accredited practitioner (fire safety) -
(i) for a design practitioner in the class of design practitioner - fire systems (detection and alarm systems) - fire detection and alarm system design (level 3 - advanced)
…
For further context, and because the Applicant has been registered as a professional engineer - fire safety (Respondent's Submissions paragraph 10, Applicant's submissions page 1), the Tribunal also sets out here the registration qualifications for a "professional engineer - fire safety", which appear in section 30 of Schedule 2 to the DBP Regulation as follows:
Pathway 1 - qualifications Must have a qualification referred to in paragraph (a), (b) or (c) as follows -
(a) at least 1 of the following -
(i) An accredited 4-year full time or equivalent part time undergraduate bachelor degree in fire safety engineering or engineering with a major in fire safety engineering,
(ii) an accredited postgraduate master's degree in fire safety engineering or engineering with a major in fire safety engineering,
(iii) a non-accredited qualification that has been assessed as being equivalent to an accredited qualification insert paragraph (i) or (ii) -
(A) for a qualification that was confirmed by an Australian university or tertiary institution by an Australian signatory to the Washington accord, or
(B) for a qualification that was confirmed by a foreign university or tertiary institution by and assessing authority for the skilled occupation of fire safety engineer, if any
(b) all of the following -
(i) An accredited 4-year full time or equivalent part time undergraduate bachelor degree in
(A) civil engineering, mechanical engineering, chemical engineering or electrical engineering, or
(B) engineering with a major in civil engineering, mechanical engineering, chemical engineering or electrical engineering,
(ii) an accredited postgraduate diploma in engineering and fire safety engineering or an NVR approved graduate diploma in fire safety engineering,
(c) all of the following -
(i) a non-accredited qualification that has been assessed as being equivalent to an accredited qualification in paragraph (b)(i)
(A) for a qualification that was conferred by an Australian university or tertiary institution by an Australian signatory to the Washington Accord or
(B) for a qualification that was conferred by a foreign university or tertiary institution by and assessing authority for the skilled occupation of fire safety engineer, if any,
(ii) a non-accredited qualification that has been assessed as being equivalent to an accredited qualification in paragraph (b)(ii)
(A) for a qualification that was confirmed by an Australian university or tertiary institution by an Australian signature to the Washington accord or
(B) for a qualification that was conferred by a foreign university or tertiary institution by and assessing authority for the skilled occupation of fire safety engineer, if any.
(2) Pathway 2 - qualifications Recognition or registration as a professional engineer in an area of fire safety engineering by a recognised engineering body.
(3) Pathway 3 - qualifications Recognition or registration as a professional engineer in an area of fire safety engineering by professional body of engineers that -
(a) operates with a professional standards scheme, and
(b) requires the successful completion of a qualification relevant to carrying out professional engineering work in accordance with the professional standards scheme.
[13]
Application to Mr Alzaaim
If the Applicant does not have relevant qualifications pursuant to section 14 of Schedule 2 of the DBP Regulation or one of the alternative pathways, then his registration in the class of design practitioner - fire systems (detection and alarm systems) should be denied. The Parties have different views about whether the Respondent meets the qualifications.
With respect to Pathway 1, the Respondent submits that the Applicant does not possess the required qualifications, being an NVR-approved diploma of fire systems design CPC50509, with successful completion of the five listed pre‑requisite units of competency. The Respondent submits that a diploma of fire systems design CPC50509, with the five pre-requisite components, is readily available at both the state and Commonwealth level. The Respondent attached to its submission as Annexure 2 a course outline from the Pacific Institute of Technology for such a diploma (costing $16,103) as well as a course outline for a Diploma of Fire Systems Design from training.gov.au.
The Applicant, however, claims that he has completed courses throughout his tertiary education relevant to each of the listed prerequisite units of competency. With respect to "(i) CPCPCM4013A Produce 2-D architectural drawings using CAD software," the Applicant notes that he completed a 2-D "Autocad" course in 2005 at St George TAFE and that in any event building services have evolved past "Autocad".
