EXPLANATORY STATEMENT
Mutual Recognition Act 1992
Automatic Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2022 (No. 3)
This explanatory statement provides notes on the operation of the Automatic Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2022 (No. 3) (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 31 December 2022. 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
New South Wales did not conduct consultation as the Treasurer of New South Wales considers it impractical in the circumstances. In preparing the declaration, the Treasurer of New South Wales had regard to the previous consultation process with key stakeholders in 2021, expert information available and the positions of persons likely affected.
Attachment A
Details of the Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2022 (No. 3)
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. 3) (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-repeal 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 |
Architect under the Architects Act 2003 (NSW) | There is currently a significant risk to consumer protection and safety of the public without the necessary mitigation measures to address implementation risks. | |
2. | Registration or accreditation under the Building and Development Certifiers Act 2018 (NSW) except:
| |
3. | Registration under the Combat Sports Act 2013 (NSW) | |
4. | Registration or recognition within the meaning of the Design and Building Practitioners Act 2020 (NSW) except:
| |
5. | Driving instructor licences under the Driving Instructors Act 1992 (NSW) | |
6. | Licence for commercial agents under the Fair Trading Act 1987 (NSW) | |
7. | Licence or certificate within the meaning of the Home Building Act 1989 (NSW) except the following categories of work:
| |
8. | Approval as a liquor licence manager and licensee training competency cards under the Liquor Act 2007 (NSW) | |
9. | Driver authority under the Passenger Transport Act 1990 (NSW) | |
10. | Licences under the Pawnbrokers and Second-hand Dealers Act 1996 (NSW) | |
11. | Licences within the meaning of the Pesticides Act 1999 (NSW) | |
12. | Radiation security assessor accreditation and radiation user licence under the Radiation Control Act 1990 (NSW) | |
13. | Registration under the Surveying and Spatial Information Act 2002 (NSW) except Surveyor – Mining | |
14. | Licence or certificate under the Tow Truck Industry Act 1998 (NSW) | |
15. | Driller’s licence under the Water Act 1912 (NSW) | |
16. | Licence or authorisation under the Work Health and Safety Act 2011 (NSW) | |
17. | Demolition licences under the Occupational Health and Safety Regulations 2001 (NSW) |
|
Subsection 4 provides a self-repeal date for section 6. The Declaration will sunset on 31 December 2022.
The Hon. Matt Kean MP
Treasurer of New South Wales
Attachment B - Information relied on to support the minister
The NSW Government continues to have confidence in, to strongly support, and to see the benefits of the introduction of a comprehensive scheme for the mutual recognition of relevant professional qualifications between participating Australian jurisdictions (as envisaged in the Mutual Recognition Act (Cth) 1992 (the “MRA”)).
In order to achieve a smooth implementation, a short temporary exemption is needed to provide the Government with sufficient opportunity to undertake all necessary further analysis, key stakeholder consultation, and to propose such consequential legislative amendments needed. This will ensure that NSW occupational licensing schemes are transitioned into AMR when its benefits can be properly realised, and it is satisfied that any significant difficulties and risks that may arise from its implementation can be properly mitigated.
Such an additional period of analysis would enable the NSW Government to ensure that proper measures can be put in place to avoid the impacts that could, if not properly managed cause detriment to consumer protection and/or the health and safety of workers and the public sufficient to satisfy the “significant risk” conditions of ss 428 (1)(c) and (f) of the Mutual Recognition Act (Cth) 1992 (the “MRA”).