Professional Engineers Regulation 2024

The regulation establishes several key concepts that define its operation. The central concept is ‘registration condition’, created under the Act section 24(1)(b). For a professional engineer registered under the Act, it is a condition of that registration that the engineer not undertake work in the building and construction industry unless two requirements are met: (a) the engineer gives the registrar a report from an assessment entity that assesses the engineer’s qualifications, experience and competencies to undertake such work; and (b) the registrar is satisfied that the engineer has the required qualifications, experience and competencies. The condition does not prevent the engineer from doing other professional engineering work outside the building and construction industry; it is industry specific. The term ‘assessment entity’ is not defined in this regulation; it would be defined in the Act or by administrative arrangement. The registrar’s satisfaction is a discretionary judgment, not a prescribed checklist, so the registrar may require further evidence. The concept of ‘building work’ is imported from the Building Act 2004 section 6, but with an exclusion for the disposal of waste materials from alterations or demolitions. Section 6 of the Building Act defines building work broadly to include building work as defined in the Building and Construction Industry (Security of Payment) Act 2009, and specifically includes erection, construction, alteration, demolition, and certain structural work. The waste disposal exclusion means that a professional engineering service relating purely to waste disposal from such work is not caught. ‘Work in the building and construction industry’ is then defined strictly as a professional engineering service for an area of engineering that relates to building work. This is narrower than the entire building and construction industry; it only captures engineering services that have a direct relation to building work. Other engineering work on non-building structures (roads, bridges, dams) is not subject to this condition unless it also qualifies as building work under the Building Act definition. The regulation also introduces ‘first registration’ and ‘additional registration’ for an area of engineering. An engineer may be registered for multiple areas. Section 5 aligns the term of an additional registration with the term of the first registration: the additional registration ends when the first registration ends. This avoids staggered renewal dates. For pre-commencement registrations (section 6), a separate concept of ‘commencement day’ is used, meaning the day the Act’s section 22 (deciding applications) commences. For those registrations, the term is a fixed three years from the date of the registrar’s decision, rather than the standard term set under the Act. That provision expires three years after commencement day.

The regulation directly affects professional engineers registered under the Professional Engineers Act 2023 who perform, or intend to perform, work in the building and construction industry in the Australian Capital Territory. It does not affect engineers who never engage in building-related engineering services, such as those working solely on heavy civil infrastructure, mining, or manufacturing, unless those activities involve building work as defined. The condition in section 4 applies only when the engineer ‘undertakes work’ in that industry, so the engineer must assess before each engagement whether the work falls within the definition. Engineers registered for multiple areas of engineering must also consider section 5 if they obtain an additional registration after their first registration: their renewal dates will be synchronised, which may alter fee payments and renewal compliance windows. The transitional provision in section 6 affects engineers who applied for registration before the commencement day of the Act’s decision-making provisions. For those engineers, the regulation sets a fixed three-year term from the date of the registrar’s decision, which may be shorter or longer than the standard term that would otherwise apply under the Act. After that three-year period, the engineer must reapply or seek a new registration under the standard rules. The regulation also affects the registrar (the official with authority under the Act) who must receive and assess the reports from assessment entities for engineers in the building and construction industry, and who must be satisfied that the engineer has the required qualifications, experience and competencies. This imposes an administrative burden on the registrar to develop criteria, review reports, and make decisions. Assessment entities that provide reports under section 4 are also affected: they must have procedures to assess engineers, and their reports carry weight in the registrar’s decision. The regulation does not directly affect clients of engineers, such as building owners or developers, but the condition may affect the availability or cost of engineering services if engineers choose not to obtain an assessment or fail to meet the registrar’s satisfaction. Employers of engineers may need to ensure their employees comply before assigning building-related tasks. The regulation does not create rights or obligations for unregistered individuals or for engineers practising outside the ACT.

