Shelley v Board of Professional Engineers Queensland & Anor [2020] QSC 38

iContract Management Consultants Pty Ltd for the applicant

Board of Professional Engineers of Queensland for the first respondent

[1] The applicant is a highly-qualified and experienced fire engineer. His qualifications include a Masters of Engineering in Fire Engineering degree from the University of Canterbury in New Zealand. He completed that degree in 2004 with Distinction, winning a University Prize for academic excellence in the process. By then he had worked full-time with the New Zealand Fire Service since mid-1996 and in May 2001 became a member of its Fire Engineering Team. In around 1999 he became a graduate member of the Institution of Fire Engineers New Zealand. In January 2006 he was promoted to be Deputy Chief Fire Safety Officer for the Auckland Fire Region.

[2] In January 2007 the applicant migrated to Australia and commenced work with Aurecon (then named Connell Wagner) as the Fire Engineering Leader for Queensland. After 2007 he worked as an engineer in the area of fire engineering in Queensland under the supervision of various fire engineers who were registered professional engineers. He gained further experience during those 10 years and is highly-regarded by fire engineers who are familiar with his qualifications, competence and experience.

[3] In 2017, with a view to starting a business of providing services as a fire engineer, the applicant decided to apply for registration to practise as a professional engineer in Queensland in the area of fire engineering. He investigated the qualifications and competencies required to obtain registration. The Professional Engineers Act 2002 (Qld) has an assessment scheme, approved by the Minister, for individuals seeking registration as a professional engineer in the area of fire engineering. Information available via links on the Board of Professional Engineers Queensland website indicated that a recognised pathway for registration was to hold Chartered Engineer (CEng) status with the Engineering Council of the United Kingdom. The applicant sought further advice from a former President of the Institution of Fire Engineers (IFE) who confirmed that obtaining CEng status was the primary criterion for demonstrating that an applicant had the necessary qualifications and competencies to satisfy the IFE's approved assessment scheme for registration in Queensland as a professional engineer in the area of fire engineering.

[4] In April 2018 the applicant applied for registration as a Chartered Engineer. His qualifications and competencies were assessed by the Institution of Fire Engineers in the United Kingdom. This involved a number of steps and he became registered as a Chartered Engineer on 5 August 2019.

[5] In late August 2019 the applicant submitted to the IFE Australia an application for assessment of his qualifications and competencies in the area of fire engineering for registration as a professional engineer in Queensland. As part of the IFE's assessment process he was interviewed by two members of the IFE, who also assessed the applicant's qualifications and competencies. Based on the assessments of those professional engineers, the IFE determined that the applicant had the required qualifications and competencies under the approved scheme.

[6] Relying on the expert assessing entity's decision (reflected in a letter of recommendation from the IFE as the approved entity under the relevant scheme) and other material, the applicant applied for registration as a professional engineer in Queensland in the area of fire engineering. There was no question as to the applicant's fitness or his compliance with the process to be registered. Unsurprisingly, given the expert assessment of his qualification for registration under the assessment scheme and there being no doubt about his fitness to practise, his application was granted by the Board and his name was added to the register in the area of fire engineering on or about 20 September 2019.

[7] A few days later the applicant finalised his resignation from the employment in which he had worked as a fire engineer since May 2011. In reliance upon his registration he established an office, procured business equipment and took out insurance in late September 2019. On 2 October 2019 he commenced practice as a fire engineer on his own account and then gained clients.

[8] In mid-October 2019 the applicant learned of what was described to him as an "audit" of his application to the Board for registration. He and representatives of the IFE were given to understand that the Board's Principal Legal Officer seemed to think that because the applicant did not have a "Washington Accord" undergraduate degree he should not have been allowed to go through the assessment scheme process. The applicant pointed out that the process to become a Chartered Engineer and to fulfil the requirements of the approved assessment scheme specifically allowed for applicants to establish that they had the necessary qualifications and competencies, despite not having a Washington Accord undergraduate degree. This was to no avail.

[9] By letter dated 24 October 2019 the Board's Legal Officer advised the applicant that it had become aware that he did not currently hold an accredited Washington Accord engineering degree, which was said in the letter to be "a required qualification in support of your application for registration". In fact, there was no such requirement. The letter also erroneously noted that the IFE - the assessment entity - "mistakenly overlooked" this requirement and that, as a result, a positive recommendation for his registration was made incorrectly. This was untrue. The assessment entity was not under any mistake as to the applicant's academic qualifications or the qualifications required for registration.

