Automatic Mutual Recognition (New South Wales) (Exemption—Various) Declaration 2022 (No. 3)

Administered by Department of Employment and Workplace Relations

Legislation au F2022L00871 Not in force Legislative Instrument

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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

  1.  

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:

  • registered certifiers – fire safety
  • accredited practitioner – fire safety

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:

  • Design practitioner - fire systems (all classes)
  • Design practitioner – fire safety engineering
  • Professional engineer – fire safety

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:

  • general building work
  • erection of prefabricated metal-framed home additions and structures
  • water plumbing – fire protection and fire sprinkler systems
  • mechanical services and medical gas work, medical gas technician work, medical gas fitting work
  • electrical wiring, air-conditioning and refrigeration 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”).

 

 

 

 

Overview

The Mutual Recognition Act 1992 (MRA), enacted by the Commonwealth Parliament, addresses the problem of fragmented occupational licensing systems across Australian states and territories by establishing a framework for automatic mutual recognition (AMR) of occupational registrations. This Act facilitates the recognition of professional qualifications and licenses across states, aiming to streamline the process for professionals and consumers alike. The Automatic Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2022 (No. 3) is a legislative instrument made under section 42S of the MRA by the Treasurer of New South Wales. This Declaration excludes certain occupational registrations from the AMR provisions for a specified period, from 1 July 2022 to 31 December 2022, due to significant risks to consumer protection, the environment, animal welfare, or the health and safety of workers or the public as identified by the Treasurer. The decision to exclude these registrations was based on an assessment of the risks and conditions in New South Wales, and the Declaration provides a detailed explanation of these risks. The policy objective is to ensure that these risks can be adequately managed before full implementation of the AMR scheme in New South Wales.

Scope and Application

The Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2022 (No. 3) operates within the framework of the Mutual Recognition Act 1992 (MRA) of the Commonwealth, and serves to exclude certain occupational registrations from Automatic Deemed Registration (ADR) in New South Wales for a specified period. This Declaration, made under section 42S of the MRA, aims to address significant risks to consumer protection, the environment, animal welfare, or the health and safety of workers and the public in New South Wales. The Declaration applies to a range of specific registrations, such as those for architects, building certifiers, combat sports practitioners, design professionals, and various licences and certifications related to building, driving instruction, liquor management, and more. The exclusions are in effect from 1 July 2022 to 31 December 2022, and the Treasurer of New South Wales has determined that this period is necessary to manage the identified risks effectively. The Declaration itself does not conduct new consultations but relies on previous stakeholder engagement and expert information to substantiate its provisions. Attachment B to the explanatory statement details the risks and considerations that led to the decision to issue the Declaration, emphasising the need for careful implementation of the mutual recognition scheme to safeguard public interests.

Key Provisions

The Automatic Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2022 (No. 3) operates under section 42S of the Mutual Recognition Act 1992 (MRA). The Declaration specifies a range of occupational registrations that are exempt from automatic deemed registration (ADR) in New South Wales for the period from 1 July 2022 to 31 December 2022. This exemption means that individuals cannot undertake activities under these registrations in New South Wales without first obtaining the relevant registration from the local authority. The specific registrations exempt from ADR include those under the Architects Act 2003 (NSW), Building and Development Certifiers Act 2018 (NSW), Combat Sports Act 2013 (NSW), and others, as detailed in Section 6 of the Declaration. The exemption is justified by the Treasurer of New South Wales, who is satisfied that there is a significant risk to consumer protection or the health and safety of workers and the public if these registrations were not excluded from ADR. The Declaration imposes specific obligations on the entities and individuals it governs. Firstly, the exclusion of certain registrations from ADR means that anyone wishing to carry out activities under these registrations in New South Wales must obtain the relevant registration from the local authority. This requirement ensures that the individuals meet the standards and requirements set by New South Wales, mitigating the significant risks identified in the Declaration. Additionally, the Declaration mandates that the exclusions will remain in effect until 31 December 2022, at which point they will automatically sunset unless extended by further legislation. Breach of the provisions set out in the Declaration could result in serious consequences. Individuals or entities that carry out activities under the exempted registrations without obtaining the relevant local registration may face legal penalties. The specific consequences for such breaches are not detailed in the Declaration but could include fines, revocation of permits, or other regulatory actions. The Declaration relies on the authority provided by section 42S of the MRA, which allows for the exclusion of certain registrations if there is a significant risk to consumer protection, the environment, animal welfare, or the health and safety of workers or the public. The significant risk conditions are outlined in sections 428(1)(c) and (f) of the MRA, and any breach of these provisions could result in civil or criminal penalties as determined by the relevant authorities in New South Wales.

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