EXPLANATORY STATEMENT
Mutual Recognition Act 1992
Automatic Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2022 (No. 2)
This explanatory statement provides notes on the operation of the Automatic Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2022 (No. 2) (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 30 June 2023. 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. 2)
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. 2) (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, the explanation of the risk(s) and the self-repealed date for the exemptions.
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 consumer protection, the environment, animal welfare, or the health and safety of workers and 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 |
Contractor licence and supervisor certificate for general building work under the Home Building Act 1989 (NSW) | Significant risk to consumer protection and the public safety. The building and construction sector in NSW is subject to additional requirements and protections. Building failures result in costs to homeowners in remedying defects and an increased risk to safety for people living with non-compliant building work. The NSW Government and consumers need to have confidence in the building and construction sector. | |
2. | Contractor licence and supervisor certificate for the erection of prefabricated metal-framed home additions and structures under the Home Building Act 1989 (NSW) | Significant risk to consumer protection and the public safety. The building and construction sector in NSW is subject to additional requirements and protections. Building failures result in costs to homeowners in remedying defects and an increased risk to safety for people living with non-compliant building work. The NSW Government and consumers need to have confidence in the building and construction sector. |
3. | Consulting radiation expert accreditation under the Radiation Control Act 1990 (NSW) | Significant risk to consumer protection and health and safety of workers and patients through unintended exposure to radiation due to equipment being incorrectly serviced and calibrated. There are large differences in accreditation, terminology, operating conditions and activities across the jurisdictions, which in many cases do not provide equivalent protection as that in NSW. The NSW Government and consumers need to have confidence that consulting radiation experts from other jurisdictions understand specific NSW laws and processes to ensure equipment that uses radiation is correctly assessed, calibrated and maintained. |
4. | Site auditor accreditation under the Contaminated Land Management Act 1997 (NSW) | Significant risk to consumer protection, the environment and public health as an incorrect assessment of the nature and extent of land contamination may be illegal, costly to rectify and result in adverse impacts on public health and the environment. There are technical, policy and legislative requirements that are specific to NSW. The NSW Government and consumers need to have confidence that site auditors from other jurisdictions understand specific NSW laws and processes to ensure audits and assessments are conducted correctly. |
5. | Blasting explosives user’s and pyrotechnician’s licences under the Explosives Act 2003 (NSW) | Significant risk to public safety as NSW Police Force needs to retain the authority to conduct probity checks on operators entering NSW and restrict access to persons deemed unsuitable. |
6. | Registration or recognition within the meaning of the Design and Building Practitioners Act 2020 (NSW):
Registered certifiers – fire safety and accredited practitioner – fire safety under Building and Development Certifiers Act 2018 (NSW); Licences and certificates for water plumbing – fire protection and fire sprinkler systems under the Home Building Act 1989 (NSW) | Significant risk to consumer and the health and safety of the public. The NSW Government and consumers need to have confidence in the building and construction sector. |
7. | Licensing and registration schemes under Greyhound Racing Act 2017 (NSW) | Significant risk to consumer protection and animal welfare as the NSW racing controlling bodies are unable conduct a probity assessment which could lead to criminal elements, including organised crime, money laundering, race fixing and illicit or performance enhancing human and equine drug use. New South Wales has a statutory obligation to assess an applicant’s fitness taking into account a broader list of criminal convictions than other jurisdictions. |
8. | Licensing and registration schemes under Harness Racing Act 2009 (NSW) | Significant risk to consumer protection, health and safety of workers in the harness racing industry, and animal welfare as (without an exemption to AMR) the NSW harness racing controlling body would be unable to conduct an appropriate probity assessment. There is a substantial risk that this would lead to criminal elements, including organised crime, money laundering, race fixing and illicit or performance enhancing human and equine drug use infiltrating the sport in NSW and increasing safety and animal welfare concerns, and reducing consumer confidence. Harness Racing NSW has a statutory obligation to assess an applicant’s fitness and propriety to a more rigorous and higher standard than other Australian jurisdictions. |
9. | Licensing and registration schemes under Thoroughbred Racing Act 1996 (NSW) | Significant risk to consumer protection and animal welfare as the NSW racing controlling bodies are unable conduct a probity assessment which could lead to criminal elements, including organised crime, money laundering, race fixing and illicit or performance enhancing human and equine drug use. NSW has a statutory obligation to assess an applicant’s fitness taking into account a broader list of criminal convictions than other jurisdictions. |