The primary duty imposed by the regulation is on registered professional engineers: they must not undertake work in the building and construction industry unless they first give the registrar a report from an assessment entity that assesses their qualifications, experience and competencies, and the registrar is satisfied that they have the required attributes. This duty is a condition of registration, not a free-standing statutory prohibition. Breach of a registration condition may lead to disciplinary action under the Act, potentially including suspension or cancellation of registration. The duty is ongoing: each time the engineer proposes to undertake new building-related work, the condition must be met. However, the regulation does not specify that a separate report is required for each project; a single assessment that covers a range of work may be sufficient if the registrar is satisfied. The engineer has a right to apply to the registrar for a variation of registration conditions under the Act section 28 (as noted in the regulation). That means if the engineer disagrees with a condition or wants to vary it, an application can be made. The engineer also has a right to be assessed by an assessment entity and to receive a report that may be used for multiple registration purposes if the registrar accepts it. For additional areas of engineering, the regulation provides that the additional registration term ends on the same day as the first registration. This creates a right for the engineer to have a synchronised renewal date, avoiding separate renewal cycles. The engineer does not have a right to choose a different term for the additional registration; it is prescribed. For engineers with pre-commencement registrations, the regulation gives them a fixed three-year term from the date of the registrar’s decision. That term may be shorter than the standard term under the Act (which could be longer), so it effectively sets an earlier expiry. Those engineers do not have a right to a longer term; they must rely on the transitional provision. The regulation does not create any rights for clients, third parties, or the public. The registrar has a right (and duty) to be satisfied about the engineer’s qualifications before the condition is met. The registrar may also request further information or reject a report if not satisfied. The regulation does not prescribe a timeframe for the registrar’s decision, which could cause delay for engineers.

The regulation itself does not create any offences or set penalty amounts. However, it imposes a registration condition, and breach of a registration condition can have serious consequences under the Professional Engineers Act 2023. The Act would provide for disciplinary action, which may include issuing a caution, imposing a fine, suspending or cancelling registration, or other measures. The republication note states that the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation, but that applies to any offence provisions in the Act or regulation. Since the regulation has no offence provisions, that penalty unit value would apply to any offences created by the Act that relate to regulation conditions. It is possible that the Act makes it an offence to breach a condition of registration, or to undertake work in contravention of a condition. That would be a matter of the Act, not the regulation. The regulation also creates an administrative mechanism: if an engineer performs building and construction work without first obtaining an assessment report and registrar satisfaction, they are in breach of the condition. Enforcement would likely occur through complaints to the registrar, audits, or project inspections. The registrar has enforcement powers under the Act, including the power to investigate and take disciplinary action. The regulation does not create a private right of action for affected persons. The transitional provision in section 6 expires three years after the commencement day, so after that date there will be no enforcement of that transitional term for pre-commencement registrations; those engineers will be subject to the standard term under the Act. The expiry of a section does not affect any liability incurred before expiry. The burder of proof for a breach of condition would be on the regulator. The regulation does not specify a limit on how many times an engineer can be assessed, nor does it provide a defence for inadvertence. Engineers should maintain records of their assessment reports and the registrar’s satisfaction to demonstrate compliance.

This regulation is subordinate to the Professional Engineers Act 2023, which is its enabling Act. It operates within the framework of that Act: section 4 is made under Act section 24(1)(b), which allows the regulation to prescribe conditions of registration. Section 5 is made under Act section 25(b)(ii), which deals with the term of registration for additional areas. Section 6 also relies on Act section 25(b)(ii) for transitional purposes. The regulation does not override any provision of the Act; it supplements it. The definition of ‘building work’ in section 4(2) incorporates the meaning from the Building Act 2004 section 6, but with a specific exclusion for waste disposal from alterations or demolitions. This means that the scope of the condition depends on the interpretation of building work under the Building Act, which itself may be amended from time to time. Any amendment to the Building Act definition would automatically affect this regulation unless the regulation is updated. The exclusion of waste disposal is a carve-out that may create a gap for engineering services relating to waste management from building works; those services are not caught. The term ‘work, in the building and construction industry’ is defined uniquely in this regulation: it means a professional engineering service for an area of engineering that relates to building work. This definition does not reference any other Act, so it is self-contained. The regulation interacts with the Legislation Act 2001 in procedural ways: notes are explanatory only (section 3 of the regulation, echoing section 144 of that Act), and the republication provisions apply. The penalty unit values are set under the Legislation Act 2001 section 133. The regulation does not interact with the fair trading laws, work health and safety laws, or other professional registration schemes (for architects, builders, etc.) directly, but there may be overlap where a building project requires multiple regulated professionals. Engineers regulated under other Australian jurisdictions are not affected unless they seek registration in the ACT. The regulation does not purport to affect intergovernmental mutual recognition schemes, but those schemes may allow for deemed registration subject to conditions. The transitional provision in section 6 temporarily overrides the standard term rules for registrations decided before the Act’s commencement day, but it expires itself after three years, so it is a time-limited interaction.