With respect to "(ii) CPCSFS5003A Develop plans and methodology for fire systems design projects," the Applicant notes that this unit of competency supports the role of fire systems designers who manage their own work and take responsibility for ensuring that detailed designs are fire systems are produced with in required timeframes and to the standards required for approval of such designs. This relates to project management, as to which the Applicant completed the course at university in Engineering Management 48550 (with credit) and also the cause in Engineering Communication 48230.
As to the unit of competency "(iii) CPCSFS5008A Create detailed designs for fire detection and warning systems," the Applicant refers to the part of his TAFE Course - 9080D-UEENEEI001A on sensing devices as to which he received a Credit.
With respect to the unit of competency "(iv) CPCSFS5011A Provide design documentation and review and support fire system installation processes", the Applicant notes that his university degree included the courses in Engineering Management 48550 and Engineering Communication 48230 directly relevant to this unit of competency. He also refers to his TAFE course UEENEECOOO1A on maintaining documentation, for which he received a credit.
Finally, with respect to the unit of competency "(v) CPCSFS5013A Support commissioning process and finalise fire systems design projects" he notes that testing and commissioning was part of his TAFE course for his certification as an Electrotechnology Electrician, in particular the courses 9080E Electrical Systems Assessment, 9080G Electrical Testing and Fault Finding, and 9080D electrical installation practise 2, for which he received distinctions and credits.
As for Pathway 2, the Respondent submits that the Applicant does not possess the required qualifications under Pathway 2, being an engineering degree from an Australian university or a qualification under an accredited program with successful completion of the seven units of competency listed in Section 14(2)(a).
However, the Applicant maintains that he does meet the qualifications in Pathway 2. He does have an engineering degree from the University of Technology Sydney and he claims he has completed equivalent units of competency as follows.
With respect to the units of competency "(i) CPCSFS5001A Define scope and hazard level of fire systems design projects" and "(ii) CPCSFS5002A Research and interpret detailed fire systems design project requirements" the Applicant notes that defining the scope of clients' requirements and systems design requirements are part of engineering management, which he completed with credit at university in course Engineering Management 48550 and Engineering Communication 48230.
With respect to the units of competency "(iii) CPCSFS5003A Develop plans and methodology for fire systems design projects" and "(iv) CPCSFS5005A Research and evaluate fire system technologies and components", the Applicant submits, as he did for Pathway 1, that developing plans and evaluating fire systems technology was part of Engineering Management 48550 as well as the TAFE course 9080D - UEENEEI00 on Sensing Devices, for which he received a credit.
With respect to the units of competency "(v) CPCSFS5008A Create detailed designs for fire detection and warning systems", "(vi) CPCSFS5011A Provide design documentation and review and support fire system installation processes", the Applicant submits, as he did with Pathway 1 that he has completed equivalent studies, and "(vii) CPCSFS5013A Support commissioning process and finalise fire systems design projects" the Applicant repeats the points he made with respect to Pathway 1.
Finally, the Respondent submits with respect to the alternative pathways, that the "Applicant has failed to comply with the requirements under clause 94(2) of the DBP Regulation as the Applicant has not enrolled in or completed a Diploma of Fire Systems Design (CPC5059)."
In addition to the points made about the equivalence of certain of his university courses to the units of competency listed in Section 14 of Schedule 2, the Applicant points out that he is already approved under the DBP Regulation as a registered "professional engineer" for fire safety. He queries the consistency of this with his being rejected as a design practitioner for fire systems (detection and alarm systems), and whether it effectively places the diploma level qualifications for the design practitioner above the university level qualifications for the engineer level classification. The Respondent did not address this point.
As noted above, the Applicant also submitted on the date of the hearing a certificate (in Arabic, not translated into English) from Abu Dhabi which he said related to fire systems.
