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2019-2020-2021

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

MUTUAL RECOGNITION AMENDMENT BILL 2021

EXPLANATORY MEMORANDUM

(Circulated by authority of the Assistant Minister to the Prime Minister and Cabinet,the Hon Ben Morton MP)

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CONTENTS

GENERAL OUTLINE.........................................................................................................................2Financial impact......................................................................................................................2Regulation Impact Statement..................................................................................................3Human rights implications.......................................................................................................3

GLOSSARY AND ABBREVIATIONS...................................................................................................4OVERVIEW......................................................................................................................................5

The legislative scheme............................................................................................................6Scope.......................................................................................................................................6Interaction with other schemes...............................................................................................7

NOTES ON CLAUSES.......................................................................................................................8Schedule 1—Amendments..........................................................................................................8

Part 1—Preliminary..................................................................................................................8Part 2—Goods........................................................................................................................14Part 3—Occupations..............................................................................................................14Part 3A—Automatic deemed registration to carry on activities covered by occupations......20Part 4—General.....................................................................................................................39

Statement of Compatibility with Human Rights...........................................................................41

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MUTUAL RECOGNITION AMENDMENT BILL 2021

GENERAL OUTLINE

The Mutual Recognition Amendment Bill 2021 (the Bill) introduces a uniform scheme of automatic mutual recognition (Part 3A) into the Mutual Recognition Act 1992 (Cth). Automatic mutual recognition will enable an individual registered for an occupation in their home State to be taken to be registered to carry on, in a second State, the activities covered by their home State registration.

Safeguards are embedded in the Bill to maintain high standards of consumer and environmental protection, animal welfare, and the health or safety of workers or the public.

State laws and conditions. Workers will be required to comply with the laws of the second State, including public protection requirements regarding insurance and the like and satisfying a working with vulnerable people character test. Any conditions a person has on their home State registration will also apply, unless waived by the local registration authority.

Oversight by local regulators. Workers will be subject to any applicable disciplinary actions in the second State and, for some registrations, may need to notify the regulator they intend to work in their state.

Compliance action. Those subject to disciplinary actions or who have conditions on their registration as a result of disciplinary, civil or criminal action will be excluded from automatic mutual recognition. Information on cancelled or suspended registrations and disciplinary actions for people in the new scheme will be available to regulators and recorded on registers (where required by state laws).

The Bill also enables a state Minister to exempt a registration in their state from being subject to automatic mutual recognition for a renewable period of up to five years because of a significant risk to consumer protection, the environment, animal welfare, or the health or safety of workers or the public.

A state Minister may exempt a registration in their state for a temporary period of six months after commencement of the Bill, with an option to extend for a further period to 30 June 2022 if needed.

This scheme will reduce the time taken and cost incurred when registered workers respond to new job opportunities across jurisdictional borders. Improved access to registered workers will drive productivity and competition, lowering prices and improving service quality for consumers and businesses. Communities will also be better placed to respond to national emergencies and disasters with registered workers better able to relocate quickly.

Financial impact This Bill is expected to have no financial impact on the Commonwealth.

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Regulation Impact StatementAs the reforms were a decision of the National Cabinet, an intergovernmental Regulation Impact Statement is not required.

OBPR ID Number: 43163.

Human rights implicationsThis Bill is compatible with the human rights and freedoms recognised or declared in international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). The Statement of Compatibility with Human Rights is attached to this explanatory memorandum.

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GLOSSARY AND ABBREVIATIONS

The following abbreviations are used throughout this explanatory memorandum:

AAT Administrative Appeals TribunalADR Automatic deemed registrationAMR Automatic mutual recognitionBill Mutual Recognition Amendment Bill 2021Commonwealth Constitution

Commonwealth of Australia Constitution Act 1900

Cth CommonwealthIGA Intergovernmental Agreement on Automatic Mutual

Recognition of Occupational Registration (2020)LRA Local Registration AuthorityMR Mutual recognitionMRA, this Act Mutual Recognition Act 1992 (Cth)PPR Public protection requirement PwC PricewaterhouseCoopersState(s) Includes both Australian states and territories

All references in this document to Parts, Divisions and sections are references to such Parts, Divisions and sections in the MRA (unless otherwise stated).

Examples are used throughout this explanatory memorandum for illustrative purposes only. They are not comprehensive and may not be a true reflection of actual occupations, registrations or activities.

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OVERVIEW

1. The Mutual Recognition Act 1992 (Cth) (MRA or this Act) provides an entitlement for a registered worker to be registered for an equivalent occupation in another jurisdiction on the basis of their existing registration, without further assessment of their qualifications. To gain mutual recognition (MR), a worker must notify the Local Registration Authority (LRA) in the state in which they are seeking registration for the equivalent occupation, apply and pay for an additional state registration.

2. Since introduction in 1992, the arrangements for MR of occupational registrations have helped to reduce barriers to occupational mobility for a broad range of occupations. In its most recent report on MR in 2015, the Productivity Commission found that the current MR arrangements generally work well but there would be cost savings from automating these processes. The Commission recommended governments expand the use of automatic mutual recognition (AMR) to improve the efficiency of MR arrangements.

3. PricewaterhouseCoopers (PwC) estimated that AMR could lead to additional economic activity of around $2.4 billion over 10 years as a result of savings to workers and businesses, productivity improvements and extra surge capacity in response to natural disasters. Over 168,000 workers would benefit, including 44,000 people who will work interstate that would not otherwise have done so.

4. In late 2020, the Australian and state and territory governments agreed to introduce a uniform scheme for AMR. On 13 November 2020, National Cabinet agreed to establish an Intergovernmental Agreement on Automatic Mutual Recognition of Occupational Registration (IGA) outlining jurisdictions’ commitment to implement AMR from 1 July 2021 through amendments to the MRA. The IGA was signed by all jurisdictions, with the exception of the Australian Capital Territory, at the National Cabinet meeting on 11 December 2020.

5. AMR will increase the strength and resilience of the Australian economy by reducing the time taken and cost incurred when registered workers respond to new job opportunities across jurisdictional borders. A more mobile labour force will respond to new opportunities with more registered workers crossing jurisdictional borders to work and more businesses bidding for work in other states. Improved access to registered workers will drive productivity and competition, lowering prices and improving service quality for consumers and businesses. Communities will also be better placed to respond to national emergencies and disasters with registered workers better able to relocate quickly.

6. The Australian Government, in collaboration with state and territory governments, developed the Mutual Recognition Amendment Bill 2021 (the Bill) through extensive consultation and engagement with industry, trade unions, regulators, and through a formal public consultation process on an exposure draft of the Bill.

