EXPLANATORY STATEMENT
Mutual Recognition Act 1992
Automatic Mutual Recognition (Tasmania) (Exemptions—One-Year) Declaration 2022
This explanatory statement provides notes on the operation of the Automatic Mutual Recognition (Tasmania) (Exemptions—One-Year) 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 allows 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 (Tasmania) 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 Treasurer is satisfied that the exclusions are necessary because of a significant risk to consumer protection. The Declaration provides an explanation of the specific risks arising from the registrations in the context of the circumstances and conditions in Tasmania.
Consultation
In making this Declaration, the Treasurer (Tasmania) was advised by the Department of Justice on appropriate longer-term exemption arrangements, which included details of stakeholder consultation undertaken. Consultation was undertaken with relevant industry bodies or associations for the registrations listed. The consultation supported consideration of the risks specific to each registration, the circumstances and conditions in Tasmania that give rise to these risks, future mitigation strategies, and the appropriate length of exemptions.
The Treasurer (Tasmania) 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 and ensured that persons likely to be affected by the proposed Declaration had an adequate opportunity to comment on its proposed content.
A regulation impact statement or analysis (RIS/RIA) is not required in Tasmania for this legislative instrument. To note, the Commonwealth engaged PricewaterhouseCoopers Australia to undertake an Economic Impact Assessment of AMR, which was finalised in December 2020.
Attachment A
Details of the Automatic Mutual Recognition (Tasmania) (Exemptions—One-Year) Declaration 2022
Part 1 – Preliminary
Section 1 – Name
This section provides that this Declaration is to be cited as the Automatic Mutual Recognition (Tasmania) (Exemptions—One-Year) (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 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 the Tasmania without first obtaining that registration. An individual may obtain the registration 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 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.
Licensed Conveyancers
A significant risk would arise in relation to consumer protection if licensed conveyancers (item 1) were not exempted. This risk arises due to differences between jurisdictions in the definition of conveyancing work, along with differences in conveyancing laws and practices. This poses a significant risk to consumers that conveyancing work undertaken by conveyancers working under AMR may be completed to a different standard than that required in Tasmania.
A one year exemption is the most appropriate way to manage this risk, as it should provide sufficient time for legislative changes to be implemented to resolve this issue.
Licensed Builders - General Construction
Registrations listed under items 2-5 have been grouped together as the risks, and the circumstances that give rise to the risks, for these registrations are the same.
A significant risk would arise in relation to consumer protection if these registrations were not exempted. This risk arises as a result of the current legislation not enabling Consumer, Building and Occupational Services and building insurers to access financial information regarding the solvency of builders, or the number of projects for which they are contracted. This, in turn would pose a financial risk to Tasmanian consumers who enter into contracts with these builders.
The Tasmanian Government has recently announced that it will introduce a mandatory scheme of Home Warranty Insurance for residential building work and is currently consulting on the best way to do this. Implementing this scheme will enable appropriate arrangements to be put in place for all Builders – General Construction, to address the risk identified.
A one year exemption is the most appropriate way to manage this risk, as it should provide sufficient time for legislative changes to be implemented to resolve this issue.
Licensed Property Agents
Registrations listed under items 6-9 have been grouped together as the risks, and the circumstances that give rise to the risks, for these registrations are the same.
A significant risk would arise in relation to consumer protection if these registrations were not exempted. This risk arises as a result of key differences in the standards and requirements that apply to these occupations in Tasmania, compared with other jurisdictions. This includes in relation to: trust accounting; management and supervision of employees; information exchange requirements; conduct of auctions; rights to commissions; agency agreements; standards of behaviour of licensees; and appointment of receivers and managers.
These differing standards result in a significant risk to vendors and purchasers of real estate as well as parties letting or renting property in Tasmania, as property agents working under AMR may not provide the same standard of service as property agents who are otherwise registered in Tasmania.
A one year exemption is the most appropriate way to manage this risk, as it should provide sufficient time for changes to existing legal and policy frameworks and arrangements to be implemented.
Subsection 4 provides a self-repeal date for section 6 of 30 June 2023.
Michael Ferguson
Treasurer (Tasmania)