[10] The Board's error in asserting that a Washington Accord engineering degree is a required qualification in support of an application for registration in the area of fire engineering was eventually conceded in submissions made on its behalf in this Court.

[11] In late 2019 the Board, despite submissions made on the applicant's behalf, indicated that it was intent on revisiting the applicant's registration, based upon a new assessment by it as to whether the applicant met the academic requirements for registration in the area of fire engineering. The Board proposed to reconsider its decision of 20 September 2019 to grant the applicant registration on the basis that the Board had been misled. The applicant contended that the Board lacked power to reconsider its decision to grant registration and that, in any event, the Board was not empowered to apply qualification criteria which were different to those provided for in the assessment scheme approved by the Minister under which the applicant sought and obtained registration. The Board did not relent. Hence this proceeding.

[12] Undertakings were given by the Board to the Chief Justice on 23 November 2019 to preserve the status quo with respect to the applicant's registration until 5 December 2019, which was the date fixed for the final hearing. I heard the matter on 5 December 2019 and reserved my decision. Pending that decision I ordered that the Board be restrained from making any decision adverse to the applicant's registration without giving written notice to him of the proposed decision and giving him not less than 14 days after the latter of the notice or judgment to make further submissions.

[13] The substantial issues are:

1. Is the Board empowered to re-exercise its power to make a decision to grant or refuse to grant an application for registration?
2. If it is, is it for the Board or the assessing entity under the approved scheme to assess the qualifications and competencies provided for under the assessment scheme for that area of engineering? Expressed differently, is any discretion conferred upon the Board to re-exercise the power to grant or refuse to grant an application for registration confined to matters over which the Board has authority to decide (such as the fitness of an applicant) and not extend to substituting its assessment of the applicant's qualifications for that of the expert assessing entity?
3. If, however, the Board is not bound to act on the assessment entity's assessment of whether the applicant has the qualifications provided for in the assessment scheme, is the Board's discretion confined to considering whether the applicant has the qualifications provided for in the assessment scheme? In particular, is it impermissible for the Board to require the applicant to have academic qualifications that the assessment scheme does not require an applicant for registration to have?

[14] These issues require consideration of the legislative scheme.

Professional Engineers Act 2002 (Qld)

[15] The Act seeks to protect the public by ensuring professional engineering services are provided by a registered professional engineer in a professional and competent way.[1]

[16] It is an offence for someone to carry on practice as a professional engineer or carry out professional engineering services if they are not registered under the Act, unless they do so under the supervision of a registered professional engineer.[2] Registration is limited to natural persons, and must be by way of application in an approved form which states the type of registration to which the application relates and which is accompanied by certain information.[3]

[17] Because of the variety of areas of engineering (for example civil engineering, environmental engineering, mining engineering), the assessment of qualifications and competencies of applicants for registration is entrusted to experts in each area.

[18] An applicant for registration is "qualified for registration in an area of engineering" if the applicant has the qualifications and competencies:

• (a) provided for under the assessment scheme for that area of engineering (if there is an assessment scheme for that area of engineering); or
• (b) otherwise prescribed under a regulation for the area of engineering.[4]

[19] The qualifications and competencies for a professional engineer in an area such as fire engineering are those contained in an assessment scheme for that area of engineering. Assessment schemes are regulated by Part 6A of the Act, which provides a process for an entity to apply for approval by the Minister of an assessment scheme. The scheme must be consistent with national and international standards for professional engineers.[5] It must include procedures for assessment of applicants in an independent manner and for monitoring and improving the assessment process.[6] The entity conducting the scheme must employ competent people to perform assessments of applicants and must have proven procedures for training and accrediting those persons.[7] The demanding standards required of an assessment scheme appear in s 112B of the Act which provides:

"112B Suitability of assessment schemes for approval

A proposed assessment scheme is, and an assessment scheme continues to be, suitable for approval under this part if -

(a) the scheme adequately provides for the assessment of qualifications and competencies of engineers in an identifiable area of engineering; and

(b) the scheme is consistent with national and international standards for the recognition of professional engineers; and

(c) the scheme includes procedures for the assessment of applicants under part 2 that are conducted in an independent and professional manner; and

(d) the entity conducting the scheme has adequate procedures for monitoring and improving the assessment process carried out under the scheme; and

(e) the fees imposed under the scheme for the assessment of qualifications and competencies are reasonable having regard to the scope of the services being offered; and

(f) the scheme includes adequate continuing professional development requirements for professional engineers and an effective audit program to ensure continuing registration requirements are met; and

(g) the entity conducting the scheme employs competent persons to perform assessments of applicants under part 2 and has proven procedures for training and accrediting those persons who will perform the assessments; and

(h) the entity conducting the scheme has the financial capacity and facilities to conduct assessments of qualifications and competencies; and

(i) the entity conducting the scheme has a proven capacity to undertake independent and authoritative assessments in a timely manner; and

(j) the scheme or entity conducting the scheme satisfies other criteria provided for under a regulation."