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The legislative scheme7. The Bill introduces a scheme for AMR (in Part 3A), building on the long-standing MR

arrangements. It also makes changes to Parts 1, 2, 3 and 4 to streamline operation, help distinguish between the two schemes and to support general machinery provisions.

8. The Bill provides that the MR principle for the purposes of AMR is that a person registered for an occupation in their home State is entitled to be registered to carry on, in a second State, the activities covered by their home State registration. This principle is operationalised through the concept of automatic deemed registration (ADR).

9. The Bill ensures that the person is not required to apply, or pay registration fees, for a second State registration when working under ADR.

10. Safeguards are central to the AMR scheme to maintain high standards of consumer and

environmental protection, animal welfare, and the health or safety of workers or the public. Safeguards embedded in the Bill include:

a. the ability of states (includes both Australian states and territories) to exempt a registration where there is a significant risk

b. the exclusion of an individual that is subject to disciplinary, civil or criminal action or who has conditions on their home State registration as a result of such actions

c. ensuring an interstate licensee satisfies a working with vulnerable people character test where required by state laws

d. requiring an interstate licensee to satisfy financial public protection requirements, such as holding insurance or paying into a fidelity fund

e. requiring an interstate licensee to comply with laws of the second Statef. enabling second States to pursue disciplinary action consistent with the laws of

the second State g. enabling a state to require notification of intent to work in the second State h. requiring second States to share information on cancelled or suspended

registrations and disciplinary proceedings and to record cancellations and suspensions on registers (where they exist).

Scope11. AMR is intended to apply to all occupations and registrations, as defined by the MRA,

unless specifically exempted by a state Minister.

12. The Bill does not alter the operation of Part 2 of the MRA relating to the MR of goods.

13. AMR only applies to registrations for occupations issued within Australia and does not extend to occupational registrations issued in New Zealand. The Bill does not amend the MR arrangements between Australian states and New Zealand under the Trans-Tasman Mutual Recognition Act 1997 (Cth).

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Interaction with other schemes14. The Bill does not prevent a person from seeking MR under the existing MR

arrangements (in Part 3) nor will it disrupt existing national registration schemes, state model law schemes or state-based AMR schemes, such as the:

a. National Registration and Accreditation Scheme for the health professions administered by the Australian Health Practitioner Regulation Agency (covering certain health practitioners)

b. Legal practice scheme for legal practitioners (under Legal Profession Acts or Legal Profession Uniform Law as adopted in certain states)

c. Licensing schemes prescribed under work health and safety laws (where there is AMR scheme)

d. Electrical trade work licences (where there is an AMR scheme in certain states for an equivalent registration)

e. National Recognition of Veterinary Registration for veterinarians (where there is AMR in certain states).

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NOTES ON CLAUSES

Clause 1: Short Title

1. Once enacted, the short title of this Bill will be the Mutual Recognition Amendment Act 2021.

Clause 2: Commencement

2. This clause provides that this Bill will commence on 1 July 2021.

Clause 3: Schedules

3. This clause is a technical provision which gives effect to the amendments contained in the Schedule. It provides that the legislation outlined in Schedule 1 is amended or repealed as set out, and has effect according to the terms of the Bill.

SCHEDULE 1—AMENDMENTS

Mutual Recognition Act 1992

Item 1 – Title

4. This item expands the long title of the MRA to include reference to activities, which is now defined in the Bill.

Part 1—Preliminary

Item 2 – section 3A – Simplified outline of this Act

5. This item inserts a new section 3A which includes a simplified outline of the purpose of the Act which is intended to assist readers to understand the substantive provisions of the MRA and its Parts, but is not comprehensive. Readers should rely on the substantive provisions. The item also outlines the power to enact this Act.

Items 3-15 – subsection 4(1) – Interpretation

6. These items amend, repeal, and insert a number of definitions in subsection 4(1), in alphabetical order.

7. Some defined terms are signposts that refer readers to the items in which those terms are substantively defined. Where a word is not defined, readers should rely on its ordinary meaning, when read in context of the provision it appears in as well as the Bill more broadly.

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Activity

8. The Bill defines activity, which is what a person is authorised to do under an occupation that requires registration.

a. The definition is central to AMR, where a person is entitled to carry on an activity in a second State (under an occupation that requires registration) if the person is authorised to carry on that activity (under an occupation that requires registration) in their home State.

b. The definition builds on the existing definition of occupation and registration (also prescribed in subsection 4(1)) to ensure that the specific registrations that have access to the MR and AMR schemes are consistent.

Automatic deemed registration

9. The Bill incorporates a new concept of automatic deemed registration, which is described in subclause 42D(3).

a. Central to AMR, the concept provides that a person is taken to be registered in a second State for an occupation for the purposes of carrying on an activity covered by that occupation.

b. The concept is used throughout Part 3A.

Commencement day

10. The Bill outlines that the new provisions will commence on 1 July 2021.

a. While it is intended that the provisions commence in all states and territories from 1 July 2021, a number of states (that do not provide an amendment referral) must adopt the amendments (once the amendments are enacted by the Commonwealth Parliament). In those states that have not provided an amendment referral prior to enactment the Bill, the provisions in the Bill come into effect when the amendments are adopted by those states.

Conditions

11. The Bill amends the definition of conditions to clarify that the term can be used in relation to occupations or registrations and means limitations or restrictions on the occupation or registration.

Covers

12. The Bill introduces and defines a new term covers. An occupation covers any and all activities a person is authorised to carry on under an occupation that requires registration.

a. The definition seeks to clarify the interaction between the concepts of activity, registration and occupation to ensure the scope of AMR is consistent with MR.

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b. For example, a plumber’s registration could cover plumbing and minor electrical work related to the activity of installing, maintaining and replacing a hot water heater. While in other states, these activities may be covered by multiple licences, such as a plumbing licence and a restricted electrical licence.

Deemed registration

13. The Bill removes the term deemed registration.

a. Deemed registration as a concept remains with minor amendment and is now called interim deemed registration. The intent of this change is to provide clear distinction between interim deemed registration and ADR.

First State

14. The Bill defines the term first State.

a. It has two meanings – the state of origin of goods in relation to Part 2, and the state of registration of an equivalent occupation in relation to Part 3.

Home State

15. The Bill introduces a new concept of home State, which is defined in subclauses 42A(3) and (4) as meaning a person’s principal place of residence, or principal place of work for an occupation, where the person is also registered for the occupation. The concept is used in Part 3A only.

Home State registration

16. The Bill introduces a new concept of home State registration, which is defined in paragraph 42D(1)(b) as meaning a registration in the person’s home State for an occupation that covers an activity. The concept is used in Part 3A only.