The regulation has not been amended since it was made. It was notified on the legislation register on 4 March 2024. Sections 1 and 2 commenced on that date. The remaining sections commenced on 6 March 2025, which is the commencement day of the Professional Engineers Act 2023’s provisions on deciding applications (section 22). The regulation is subordinate legislation and may be amended by further regulation or by an amending law. The republication date is 6 March 2025, and it is republication number 1. The only amendment listed in the amendment history is the omission of section 2 (commencement) by the Legislation Act 2001 section 89(4), which is a standard editorial change: when a law is republished, the commencement section is often omitted because it is no longer needed after the law has commenced. That is not a substantive amendment. Section 6 has an expiry provision: it expires on 6 March 2028, three years after the commencement day. That expiry is programmed into the regulation itself, not by later amendment. No other provisions are noted as amended. The endnotes show that the regulation is not amended by any later law as of the republication date. This means the regulation remains in its original form. Practitioners should note that the regulation may be amended in the future, particularly to adjust definitions, assessment requirements, or transitional provisions. The regulation’s short title is Professional Engineers Regulation 2024, and it has not been replaced or reissued. There is no amendment history for individual sections apart from section 6’s expiry. The absence of amendment history suggests the regulation was drafted with minimal changes from the initial version. Users should check the ACT legislation register for any subsequent amendments or new regulations.

As at the republication date of 6 March 2025, there is no reported litigation history associated with this regulation. The regulation came into full effect only on 6 March 2025, so there has been very little time for disputes to reach tribunals or courts. The regulation is a subordinate instrument with limited scope, so litigation is unlikely to be voluminous. However, potential areas of future litigation include the interpretation of ‘building work’ and the exclusion of waste disposal, which could be contested in the context of a specific project. The requirement for the registrar to be ‘satisfied’ may be challenged as an unreasonable exercise of discretion, particularly if an engineer provides a favourable assessment report but the registrar refuses to accept it. The Administrative Decisions (Judicial Review) Act 1989 (ACT) or common law judicial review could apply to challenge a registrar’s decision. The definition of ‘assessment entity’ is not provided in the regulation; if the Act does not define it, there may be disputes about whether a particular body qualifies. The transitional provision in section 6 could give rise to disputes about the exact date of the registrar’s decision, and whether a registration should be considered ‘decided before commencement day’. If the registrar’s decision was communicated orally or provisionally, the timing may be ambiguous. The expiry of section 6 after three years may lead to disputes if the registrar fails to process renewal applications in time. The regulation does not create any direct private law rights, so most litigation would be administrative in nature: appeals to the ACT Civil and Administrative Tribunal (ACAT) against registration decisions, or judicial review of the registrar’s satisfaction. There may also be discipline proceedings under the Act that involve the interpretation of the regulation’s condition. No case law currently interprets the regulation, and no known test cases have arisen. This is a new regulatory regime, so practitioners should stay alert for emerging decisions, particularly from ACAT.