10. | Gaming machine technician licence and competency card (responsible conduct of gaming) under the Gaming Machine Act 2001(NSW) | Significant risk to consumer protection as the regulator is unable to undertake probity check. This could lead to individuals being allowed to operate that engage in money laundering and associated criminal activity, and potential theft and fraud. |
11. | Special Employee licence under Part 4 of the Casino Control Act 1992 (NSW) | Significant risk to consumer protection as the regulator is unable to undertake probity checks. This could lead to individuals being allowed to operate that engage in money laundering and associated criminal activity, and potential theft and fraud. |
12. | Licences and certificates for mechanical services and medical gas work, medical gas technician work, medical gas fitting work under Home Building Act 1989 (NSW) | Significant risk to consumers and health and safety of the public safety. The risks of improper medical gas work can lead to loss of life. A new framework for medical gas was implemented in New South Wales to ensure that medical gas work is done to a high standard and safety. Interstate licence holders would not have the relevant expertise to work in New South Wales. |
13. | Mining registration under Schedule 10 (Statutory functions at mines) of the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW) | Significant risk to health and safety of workers and the public. It is important for all workers to undertake maintenance of competence requirements specific to NSW mines to ensure the safety of workers. |
14. | Surveyor – Mining under Surveying and Spatial Information Act 2002 (NSW) | Significant health and safety risk for mining surveyors working in underground coal mines. The assessments of mine surveyors for underground work are not done to the same standards in other jurisdictions. |
15. | Tattoo licences under Tattoo Parlours Act 2012 (NSW) | Significant risk to the safety of the public as the NSW Police Force is unable to conduct a probity assessment which looks at previous convictions and affiliations with organised motorcycle gangs and serious organised crime. |
16. | Licensing, certificates, and accreditations under the Property and Stock Agents Act 2002 (NSW) | Significant risk to consumer protection. Currently, the regulator cannot prescribe an amount for ADR operators to contribute to the compensation funds, nor is there a means for operators to make these payments. This will mean that ADR operators are unable to comply with their obligations and public protection requirements will not be met. |
17. | Licensing and certificates under the Motor Dealers and Repairers Act 2013 (NSW)
| Significant risk to consumer protection. Currently, the regulator cannot prescribe an amount for ADR operators to contribute to the compensation funds, nor is there a means for operators to make these payments. This will mean that ADR operators are unable to comply with their obligations and public protection requirements will not be met. |
18. | Licensing under the Conveyancers Licensing Act 2003 (NSW) | Significant risk to consumer protection. Conveyancers’ compensation fund contributions are set by referral to the Property & Stock Agents Act 2002 (NSW). Currently, the regulator cannot prescribe an amount for ADR operators to contribute to the compensation funds, nor is there a means for operators to make these payments. This will mean that ADR operators are unable to comply with their obligations and public protection requirement will not be met. |
19. | Licences and certificates for electrical wiring, air-conditioning and refrigeration work under the Home Building Act 1989 (NSW) | Significant risk to the safety of consumers, workers, and the public. Licensing bodies and regulators will be unable to verify or validate interstate workers’ skills, knowledge and understanding against NSW standards and regulations. Failure to understand or comply with the relevant legislation can result in potential dire consequences, including equipment failure, fires, electrical shock, and death. |
(4) This section is repealed at the end of 30 June 2023.
The Hon. Matt Kean MP
Treasurer of New South Wales
Attachment B - Information relied on to support the minister
- Contractor licence and supervisor certificate for general building work under the Home Building Act 1989;
- Contractor licence and supervisor certificate for the erection of prefabricated metal-framed home additions and structures licence under the Home Building Act 1989
The costs of substandard work are felt by everyday homeowners and building owners who rely on builders and tradespeople to produce compliant work. Building failures result in costs to homeowners in remedying defects and an increased risk to safety for people living with non-compliant building work. These failures tarnish the industry for those who produce quality work and impact consumer confidence in the building and construction industry.
The Government is undertaking a comprehensive review of the Home Building Act 1989 to lift confidence in the building and construction industry.
3. Consulting radiation expert accreditation under the Radiation Control Act 1990
The consulting radiation expert (CRE) accreditation should be exempt from AMR due to the serious health consequences from unintended exposure to radiation due to equipment being incorrectly serviced and calibrated. Significant risks to consumers and public health and safety will arise if interstate workers are able to rely on ADR to undertake activities of a NSW CRE that they are unqualified for.