Interim deemed registration

17. The Bill amends the definition of deemed registration in section 25 and calls it interim deemed registration. In accordance with section 25, a person who has lodged a notice under section 19 with an LRA seeking registration for an equivalent occupation in a second State has interim deemed registration. The concept is principally used in Part 3. A signpost definition has been inserted into subsection 4(1) to direct the reader to subsection 25(2).

Local registration authority

18. The Bill includes a new legislative note under the definition of LRA in subsection 4(1) to clarify that an LRA is given additional functions under the MRA. These functions include the sharing of information between LRAs to facilitate the operation of the MR and AMR schemes.

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Mutual recognition principle

19. The Bill clarifies that the mutual recognition principle has a different meaning in relation to Part 2 (which deals with goods), Part 3 (which deals with MR of equivalent occupations) and Part 3A (which deals with AMR).

Participating jurisdiction

20. The Bill removes the definition of participating jurisdiction from subsection 4(1) and moves it, with amendment, to subsection 5(4).

Pre-adoption State

21. The Bill introduces a new concept pre-adoption State, which means a state that is a participating jurisdiction and that has not referred to the Commonwealth Parliament the power to amend the MRA in accordance with this Bill, and has not adopted the MRA as amended by this Bill.

a. Australian territories are excluded from this concept as the MRA as amended by this Bill will automatically apply in those jurisdictions, once passed by the Commonwealth Parliament, because of section 122 of the Commonwealth of Australia Constitution Act 1900 (Commonwealth Constitution).

Principal place of residence

22. The Bill introduces a new concept principal place of residence and defines it as the place of residence or home of a person, which the person primarily occupies on an ongoing or permanent basis.

a. For example, the principal place of residence for a fly-in fly-out worker living in State A who travels to State B to work, but who does not relocate to State B permanently, would be State A.

b. The concept is central to determining a person’s home State.

Principal place of work

23. The Bill introduces a new concept principal place of work in relation to an activity and defines it as the location where the person mainly carries on the occupation that covers that activity.

a. Drawing on the example above, the principal place of work for a fly-in fly-out worker from State A who travels to State B to carry on an activity covered by an occupation would be State B.

b. The concept is central to determining a person’s home State.

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Public protection requirement

24. The Bill defines the concept of public protection requirement (PPR) as a requirement regarding financial matters, such as insurance, fidelity funds, trust accounts, minimal financial requirements or the like, that is put in place to protect people.

a. The definition builds on the existing concept from paragraph 27(3)(a). The Bill also makes consequential amendments to that paragraph (see item 63).

b. The concept is central to both MR and AMR, in that a person must satisfy any such requirements (as specified in second State laws) to:

i. carry out an equivalent occupation in a second State under an interim deemed registration (in advance of obtaining a second State registration) or under a second State registration (in accordance with Part 3); or

ii. be taken to hold ADR to carry on an activity in a second State (in accordance with Part 3A).

c. A person must meet such requirements in addition to other second State laws in relation to carrying on activities in the second State (see subclauses 42B(2) and 42E(2)).

d. A PPR can also include various types of insurances, such as professional indemnity insurance.

Registration fee

25. The Bill includes a new definition of registration fee, which is further defined in subclause 42K(2).

Requirements

26. This item repeals the existing definition of requirements and substitutes it with a new definition, which provides that requirements:

a. when used in relation to goods, means requirements, prohibitions, restrictions or conditions; and

b. when used in relation to secrecy, privacy or confidentiality, means laws, binding administrative arrangements, directions or other limitations, protections or processes.

27. This item does not change the existing meaning of requirements in relation to goods. The additional meaning of requirements that this item adds is necessary to make clear that references to secrecy, privacy or confidentiality requirements includes not only laws relating to these matters but — in states that do not have privacy laws — also includes binding administrative arrangements etc relating to secrecy, privacy or confidentiality.

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Second State

28. The Bill builds on the existing concept of second State in sections 8 and 16, by including a third definition that applies for the purposes of Part 3A. Second State for Part 3A is defined in subclause 42A(2) as another state other than the home State in which a person is able to carry on an activity covered by an occupation.

a. For example, where a resident of State A carries on an occupation or an activity under an occupation in State B under Part 3A, State B is the second State.

Second State occupation

29. The Bill introduces a new concept second State occupation, which is defined in paragraph 42D(1)(c) as the occupation that a person must be registered for in the second State in order to carry on an activity covered by the occupation for which they have home State registration.

Substantive registration

28. The Bill amends the definition of substantive registration, taking into account the new concepts of interim deemed registration and ADR, and the removal of the term deemed registration, consistent with other amendments to subsection 4(1).

Vulnerable person character test

29. The Bill introduces the concept of vulnerable person character test, which is defined as a character test or a fit or proper person test, used to determine whether a person can carry on an activity in relation to children, young people or vulnerable people.

a. The new concept is fundamental to the safeguards in AMR, in that a person must satisfy the requirements of the test before and during the carrying on of an activity under an occupation in a second State to gain and maintain ADR, if required by the laws of the second State.

b. While the term vulnerable person is not separately defined, it may take the meaning as defined in state laws or generally be taken to mean an individual aged 18 years and above who is or may be unable to take care of themselves, or is unable to protect themselves against harm or exploitation by reason of age, illness, trauma or disability, or any other reason.

Item 16 – section 5 – Application of this Act to States

30. This item inserts a new subsection 5(3), which provides that the amendments made by this Bill do not apply to a pre-adoption State (defined in subsection 4(1)). This means that an unamended version of the MRA will continue to apply to any pre-adoption State until that state adopts the amendments made by this Bill. The version of the MRA that is amended by this Bill will apply on commencement of the Bill in the Australian Capital Territory and the Northern Territory and any state that refers power to the Commonwealth to enact the amendments made by this Bill before the Bill is enacted.

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a. This provision preserves the existing MR scheme in a state, in advance of the state adopting the amendments to the MRA in this Bill.

31. This item also moves the definition of participating jurisdiction from subsection 4(1) to subsection 5(4). The item makes minor amendments to the definition, but does not substantively change the existing definition in subsection 4(1). The new definition provides that a participating jurisdiction is:

a. a state that has referred power to the Commonwealth to enact the MRA as originally enacted or that has adopted the MRA as originally enacted; or

b. a territory that has requested the Commonwealth to enact the MRA as originally enacted or that enables this Act as originally enacted to apply to it.

32. In other words, a participating jurisdiction is a state or territory in which the MRA currently applies, which is every Australian state and territory.

33. These new provisions provide for pre-adoption States to adopt the AMR scheme at different times. A person in a pre-adoption State, or a person who wants to work in a pre-adoption State, does not have access to AMR but can rely on MR under Part 3.

Part 2—GoodsItems 17, 18 and 19 – section 8 and subsections 8(1), 8 (2), 8(3) – Mutual recognition

34. Item 17 amends the heading to section 8 to clarify that the section applies to the MR for goods.

35. Items 18 and 19 make minor technical amendments to create in text definitions of the terms mutual recognition principle, first State and second State to improve readability.