The Tribunal does not consider that the Decision to cancel Mr Alzaaim's deemed registration as a design practitioner - fire systems (detection and alarm systems) was the correct and preferable decision. It is true that the Applicant does not have the NVR approved Diploma of Fire Systems Design numbered CPC50509, and therefore does not meet the express qualifications as stated in Pathway 1 of Section 14 of Schedule 2. He has demonstrated, however, that he has completed courses covering similar topics to those listed in Section 14(1)(a) of Schedule 2.
As for Pathway 2, the Applicant does have an engineering degree from an Australian university. He has not completed precisely the courses numbered and set out in Section 14(2)(a) of Schedule 2, but as with Section 14(1)(a), he has demonstrated that he has completed courses covering similar topics to those listed in Pathway 2.
As for the Alternative Pathways, Clauses 94 and 95 could apply to the Applicant because his application of 1 November 2021 for registration was before the cut-off date of 30 June 2022, as was Mr Alzaaim's application to this Tribunal challenging the Decision to cancel the deemed registration.
As for Alternative Pathway 1 set out in clause 94 of the DBP Regulation, the Applicant has not "enrolled or completed" a prescribed qualification or the units of competency specified and thus does not meet satisfy paragraph (a). It is unclear if paragraph (b) is alternative or cumulative to the requirement in paragraph (b) (there is no use of the word "and" between the paragraphs as there is in other paragraphs of the same section). The Applicant may well have a level of competency that would enable the person to carry out work that is permitted to be carried out by a design practitioner of the relevant class but there is not sufficient information in the record about the "knowledge" and "skills" criteria under Section 14.
Clause 95 offers Alternative Pathway 2 for design practitioners in fire systems classes, including in Clause 95(1)(a) for "design practitioner - fire systems (detection and alarm systems)." The clause 95 Alternative Pathway 2 allows for the Secretary, despite the provisions of Schedule 2, to grant registration in the class if the Secretary is satisfied that (a) "the person has the experience, knowledge and skills specified for the class of registration in Schedule 2" and that the person is accredited as a fire safety practitioner under the Building and Development Certifies Act 2018. There is nothing in the record about whether the Applicant is accredited under that Act.
Finally, the Tribunal restates that under Section 3 of Schedule 2 to the DBP Regulation, for the purposes of sections 47(2) and 107(2)(a) of the DBP Act, the Secretary may
despite the provisions of this Schedule, grant registration in a class of registration as a practitioner to a person if the Secretary is satisfied that -
(a) the person's qualifications, experience, knowledge and skills are at least equivalent to the qualifications, experience, knowledge and skills specified for that class, or
(b) a qualification specified by this Schedule for a particular class of registration is combined with another qualification or major not specified by this Schedule and the combined qualification is at least equivalent to the qualification specified for that class,
(c) for registration as a professional engineer the person has the qualifications, knowledge and skills specified for the class of registration in this Schedule …
The Tribunal considers that section 3 of Schedule 2 could potentially be applied to the Applicant with respect to the class of design practitioner - fire systems (detection and alarms). In part this is because of the course equivalencies pointed out by the Applicant with respect to the units of competency listed in Section 14(1) and (2) of Schedule 2 of the BDP Regulation. There is also the overseas fire safety qualification that the Applicant submitted without translation or any evidence of recognition. Significantly, the Tribunal is also mindful that the Applicant has successfully registered under the BDP Regulation in the class of "professional engineer - fire safety", which includes amongst its criteria for qualification a combination of an electrical engineering degree and various courses or accreditations in fire safety. Nevertheless, the matter of fire safety in the construction industry is one of public importance and the Tribunal believes that a decision on registration should only be taken upon a thorough review of a complete record of all the Applicant's registrations, qualifications, knowledge and skills.
In these circumstances, pursuant to Section 63(3)(d) of the ADR Act, the Tribunal decides to set aside the Decision to cancel the deemed registration of Mr Alzaaim's registration in the class of design practitioner - fire systems (detection and alarm systems) and to remit the matter for reconsideration by the administrator. The administrator shall assess all available material (including Mr Alzaaim's prior university and other tertiary education qualifications in Australia and abroad) in determining whether any of the pathways to registration, in the class of design practitioner - fire systems (detection and alarm), apply pursuant to BDP Regulation clause 94, clause 95, Schedule 2, section 14(2), or if he should otherwise be registered pursuant to Schedule 2, section 3.