There are large differences in accreditation, terminology, operating conditions and activities for CREs across the jurisdictions. Equipment compliance certification varies by jurisdiction and standards do not meet NSW CRE requirements. There are no nationally agreed equipment standards and the operating conditions attached to an accreditation are usually state or territory specific. CREs that have not been accredited in NSW may not be familiar with NSW laws, processes and equipment standards which may lead to unintended exposure to radiation for both the operator and patients. There are risks that the NSW Government and consumers will not have full confidence that interstate CREs are competent in NSW laws and processes.
The terminology and activities under this accreditation are inconsistent with licences in other jurisdictions. For example, interstate CREs are termed ‘approved testers’ or ‘compliance testers’ which are more aligned with the testing of equipment.
Work is currently underway to harmonise accreditation standards. An exemption for a reasonable period will provide time to align systems, and implement the necessary administrative, ICT, policy and regulatory changes necessary.
4. Site auditor accreditation under the Contaminated Land Management Act 1997
The site auditor accreditation should be exempt from AMR due to the significant risks posed to consumer protection, the environment and public health resulting from jurisdictional disparities in environmental regulation and accreditation standards. Site auditors from other jurisdictions may not have the technical, policy and legislative knowledge specific to NSW to ensure audits and assessments of contaminated land are conducted correctly. Incorrect assessments may be illegal, extremely costly to rectify and result in significant adverse impacts on human health and the environment. There are risks that the NSW Government and consumers will not have full confidence that interstate auditors are competent in NSW laws and processes.
The Environmental Protection Agency (EPA) has guidance material for site auditors but the risk for errors is still too high without sufficient experience applying them in NSW. Addressing non-compliance with NSW law may occur after an incident, which means damage to human health or the environment will have already occurred. A temporary exemption gives the EPA time to develop a roadmap to transition to the scheme.
5. Blasting explosives user’s and pyrotechnician’s licences under the Explosives Act 2003
Recognising these licences under AMR poses significant risks to public safety and national security, as inappropriate persons may be cleared to have access to explosives. AMR will limit the ability of regulators to restrict access to explosives by unsuitable persons, as individuals will not be required to obtain a security clearance from NSW Police Force prior to working. NSW Police Force must be able to conduct its own probity checks and restrict access to persons they deem unsuitable and exemption from the scheme is justified on these grounds.
6. Design practitioner - fire systems (all classes) – Design and Building Practitioners Act 2020;
Design practitioner – fire safety engineering - Design and Building Practitioners Act 2020;
Professional engineer – fire safety - Design and Building Practitioners Act 2020;
Registered certifiers – fire safety and accredited practitioner under Building and Development Certifiers Act 2018;
Licences and certificates for water plumbing – fire protection and fire sprinkler systems under the Home Building Act 1989 )
There is significant risk to consumers and the health and safety of the public if these licences are recognised under AMR. Regulators in NSW have developed their own training and industry standards over time for the relevant fire protection systems licences.
The fire industry performs life critical work and needs time to ensure consistent regulation, terminology, and licensing standards across jurisdictions. Further analysis is required to ensure regulatory regimes and licensing standards are consistent across jurisdictions before this scheme is recognised under AMR.
7. Licensing and registration schemes under Greyhound Racing Act 2017;
8. Licensing and registration schemes under Harness Racing Act 2009;
9. Licensing and registration schemes under Thoroughbred Racing Act 1996
AMR of racing licences and registration schemes would bring significant risks to consumer protection and animal welfare in NSW due to the scale of the industry and its reliance on wagering. The relevant controlling bodies will not be able to conduct probity checks to assess for criminal activity, such as organised crime, money laundering, race fixing and both animal and human illicit performance enhancing drug use. There is a statutory requirement for racing controlling bodies to determine the fitness and proprietary of individuals seeking to be licenced or registered, which does not exist in other states. NSW also takes into account a broader list of criminal convictions than other jurisdictions when assessing an applicant’s fitness (such as murder and sexual assault).
Variance in the licencing requirements for breeders and trainers across different jurisdictions will impact the integrity of the industry in NSW. Interstate licencing is not as robust as in NSW and penalties for non-compliance may be more lenient. These high standards may be eroded if interstate workers ‘licence shop’ to bypass more stringent requirements, justifying the requested exemption.
10. Gaming machine technician licence and competency card (responsible conduct of gaming) under Gaming Machine Act 2001;
11. Special Employee licence under Part 4 of the Casino Control Act 1992
There are significant risks to consumer protection by recognising gaming and casino licences under AMR as the regulator is unable to undertake the relevant probity checks. This could lead to individuals being allowed to operate in NSW that engage in money laundering and associated criminal activity, and potential theft and fraud.