If an assessment scheme stops being suitable for approval it may be cancelled or suspended.[8]

[20] Importantly for present purposes, the qualifications and competencies which qualify an applicant for registration are those provided for in the assessment scheme. Those qualifications and competencies are assessed by an assessment entity which satisfies the Minister of its qualities and the suitability of its assessment scheme for approval.

[21] Because an applicant for registration is qualified for registration in an area of engineering if the applicant has the qualifications and competencies provided for under the assessment scheme, the Board cannot impose different qualifications to those contained in the relevant assessment scheme.

[22] An applicant for registration is eligible for registration only if:

• (a) the applicant is qualified, under s 10, for registration; and
• (b) the Board considers the applicant is fit to practise as a registered professional engineer.[9]

[23] Consistent with a statutory scheme which entrusts the assessment of qualifications and competencies for registration in an area of engineering to an approved assessment entity, an application for registration must be accompanied by the assessment entity's assessment of the applicant against the qualifications and competencies provided for under the scheme.[10] The application also must be accompanied by satisfactory evidence of the applicant's eligibility for registration and any other documents, identified in the approved form, the Board reasonably requires to decide the application.[11] Again, because of the role entrusted to an approved assessment entity with specialist expertise in that area of engineering, in deciding an application for registration, the Board "must have regard to the assessment of the assessment entity" given to the Board by the applicant under s 8(2)(b)(ii).[12]

[24] If the Board decides to grant the application, it must as soon as practicable register the applicant as a registered professional engineer in one or more of the areas of engineering for which the applicant is qualified for registration and give the applicant a certificate of registration.[13] In deciding in which area of engineering a successful applicant is to be registered, the Board must have regard to the applicant's qualifications and competencies in the practice of engineering. It is possible to imagine an applicant for registration who has the qualifications and competencies to be registered as a professional engineer in more than one area, and who has favourable assessments from two assessment entities which each determine that the applicant has the qualifications and competencies provided for under the relevant assessment scheme. In such a case it would be possible, if the Board considered the applicant to be fit to practise as a registered professional engineer, for the applicant to be registered in more than one area of engineering.

"(a) the board believes on reasonable grounds the registered professional engineer was registered because of a materially false or misleading representation or document; or

(b) the registered professional engineer is affected by bankruptcy action; or

(c) the registered professional engineer is an executive officer of a corporation affected by control action after the commencement of this section; or

(d) the registered professional engineer's registration to practise as a professional engineer under a law applying, or that applied, in the Commonwealth, another State or a foreign country has been cancelled under that law for disciplinary reasons; or

(e) the registered professional engineer's membership of an association of professional engineers, whether in Australia or a foreign country, has been cancelled under the association's rules for disciplinary reasons; or

(f) the registered professional engineer has contravened a condition of the engineer's registration; or

(g) the assessment in a health assessment report given to the board under section 35G is that the engineer is currently unable to competently and safely practise as a registered professional engineer."

Section 29 sets out the procedure for cancellation. Section 29A gives the Board power to immediately suspend an engineer's registration in certain defined circumstances.

[28] In summary, the Act entrusts the assessment of qualifications and competencies provided for under such an assessment scheme to an expert assessment entity which assesses the applicant's qualifications and competencies against the qualifications and competencies provided for under the scheme. Entrusting the assessment of the qualifications and competencies of an applicant to an approved assessment entity in that area of engineering has obvious advantages over entrusting the assessment of qualifications and competencies in a specialised field of engineering to a general body, such as the Board. The Board does not have to satisfy the Minister that it has the attributes required of an assessment entity in order to gain approval of an assessment scheme under Part 6A of the Act. Entrusting the assessment of the qualifications and competencies of an applicant for registration in an area of engineering to an approved entity in that area may be said to advance the objects of the Act by ensuring professional engineering services are provided by a registered professional engineer in a professional and competent way.