Part 3—OccupationsDivision 1—Preliminary

Items 20, 24 and 25 – sections 16 and 17, and Part 3 Division 2 (headings)

36. These items update the headings to sections 16 and 17, and Part 3 Division 2 to include reference to equivalent occupations. These changes help to distinguish between MR (dealt with in Part 3) and AMR (dealt with in the new Part 3A).

Items 21-23 – subsections 16(1), (2) and (3) – Mutual recognition

37. Items 21 and 22 amend subsection 16(1) to clarify that the provision relates to equivalent occupations and to insert a new legislative note at the end of the subsection to clarify that Part 3A provides for MR of activities covered by occupations.

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38. Item 23 makes minor technical amendments to create in text definitions of the terms first State and second State to improve readability.

Division 2—Entitlement to registration

Items 26-33 – subsection 19(1), paragraphs 19(2)(c), 19(2)(e), 19(2)(f), 19(2)(g) and 19(2)(h), and the end of subsections 19(2) and 19(5) – Notification to local registration authority

39. Section 19 enables a person seeking registration for an equivalent occupation to lodge a notice with the relevant LRA and prescribes certain matters that must be contained in the notice.

40. Item 26 amends subsection 19(1) to clarify that the provision relates to MR of equivalent occupations in the second State. This helps to distinguish between MR and AMR.

41. Item 27 repeals paragraph 19(2)(c) and replaces it with new paragraphs 19(2)(c) to (cb), which require a person, in completing a notification to an LRA for an equivalent occupation in the second State under section 19, to list all the states in which the person has substantive registration, interim deemed registration and ADR.

42. Item 28 amends paragraph 19(2)(e) to clarify that a person, in completing a notification to an LRA for an equivalent occupation in the second State under section 19, must also declare that their interim deemed registration and ADR in a state is not cancelled or currently suspended as a result of disciplinary action.

a. This new requirement is in addition to the existing notification requirement for a person’s substantive registration.

b. If a person’s ADR is cancelled or suspended, the person’s substantive registration and any interim deemed registration the person holds is also cancelled or suspended (clause 42M).

43. Item 29 removes the word ‘special’ from paragraphs 19(2)(f) and 19(2)(g) to clarify that a person is required to notify a second State of all conditions on their substantive registration, and not just special conditions. The requirement to notify a second State is not intended to extend to all standard conditions that are imposed by regulation that all registration holders must comply with.

44. Item 30 makes a consequential formatting amendment to paragraph 19(2)(g), because of the repeal of paragraph 19(2)(h).

45. Item 31 repeals paragraph 19(2)(h), which requires a person giving a notice to an LRA under section 19 to give consent to the making of inquiries and exchange of information with relevant state authorities regarding the person’s activities in those states. Consent is not necessary to empower an LRA to make inquiries or exchange information as such activities are reasonably necessary for its functions of registering a person, and are authorised or required by law. For instance, existing sections 37 and 38

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and new clauses 42N, 42P and 42V enable an LRA to provide and receive information as part of performing its registration functions.

46. Item 32 inserts a new legislative note under subsection 19(2) to clarify that one or more steps must be taken before ADR begins, as outlined in subclauses 42D(3) and (4).

47. Item 33 inserts the ability for an individual notifying under section 19 to do so via another method agreed by an LRA. The intent of this provision is to enable a state to make this process technology neutral, thereby enabling electronic signature on forms rather than the existing process which involves hardcopy statutory declarations.

Items 34-36 and 38-49 – sections 20 to 24

48. These items make editorial amendments to sections 20 to 24 to clarify that references to registration in these sections are references to registration under Part 3. These sections outline the entitlement to registration, actions following notice, postponement of registration, refusal of registration and notification of a decision in relation to MR. These amendments help to distinguish between MR and AMR.

Item 37 – section 20 – Entitlement to registration and continued registration

49. This item inserts new subsection 20(4A) to clarify that a law imposing a PPR (as defined in subsection 4(1)) is not a law based on the attainment or possession of a qualification or experience relating to the fitness to carry on the occupation. This means a person registered in a second State under Part 3 must comply with any law of the second State that imposes a PPR requirement. A PPR has always been a requirement that must be met by a person prior to and during working in a second State under their registration received in accordance with Part 3.

Division 3—Interim arrangements

Items 50-62 and 64-66 – sections 25-27

50. These items make editorial amendments to sections 25 to 27 as a consequence of repealing the definition of deemed registration, and replacing it with interim deemed registration. These sections outline interim registration arrangements, including duration of registration and activities that can be carried out under interim deemed registration, once a person has submitted a notice to a second State LRA seeking MR of their occupational registration in accordance with section 19. These amendments help to distinguish between MR and AMR.

Item 63 – paragraph 27(3)(a) – Activities under deemed registration

51. This item makes editorial amendments to subsection 27(3)(a) as a consequence of establishing the definition of PPR, for the existing concept that a person who works in a second State must meet a range of financial requirements, such as insurance, fidelity funds, trust accounts, minimal financial requirements or the like.

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Division 4—Equivalent occupations

Item 67 – subsection 29(2) – General principles

52. This item makes an editorial amendment to subsection 29(2) to clarify that, in accordance with Part 3, conditions may be imposed on a registration to achieve equivalence. The amendment is necessary to distinguish between MR and AMR as conditions cannot be imposed on a person’s ADR under Part 3A (see new clause 42F).

Division 5—General provisions

Items 68-70 – subsections 33(2) and 33(3) – Disciplinary action

53. Item 68 inserts new subsections 33(2A), (2B) and (2C). Subsection (2A) provides that if a person’s registration for an occupation in a state is cancelled, suspended or subject to a condition and the LRA knows that the person is registered for an equivalent occupation in another State, the LRA must, without delay, inform the LRA for the equivalent occupation of the cancellation, suspension or condition. This is in addition to existing sections 37 and 38, which allow an LRA to request certain information from another LRA in relation to MR.

54. Subsection (2B) clarifies that when an LRA is sharing information with another LRA under subclause (2A), it does not have to comply with requirements relating to secrecy, privacy or confidentiality (see definition of ‘requirements’ in subsection 4(1) as amended by item 12).

a. This limitation on the operation of secrecy, privacy and confidentiality requirements is necessary to enable LRAs to perform their registration functions by sharing information relevant to a person’s registration and is consistent with existing sections 37 and 38.

55. Subsection (2C) clarifies that nothing in section 33 affects any other obligation or power to provide information that might be imposed on the other LRA. For example, an LRA could be compelled by a court or tribunal to provide information in relation to a proceeding a person commences to challenge the cancellation or suspension, and that information could be subject to confidentiality orders.

