Automatic Mutual Recognition (South Australia) (Exemption—Regulatory Food Safety Auditors and Regulatory Safe Drinking Water Auditors) Declaration 2022

EXPLANATORY STATEMENT

Mutual Recognition Act 1992

Automatic Mutual Recognition (South Australia) (Exemption—Regulatory Food Safety Auditors and Regulatory Safe Drinking Water Auditors) Declaration 2022

This explanatory statement provides notes on the operation of the Automatic Mutual Recognition (South Australia) (Exemption—Regulatory Food Safety Auditors and Regulatory Safe Drinking Water Auditors) Declaration 2022 (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 this Declaration, the Treasurer of South Australia has excluded two registrations from ADR for the period 1 July 2022 to 30 June 2027. By virtue of the making of the Declaration, the minister is satisfied that the exclusion is necessary because of a significant risk to the health or safety of the public. The Declaration provides an explanation of the specific risks arising from the registrations in the context of the circumstances and conditions in South Australia. The information relied on to support the minister is provided in Attachment B.

Consultation

South Australia did not conduct open public consultation as the Treasurer and state considers it inappropriate / impractical in the circumstances.  In preparing the declaration, the Treasurer had regard to the expert information available and the positions of persons likely affected. The Treasurer acted on the expert advice of the Department for Health and Wellbeing Food Safety and Regulation Branch which included information on discussions with impacted parties and in recognition of the risk assessment undertaken and summarised in Attachment B.     

Attachment A

Automatic Mutual Recognition (South Australia) (Exemption— Regulatory Food Safety Auditors and Regulatory Safe Drinking Water Auditors) Declaration 2022

Part 1 – Preliminary

Section 1 – Name

This section provides that this Declaration is to be cited as the Automatic Mutual Recognition (South Australia) (Exemption— Regulatory Food Safety Auditors and Regulatory Safe Drinking Water Auditors) Declaration 2022 (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 (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 this 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 exemption.

The Declaration is made in accordance with paragraph 42S(1)(a) of the MRA, the specific approvals listed in column 1 are excluded from ADR. This means that an individual cannot carry on the activities authorised under the approvals listed in column 1 in South Australia without first obtaining that approval. An individual may obtain the approval listed in column 1 from the Local Registration Authority (LRA) through Part 3 of the MRA.

The minister making the Declaration is satisfied that there is a significant risk of not excluding the approvals in column 1. In accordance with subsection 42S(2) of the MRA, column 2 in the table provides the statement of the risk to the health and safety of the public for each of the regulated approvals listed in column 1

In accordance with subsection 42S(2) of the MRA, this provision in the Declaration also provides a statement of the risk to the health and safety of the public (as shown in column 2). It is considered the failure to gain an exemption from ADR for regulatory food safety auditors (approved under the SA Food Act 2001) and safe drinking water auditors (approved under the Safe Drinking Water Act 2011) would:

- result in loss of regulatory oversight of the Department for Health and Wellbeing (DHW) in relation to the regulatory audit functions and activities relating to vulnerable persons which is identified is one of the highest risk sectors

- potentially result in substandard determinations in relation to public and environmental health risks associated with food safety and water quality within one of the highest risk sectors - undermine public confidence in the food safety and water audit systems

- Create regulatory uncertainty for auditors affected by AMR.

It has been determined that a significant risk arises from the application of automatic deemed registration (ADR) under AMR to the function of regulatory food safety auditors and safe drinking water auditors as the roles are materially different across jurisdictions.  Under the SA Food Act 2001, the only businesses required to undergo a regulatory audit are those serving food to vulnerable persons. No other sectors are captured. The role and legislated requirements of these auditors are very specific to the relevant legislation in effect in each jurisdiction. This is particularly the case in South Australia. In reflection of the complexity of the profession, while the audit skills of auditors should be consistent and easy to transfer, the technical skills for the specific vulnerable sector are not and there is greater stringency on implementation of legislative requirements for auditors in SA to address the risk posed to vulnerable persons. The inability to ensure that interstate auditors have the comprehensive understanding of specific local audit processes and vulnerable persons requirements poses a risk to public safety.

There are material differences in relation to how auditors notify the relevant agencies and local government bodies of their activities between jurisdictions. South Australia needs the ability to have regulatory oversight of audit activity within its borders, make properly informed decisions and enforce regulatory control as needed. This ensures that risks to the public are minimised. Together the above factors have the potential to result in significant risk to public health through inadequate protections from the impact of inadequate food safety.

The following table replicates the provisions in the Declaration.

The Declaration will sunset on 30 June 2027.

The Hon Stephen Mullighan MP

Treasurer (South Australia)

Attachment B - Information relied on to support the minister

Regulatory Food Safety Auditors

Regulatory food safety auditors are approved under Part 7, Division 1 Section 73 of the Food Act 2001 by DHW as the relevant authority and are required to conduct audits of any food safety programs as required by Australia New Zealand Food Standard Code - Standard 3.2.1 – Food Safety Programs.

