The PE Act for corporations, company officers, managers, local and state government

During BPEQ’s seminars and meetings with local government several questions have been asked about the relevance of the Professional Engineers Act 2002 (PE Act) for organisations.

The PE Act requires that individuals who carry out professional engineering services must either be a registered professional engineer of Queensland (RPEQ) or be directly supervised by a RPEQ. However, the PE Act also applies to corporations and their officers (e.g. directors), managers and other  persons who procure or direct persons to carry out professional engineering services.

Potential Criminal Responsibility

It is an offence under section 115 of the PE Act¹ for a person to carry out ‘professional engineering services’ if the person is not a RPEQ nor directly supervised by a RPEQ (unless the professional engineering service is carried out only in accordance with a ‘prescriptive standard’²). At law, a ‘person’ includes a corporation. This means that a corporation can also be found guilty of this offence where a court finds the corporation criminally responsible for the unregistered person/s carrying out professional engineering services.

Similarly, the Criminal Code of Queensland provides that another person can be found guilty of this offence where they aid, counsel or procure³ a person to commit that offence or where they have ‘common purpose’ with another person to commit that offence⁴. These provisions in the Criminal Code are sometimes referred to as the ‘extensions of criminal responsibility’.

For this reason, corporations, corporate officers and managers who have persons in their corporation or team who carry out professional engineering services should be aware of the requirements of the PE Act and the offence provision in section 115 of the PE Act.

The law relating to corporate criminal responsibility and extensions of criminal responsibility is complex and BPEQ is unable to give legal advice in relation to it. Corporations/corporate officers, principals of engineering firms and managers may wish to seek legal advice regarding their responsibilities under the PE Act and their compliance with the same.

Corporations and managers who require their staff to carry out professional engineering services should ensure that their corporate and/or team structures contain sufficient RPEQs (who are registered in the area/s of engineering which apply to services being carried out) to directly supervise unregistered engineers or other unregistered persons who carry out profession engineering services.

Financial and other Legal Implications

Companies and individuals should also be aware that where unregistered person/s carry out professional engineering services without direct supervision, the person/s, firm or corporations may not be entitled to be paid for those services irrespective of any contract requiring payment. See section 141 of the PE Act and Supreme Court decisions in Agripower Australia Ltd v Queensland Engineering & Electrical Pty Ltd & Ors [2015] QSC 268⁵. There may be other financial and legal risks of using unregistered persons to carry out professional engineering services – a report which involves professional engineering services is relied on to justify a decision with legal implications (e.g. whether to approve an insurance claim or whether to pay money under a contract). If the person who provided that report is not a RPEQ (nor was directly supervised by one) that decision may not hold up on review by a court or other review authority because the person who provided the report was not legally entitled to carry out professional engineering services in or for Queensland.

This article is a republication. It originally appeared in BPEQ’s October 2018 e-news.

1. See section 115(1) of the Professional Engineers Act 2002 (PE Act).
2. For guidance as to the meaning of ‘professional engineering service’ and ‘prescriptive standard’ see the definition in Dictionary, Schedule 2 of the PE Act and Board Practices notes regarding same (available under the ‘resources’/’practice notes’ tab on BPEQs website).
3. See Criminal Code (Qld):

Section 7 Principal offenders

1. 1. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:
      1. every person who actually does the act or makes the omission which constitutes the offence;
      2. every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
      3. every person who aids another person in committing the offence;
      4. any person who counsels or procures any other person to commit the offence.
   2. Under subsection 1(d) the person may be charged either with committing the offence or with counselling or procuring its commission.
   3. A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
   4. Any person who procures another to do or omit to do any act of such a nature that, if the person had done the act or made the omission, the act or omission would have constituted an offence on the person’s part, is guilty of an offence of the same kind, and is liable to the same punishment, as if the person had done the act or made the omission; and the person may be charged with doing the act or making the omission.

4. See Criminal Code (Qld):

Section 8 Offences committed in prosecution of common purpose

When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

5. 141 Performance and carrying out of professional engineering services by particular entities
   1. This section applies to—
      1. person who is not a practising professional engineer if the person, in performing, or undertaking to perform, professional engineering services for someone (the client)—
         1. claims, or holds himself or herself out, to be a practising professional engineer; or
         2. allows himself or herself to be held out as a practising professional engineer; or
      2. another person if—
         3. the person, in providing, or undertaking to provide, professional engineering services for someone (also the client) claims, or holds out, that the services are carried out, or to be carried out, by or under the supervision of a practising professional engineer; and
         4. the services are not carried out by or under the direct supervision of a practising professional engineer who is responsible for the services.
   2. Despite any agreement between the person and the client, the person is not entitled to any monetary or other consideration for the performance or carrying out of the professional engineering services.
   3. For this section a person carries out professional engineering services under the direct supervision of a practising professional engineer only if the engineer directs the person in the carrying out the services and oversees and evaluates the carrying out of the services by the person.