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1
Professional Engineers Amendment
PROFESSIONAL ENGINEERS
AMENDMENT BILL 1997
EXPLANATORY NOTES
SHORT TITLE
Professional Engineers Amendment Act 1997
GENERAL OUTLINE
Objective of the Legislation
The objective of the legislation is to amend the Professional Engineers
Act 1988 to establish an independent tribunal to hear disciplinary charges
against registered professional engineers of Queensland.
Reasons for the Bill
The current disciplinary process under the Professional Engineers Act
1988 requires the Board of Professional Engineers of Queensland (the
Board) to authorise investigation of complaints against engineers, examine
the evidence to decide whether a disciplinary hearing should be undertaken,
and then to hear the complaint and determine what disciplinary action, if
any, is to be taken. In effect, the Board undertakes the roles of both
prosecutor and judge in a disciplinary matter.
Notwithstanding the Board's impartiality during the investigation of
complaints, it is arguable that the procedures in the Act do not allow natural
justice or procedural fairness to registered engineers under the Board's
review. It is considered that the proposed tribunal, independent of the
Board, would remove any concerns with respect to natural justice issues.
ACHIEVEMENT OF POLICY OBJECTIVES
It is proposed that the powers currently held by the Board to determine
the guilt or otherwise of an engineer in relation to disciplinary matters will
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Professional Engineers Amendment
be removed to the proposed tribunal to be called the Professional Engineers
Disciplinary Panel (the Panel). The Board will remain responsible for
investigating complaints and laying disciplinary charges against registered
engineers. However, the responsibility for determining the guilt of and
appropriate penalty for that engineer, will rest with the Panel. The
independence of the Panel is achieved to an extent by disallowing any Board
members from being Panel members.
The Panel is to consist of a number of appropriately qualified persons
(lawyers and engineers) from which three (one lawyer and two engineers)
will be selected to hear individual disciplinary matters. The establishment
of the Panel to hear disciplinary matters, is considered to be a reasonable
and appropriate method of removing concerns in relation to the provision of
natural justice to professional engineers under disciplinary review.
Further, the Bill requires that the member presiding over the Panel will
be a lawyer who will rule on points of law. The inclusion of a legally
qualified member of the Panel overcomes the difficulties faced by Board
members who presently are not legally qualified who have been required to
comprehend and rule on complex legal issues in disciplinary hearings.
ASSESSMENT OF ADMINISTRATIVE COST OF
GOVERNMENT
The Board is entirely self-funded through fees generated by professional
engineers for registration. The costs of establishing and conducting the
Tribunal in accordance with the Bill are expected to be funded by the Board.
CONSISTENCY WITH FUNDAMENTAL LEGISLATIVE
PRINCIPLES
The purpose of implementing the Panel is to ensure that procedural
fairness is afforded to engineers who are subject to the disciplinary process.
This purpose is consistent with the principles of natural justice. Rights of
appeal to the Court process are provided for aggrieved persons. The Bill
has sufficient regard to the rights and liberties of individuals and does not
make any proposals that are inconsistent with fundamental legislative
principles as outlined in the Legislative Standards Act 1992 (Qld).
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Professional Engineers Amendment
EXTENT OF CONSULTATION
In addition to the Board, there has been relatively wide consultation
within various Government Agencies over a period of six months.
Representatives of the following departments have been consulted:
Department of the Premier and Cabinet; Queensland Treasury; Department
of Health; Department of Main Roads; Department of Tourism Small
Business and Industry; and Department of Justice. The Departments
consulted did not express any concerns in relation to the proposed
amendments.
NOTES ON PROVISIONS
Clause 1
· sets out the short title.
Clause 2
· provides that the principal Act to be amended is the Professional
Engineers Act 1988.
Clause 3
· amends the definition section of the Act (section 5). It amends
the definition of "chairperson" to draw a distinction between the
chairperson of the Board and the chairperson of the Panel. It also
amends the definition of "member" to draw a similar distinction
between members of the Board and members of the Panel. It
defines the "disciplinary panel" and the "presiding member" of
the Panel.
Clause 4
· replaces the heading for Part 8 and Division 1 of that part of the
Act which relates to complaints and proceedings.
Clause 5
· amends section 51 which describes the process to be followed to
lay a disciplinary charge. It establishes that the charge is laid by
the Board and the Board may refer the matter to the Panel for
hearing and determination.