[29] In addition to satisfying the expert assessment entity that the applicant has the qualifications and competencies provided for under the relevant assessment scheme (and providing the Board with the assessment entity's assessment of those qualifications as proof that the application is qualified under s 10), an applicant for registration also must satisfy the Board that the applicant "is fit to practise as a registered professional engineer".[20] The question of fitness to practise involves different matters to whether the applicant is qualified under s 10 for registration. No issue arises in this matter about the applicant's fitness to practise. Therefore, it is unnecessary to address the matters which might be relevant to the Board's consideration of whether an applicant is fit to practise as a registered professional engineer. The Board does not seek to reconsider the applicant's application for registration out of any concern that he is not fit to practise as a registered professional engineer. Its stated concern is whether he has the qualifications, particularly the educational qualifications, provided for in the assessment scheme.

The approved assessment scheme for fire engineering

[30] An approved assessment scheme under the Act exists in the area of engineering known as "fire engineering". Fire engineering is "the application of scientific and engineering principles, rules (Codes), and expert judgement, based on an understanding of the phenomena and effects of fire and the reaction and behaviour of people to fire, to protect people, property and the environment from the destructive effects of fire."[21]

[31] The approved assessment scheme is linked to the Institution of Fire Engineers (UK) which was founded in 1918. It is a licensed Professional Engineering Institution of the internationally recognised standards organisation, the Engineering Council. The scheme ensures that registrants have the necessary technical background to work as a Chartered Engineer and as a registered professional engineer in Queensland.

[32] The pathway to registration in Queensland as a fire engineer is by becoming a Chartered Engineer. According to the approved scheme, this qualification "establishes the professional engineering level necessary for RPEQ registration" under the scheme. The route to registration as a professional engineer by becoming a Chartered Engineer is clearly documented in terms and in a flowchart in the scheme.

[33] As for the academic or educational qualifications provided for in the approved scheme, the scheme refers to, and incorporates as an Appendix, the UK Standard for Professional Engineering Competence. Both the body of the approved scheme and the relevant appendix state that knowledge and understanding are important components of professional competence. They state that formal education is the usual, but not the only, way of demonstrating the necessary knowledge and understanding. The following qualifications are said to "exemplify" the required knowledge and understanding for Chartered Engineers:

"• An accredited Bachelor's degree with honours in engineering or technology, plus either an appropriate Masters degree or Engineering Doctorate (EngD) accredited by a professional engineering institution, or appropriate further learning to Masters level;

"Applicants who do not have exemplifying qualifications may demonstrate the required knowledge and understanding in other ways, but must clearly demonstrate they have achieved the same level of knowledge and understanding as those with exemplifying qualifications."

[34] As noted, the applicant demonstrated that he had achieved this level of knowledge and understanding, and thereby gained the qualification of being a Chartered Engineer. This was the qualification upon which he relied in applying for registration in accordance with the approved scheme.

[35] Because there is no doubt that the applicant is qualified as a Chartered Engineer, it is unnecessary to go behind that qualification and to detail the applicant's academic qualifications and other respects in which he demonstrated to the body which was authorised to register him as a Chartered Engineer that he had achieved the same level of knowledge and understanding as those with "exemplifying qualifications". It is convenient, however, to mention some matters.

[36] As for academic qualifications, the applicant graduated from the University of Auckland with a Bachelor of Architecture in 1993. I have earlier noted his extensive experience as a member of the New Zealand Fire Service Fire Engineering Team. As for his degree as a Master of Engineering in Fire Engineering, a prerequisite for admission entry into that degree was to attain at least an undergraduate level engineering knowledge. To do so the applicant completed additional coursework relating to mathematics, heat transfer and fluid mechanics. He successfully completed those engineering courses part-time and then commenced the MEFE course. Reference has been made to the fact that the applicant was awarded a Distinction and received a University Prize. Distinctions are only awarded to about 10 per cent of students who complete the degree. The applicant achieved A plus grades throughout his studies. His former supervisor says that the applicant displayed a very sound knowledge of the theoretical fire science that underpins much of fire engineering and achieved A plus grades for courses that were independently assessed by other academics involved in the program.

[37] The applicant's "excellent knowledge of fire engineering fundamentals and their practical application" was further evidenced by the complex and challenging experimental project he undertook for the research component of his Master's degree. According to his former academic supervisor, the amount of work done and the level of detail contained in that research were at the upper end of the requirements for the research component of the MEFE program and would have gone a fair way towards satisfying the requirements of a PhD thesis. The applicant's research resulted in the publication of a conference paper and a journal paper. According to his supervisor, the applicant was "one of the strongest students to have completed the MEFE".