56. Items 69 and 70 amend subsection 33(3) to clarify that this subsection does not apply in relation to ADR and inserts a new legislative note to remind the reader that rules relating to cancellations etc in relation to ADR are dealt with in clauses 42G and 42M. The amendment is necessary to distinguish between MR and AMR.

Item 71 – subsection 34(1) – Review of decisions

57. This item amends subsection 34(1) to clarify that a person can make an application to the Administrative Appeals Tribunal (AAT) for a review of a decision made under Part 3 (which deals with MR) or under subclause 42F(3), paragraph 42G(2)(b) or subclause 42M(2) (which deal with decisions made by LRAs under Part 3A in relation to AMR). This means that a person can seek AAT review of a decision by an LRA

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under Part 3A to not reinstate a home State registration (when the person’s ADR has been suspended or cancelled in a second State), to not waive a condition imposed on the person’s home State registration when working in the second State under ADR, or to cancel or suspend a registration because the person has provided false or misleading information to another LRA.

a. The ability to seek a review of decisions made by LRAs in accordance with the Bill is consistent with the review provisions for LRA decisions made in accordance with Part 3.

b. Decisions made by LRAs under state licensing laws, such as the cancellation and suspension of a person’s ADR (with the exception of 42G(2)(b)) are generally reviewable in accordance with the Acts of that state.

Item 72 – section 36 – Residence or domicile

58. This item makes editorial amendments to section 36 to clarify that the concept of residence or domicile applies to Part 3 only. The amendment does not change the application of the concept, meaning that a person’s residence is not taken to affect the consideration of a second State registration under Part 3. The amendment is necessary to distinguish between MR and AMR.

Items 73-76 – subsections 37(1)-(3) – Furnishing information

59. Item 73 makes an editorial amendment to clarify that an LRA must provide another LRA with information in relation to MR under Part 3 when requested ‘as soon as reasonably practicable’. This new wording is consistent with the wording in new clause 42V which requires an LRA to provide information in relation to AMR under Part 3A to another LRA when requested as soon as reasonably practicable.

a. The requirement to provide information ‘without delay’ will apply to information an LRA is required to give to another LRA (regardless of whether it is requested) – see new subclauses 33(2A), 42N(2) and 42P(2).

60. Items 74 and 75 make editorial changes to subsection 37(2) and paragraphs 37(2)(a) to (2)(c) to clarify that these provisions relate to information sharing in relation to registration under Part 3, including updating terminology from deemed registration to interim deemed registration. The amendments do not change the information required to be provided to the LRA and help to distinguish between MR and AMR.

61. Item 76 makes two amendments to subsection 37(3):

a. First, it includes reference to privacy (in addition to the existing reference to secrecy and confidentiality) to ensure consistency with terminology used by states in relation to personal information.

b. Second, it changes the reference to ‘laws’ to ‘requirements’ (see definition of requirements in subsection 4(1) as amended by item 12). Similar terminology is used in AMR (see new clauses 42M, 42N, 42P and 42V).

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Item 77 – section 38 – Receiving information

62. This item repeals section 38, which deals with the application of secrecy and confidentiality laws when an LRA receives information under section 37.

63. This item replaces section 38 with a new section, which is similar to existing section 38, with changes to:

a. Make clear this section applies where an LRA receives information under either section 33 or 37.

b. Include reference to privacy (in addition to existing references to secrecy and confidentiality) to ensure consistency with terminology used by states in relation to personal information.

c. Amend the reference to ‘laws’ to refer instead to ‘requirements’ (see definition of requirements in subsection 4(1) as amended by item 12). Similar terminology is used for AMR (see new clauses 42M, 42N, 42P and 42V).

d. Clarify that the information received by an LRA under this section could be used for the purposes of a person’s substantive registration (whether under Part 3 or otherwise), interim deemed registration and ADR in the state. Information shared between LRAs for the purposes of AMR under Part 3A can be used for similar purposes (see new clauses 42N and 42P).

Items 78-80 – subsections 39(1) to (3) – General responsibilities of local registration authorities

64. Items 78 and 79 amend subsections 39(1) and (2) to insert new subheadings to improve readability. The amendments do not change the responsibilities of LRAs.

65. Item 80 amends subsection 39(3) to include a new requirement for LRAs to communicate publicly how personal information will be used for the purposes of MR. This amendment supports consistency with the Commonwealth privacy principles by ensuring an individual that participates in MR is aware that their personal information may be used (including shared between LRAs across states) for the purposes of registration and disciplinary action (refer sections 37 and 38). For example, an LRA could develop a policy about how the LRA will manage and use personal information and make that policy public.

a. A similar requirement applies to AMR (see clause 42W).

Items 81-83 – subsections 40(1) to (3) – Fees

66. These items make editorial changes to subsections 40(1), (2) and (3) as a consequence of the new term interim deemed registration. The amendments clarify that the fees that an LRA can charge under section 40 relate to interim deemed registration and substantive registration. The amendments do not change what fees can be charged, or the limitations on those fees, and help to distinguish between MR and AMR.

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Items 84-85 – subsection 41(1) – Formalities requiring personal attendance

67. These items make editorial amendments to subsection 41(1) as a consequence of the new term interim deemed registration. The amendments clarify that a person is not required to physically travel to the second State to obtain interim deemed registration or registration in accordance with MR. The amendments do not change the formalities regarding personal attendance.

Item 86 – section 42 – Saving

68. This item adds a new legislative note at the end of section 42 to clarify that there is nothing in Part 3 to prevent a person from seeking or holding registration under other legal provisions.

a. For example, a person could hold substantive registration in one state, interim deemed registration for an equivalent occupation under Part 3 in another state and ADR in a third state for an activity covered by an occupation under Part 3A.

Part 3A—Automatic deemed registration to carry on activities covered by occupationsItem 87 – clauses 42A to 42X

69. This item inserts Part 3A, which provides for AMR. The structure of Part 3A is

broadly based on Part 3.

70. In the notes on clauses to Part 3A, a reference to a state is a reference to a state that is not a pre-adoption State, and a reference to an LRA is a reference to an LRA in a state other than a pre-adoption State, unless otherwise stated.

a. A pre-adoption State is defined in subsection 4(1).

Division 1—Preliminary

Clause 42A – Mutual recognition—activities covered by occupations

71. This clause states that the MR principle as applying to activities covered by occupations is as set out in Part 3A (subclause (1)). Part 3A deals with AMR, which enables a person who is registered for an occupation in their home State to carry on an activity covered by an occupation in another state (called the second State) (subclause (2)). This clause is similar to section 16 in Part 3.

a. The MR principle applies differently in relation to goods under Part 2 and in relation to MR for equivalent occupations in Part 3.

