Automatic Mutual Recognition (South Australia) (Exemption—Site Contamination Auditors) Declaration 2022

EXPLANATORY STATEMENT

Mutual Recognition Act 1992

Automatic Mutual Recognition (South Australia) (Exemption – Site Contamination Auditors) Declaration 2022

This explanatory statement provides notes on the operation of the Automatic Mutual Recognition (South Australia) (Exemption – Site Contamination 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 a registration from ADR for the period 1 July 2022 to 1 October 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 environment and the health and safety of the public. The Declaration provides an explanation of the specific risks arising from the registration 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 formal public consultation as the Treasurer and state considers it inappropriate / impractical in the circumstances.  The Environment Prtoection Authority consulted with site contamination auditors as part of the development of its expert advice to the Treasurer.  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 advice of the Environment Protection Authority and in recognition of the risk assessment undertaken and summarised in Attachment B.     

Attachment A

Automatic Mutual Recognition (South Australia) (Exemption – Site Contamination Auditors) Declaration 2022

Part 1 – Preliminary

Section 1 – Name

This section provides that this Declaration is to be cited as the the Automatic Mutual Recognition (South Australia) (Exemption – Registration) 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 a specified registration 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

The Declaration is made in accordance with paragraph 42S(1)(a) of the MRA, Site Contamination Auditor established under Part 10A, Division 4 of the Environment Protection Act 1993 (shown in column 1) is excluded from ADR because the minister making the Declaration is satisfied that there is a significant risk to the environment and the health and safety of the public (as outlined in column 2).

This means that an individual cannot carry on the activities authorised under this registration in South Australian without accreditation under Part 10A, Division 4 of the Environment Protection Act 1993. An individual may obtain accreditation under Part 10A, Division 4 of the Environment Protection Act 1993 under Part 3 of the MRA.

In accordance with subsection 42S(2) of the MRA, this provision in the Declaration also provides a statement of the risk to the environment and the health and safety of the public (as shown in column 2). It is considered the failure to gain an exemption from automatic deemed registration for site contamination auditors would:

-          result in the loss of the regulatory certainty of the EPA in relation to activities of the majority of currently accredited auditors undertaking audits in South Australia

-          create regulatory uncertainty for auditors affected by AMR

-          potentially result in substandard determinations in relation to site contamination of land and suitability for future use of land

-          undermine public confidence in the audit system

Together, the above factors have the potential to result in significant risk to the environment and the health and safety of the public through inadequate protection from the impacts of site contamination. Refer to Attachment B for further information.

The following table replicates the provisions in the Declaration.

The Hon Stephen Mullighan MP

Treasurer (South Australia)

Attachment B - Information relied on to support the minister

Importance of the site contamination audit system in South Australia and the role of the Environment Protection Authority (EPA)

The audit system in South Australia has been established to provide for the protection of human health and the environment where site contamination exists or may exist, through establishing:

• a body of accredited persons whose independent and expert opinions can be relied upon by all sectors of the community when making determinations in relation to site contamination
• processes for the rigorous, independent and objective assessment and remediation of site contamination
• a decision framework to facilitate sustainable development with due consideration of economic, social and environmental aspects of site contamination assessment and remediation.

The outcomes of establishing a system involving the independent review by accredited experts (auditors) of the assessment and remediation of site contamination include greater certainty to the community, developers, industry, planning authorities and regulators that:

• risks to human health and the environment from contamination are being properly considered and addressed, and that
• land is suitable for its intended use particularly when a change to a more sensitive use (greater risk of contaminant exposure to people) is proposed.

The EPA is responsible for the administration of the audit system, the accreditation of auditors and ensuring that audits are carried out according to the legislation and relevant guidelines.

The EPA has obligations and is responsible for:

• establishing processes for the assessment of applicants for auditor accreditation
• accrediting auditors
• recording details of both audit and auditor information on the EPA Public Register under s109 of the Environment Protection Act 1993 (South Australia)
• maintaining a register of currently accredited auditors (auditor register)
• compliance and enforcement in relation to auditor activities.

The EPA implements a quality assurance system to provide regulatory oversight to the accreditation and activities of auditors. This includes a system of policies, detailed guidelines, processes and procedures, which are implemented in relation to each individual auditor with the aim of maintaining a consistently high quality of auditing.

All auditors are subject to the same legislative obligations and guideline requirements, and participate in training and information sessions with the EPA to build common knowledge and understanding. Non-compliances are addressed through standardised disciplinary processes.

Automatic Mutual Recognition (AMR) and the accredited function of site contamination auditor

AMR is considered unsuitable in relation to the function of auditors as the role is considerably different across jurisdictions.  New South Wales, Victoria, Western Australia and Queensland administer and operate audit systems and accredit auditors. The role of auditors however is very specific to the relevant legislation in effect in each jurisdiction.

In reflection of the complexity of the profession, while the technical skills of auditors should be consistent and easy to transfer, the legislative understanding is not. Jurisdictions share concerns about how AMR would ensure auditors have a high level knowledge and understanding of state legislation and guidelines 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 accreditation, as well as notify the relevant agencies of their activities.

AMR could also be seen to be removing the ability of the EPA to protect the public and the environment. 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 exposure of the public and the environment to significant chemical contamination is minimised.

Summary

AMR is not considered appropriate for the function of site contamination auditors established under Part 10A of the Environment Protection Act 1993 (South Australia) due to:

• differences in the legislated role of auditors, auditor activities 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 role of auditors in providing land use sensitivity statements in particular where land is being changed to a more sensitive use
• 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 environment, and health and safety of the community
• the need to maintain public and consumer confidence and certainty in the audit system.

It is considered the failure to gain an exemption from automatic deemed registration for auditors would:

• result in the loss of the regulatory certainty of the EPA in relation to activities of the majority of currently accredited auditors undertaking audits in South Australia
• create regulatory uncertainty for auditors affected by AMR
• undermine public confidence in the audit system
• potentially result in substandard determinations in relation to site contamination of land and suitability for future use of land

Together, the above factors have the potential to result in significant risk to human health and the environment and the adequate protection from the impacts of site contamination.