The Professional Engineers Registration Act 2019 (the Act) states:
professional engineering service means an engineering service that requires, or is based on, the application of engineering principles and data—
However, the Act does not define the term ‘engineering’.
The Guidelines on providing professional engineering services states:
Drawing on its ordinary meaning ‘engineering’ is the art or science of practically applying knowledge of natural sciences, such as physics or chemistry, and mathematics. Similarly, the work of an engineer is to use scientific principles in the design, construction, repair or control of engines, machines, electrical equipment or structures such as roads, railways, or bridges in any of the various areas of engineering.
However, is this how a court will interpret the term ‘engineering’?
As the meaning of ‘engineering’ is not defined in the Act, I will start with the literal rule of statutory interpretation, by using the Macquarie dictionary definition.
I suggest that the relevant meaning of ‘engineering’ is:
the art or science of making practical application of the knowledge of pure sciences such as physics, chemistry, biology, etc.
However, ‘engineering’ might also be considered a technical term (refer here, here and here).
Intriguingly, Engineers Australia (as the principal engineering professional body within Australia), does not define the term ‘engineering’ (or, at least, not that I could find on their website).
However, the International Engineering Alliance (who is the secretariat of the Washington, Sydney and Dublin accords that Engineers Australia is the Australian signatory to) provides the following definition:
Engineering: (n) an activity that seeks to meet identified needs of people and societies by the purposeful application of engineering sciences, technology and techniques to achieve predicted solutions that use available resources efficiently, are economical, that manage risks; engineering is carried out by practitioners performing roles differentiated by the level of problem analysis and solution, the activity to be managed, risk and responsibility.
Next I will use the golden rule of statutory interpretation. Considering railway control systems engineering, the parts of a design that relate to the physical (e.g. signalling arrangement plan; track circuits, bonding and signalling apparatus plan; cable running plan; power calculations; and circuit book) make a practical application of physics – e.g.:
- Newton’s laws of motion in train dynamics
- Ohm’s law in electrical circuits.
However, the parts of a design that relate to the logical (e.g. control tables and interlocking data) predominantly do not make a practical application of the knowledge of pure sciences (with a few isolatable exceptions, such as Newton’s laws of motion in braking calculations for approach clearing timer values and approach locking timer values). Therefore, an argument could be made that these are not engineering. Yet I do not know of anyone in the railway control systems engineering profession who would describe control tables and interlocking data as not engineering. I suspect that a court would find that declaring control tables and interlocking data to not be engineering (in the terms of the golden rule) to be an absurdity. Most of the safety functions within a railway control system are contained in the control tables and interlocking data. Consider the scenario where, owing to some locking being omitted from control tables and/or interlocking data, a train crash occurred. I suspect that a court would find that arguing that designing control tables or interlocking data was not engineering (and hence not a professional engineering service and hence they could not be prosecuted under the Act) would be (in the terms of the golden rule) repugnant.
The International Engineering Alliance definition of ‘engineering’ would include both the physical and the logical, as it includes both “the purposeful application of engineering sciences” and “manage risks”.
Next I will use the mischief rule of statutory interpretation. The Act gives one of its purposes as:
to provide appropriate protection to consumers of professional engineering services provided by registered professional engineers; and
I suspect that a court would find that, as the “protection to consumers” afforded by a railway control system is mostly contained in the logical, the definition of engineering should include the logical as well as the physical.
Finally I will use the purposive approach to statutory interpretation. The Victorian Interpretation of Legislation Act 1984 states:
35 Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument—
(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
(b) consideration may be given to any matter or document that is relevant including but not limited to—
(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
(ii) reports of proceedings in any House of the Parliament;
(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and (iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies
In short, the purposive approach is preferred.
I looked at the purpose of the Act when considering the mischief rule.
For reports of proceedings in any House of the Parliament, I note that the second reading speech (in both houses) states:
Despite the fundamental role in the economy that engineers have, the often complex nature of their work and the importance of their work in ensuring public safety, most engineers are not required to hold any kind of formal registration or licence.
And:
The engineers registration scheme proposed by the Bill will: help to promote professional development within the engineering profession; reduce the risk of loss and harm to the public; and give consumers more confidence in procuring engineering services.
I suspect that a court would find that, as the “public safety” and the reduction of the “risk of loss and harm to the public” afforded by a railway control system is mostly contained in the logical, the definition of engineering should include the logical as well as the physical.
No relevant additional information is provided by the Explanatory Memorandum.
I could not find any relevant reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or Formal Reviews.
Summarising the above:
- I suspect that a court would find that the literal rule (using the Macquarie dictionary definition) would give an outcome that is both absurd and repugnant (by the golden rule).
- However, I suspect that a court would find that the literal rule (using the International Engineering Alliance definition as a technical term) would give an outcome that satisfies the mischief rule and the purposive approach.
Recommendations
The above is just my lay attempt at statutory interpretation. What is needed is for a legal professional to provide legal advice. Or, even better, for a court to provide a judgement.
Depending upon the outcome of that, then the Guidelines on providing professional engineering services could be updated to define ‘engineering’ as:
Engineering: (n) an activity that seeks to meet identified needs of people and societies by the purposeful application of engineering sciences, technology and techniques to achieve predicted solutions that use available resources efficiently, are economical, that manage risks; engineering is carried out by practitioners performing roles differentiated by the level of problem analysis and solution, the activity to be managed, risk and responsibility.
Does this mean that ‘professional engineering service’ is also a technical term?
Note that the above is without prejudice to which occupational category the engineering might fall into – i.e.:
- Work with complex engineering problems / Washington Accord / professional engineer
- Work with broadly-defined engineering problems / Sydney Accord / engineering technologist
- Work with well-defined engineering problems / Dublin Accord / engineering associate.
Also, note that the International Engineering Alliance uses the term ‘engineer’ when referring to an engineering professional who works with complex engineering problems (Washington Accord).
If we use the International Engineering Alliance definition of ‘engineering’, would it not also follow that we should use the International Engineering Alliance definition of ‘engineer’ (which is ‘professional engineer’ in Engineers Australia terminology)? This would constrict the scope of the Act to only applying to engineers (in International Engineering Alliance terminology) – i.e. to work with complex engineering problems. This would mean that the Act is not applicable to broadly-defined engineering problems – i.e. engineering technologists.
However, the Act does not define the term ‘engineering’, whereas the Act does define the term ‘professional engineering services’. Therefore, I suggest that the definition of ‘professional engineering services’ in the Act excludes only “an engineering service that is provided only in accordance with a prescriptive standard” – i.e. well-defined engineering problems, engineering associate work. Therefore, I suggest that, in the context of the Act, professional engineering services is inclusive of broadly-defined engineering problems.