Responsible Conduct of Gambling (RCG)
RCG licence requirements are not consistent across jurisdictions due to disparate gambling regulations, employability requirements and employee codes of conduct. Licence holders must understand the nuanced standards specific to the jurisdiction they work in. Small business may not have the resources necessary to provide training in local laws and without such knowledge, inadvertent non-compliance may result in significant penalties for establishments.
12. Licences and certificates for mechanical services and medical gas work, medical gas technician work, medical gas fitting work under Home Building Act 1989
Incorporating the scheme into AMR presents significant risks to public safety as interstate licence holders do not have the relevant expertise or experience to undertake this specialised work in NSW.
The Bankstown-Lidcombe Hospital incident highlights this risk and a new framework for medical gas was implemented in May 2022 to ensure that medical gas work is done to a high standard and safely. This will require additional competencies and on-the-job training which is absent in other jurisdictions. AMR would effectively obviate the new scheme by waiving these requirements so soon after the scheme has commenced.
13. Mining registration under Schedule 10 of the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014
14. Surveyor – Mining under Surveying and Spatial Information Act 2002
Mining
High-risk mining licences and mining surveyors will pose significant risk to the health and safety of workers and the public if recognised under AMR. NSW has complex licences and training requirements in these sectors that ensure safety standards are maintained, which AMR may erode.
Licenced miners in NSW must comply with the Maintenance of Competence scheme (required under NSW legislation). As this requirement is on the holder of the NSW practicing certificate, under AMR this will be circumvented by workers coming into the state. The NSW Government is working to amend the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 to ensure this requirement is fulfilled under AMR. An exemption will be required until this work is complete.
Mining Surveyors
The current registration scheme for mining surveyors works well under Mutual Recognition. Mine surveyors in NSW must undertake an interview to familiarise workers with local laws and site-specific knowledge prior to working in a second state. This interview helps to mitigate issues with differences in jurisdictional standards, which would not be possible under AMR.
Prior incidents have strengthened mining surveyor requirements in NSW. The Gretley Coal Mine disaster resulted in the loss of life when incorrect and inaccurate survey plans have been used. NSW’s registration process curriculum was changed in response and includes specific guidelines on archival research not used in other jurisdictions.
Department of Regional NSW is working to understand the equivalency of mining licences across jurisdictions. In the absence of national harmonisation, workers could cross jurisdictions and engage in activities they are not trained to perform. The exemption is necessary as further work is required prior to transitioning specialist, senior and manager mining roles to the AMR scheme, particularly in high-risk underground coal mines.
15. Tattoo licence under Tattoo Parlours Act 2012
There is significant risk to the safety of the public if this scheme is incorporated into AMR due to diverse requirements across jurisdictions. The NSW Police Force (NSWPF) will be unable to conduct robust probity assessments that look at previous convictions and affiliations with organised motorcycle gangs and serious organised crime. Other jurisdictions have different licencing schemes while some do not have a scheme at all.
16. Licensing, certificates, and accreditations under the Property & Stock Agents Act 2002
17. Licensing and certificates under the Motor Dealers and Repairers Act 2013
18. Licensing under the Conveyancers Licensing Act 2003
Under NSW licensing legislation, conveyancers, motor dealers and repairers and property and stock agents are required contribute to compensation funds as a condition to hold a licence. The contribution is charged to the individual at the time of applying for the grant or renewal of a licence.
Under the MRA, in order to hold an ADR an individual must satisfy any such "public protection requirement" relating to insurance, fidelity funds, trust accounts, minimum financial requirements or the like that is designed to protect the public, clients, customers or others.
This raises a significant risk to consumer protection. Currently, the regulator cannot prescribe an amount for ADR operators to contribute to the compensation funds, nor is there a means for operators to make these payments. This will mean that ADR operators are unable to comply with their obligations and public protection requirement will not be met.
19. Licences and certificates for electrical, air conditioning and refrigerating work under the Home Building Act 1989 (NSW)
The regulatory and compliance frameworks for electrical wiring, air conditioning and refrigeration work vary across jurisdictions, which poses as significant risk to the safety of consumers, workers, and the public.
Failure of a worker to understand or comply with the relevant legislation can result in potential dire consequences, including equipment failure, fires, electrical shock, and death. Electrical fires are an ongoing issue in New South Wales.