Only certain high risk food businesses are required to comply with Standard 3.2.1 and implement a documented and audited food safety program, including businesses that prepare potentially hazardous food for service to vulnerable people. In accordance with Australia New Zealand Food Standard Code - Standard 3.3.1 – Food Safety Programs for Food Service to Vulnerable Persons, this includes businesses providing food to hospital patients, aged care residents and children in child care centres. It also applies to delivered meal organisations that prepare food for delivery to vulnerable people.

Given the high risk nature of the food businesses audited by regulatory food safety auditors in SA and the vulnerability of the clients that these food businesses prepare and serve food to, a considerable risk exists to the health and safety of the public, in particular to these vulnerable persons, if food safety auditors without the appropriate technical skills, experience and understanding of arrangements specific to South Australia are allowed to conduct food safety audits in South Australia.

Regulatory food safety auditors are approved as natural persons rather than as a class and are subject to the criteria under the Food Act 2001 and developed by DHW as the relevant authority, due to the specific requirements of the role. There is a potential for regulatory food safety auditors who are not subject to this criteria, to pose a considerable risk to the health and safety of vulnerable people and also potentially creates a liability for food businesses responsible for the food service to vulnerable persons. 

Regulatory Safe Drinking Water Auditors and Inspectors

Regulatory safe drinking water auditors and inspectors are approved under Part 4, Division 1 Section 15 of the Safe Drinking Water Act 2011 by DHW and undertake audits and inspections to determine compliance with requirements of Part 3 of the Act relating to risk management plans. 

Natural persons can be approved as an auditor or an inspector depending on their level of experience and qualifications as defined in “Guidelines for qualifications and certifications recognised for approval of auditors and inspectors” published per Part 4, Division 1 Section 15 (2) due to the specific requirements of the role. Regulatory food auditors fulfil most of the requirements to be a drinking water auditor and can gain dual approval. Businesses that prepare potentially hazardous food for service to vulnerable people and have an independent drinking water supply are audited by auditors with dual food and drinking water approval.

Due the potential risks associated with drinking water supplies and importance of maintaining safety including in regulated care, education and food premises it is essential that auditors and inspectors are appropriately qualified. It is also important to maintain the linkage between food safety and drinking water audits of businesses that provide food for vulnerable people. On this basis excluding regulatory drinking water auditors and inspectors is an appropriate measure. 

Risk to Public Safety from adoption of AMR

In SA, the only regulatory audits undertaken are for vulnerable populations and this is reflected in the strict requirements for auditors in SA.  In reflection of the complexity of the legislated requirements of both Regulatory Food Safety Auditors and Regulatory Drinking Water Auditors, while the audit skills of auditors may be consistent, the technical skills for a specific sector are not and the legislative understanding and experience of auditing vulnerable high risk facilities is not. Other jurisdictions have shared concerns about how AMR would ensure auditors have a high level knowledge and understanding of different state legislation and environments and guideline requirements. As customers (clients) assume auditors know how the local system works and how it applies to the work being undertaken, uncertainty or unfamiliarity by an auditor would have a detrimental effect on public confidence.

There are also material differences in relation to how auditors maintain their approval, as well as notify the relevant agencies of their activities.

Automatic deemed registration under AMR could also be seen to be removing the ability of DHW in South Australia to protect the public. Each jurisdiction needs the ability to track audit activity within its borders, make properly informed decisions and enforce regulatory control as needed.  This ensures that the risk to public safety is minimised.

South Australia maintains a regulatory nexus between the approval of Regulatory Food Safety Auditors and Regulatory Safe Drinking Water Auditors and Inspectors.  Adoption of AMR risks a break in this nexus that has the potential to expose vulnerable persons to additional risk.

AMR is not considered appropriate for the function of Regulatory Food Safety Auditors under the Food Act 2001 and Regulatory Safe Drinking Water Auditors under the Safe Drinking Water Act 2011, due to:

• differences in the legislated role of auditors, auditor activities, training and manner of undertaking audits in each jurisdiction
• the need for each individual auditor to have a high level knowledge and understanding of jurisdictional legislation and guidelines
• the requirement for a clear line of local regulatory oversight of the persons accredited and auditing in each jurisdiction, to ensure adequate protection of the health and safety of the community
• the need to maintain public confidence and certainty in the audit system.

Together, the above factors have the potential to result in significant risk to public health.

 Localised requirements

In SA measures are in place to ensure that food safety auditors are suitably qualified and resourced to conduct audits. These measures include ensuring food safety auditors:

• undertake adequate training and have suitable qualifications
• can conduct food safety audits to an acceptable standard as determined by witnessed audits during initial certification and recertification
• Are required to attend annual forums for professional development
• Are required to use a prescribed audit report template and checklist
• Are required to submit reports for review by DHW.