EXPLANATORY STATEMENT
Mutual Recognition Act 1992
Automatic Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2022 (No. 1)
This explanatory statement provides notes on the operation of the Automatic Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2022 (No. 1) (the Declaration). The specific provisions in the Declaration are outlined in Attachment A. The information in the explanatory statement is an aid to understanding the Declaration and should not be substituted for the Declaration.
Context and purpose
Part 3A of the Mutual Recognition Act 1992 of the Commonwealth (the MRA) provides for the automatic mutual recognition of occupational registrations (AMR). AMR will provide an entitlement for an individual to carry on an activity in a second State, under the registration covering the activity in their home State through Automatic Deemed Registration (ADR).
Part 3A of the MRA provides for the making of declarations that exclude certain registrations from ADR where a minister of a state is satisfied that the declaration is necessary because of a significant risk arising from circumstances or conditions in the declaration state, to consumer protection, the environment, animal welfare or the health or safety of workers or the public. The Legislation Act 2003 of the Commonwealth provides for the making of legislative instruments.
Summary
Through the Declaration, the Treasurer of New South Wales has excluded a number of registrations from ADR for the period 1 July 2022 to automatic-repeal date[1]. By virtue of the making of the Declaration, the minister is satisfied that the exclusion is necessary because of a significant risk to consumer protection or the health or safety of workers or the public. The Declaration provides an explanation of the specific risks arising from the registrations in the context of the circumstances and conditions in New South Wales. The information relied on to support the Treasurer is provided in Attachment B.
Consultation
Between November to December 2021, New South Wales conducted consultation with relevant stakeholders. The consultation supported consideration of the risk and the circumstances and conditions arising in New South Wales.
The Treasurer of New South Wales is satisfied that the consultation undertaken is appropriate and practical for the purposes of making the Declaration. The consultation drew on the knowledge of relevant subject matter experts, industry bodies and relevant unions and ensured that persons likely to be affected by the proposed Declaration had an adequate opportunity to comment on its proposed content.
Attachment A
Details of the Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2022 (No. 1)
Part 1 – Preliminary
Section 1 – Name
This section provides that the Declaration is to be cited as the Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2022 (No. 1) (the Declaration).
Section 2 – Commencement
This section provides the date on which the Declaration comes into operation. The Declaration comes into operation on 1 July 2022.
Section 3 – Authority
This section outlines the authority through which the Declaration is made. The Declaration is made under section 42S of the Mutual Recognition Act 1992 of the Commonwealth.
Section 4 – Simplified outline of the instrument
This section explains that the purpose of this instrument is to exempt specified registrations from the ADR provisions of the MRA, the application of the exclusion and the period of the exclusion.
Section 5 – Definitions
This section provides, for the purposes of the Declaration, self-explanatory definitions of the following terms:
- The Act is defined in this section as meaning the Mutual Recognition Act 1992
Section 6 – Exemptions
This section lists the specific paragraph of the MRA relied on to make the Declaration, the specific registrations excluded from ADR and the explanation of the risk(s) .
The Declaration is made in accordance with paragraph 42S(1)(a) of the MRA, the specific registrations listed in column 1 are excluded from ADR. This means that an individual cannot carry on the activities authorised under the registrations listed in column 1 in New South Wales without first obtaining that registration. An individual may obtain the registration listed in column 1 from the local registration authority through Part 3 of the MRA.
The minister making the Declaration is satisfied that there is a significant risk of not excluding the registrations in column 1. In accordance with subsection 42S(2) of the MRA, column 2 in the table provides the statement of the risk to child (public) protection, or the health and safety of the public for each of the registrations listed in column 1.
The information relied on to support the Treasurer is provided in Attachment B.
The following table replicates the provisions in the Declaration.