[14]
Third Issue to be Determined: Is the Applicant entitled to be registered in the class of Design Practitioner - Vertical Transportation?
[15]
Description of Work
Under section 23 of Schedule 1 to the DBP Regulation, a registered design practitioner who holds a design practitioner - vertical transportation class of registration is authorised to do the following -
(a) prepare or vary a regulated design in relation to the integration of a vertical transportation product in a building, including a design that relates to how the vertical transportation product will integrate with an applicable building element of the building to achieve compliance with the Building Code of Australia,
(b) make a design compliance declaration for the regulated design.
[16]
Requirements for Registration
Section 21 of Schedule 2 to the DBP Regulation sets out two pathways for qualification to be registered in the class of Design Practitioner - vertical transportation, as well as the requisite knowledge and skills as follows.
(1) Pathway 1 - qualifications. Must have a qualification referred to in paragraph (a), (b) or (c) and a qualification referred to in paragraph (d) or (e) as follows -
(a) an accredited 4 year full-time or equivalent part-time undergraduate bachelor degree in -
(i) engineering with a major in electrical engineering or mechanical engineering, or
(ii) electrical engineering or mechanical engineering
(b) an accredited postgraduate master's degree in - c
(i) engineering with a major in electrical engineering or mechanical engineering, or
(ii) electrical engineering or mechanical engineering
(c) a non-accredited qualification that has been assessed as being equivalent to an accredited qualification paragraph (a) or (b) -
(i) for a qualification that was conferred by an Australian university or tertiary institution - by an Australian signatory to the Washington Accord, or
(ii) for a qualification that was conferred by a foreign university or tertiary institution - by an assessing authority for the skilled occupation of vertical engineer, if any,
(d) recognition or registration as a professional engineer in an area of vertical transportation engineering by a recognised engineering body,
(e) successful completion of a competency assessment.
(2) Pathway 2 - qualifications Must have at least 1 of the following -
(a) an accredited 4 year full-time or equivalent part-time undergraduate bachelor degree in -
(i) engineering with a major in vertical transportation engineering, or
(ii) vertical transportation engineering.
(b) an accredited postgraduate master's degree in -
(i) engineering with a major in vertical transportation engineering, or
(ii) vertical transportation engineering.
(3) (Repealed)
(4) Knowledge - all pathways. Must know and understand the following -
(a) the Act and this Regulation,
(b) the Environmental Planning and Assessment Act 1979, including regulations made under that Act, to the extent that the legislation is relevant to this class of registration,
(c) the Building Code of Australia, Volumes 1 and 2, including documents adopted by reference in the Building Code of Australia, to the extent that the documents are relevant to this class of registration,
(d) AS 1735, Lifts, Escalators, and Moving Walks, as in force from time to time,
(e) building design, including methods, materials and planning, to the extent that this knowledge is relevant to this class of registration.
(5) Skills - all pathways. Must be able to do the following -
(a) interpret, apply and assess compliance with the relevant requirements of the Building Code of Australia,
(b) apply and assess compliance with relevant standards relating to the design of a building, including materials, finishes, fittings, components and systems of a building, to the extent that the standards are relevant to this class of registration.
…
[17]
Application to Mr Alzaaim
It is common ground that Mr Alzaaim has an accredited undergraduate bachelor degree, in electrical engineering and thus meets the qualification in Schedule 2, section 21(1)(a) for Pathway 1. By use of the word "and", Schedule 2, section 21(1), makes clear that Pathway 1 additionally requires him to meet one of the qualifications in paragraph (d) or (e).