As a matter of policy, the Board may wish to ensure that every applicant for registration, including applicants for registration in the area of fire engineering, holds a Washington Accord degree or assessed equivalent four year undergraduate degree from a recognised tertiary institute. At a meeting on 26 June 2019 the Board adopted this position on eligibility requirements for registration in proposed revised guidelines for entities applying for approval, renewal or variation of an assessment scheme. However, this concerns an entirely different matter to the applicant's satisfaction of the eligibility requirement that he be qualified under s 10 of the Act by having the qualifications and competencies provided for under the operative, current assessment scheme.

[45] If the Board wishes to persuade the Minister to not renew the assessment scheme or to include additional qualifications in any future approved scheme, then the Board can make representations to the Minister. It is for the Minister, not the Board, to approve an assessment scheme. It would be contrary to the scheme of the Act to permit the Board to, in effect, alter the content of qualifications contained in an approved assessment scheme. Senior counsel for the Board correctly acknowledged at the hearing before me that the Board is not enabled under the Act to impose any qualification requirement beyond the approved scheme.

[46] Any investigation by the Board into the applicant's qualification for registration in accordance with s 10, namely whether he has the qualifications provided for under the assessment scheme, should not be concerned with investigating whether the applicant's academic qualifications in the form of his undergraduate degree, further academic studies or his Master of Engineering in Fire Engineering degree is an accredited Washington Accord degree or are the academic equivalent of one. If one was to regard the qualifications provided for under the assessment scheme as being the level of knowledge and understanding required for qualification as a Chartered Engineer, rather than the Chartered Engineer qualification itself, the relevant standard does not require the holding of a Washington Accord degree (accredited in the UK or elsewhere) or an equivalent degree. The relevant standard speaks in terms of the "level of knowledge and understanding" demonstrated by the applicant as being the same as those with "exemplifying qualifications". It does not state that the applicant is required to hold an equivalent degree.

[47] The applicant did not claim to have a Washington Accord engineering degree. He correctly stated his academic and other qualifications. The IFE (contrary to the incorrect assertions made by the Board) was not mistaken as to the applicant's qualifications. Amongst other things, the applicant relied upon his being a Chartered Engineer, the recognised pathway for registration under the Act as a professional engineer in the area of fire engineering. The applicant obtained his registration as a Chartered Engineer by demonstrating that he had achieved the same level of knowledge and understanding as those with the "exemplifying qualifications" stated in the Chartered Engineer Standard.

Should the Board be permitted to purportedly exercise any power it has in the present circumstances?

[49] I have considered the Board's flawed conduct towards the applicant by which, for some uncertain period, it believed he required an accredited Washington Accord engineering degree in order to apply for registration, and the Board's intended course of action in pursuing an inquiry into whether the applicant's academic qualifications are equivalent to a Washington Accord degree. I turn to address the constraints which apply to any purported re-exercise of the power to grant or refuse an application on the grounds that the applicant lacks the qualifications provided for under the relevant assessment scheme.

[50] The Board does not intend to exercise any such power in order to satisfy itself that the applicant has a required qualification under the assessment scheme, namely having been registered as a Chartered Engineer by the Engineering Council. He undoubtedly holds the required qualification. Instead, what the Board apparently seeks to do is to investigate the applicant's academic qualifications and to determine whether they are equivalent to a Washington Accord degree. The Washington Accord is an agreement which provides for a mutual recognition between signatory bodies of education accreditation processes. Signatories agree to grant graduates of each other's accredited programs the same recognition, rights and privileges as they grant to graduates of their own programs. However, the assessing entity, in determining whether the applicant had the qualifications provided for under the approved assessment scheme, was not involved in such an academic accreditation exercise. It was concerned with the applicant's qualifications and competencies, including whether he held a qualification as a Chartered Engineer which, in turn, required him to demonstrate that he had achieved "the same level of knowledge and understanding" as those with exemplifying qualifications. The applicant's proof that he had the academic qualities to be registered as a Chartered Engineer took such an individualised route, rather than simply proving that he had the "exemplifying qualifications" in the form of one of the university degrees stated in the Engineering Council's specification. In the circumstances, in assessing whether the applicant's qualifications are those provided for in the assessment scheme approved under Part 6A of the Act, it is unnecessary to inquire whether the applicant's undergraduate degree or his Masters degree is or should be entitled to be accredited as a Washington Accord degree or recognised as the equivalent of a Washington Accord degree.