Several features of this regulation can catch practitioners off guard. First, the condition in section 4 applies only to ‘work in the building and construction industry’, which is defined narrowly as a professional engineering service that relates to building work. An engineer may assume that any work on a building site is covered, but the definition requires a direct relation to building work as defined in the Building Act 2004. Work on a building that is not building work (for example, work on a standalone structure that is not a building) might not trigger the condition. Conversely, some engineering services on non-building projects may still relate to building work if they are part of a building project. The exclusion of waste disposal from alterations or demolitions is a specific carve-out: an engineer who designs a waste disposal system for a building demolition is not caught, but an engineer who designs the demolition itself would be caught if that constitutes building work. Second, the condition is not simply a requirement to obtain a report; it also requires the registrar to be satisfied. An engineer who obtains a favourable report from an assessment entity may still be in breach if the registrar is not satisfied for subjective reasons. The regulation does not set criteria for the registrar’s satisfaction, so the registrar has broad discretion. An engineer may invest time and money in an assessment only to have the registrar reject it. Third, the term ‘assessment entity’ is undefined in the regulation. Engineers must rely on the Act or the registrar to determine who qualifies as an assessment entity. If the registrar has not approved any entities yet, an engineer may be unable to comply with the condition, effectively prohibiting them from undertaking building work. Fourth, section 5 aligns the term of an additional registration with the first registration. If an engineer obtains an additional area of engineering late in the term of the first registration, the additional registration will have a very short period before it also ends. The engineer must then renew both areas at the same time, but the regulation does not guarantee renewal for the additional area; the engineer must reapply or be reassessed. Fifth, the transitional provision in section 6 applies only to registrations decided before the commencement day. The exact date of the decision may be unclear if the registrar’s decision was made on a different date than when it was communicated. The three-year term may be shorter than the standard term, forcing early renewal. Also, section 6 expires itself three years after commencement day, so after that date there is no transitional rule; any registrations that were still current under the transitional rule would presumably continue, but the provision for their end date is set at the original three years, so they will expire on that date regardless of changes to the Act. Finally, the regulation does not address the situation where an engineer changes employment or scope of work after the registrar has been satisfied. The condition may need to be satisfied anew if the new work is in a different area of engineering or a different building context.

To comply with the Professional Engineers Regulation 2024, a registered professional engineer who intends to perform work in the building and construction industry must follow a multi-step process. First, determine whether the proposed work falls within the definition of ‘work in the building and construction industry’ as set out in section 4(2). That requires checking whether the service is a professional engineering service for an area of engineering that relates to ‘building work’ as defined in the Building Act 2004 section 6, excluding waste disposal from alterations or demolitions. If the work is not building-related, the condition does not apply. If it is building-related, the engineer must identify an assessment entity recognised by the registrar (or the Act) that can provide a report assessing the engineer’s qualifications, experience and competencies for that specific area of engineering. The engineer should engage that entity and obtain a written report. The report must be given to the registrar. The engineer cannot simply hold the report; it must be provided to the registrar. The engineer should also be prepared to provide any additional information the registrar requests to be satisfied of the engineer’s required attributes. The registrar’s satisfaction is a separate requirement not automatically granted by the report. The engineer should seek written confirmation from the registrar that they are satisfied. Without that confirmation, the engineer risks breaching the registration condition if they proceed with the building work. For ongoing work, the engineer should ensure that the assessment report remains current and that the registrar continues to be satisfied. If the engineer obtains an additional area of engineering after the first registration, section 5 means the additional registration will end on the same day as the first registration. The engineer should plan renewal accordingly, potentially applying for renewal of both areas at the same time. For engineers who had their registration decided before the commencement day of the Act’s section 22, section 6 gives a fixed three-year term from the date of decision. That engineer should note the expiry date and apply for a new registration or renewal under the standard Act provisions well before expiry. If the three-year term ends after section 6 expires (which it will if the term was long), the engineer must comply with the standard term rules. The engineer should keep records of all correspondence with the registrar and the assessment entity, including the report, any submissions, and the registrar’s satisfaction confirmation. Failure to comply with the condition is a breach of registration, potentially leading to disciplinary action. The regulation does not require a separate assessment for each project; a single assessment covering a class of building work may suffice if the registrar agrees. Engineers should consult the registrar or the Act’s guidelines for any additional procedural requirements, especially regarding the list of approved assessment entities and the form of the report.