Mr Alzaaim is in the process of becoming chartered with the CIBSE, for subsequent accreditation and recognition by Engineers Australia, but he has not yet completed that process. He therefore does not meet the qualification in paragraph (d) for "recognition or registration as a professional engineer in an area of vertical transportation engineering by a recognised engineering body". The Respondent provided, at Annexure 4 to its submissions, a statement from 2007 showing that Engineers Australia is the engineering body operating a professional standards scheme recognised by the Australian Government.
As discussed at the hearing, Mr Alzaaim has not applied to Engineers Australia to perform a "competency assessment" on vertical transportation. The Respondent submitted that this was a relatively straightforward process, and provided at Annexure 3 to its submissions a copy of the Engineers Australia news release, found on the Engineers Australia website, describing the competency assessment and certification process under the DBP Regulation.
Mr Alzaaim described having done coursework relevant to vertical transportation designs as part of his electrical engineering degree and also described having extensive experience with "over a thousand" lift designs in his work since 2004. Nevertheless, the Tribunal finds upon the clear wording of section 21 of Schedule 2, that until Mr Alzaaim arranges and performs a vertical transportation competency assessment with Engineers Australia, he does not meet the qualification in paragraph (e) for "successful completion of a competency assessment."
Accordingly, the Tribunal finds that Mr Alzaaim does not meet the "qualification" component in Pathway 1.
The Tribunal now turns to Pathway 2 to qualification as a design practitioner in vertical transportation. This requires either an accredited undergraduate bachelor or master's degree in "vertical transportation engineering" or in engineering with a "major in vertical transportation".
Mr Alzaaim takes issue with the second pathway insofar as "vertical transportation engineering is only one subject in NSW university" courses, as opposed to something in which you can do a whole specialised engineering degree, or even choose as a major. He repeats his general overriding observation about the registration scheme, which is that it does not reflect the realities of education and the nature of on-the-job training in the building services industry. He substantiated this point with a series of attachments showing all the subjects within each respective discipline and argues that these "do not give prospective Building Services Engineering students the tools, knowledge or know-how to be able to correctly complete a design within each respective discipline." He submits that:
although the engineering degrees within each university are very thorough and detailed, they are not suited towards the building services industry. The universities provide the knowledge to enable each student to find the standards regulations and guidelines to be followed. All engineers within the building services industry learn how to complete building services designs within their respective disciplines in the workplace working with experienced engineers.
As noted above, the Tribunal explained to Mr Alzaaim at the hearing that its role is to interpret and apply the existing legislation and regulations and not to critique the scheme or apply a different set of rules that others might consider more appropriate. Even taking into account Mr Alzaaim's observations, however, the Tribunal notes that the Regulation does provide an option for practitioners who are qualified electrical engineers to be registered on the basis of their practical vertical transportation skills acquired through years of workplace of experience. That is via a competency assessment from Engineers Australia, in Pathway 1, which Mr Alzaaim has not undertaken.
Because Mr Alzaaim has not met the "qualifications" criteria in either Pathway 1 or Pathway 2 of Schedule 2, Section 21, the Tribunal finds that he is not entitled to be registered in the class of "design practitioner - vertical transportation" and the Decision of the Respondent is affirmed in respect of that class.
[18]
Fourth Issue to be Determined: Is the Applicant entitled to be registered in the class of Design Practitioner - Mechanical Engineering?
[19]
Description of Work
Under section 21 of Schedule 1 of the DBP Regulation, a registered design practitioner who holds a design practitioner - mechanical engineering class of registration is authorised to do the following -
(a) prepare or vary a regulated design in relation to the following, other than a design referred to in clause 23 of this Schedule -
(i) an area of mechanical engineering
(ii) the mechanical systems of a building and the relevant energy efficient provisions of the Building Code of Australia that relate to the systems,
(b) make a design compliance declaration for the regulated design.
[20]
Requirements for Registration
Schedule 2, section 19, sets out the requirements to be registered in the class of Design Practitioner - mechanical engineering as follows.
(1) Qualifications. Must be registered as a professional engineer in the class of professional engineer - mechanical under the Act.