Exemptions for the purposes of paragraph 42S(1)(a) | ||
Item | Column 1 Registration | Column 2 Statement of risk |
Teacher accreditation under the Teacher Accreditation Act 2004 (NSW) | Significant risk to the safety of the public (children). The significant risk is that children may be harmed by teachers who could move between States and Territories without processes in place that ensure adequate information-sharing between Teacher Registration Authorities about teachers, including in relation to issues that might pose a child serious safety risk. | |
2. | Food safety supervisor under Part 8, Division 3 of the Food Act 2003 (NSW) | Significant risk to the health and safety of the public as the NSW food regulatory system operates differently to other jurisdictions. Allowing unqualified interstate workers into NSW will result in increased food-borne illness. |
3. | Food safety auditor under Part 7, Division 1 of the Food Act 2003 (NSW) | Significant risk to the health and safety of the public as the NSW regulatory system operates differently to other jurisdictions. Allowing unqualified interstate workers into NSW will result in increased food-borne illness. |
4. | Security licences under Part 2 of the Security Industry Act 1997 (NSW) | Significant risk to the health and safety of the public as NSW Police Force is unable to scrutinise an applicant’s fitness to hold a licence and a conduct a robust and thorough probity assessment. |
5. | Firearm dealer licence provided under Part 2 of the Firearms Act 1996 (NSW) | Significant risk to the health and safety of the public as NSW Police Force is unable to conduct a stringent probity assessment under AMR. New South Wales (unlike other jurisdictions) takes into consideration an applicant’s domestic and personal violence record in determining a person’s fitness to hold a licence. |
6. | Marine pilot licences and certificates under Part 4 of the Marine Safety Act 1998 (NSW) | Significant risk to the environment, animal welfare and the health and safety of workers and the public. Applicants for each of the licences and certificates are required to have general knowledge of pilotage and shipping operations as well as specialised knowledge, skills, and competencies specific to the relevant Pilotage Port in which the licence or certificate relates. There is an increased risk of collisions and marine accidents at Pilotage Ports if individuals have not undergone local training or lack local knowledge of Pilotage Ports. |
The Hon. Matt Kean MP
Treasurer of New South Wales
Attachment B - Information relied on to support the minister
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The recognition of teacher accreditation under Automatic Mutual Recognition (AMR), which will facilitate the free movement of teachers across States and Territories, presents a significant risk to child safety because processes are not currently in place that enable adequate information sharing about teachers between Teacher Regulatory Authorities (TRAs) in States and Territories. Information that should be shared about teachers that currently cannot be, includes information that might suggest a teacher poses a risk to children, such as preliminary investigations by TRAs. If teachers move freely across jurisdictions under AMR, effective information sharing is essential so that TRAs and employers are informed about potential child safety risks or any unresolved performance action.
The NSW Education Standards Authority (NESA) and the NSW education sector, including the NSW Department of Education, Catholic Schools NSW, and Independent Schools Australia, are engaged in work with other States and Territories on developing arrangements for improved teacher information sharing between jurisdictions. An exemption from the application of AMR allows time for this work to be completed prior to NSW transitioning into the AMR scheme.
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In 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse (‘the Commission”) identified gaps in information sharing about teachers between States and Territories as a risk to child safety. The Commission identified the significant risk posed by teachers who could move between jurisdictions to evade findings of misconduct and recommended the implementation of appropriate national information-sharing arrangements to mitigate that risk.
In December 2019, Education Council considered the implementation of the National Review of Teacher Registration. Council committed to national harmonisation of legislative requirements and information sharing as a necessary first step before transferability of teacher registrations could be considered.
While steps have been taken to support greater consistency, currently, child protection processes across States and Territories are not consistent. This presents risks when/if teachers move across jurisdictions. The risks mainly arise from differences in the processes for child protection checks (work with children checks [WWCC]), with different standards or rigour across States and Territories.
Effective information sharing is required so that TRAs and employers are informed about potential child safety risks or any unresolved performance action.
The NSW Department of Education also maintains a “not to be employed list”. This is freely available to TRAs in other jurisdictions; however, other States or Territories do not maintain such a list. This poses an unacceptable risk to child safety. Potential employers are not currently able to access vital information on investigations or allegations from an interstate employers or regulators.
2. Food safety supervisor under Part 8, Division 3 of the Food Act 2003; 3. Food safety auditor under Part 7, Division 1 of the Food Act 2003
Food Safety Supervisors (FSS) Recognising FSS under AMR presents significant risk to the health and safety of the public due to inconsistent regulatory regimes. NSW has a lower rate of foodborne illness than the national average (e.g. NSW salmonellosis rate is 25 percent lower than the national average) due to its higher FSS training standards and bringing FSS certification into the scheme may compromise this. The marginal cost of a one per cent increase in NSW foodborne illness rate is around $9 million per annum (health costs and lost productivity). There will also be increased litigation if food safety risks are not managed effectively.