72. A person’s home State for an occupation is the state in which the person is substantively registered for the occupation and either has their principal place of residence or principal place of work for the occupation (subclause (3)).

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73. Where a person’s principal place of residence and principal place of work are different, and the person is substantively registered in both states, the person’s home State is whichever of those two states the person chooses for the occupation (subclause (3)).

a. For example, a person who lives in and is registered in State A but who conducts the activity under the occupation in State B under a State B registration could choose either State A or State B as their home State for the purposes of conducting the activity under the occupation in State C.

74. The definition of home State applies in relation to Part 3A only and is intended to be distinct from the definition of first State, which is used in Parts 2 and 3.

75. It is the intention that states will be able to confirm a person’s home State with reference to objective criteria.

76. Subclause (4) ensures a person can continue to have ADR if they move to a different state, or if their principal place of work changes. In this circumstance, a person’s previous home State can continue to be the person’s home State for the purposes of ADR (until the person obtains a substantive registration in the new state) provided the person maintains their previous home State registration and holds interim deemed registration in the new state. This provision is intended to operate as a short term transitional measure where people are in the process of moving to a new home State.

a. For example, a registered person lives in, and is registered in, State A. The person’s home State is State A and they hold ADR in State B. The person decides to move to State C and gives notice to the LRA in State C seeking registration for an equivalent occupation. This means the person has interim deemed registration in State C. When the person moves to State C, the person will continue to have ADR in State B and their home State for that ADR will continue to be State A. Once the person obtains substantive registration in State C, that State will be the home State for the purposes of the person’s ADR in another state, which could be State A and State B.

77. A person’s interim deemed registration in one state does not of itself provide a basis for registration in another state (see subsection 25(3) as amended by item 54). One effect of this is that a state in which a person has interim deemed registration cannot be the person’s home State for the purposes of ADR.

78. A reference to ‘State’ in Part 3A is taken to be a reference to a state other than a pre-adoption State (defined in subsection 4(1)), unless the phrase ‘any State’ is used (see clause 42C(3)). This means that references to home State and second State in Part 3A are references to States other than pre-adoption States.

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Clause 42B – Entitlement to carry on activities covered by occupations in a second State

79. This clause provides that a person who can carry on an activity under an occupation in their home State can carry on that activity in the second State if the activity is covered by an occupation in the second State, subject to the obligations and limitations imposed by Part 3A (subclause (1)).

80. However, the person will be subject to local laws in the second State that regulate how the activity is carried on, so long as those laws apply equally to all persons undertaking the activity in that state and do not require the person to obtain additional qualifications or have additional experience to carry on the activity (subclause (2)). This maintains existing safeguards in state laws that apply to particular occupations and maintains the MR concept that a second State must recognise the registration from the first State or the home State.

81. This clause is similar to section 17 in Part 3.

Clause 42C – Application of this Part

82. This clause clarifies how Part 3A applies. It provides that Part 3A applies to individuals (not bodies corporate) and the activities those individuals carry on that are covered by occupations (subclause (1)). This clause is similar to section 18 in Part 3.

83. If the individual is subject to more than one system of registration, or more than one LRA, in a state, this Part applies to each system of registration (subclause (2)).

84. In Part 3A, a reference to ‘State’ does not include a pre-adoption State, which is defined in subsection 4(1), unless the expression ‘any State’ is used (subclause (3)).

Division 2—Entitlement to automatic deemed registration

Clause 42D – Entitlement to automatic deemed registration

85. This clause establishes when a person is entitled to ADR. The clause applies if a person can carry on an activity covered by an occupation in their home State under a registration (their home State registration) and in order to carry on the activity in a second State the person would have to be registered in the second State for an occupation (the second State occupation) (subclause (1)).

86. In this circumstance, the person is automatically taken to be registered in the second State for the second State occupation (paragraph (2)(a)) and is also automatically taken to have any additional registration required to carry on the activity in the second State (paragraph (2)(b)). This is called ADR.

87. Under ADR, a person is automatically entitled to carry on the activities in a second State that the person can carry on in their home State. ADR does not authorise a person to carry on every activity covered by the second State occupation. This ensures that the activities a registered person can perform in a second State are the same as the scope

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of activities they are authorised to carry on in their home State, providing an essential safeguard for workers and the public.

a. For example, in State A a plumber’s licence authorises a person to perform general plumbing work as well as incidental electrical work, while in State B, a plumber must have a plumber’s licence and a restricted electrical licence in order to perform the same range of activities.

b. Under Part 3A, a plumber from State A could carry on the full range of activities in State B that they can carry on under their State A plumbing licence. This is because the plumber is automatically taken to be registered for a plumbing licence in State B, and a restricted electrical licence in State B.

c. Similarly, a plumber from State B could carry on the full range of activities in State A that they can carry on in State B under their State B plumbing and restricted electrical registrations. This is because the plumber is automatically taken to be registered for a plumber’s licence in State A.

d. If a plumber from State B does not have a restricted electrical licence, when working in State A they would not be able to carry on the activities authorised under that registration.

88. Subclause (3) clarifies when a person’s ADR starts. It provides that:

a. If a person is required to:i. comply with laws of the second State that require the person to meet any

PPR (defined in subsection 4(1)); and or ii. comply with laws of the second State that require the person to satisfy a

working with vulnerable people test (defined in subclause 4(1)); and oriii. notify an LRA in a second State before commencing work under clause 42J

the person’s ADR in the second State starts once the person satisfies any and all of these requirements that apply to the person in the second State.

b. If none of those requirements apply to the person — the person’s ADR begins when the person begins to carry on the activity in the second State.

89. There are circumstance in which a person does not have ADR, which are outlined in subclause (4). The list is exhaustive and is intended to provide important safeguards. The exclusions to ADR are similar to the exclusions in MR. The circumstances are:

a. The person is subject to criminal, civil or disciplinary proceedings in any state (including a pre-adoption State) and has been informed or is otherwise aware of those proceedings. The reference to disciplinary proceedings is intended to capture the activities of a LRA, rather than an employer for example, and includes preliminary investigations (paragraph (4)(a)).

b. Any registration the person is required to have to carry on the activity, or an occupation that covers the activity, in any state (including a pre-adoption State) is cancelled or currently suspended as a result of disciplinary action (paragraph (4)(b)). This includes cancellation of the person’s substantive registration(s), interim deemed registration or ADR in another state.