(2) Knowledge. Must know and understand the following -
(a) the Act and this Regulation,
(b) the Environmental Planning and Assessment Act 1979, including regulations made under that Act, to the extent that the legislation is relevant to this class of registration,
(c) the Building Code of Australia, Volumes 1 and 2, including documents adopted by reference in the Building Code of Australia, to the extent that the documents are relevant to this class of registration,
(d) building design, including methods, materials and planning, to the extent that this knowledge is relevant to this class of registration.
(2) Skills. Must be able to do the following -
(a) interpret, apply and assess compliance with the relevant requirements of the Building Code of Australia,
(b) apply and assess compliance with relevant standards relating to the design of a building, including materials, finishes, fittings, components and systems of a building, to the extent that the standards are relevant to this class of registration.
In order to be registered as a Design Practitioner - Mechanical Engineering, the only necessary qualification is to be registered as a "professional engineer in the class of professional engineer - mechanical" under the DBP Act. The requirements for that registration are in turn set out in section 32 of Schedule 2 of the DBP Regulation as follows:
Pathway 1 - qualifications at least one of the following -
(a) an accredited 4 year full time or equivalent part time undergraduate bachelor's degree in mechanical engineering or engineering with a major in mechanical engineering,
(b) an accredited postgraduate master's degree in
(i) mechanical engineering, or
(ii) engineering with a major in mechanical engineering.
(c) a non-accredited qualification that has been assessed as being equivalent to an accredited qualification in paragraph (a) or (b) -
(i) for a qualification that was conferred by an Australian university or tertiary institution by an Australian signatory to the Washington accord or
(ii) for a qualification that was conferred by a foreign university or tertiary institution by and assessing authority for the skilled occupation of mechanical engineer.
Pathway 2 - qualifications recognition or registration as a professional engineer in an area of mechanical engineering by a recognised engineering body.
Pathway 3 - qualifications recognition or registration as a professional engineer in an area of mechanical engineering by a professional body of engineers that
(a) operates a professional standards scheme, and
(b) requires the successful completion of a qualification relevant to carrying out professional engineering work in accordance with the professional standards scheme.
[21]
Application to Mr Alzaaim
The only qualification stated in the DBP Regulation for the class of Design Practitioner - Mechanical Engineering is to be "registered as a professional engineer in the class of professional engineer - mechanical under the Act".
Mr Alzaaim is not registered as a professional mechanical engineer under the Act and therefore cannot qualify as a Design Practitioner - Mechanical Engineering.
Mr Alzaaim did initially apply to be qualified for mechanical engineering both in the categories of engineer and of design practitioner. It appears from Ms Manwaring's statement that in his on-line application of 1 November 2021, the Applicant applied for 1-year registration as a Professional Engineer (19031). He applied in the classes of "electrical, fire safety & mechanical" (Manwaring Statement, paragraph 23, Exh. RM-17). He ticked boxes confirming "10 years (or equivalent part time) relevant experience, gained within the last 15 years. At least 2 of those years of experience was gained while working on building sites in Australia" and that he had applied engineering principles to the applied classes (Exh. RM-4). He noted that he had a postgraduate diploma/graduate diploma in Mechanical Engineering from the University of Technology Sydney, (Exh. RM‑13), though a copy of that diploma is not in the record before this Tribunal.
The Tribunal has reviewed the criteria in section 32 of Schedule 2 of the DBP Regulation. Mr Alzaaim does not satisfy Pathway 1 as he does not have an accredited bachelor or master's degree in mechanical engineering or in engineering with a major in mechanical engineering, for purposes of paragraphs (a) and (b). Nor has he provided evidence of a non-accredited qualification that would meet paragraph (c).
Mr Alzaaim has also not submitted that he meets the criteria for Pathway 2 or Pathway 3. The Tribunal agrees with the Respondent that the Applicant does not possess the required qualifications under Pathway 2 (which is recognition or registration as a professional engineer in an area of mechanical engineering by a recognised body). He also does not possess the required qualifications under Pathway 3, being recognition or registration as a professional engineer in an area of mechanical engineering by a professional body of engineers that operates with a professional standards scheme or requires completion of a relevant qualification. Engineers Australia would be the professional body of engineers operating a professional standards scheme and Mr Alzaaim has not been recognised or registered by them as a professional mechanical engineer.