However, the individualised route which the approved scheme provided for in allowing the applicant to demonstrate his educational qualifications did not oblige him, as the Board still appears to think, to show that he held a degree or degrees that were the academic equivalent of a Washington Accord degree. The individualised route required him to demonstrate that the knowledge and understanding that he had achieved from his formal academic studies and from other sources was the same level of knowledge and understanding as persons with the "exemplifying qualifications" referred to in the Engineering Council - UK Standard for professional engineering competence. These were the educational qualifications which entitled the applicant to become a Chartered Engineer. The relevant educational qualification provided for in the assessment scheme was concerned with the applicant's knowledge and understanding, not with whether the degrees he held were the academic equivalent of a Washington Accord degree.

[57] The Board appears intent on requiring the applicant to demonstrate that the degrees which he holds are the academic equivalent of a Washington Accord degree. This may reflect the Board's policy about the preferable content of an assessment scheme. However, it would be wrong for the Board to apply that policy in any reconsideration of the applicant's application for registration. This is because the approved scheme which applies to the application does not require such an academic qualification.

[58] In summary, the evidence before me shows that the applicant had the required qualifications provided for under the assessment scheme. Even assuming the Board has the power to re-exercise its power to grant or refuse registration on the basis that the applicant does not have the qualifications provided for under the assessment scheme, the Board advances no evidentiary basis to conclude that the exercise of such a power is necessary or appropriate. The evidence is that the applicant had the qualifications (and competencies) provided for under the assessment scheme. The Board misunderstood what the required qualifications were and was slow to admit its mistake. Having eventually admitted its mistake, it seems intent on pursuing an unnecessary inquiry into whether the applicant's academic qualifications are the equivalent of a Washington Accord degree when the assessment scheme does not require such an academic qualification.

The nature and content of any discretion which the Board possesses in the present case

[59] The Board points to the fact that under s 12(2) it "must have regard to" the approved entity's assessment of the applicant's qualifications and competencies against those provided for under the scheme. The Board notes that s 12(2) does not state that the Board is bound by any such assessment. However, the absence of language to the effect that the Board is bound by the assessment entity's assessment does not give the Board free rein to settle upon its own qualifications, which differ from those provided for under the assessment scheme. One would not lightly conclude that the Board would be free to exercise its power to grant or refuse registration by adopting standards different from those contained in an assessment scheme. To so conclude would have the potential to distort the scheme of the Act, whereby qualifications and competencies are provided for in an assessment scheme for an area of engineering, and then assessed by an assessment entity which must observe the standards contained in s 112B for the scheme to be approved. The purpose, structure and terms of the Act do not suggest that the Board is empowered to impose different qualifications and competencies to those provided for in s 10. The Board does not contend in this proceeding that it has such a power. It would be an odd thing if it did, for example, by concluding that an applicant was qualified under s 10 in the face of an assessment by the expert assessment entity that the applicant did not have the required qualifications and competencies.

[60] Any discretion which the Board might possess in assessing whether an applicant has the qualifications and competencies provided for under an assessment scheme does not allow the Board to impose more exacting academic qualifications or to permit less exacting academic qualifications than those provided for under the assessment scheme. Any discretion which the Board has in exercising (or re-exercising) its power to grant or refuse to grant an application on the basis that the applicant is not qualified under s 10 is circumscribed by the discretion's statutory context. For example, it is possible to imagine a case in which the assessment entity is misled into thinking that the applicant is registered as a Chartered Engineer when this is not the case, the assessment entity makes an assessment on that erroneous basis, and its mistake is then detected by the Board which concludes that the applicant is not qualified under s 10. In such a case the Board's discretion to grant the application for registration might be properly exercised by concluding that the applicant is not qualified under s 10 and therefore is not eligible for registration under s 9.

Is the Board empowered to re-exercise its power to make a decision to grant or refuse to grant an application for registration?

[65] My conclusion about the nature and content of any discretion which the Board may possess in the present circumstances makes it unnecessary to determine this question. However, since the parties addressed arguments on this question, I will address them.

[66] The applicant submits that the Act defines the powers of the Board and that the Act provides no power to revisit a decision to grant an application.

[67] The Board relies upon s 24AA of the Acts Interpretation Act 1954 (Qld) ("AIA") which provides:

"24AA Power to make instrument or decision includes power to

If an Act authorises or requires the making of an instrument or decision -

(a) the power includes the power to amend or repeal the instrument or decision; and

(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision."