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c. The person is prohibited from carrying on the activity or the occupation that covers the activity or is subject to any conditions in carrying on the activity because of civil, criminal or other disciplinary proceedings in any state (including a pre-adoption State) (paragraph (4)(c)).

d. The person is refused registration in any state (including a pre-adoption State) for the occupation that covers the activity (paragraph (4)(d)).

e. The person is authorised otherwise than under this Part to carry on the activity in the second State, for example under a national registration scheme, state model laws or state AMR scheme or because the person has interim deemed registration under Part 3 to carry on the activity in the second State (paragraph (4)(e)).

f. The person fails to meet a PPR or satisfy a vulnerable person character test required by the law of the second State before, or while, carrying on the activity, or fails to provide evidence of this (paragraphs (4)(f)-(g)).

g. If a determination is in place under clause 42J requiring the person to notify the LRA for the second State occupation before working in the state under ADR – the person fails to notify the LRA or fails to notify the LRA if their home State changes (paragraph (4)(h)).

h. The person fails to provide information requested by an LRA, including information to confirm a person’s home State (under clause 42U) or information required by a law of a second State relating to carrying on the activity (paragraph (4)(j)).

90. The Bill includes a legislative note outlining that exclusions to ADR also occur where states exempt specified registrations from ADR in certain circumstances (see clauses 42S and 42T).

91. ADR in one state does not of itself constitute a basis for registration in another state (subclause (5)). If a person wants to obtain substantive registration in a second State, they will need to comply with registration requirements in that state. For example, a person could seek to obtain a second State registration in accordance with the process outlined in Part 3 or otherwise.

Clause 42E – Person may carry on activities in second State

92. This clause clarifies that a person can only carry on an activity in a second State under ADR to the extent that they can carry on that activity in their home State under their home State registration (subclause (1)).

a. This is an avoidance of doubt provision that ensures the scope of activities a person can carry on in a second State is the same as the scope of activities the person can carry on in their home State.

93. Consistent with clause 42B(2), the person is subject to certain local laws of the second State that apply equally to all persons and that are not based on the attainment or possession of a qualification or experience (subclause (2)). This maintains existing safeguards in state laws that apply to particular occupations and maintains the MR

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concept that a second State must recognise the registration from the first or home State.

94. To avoid doubt, a person working in a second State under ADR would be required to comply with a law in the second State imposing a PPR or requiring a person to satisfy a working vulnerable character test (defined in subsection 4(1)) (subclause (3)). The legislative note under subclause (3) reminds the reader that a person would not be entitled to ADR if they failed to do so (see paragraphs 42D(4)(f) and (g)).

Clause 42F – Conditions on automatic deemed registration

95. This clause makes clear that a second State cannot impose any additional conditions on a person’s ADR (subclause (4)). For example, a second State cannot impose conditions limiting the activities a particular person can carry out under that person’s ADR in the state. This gives effect to the ‘automatic’ nature of ADR.

96. However, this clause provides that any condition or undertaking that applies to a person’s registration in their home State also applies to the person in the second State (paragraph (1)(a)).

a. For example, a registered person in State A is unable to carry out an activity at night because there is a condition on their home State registration preventing this. In accordance with this clause, the condition imposed in State A would automatically apply to the person’s ADR in State B and the person could not carry out the activity at night in State B under ADR.

97. A person’s ADR is also subject to any condition or undertaking that applies to any additional registration the person requires to carry on the activity (paragraph (1)(b)).

a. For example, if a person requires both a plumbing licence and restricted electrical licence to carry out an activity in their home State, the person’s ADR in a second State would be subject to any conditions placed on their plumber’s licence and any conditions placed on their restricted electrical licence.

98. Any such condition or undertaking is taken to be imposed by the second State (subclause (2)). One effect of this is that the second State can enforce the condition and take disciplinary action if the person fails to comply with the condition.

99. Consistent with MR under Part 3, an LRA in the second State can choose to waive any condition on a person’s ADR if it thinks it is appropriate (subclause (3)).

a. A person can seek AAT review of a decision under subclause (3) not to waive any condition on a person’s ADR (see subsection 34(1) as amended by item 71).

100. This clause does not relate to disciplinary conditions on a person’s registration. If a person’s home State registration is subject to conditions as a result of criminal, civil or disciplinary proceedings, they are not eligible for ADR (see clause 42D(4)(c)).

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101. Importantly, a person carrying on an activity in a second State under ADR must comply with local laws in the second State that place general limitations on people carrying on the activity. They must also comply with general conditions that apply to all people working under the second State registration that covers the activity (see the legislative note to subclause (4)).

a. For example, if a local law in a second State requires all individuals carrying on an activity in the state to comply with a particular rule (however described), a person performing the activity in the state under ADR would have to also comply with that rule.

Clause 42G – When automatic deemed registration ends

102. Generally, once a person starts carrying on an activity in a second State, the person’s ADR carries on indefinitely. However, this clause clarifies that a person’s ADR to carry on an activity will end if one of the following circumstances occurs:

a. The person is no longer authorised to carry on the activity in their home State (paragraph (1)(a)).

b. The person no longer has ADR because of one of the circumstances listed in subclause 42D(4) (which lists circumstances when a person does not have ADR) (paragraph (1)(b)).

c. The person becomes substantively registered for the second State occupation (paragraph (1)(c)).

d. the person’s ADR is cancelled or suspended by an LRA in a second State because the person requests the cancellation (paragraphs 1(d) and 2(a)), or because the person has provided false or misleading information to another LRA in any state (including a pre-adoption State) (paragraphs 1(d) and(2)(b)).

103. A person can seek AAT review of a decision of an LRA under paragraph (2)(b) to cancel or suspend a person’s ADR because the person provided false or misleading information to an LRA (see subsection 34(1) as amended by item 71).

104. Clauses 42N, 42P and 42V are intended to allow LRAs to share information about when a person’s ADR ends.

Clause 42H – Operation of State laws regarding registration

105. This clause outlines how state laws are interpreted in relation to a person with ADR. It provides that:

a. A reference in a state law to a person being registered (or previously registered) for the second State occupation includes a reference to a person carrying on an activity covered by that occupation in that state under ADR (or previous ADR) (subclauses (1) and (4)). For example, a reference in a state law to a person holding a real estate agent licence in that state is taken to include a reference to a real estate agent who has ADR to work in the state.

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b. A reference in a state law to a person’s registration (or previous registration) in another state does not include a reference to ADR (or previous ADR) (subclauses (3) and (4)). For example, a reference in a law of State A to a person who holds a teacher’s licence in State B does not include a teacher’s ADR to work in State A, even if the person is substantively registered in State B.

c. A person who has ADR (or previously had ADR) in a state is taken to have (or have had) registration under the law of that state, rather than under Part 3A (subclauses (2) and (4)). For example, a person who has ADR in a state is taken to be registered under the laws of that state.

106. This clause extends to references to a registration however described in state law. For example, this clause could apply to a reference in a state law to a person holding a particular type of licence.