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Professional Engineers Amendment
Clause 6
· inserts a new Division 2 under Part 8 that specifically relates to
the Panel's powers and procedures. It is divided into two (2)
subdivisions as follows:
Subdivision 1--Establishment and membership of disciplinary panel
The subdivision:
· establishes the Panel which is to be called the Professional
Engineers Disciplinary Panel;
· describes the general functions of the Panel;
· establishes the extent of the Panel's powers;
· establishes that the Panel is to consist of a chairperson and at
least two (2) other members; that the chairperson is to be a
lawyer; and that at least two (2) other members are to be
engineers;
· establishes that members are to be appointed by the
Governor-in-Council;
· describes the duration, terms and cessation of appointment
of members;
· makes provision for the disclosure of interests by members;
· makes provision for the appointment of a replacement or
temporary chairperson; and
· establishes that the chairperson is responsible for arranging
the business of the Panel and for determining the
membership of the Panel for a particular proceeding
(including replacement members).
Subdivision 2--Constituting disciplinary panel for particular
proceedings
This subdivision has been distinguished from the preceding
subdivision because Subdivision 2 relates to the conduct of the Panel
in relation to a particular proceeding or disciplinary matter (as opposed
to general matters). The subdivision:
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Professional Engineers Amendment
· establishes that, for a particular proceeding, the Panel is to be
made up of one lawyer, who is to be presiding member, and
two (2) registered professional engineers. It also clarifies
that the chairperson need not be the presiding member;
· makes provision that the presiding member alone may
constitute the Panel for particular purposes which are
described in the section;
· outlines the procedure to be followed if a member of the
Panel ceases to be available, whether before, during or after
the conduct of the hearing; and
· establishes that the Panel may sit from time to time as
required at any place in the State.
Clause 7
This section replaces section 52 of the Act relating to proceedings. It
inserts Subdivision 3 of Part 8 that relates to the Disciplinary Panel
proceedings. It establishes that:
· disciplinary charges are to be filed with the Panel's chairperson;
· the chairperson is responsible for constituting the Panel to hear
and determine the charge;
· the chairperson must give the person charged written notice of the
charge and particulars of the hearing at least 30 days prior to the
hearing;
· the hearing is to be open to the public unless the Panel determines
otherwise;
· a person charged is entitled to legal or other nominated
representation;
· the Board may engage a legal representative to appear at or assist
in the conduct of the hearing;
· in conducting the hearing, the Panel must observe natural justice;
proceed quickly with as little formality and technicality as is
consistent with a fair and proper hearing; and is not bound by the
rules of evidence and may inform itself on any matter as the
Panel considers appropriate; and
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Professional Engineers Amendment
· the chairperson may give directions about the procedure to be
followed in a hearing.
Clause 8
· omits sections 53 to 55, the terms of which are embodied
elsewhere in the proposed amendments.
Clause 9
· establishes that questions before the Panel are to be decided by
majority opinion of the members. However, if the Panel
members are equally divided on a question, the question is to be
decided according to the opinion of the presiding member.
Further, questions of law are to be decided by the presiding
member.
Clause 10
· embodies procedural amendments that reflect the transferral of
powers from the Board to the Panel. The section being amended
(s.60) describes the types of disciplinary action that the Panel may
order, which range from taking no action and cautions to
monetary penalties and cancellation of registration.
Clause 11
· requires that the Panel must give written notice of its decisions,
including reasons, to the Board and to the person charged. The
notice given to the person charged must state the person's rights
of appeal to the District Court against the Panel's decision.
Clause 12
· makes amendments to clarify that the section makes provision for
the publication of the cancellation of an engineers registration (in
accordance with an order of the Panel).
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Professional Engineers Amendment
Clause 13
· includes the Panel with the Board in section 66(1)(a) to (c) to
ensure that false statements are not made to the Panel.
Clause 14
· makes amendments to the section 67 which outlines the rights of
appeal. It outlines the right of appeal from a decision of the
Panel. It distinguishes between decisions of the Panel and orders
of the Panel. It includes a right of appeal by the Board against a
decision of the Panel. The Board's right of appeal is limited to
appeals from disciplinary orders of the Panel.
Clause 15
· inserts transitional provisions. If, at the commencement of the
amendments to the Act, charges have been laid against an
engineer but the Board has not decided whether to take
disciplinary action or not, the charges are to be withdrawn and
re-submitted to the Board. The matter is then to be conducted
under the new procedure of hearing before the Tribunal.
However, if the Board has decided to take disciplinary action, that
action must proceed to completion by the Board as if the new
procedure had not been enacted.
SCHEDULE--MINOR AMENDMENTS OF THE PROFESSIONAL
ENGINEERS ACT 1988
· makes minor procedural amendments to the Act to reflect the
introduction of the Panel and the consequent transfer of power
and responsibility from the Board. It also corrects a number of
errors in the Act including inaccurate cross-references to sections.
© The State of Queensland 1997