The application of s 24AA (like the application of other provisions of the AIA) is "displaced, wholly or partly, by a contrary intention appearing in any Act".[22]

[68] Whether or not an intention to displace the application of a provision such as s 24AA appears is a matter of statutory interpretation of the power in issue.[23] As Gummow J observed in a similar context:

"... in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires."[24]

[69] In submitting that the Act appears to show an intention to displace a power to repeal a decision to approve an application for registration, the applicant places particular reliance on the subject matter of the power and the existence of an express power to cancel registration in certain circumstances. The granting of registration confers upon a successful applicant substantive rights to carry on practice as a professional engineer. To deprive such an individual of his or her registration is a matter of great consequence. Depriving a person such as the applicant in this case of his registration deprives him of his livelihood, interrupts his recently established business and is apt to adversely affect his reputation.

[70] It would have the same practical effect as the cancellation of his registration, but without having to establish one or more of the grounds contained in s 28 under which the Board may cancel a registered professional engineer's registration. It also would not require the Board to follow the process contained in s 29 to cancel a person's registration. These include giving at least 21 days' notice (which includes notice of the facts and circumstances which are the grounds for cancellation), giving the engineer an opportunity to make written representations as to why the registration should not be cancelled and considering those representations.

[71] In reply to these submissions the Board emphasises the subject matter and purpose of the Act, being to protect the public by upholding the standards of professional engineers. It submits that if occasion arises for the Board to re-exercise its power for that protective purpose, then the purpose of the Act is best achieved by construing the Act to permit that to occur.

[72] In response to the applicant's reliance on the existence of an express power of cancellation as showing a contrary intention, the Board submits that registration can only be cancelled if it has been granted whereas, if the power were re-exercised and registration refused, that would not be a cancellation. Instead, it would be a refusal of the application and the applicant would have a right of review of that decision.

[73] In my view, the Board's argument does not engage with the substance of the applicant's argument about the power to cancel. The Board's argument relies on an implied power to repeal the decision to grant registration, after which the Board could set about the process of re-exercising its power to grant or refuse to grant the application, and take the time necessary to receive all necessary information to decide the application. Like the power itself, the exercise of the implied power to repeal would need to be exercised "as soon as practicable" after the Board had received all necessary information to decide the matter. However, there may be some period between the decision to repeal the original decision and the making of any new decision, during which registration would be lost. In any case, the practical consequence of a repeal of the decision to grant registration would be significant and include a consequential loss of livelihood. In practical terms it would be similar to having a registration suspended or cancelled.

"In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object ... That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose."

[78] The protection of the public by upholding the standards of professional engineers is advanced by the Act's various provisions which confer an entitlement to registration upon an individual who is qualified under s 10 and who the Board considers is fit to practise as a registered professional engineer, and by numerous other provisions including express powers for cancellation, suspension and renewal of registration. The Act, in the interests of protecting the public by upholding standards, defines the circumstances in which an individual is entitled to be registered and thereby carry on practice, and also defines the circumstances in which registration may be lost. In conferring valuable substantive rights upon a registered professional engineer, the Act expressly defines the circumstances in which the right to practise may be lost. In so providing, the Act appears to not intend that registration may be, in effect, cancelled by the Board simply deciding to repeal a decision to grant registration.

[79] To adopt the words of Gummow J, the power reposed on the Board to grant registration is of "such a character that it is not exercisable from time to time".[28] The preferred interpretation, in my view, is that the power to grant registration is spent once the decision is made, it being a substantive exercise of power. On this view, because the Board's power to decide to grant or refuse the application was spent by its decision on or about 20 September 2019 to grant registration, it does not have authority to re-exercise that power. Any purported second decision would be unauthorised.

[80] Had I been required to decide the point then I would have adopted this interpretation. In that event I would have declared that the Board lacked authority to reconsider the applicant's application for registration and, in the absence of an appropriate undertaking from the Board, restrained it from purporting to do so.

[81] I return to the three issues identified at the start of these reasons.

[82] For the reasons just given, the better view is that the Board is not empowered to

re-exercise its power to make a decision to grant or refuse to grant an application for registration.

[83] As to the second issue, the Board is not, in terms, bound by the expert assessment entity's assessment of the qualifications and competencies of an applicant for registration in an area of engineering. However, it would be a very rare case in which it substituted its assessment of the applicant's qualifications for that of the expert assessing entity. The scheme of the Act is to entrust the assessment of qualifications and competencies to an assessment entity which demonstrates, in accordance with

s 112B, that it is suitable to conduct an approved scheme in a specialised field. The Board lacks the expertise and other qualities of such an assessment entity in assessing the qualifications and competencies provided for in an assessment scheme for a specialised area of engineering such as fire engineering. The Board would not follow the recommendation of the assessment entity where there was an obvious error on the part of the assessment entity about the applicant's qualifications, for example, in thinking that the applicant was registered as a Chartered Engineer when this was not the case. Apart from these rare and exceptional cases, the scheme and purpose of the Act would seem to require the Board to defer to the assessments of experts in the field. Any other approach carries the potential for the Board to register applicants, contrary to an assessment by the expert assessment entity that the applicant lacks the qualifications and competencies provided for in the assessment scheme. This would be contrary to the purpose of the Act. In short, the Board has a discretion, but a very narrow discretion, to substitute its assessment of the applicant's qualifications for that of the expert assessing entity.