The NSW regulator is able to scrutinise and approve RTO (Food Safety Supervisors Program) and trainers resulting in high quality food safety training standards. This includes constant revision of training based on changing trends (around allergens) and emerging food safety issues. Continuing Professional Development is crucial in the industry and refresher training prepares FSS to stay ahead of potential problems and respond to issues immediately. NSW requires FSS retraining every five years whilst other jurisdictions do not. Certain RTO packages are rolled out nationwide and are not nuanced for the NSW system, leading to lower food safety standards from interstate workers only trained in the minimum national competencies.
Food businesses in NSW are not required to have a documented food safety plan. Instead, NSW FSSs are trained to recognise and understand food safety best practice making NSW standards more practical. For this reason, interstate FSS are not qualified to work in NSW as they are not appropriately trained, and AMR prevents jurisdictions from requiring a person to undertake additional training.
Interstate FSS qualifications will not be suitable in NSW until comparable national standards are developed and implemented – Food Standards Australia New Zealand is currently working with jurisdictions on national arrangements based on the NSW model and a longer-term exemption is required until this is complete.
Food Safety Auditors (FSAs) Jurisdictions have different systems for approving and verifying FSAs and NSW has the most rigorous system in place. Restrictions on what businesses a third-party auditor can audit also vary by state. Additionally, NSW third-party auditors are verified every year and the NSW Food Authority verifies 10 per cent of all third-party audits conducted in a year (four to six weeks after an audit to ensure standards are high). NSW also uses a detailed checklist that other states do not use. The disparities in standards and requirements between jurisdictions are likely to lead to increased foodborne illness and an exemption from AMR for NSW FSAs is justified.
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4. Security licences provided under the Security Industry Act 2004; | |
5. Firearm dealer licence provided under Firearms Act 1996 | |
Firearms (Firearm Dealers)
NSW has stricter legislative safeguards and a more stringent probity assessment for firearm dealers than the national average. There is significant risk to the health and safety of the public as safeguards will be compromised without the exemption from the AMR scheme.
Other jurisdictions do not consider family law matters and the list of exclusions for domestic and personal violence is more extensive than in other states. NSW has adopted a mandatory 10-year exclusion from the scheme for domestic violence offenders whilst in other states this is generally only five years. The NSW licencing scheme reinforces exclusion safeguards to discourage those unsuitable to hold a licence from applying at the outset.
Reliance on interstate data about the currency of their licencing scheme may see greater risk to operational police officers if mobility is increased under AMR.
Security
AMR of security licencing presents risks to the health and safety of the public as probity checks and jurisdictional standards are not nationally consistent. NSW has a more stringent security industry regulatory scheme in place. It has refused a number of applications on the basis of terrorism-related intelligence whereas some states do not review intelligence information when granting a security licence.
There is a significant risk that interstate workers will use AMR as a backdoor method of avoiding NSW’s probity checks and competency processes. There is history of applicants misusing the current mutual recognition arrangements to bypass NSW’s stringent regulatory controls. Data has shown that thorough screening processes have refused several applicants under mutual recognition. Extension of AMR to the security industry further exacerbates these risks.
6. Marine pilot licences under the Marine Safety Act 1998
Marine Pilots
Applicants and holders of each of the marine pilot’s licences or certificates for exemption from compulsory pilotage are required to undertaken rigorous training and demonstrate skills and local knowledge which are specific to the Pilotage Port in which the licence or certificate relates. Applicants for the licences or certificates are required to undergo testing set by Port Authority and/or the harbour master of the relevant Pilotage Port.
Individuals in possession of equivalent licences or certificates issued in another Australian jurisdiction who have not undergone the same local training, testing and do not have the requisite local pilotage experience will not have the necessary local knowledge to safely navigate the Pilotage Ports to which the licence or certificate relates. This increases the risk of collisions and marine accidents at the Pilotage Ports which can lead to degradation of local environments through the spillage of oil or other pollutants, risking the health and safety of workers or the public and impacting on marine species.
[1] The automatic repeal date is the 1 April or 1 October falling on or after the fifth anniversary of the registration of the instrument.