Mr Alzaaim referred to Clause 97 of the DBP Regulation which contained transitional provisions with alternative pathways for professional engineers and certain types of design practitioners, as follows:
(1) This clause applies to a person who, before the end of 30 June 2022, applies for registration as a -
(a) professional engineer,
…
(2) The person may, instead of meeting the qualifications and experience requirements specified in schedule 2 for a particular class of registration, satisfied the Secretary of the following -
(a) the person has the knowledge and skills specified for the class of registration in schedule 2,
(b) the person has at least ten years, or equivalent part time practical experience within the last 15 years that -
(i) must include at least two years of work carried out in Australia, and
…
(iii) for a professional engineer - must involve the carrying out of professional engineering work in a particular prescribed area of engineering for a class 2, 3, 9A or 9C building,
(c) the person has successfully completed a competency assessment,
(d) for the registration as a professional engineer in a particular class of registration--
(i) the person has a qualification relevant to the class of registration and
(ii) the qualification have been assessed as being suitable by the person or body that conducted the competency assessment.
Based on Ms Manwaring's statement, Mr Alzaaim did apply before 30 June 2022 for registration via the alternative pathway as a mechanical engineer and design practitioner - mechanical engineering. He also confirmed he has the requisite knowledge and skills and over 10 years' work experience including two years in Australia. However, the criteria in section 97 of Schedule 2 to the Act are cumulative and must all be satisfied. The Tribunal is not satisfied on the evidence before it that Mr Alzaaim has (i) carried out professional engineering work in the "particular prescribed area" of mechanical engineering, (ii) successfully completed a competency assessment, or (iii) had his qualifications assessed as suitable by the person or body carrying out the competency assessment via Engineers Australia. It may well be that his chartering process with CIBSE will eventually lead to that result, but at present this has not occurred and several criteria remain unmet under section 97.
The Tribunal notes that with respect to the class of design practitioner - mechanical engineering, Mr Alzaaim has reiterated his general observations that university engineering degrees are "not suited towards the building services industry". He submits that completing an engineering degree is like completing a law degree, "both degrees teach you how to manage a project, where to find the applicable law/standards, and how to apply them". As already noted above, the Tribunal's role is to interpret and apply the existing legislation and regulations and not to critique it. The Tribunal also observes that there is an avenue of competency assessment based on experience and recognition of qualifications by a professional body, but that Mr Alzaaim has not undertaken that process.
Accordingly, for the class of design practitioner - mechanical engineering, the Tribunal affirms the Decision to cancel the registration and finds that Mr Alzaaim is not entitled to registration in that class.
[22]
Conclusion
Based on all the considerations set out above, and having regard to the material before me, I am satisfied that the correct and preferable decision is that Mr Alzaaim is not entitled to registration under the DBP Act and DBP Regulation in the classes of design practitioner - drainage, design practitioner - vertical transportation and design practitioner - mechanical engineering. In respect of those three classes therefore the Decision is affirmed.
However, with respect to the cancellation of the deemed registration of Mr Alzaaim in the class of design practitioner - fire systems (detection and alarms), the Tribunal decides to set aside the Decision below and remit the matter for reconsideration by the Respondent in accordance with the recommendations in paragraphs 96 and 97 above.
[23]
Orders
The Tribunal makes the following orders:
1. The Decision under review with respect to cancellation of registration in the class of design practitioner - drainage is affirmed.
2. The Decision under review with respect to cancellation of registration in the class of design practitioner - fire systems (detection and alarm systems) is set aside and remitted to the administrator for reconsideration.
3. The Decision under review with respect to cancellation of registration in the class of design practitioner - vertical transportation is affirmed.
4. The Decision under review with respect to cancellation of registration in the class of design practitioner - mechanical engineering is affirmed.
[24]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 04 November 2022