[84] As to the third issue, it is impermissible for the Board to require an applicant to have academic qualifications that the assessment scheme does not require an applicant for registration to have. The principle that a discretion to register a person takes its content from its context is exemplified in Victorian Building Authority v Andriotis. That principle was applied in respect of mutual recognition legislation. The principle applies in the different legislative context of this case. In this case, the purported discretion to re-exercise the power to register is sought to be exercised by the Board on the grounds that the applicant may lack the qualifications provided for in the assessment scheme. Such a discretion could not be exercised on the grounds that the applicant lacks other qualifications. It could not be exercised on the grounds that he does not hold a Washington Accord engineering degree or an equivalent academic degree. This is because such a requirement is not contained in the approved assessment scheme. No discretion would exist to exercise the asserted power to repeal so as to ensure that an applicant had such a degree. Any purported exercise of discretion by the Board in order to ascertain whether the applicant had those additional qualifications would be a misapprehension by the Board of its power. The Board would be liable to be restrained from such an unauthorised exercise of power and from engaging in conduct that exceeded the authority given to it.

[85] The better view is that the Board, as a matter of law, does not have authority to re-exercise its power to grant an application for registration.

[86] If, however, the Board has authority to re-exercise its power to grant or refuse an application for registration then:

• (a) the Board is not entitled to exercise its discretion on the basis of a misconception that the qualifications provided for under the assessment scheme include a requirement that the applicant have academic qualifications which are assessed by the Board (or indeed anyone else) to be the equivalent of a Washington Accord degree;

• (b) the Board has not established a factual basis to exercise its asserted power by showing that the expert assessing entity was wrong to decide that the applicant had the qualifications (and competencies) provided for under the assessment scheme;

• (c) the evidence is that the applicant had (and still has) the required qualifications (including registration as a Chartered Engineer) and competencies, and was therefore qualified under s 10; and

• (d) no question arises of exercising any such power on the grounds of fitness to practise: fitness to practise being a matter for the Board to consider under

  s 9(1)(b), including by having regard to the matters stated in s 11 of the Act.

[87] The Board has not shown that in the circumstances of this case there is a proper basis to exercise any power it arguably possesses to repeal its decision to grant the applicant's application for registration.

[88] I will give the parties an opportunity to consider these reasons. It may prove unnecessary for the Board to give an undertaking to the Court if it indicates to the applicant that it does not now intend to reconsider his application for registration. The terms of any undertaking to the applicant or to the Court should be formulated. If the matter is not resolved by an appropriately worded undertaking then I will hear the parties as to the terms of any order which restrains the Board from reconsidering the applicant's application for registration.

[89] The parties also should resolve, if possible, the question of costs. There seems no good reason as to why costs should not follow the event. However, I will hear the parties, if necessary, on the issue of costs.

[90] Until the parties have had an opportunity to consider these matters, I will make another interim restraining order. This might be unnecessary since the current restraint runs at least until 14 days after judgment in this proceeding, which should be sufficient time to resolve these matters.

[91] The orders which I will make at this stage are:

1. The first respondent is restrained until further order from engaging in further consideration of the applicant's application for registration dated 26 August 2019.
2. Direct the parties to confer within seven days as to the terms of any undertakings or orders, including orders as to costs.
3. The matter be listed for the making of final orders on a date to be fixed.
4. Liberty to apply.

[4] The Act, s 10(1). It is unnecessary to consider in the present context the "preserved areas of engineering" that were brought into the Act by transitional provisions.

[18] This provision in s 20(2)(a) reflects the Board's role at the initial registration stage of considering whether the applicant is fit to practise as a registered professional engineer.

[21] Definition on Board of Professional Engineers website, under "Recognised Areas of Engineering". See https://www.bpeq.qld.gov.au/information-for-engineers/areas-of-engineering-definitions/.

[23] Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211.

[25] The Act, s 12(1); AIA, s 24AA(b).

[27] [2007] HCA 47; (2007) 232 CLR 138 at 142 [5], approved in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 47 [51].

[29] (2019) 93 ALJR 869; [2019] HCA 22 at [88], [132].