107. The effect of these provisions is that a person working in a second State under ADR is treated the same as a person who has substantive registration in that state.

a. For example, an architect in State A commences work under ADR in State B. State B prohibits an architect from advertising in that state unless the person is registered under State B’s law. In accordance with this Part, the architect’s ADR is taken to be a local registration under State’s B laws, and the architect could advertise in State B.

b. A second State could also take any disciplinary or enforcement action against a person working in the state under ADR that the state could take against the holder of a substantive registration in the state.

c. Similarly, an LRA in a second State that has taken enforcement action against a person in response to the person’s conduct in the state while working under ADR could also take action to recover costs from the person associated with the enforcement action under the laws of that state, even if the person no longer has ADR in that state.

108. A legislative note is included in this subclause to clarify that another effect of this provision is that a decision of an LRA in a state in relation to a person’s ADR is generally reviewable in accordance with the Acts of that state.

Clause 42J – Notification for automatic deemed registration

109. Generally, a person does not have to notify an LRA in a second State, or provide the LRA with any information, before carrying out an activity in the state under ADR. This is to give effect to the ‘automatic’ nature of ADR. However, this clause gives state Ministers the power to determine, by legislative instrument, that certain registrations require notification (subclause (4)).

110. Where a state Minister has made such a determination, a person must notify the relevant LRA in that state if they intend to carry on an activity under ADR (subclause (1)). The person will not be entitled to ADR in that state until they have provided this notification (see subparagraph 42D(4)(h)(i)).

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111. LRAs can determine the form of the notification. This separation of roles ensures appropriate scrutiny by Ministers about what registrations require notification, while also providing flexibility in the administration of the AMR scheme.

112. The LRA can only require notification of the following matters:

a. A matter that is listed in section 19 (which deals with matters that a person must notify an LRA of when seeking registration for an equivalent occupation under Part 3).

b. Evidence of meeting a PPR, or satisfying a vulnerable person character test (defined in subsection 4(1)), that applies in the LRA’s state (subclause (2)).

113. For example, the notification could include a requirement for the person to list each state in which the person has substantive registration, interim deemed registration or ADR as these are matters listed in paragraphs 19(2)(c) to (cb) (see item 27).

114. A person is not required to pay a fee to the LRA in relation to the notification (subsection (3)). This supports individuals to take up work quickly, wherever it arises, without additional cost.

115. A determination made by a state Minister under this clause is not subject to disallowance under the Legislation Act 2003. This is because the determination would facilitate the operation of an intergovernmental scheme, and is therefore not subject to disallowance under subsection 44(1) of that Act.

116. The standard sunsetting period of 10 years applies to a determination made by a state Minister under this clause, consistent with subsection 50(1) of the Legislation Act 2003 and despite subsection 54(1) of that Act (subclause (5)). This means the declaration will cease to operate 10 years after it is made.

Clause 42K – No fee for automatic deemed registration

117. This clause makes clear that a person cannot be required to pay a registration fee in order to work in a second State under ADR (subclause (1)). This is essential to achieve the objective of the Bill to broaden opportunities for individuals to take up employment across jurisdictions without encountering additional cost.

118. A registration fee is a fee (however described) paid by a person in order to obtain or maintain their registration (paragraph (2)(a)), or a fee payable to an LRA to support the LRA’s general compliance activities in relation to the person’s ADR (paragraph (2)(b)).

119. However, the definition does not include the following types of fees (and therefore a person can be required to pay these types of fees in relation to ADR):

a. a fine, penalty or legal cost (subparagraph (2)(b)(i)); orb. a fee payable to an LRA for a specific and identifiable compliance action taken

in relation to the carrying on of an activity (subparagraph (2)(b)(ii)); or

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c. a fee relating to a PPR or a vulnerable person character test, whether required to be paid to an LRA or another body (subclause (2)).

120. The Bill includes a legislative note to explain the concept of a specific and identifiable compliance action. The example outlines where a person performing work in a second State under ADR could be required to pay for an inspector to provide a certificate of compliance at a building site. This is because it is a fee for a specific and identifiable compliance action taken in relation to the activities a person carries on in a second State under ADR.

a. Other examples of fees that are payable for specific and identifiable compliance action taken in relation to a person’s ADR include:i. inspection and re-inspection fees;

ii. fees associated with recovering remediation costs, in addition to the remediation costs; and

iii. fees associated with obtaining permits.

121. An LRA in a second State could not charge a person working in that state under ADR any fee in relation to verifying the person’s eligibility for ADR as this is a fee payable to an LRA to support the LRA’s general compliance activities in relation to the person’s ADR and is therefore a registration fee within the meaning of paragraph (2)(b).

122. The word ‘fee’ is intended to be read broadly and could include a levy or a payment, however described under state law.

Clause 42L – Evidence of automatic deemed registration

123. This clause outlines what constitutes evidence of ADR and when a person can be required to provide that evidence.

124. Evidence of a person’s home State registration is taken to be evidence of the person’s ADR to carry on that activity in the second State (paragraph (1)(a)). For example, (in accordance with the laws of the home State) the types of evidence a person could rely on as evidence of ADR could include a registration card, a licence number, an accreditation certificate, and other digital forms of registration (such as a recording on a public register or electronic notification of registration from an LRA).

125. In the instance that a second State LRA requests evidence of registration a person may provide evidence of their home State registration (paragraph (1)(b)). A legislative note is included in this clause to provide the example of the requirement in some state laws to include a registration number in advertising. The note outlines that a person carrying on an activity under ADR could rely on their home State registration number for such purposes.

126. Despite a law of a state, an LRA is not required to give a person evidence of their ADR (such as a licence, approval or certification), or put the person’s name on a register (but can choose to do so) (subclauses (2) and (3)). This supports individuals to

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take up work quickly wherever it arises and minimises the administrative burden on LRAs.

127. If an LRA does not provide a person with evidence of registration in the second State, or does not put the person’s name on a register, for the purposes of Part 3A, the person is taken to hold evidence of registration and/or be named on a register in the second State (subclauses (2) and (3)).

128. Consumers will be able to verify that an individual is authorised to carry on an activity under an occupation by looking at publicly available information about that person’s home State registration or by contacting the person’s home State LRA.

Clause 42M – Disciplinary action in relation to automatic deemed registration

129. This clause explains the effect of disciplinary action on a person’s ADR and other registrations, including interim deemed registration. It is similar to section 33 in Part 3.

130. Under this clause, if a second State cancels or suspends a person’s ADR, or the person’s ADR ends as a result of, or in anticipation of, criminal, civil or disciplinary proceedings, any substantive registration or interim deemed registration the person holds in any other state for an occupation that covers the activity is affected in the same way (subclause (1)). This ensures that a person who cannot safely or adequately perform work under ADR is prevented from working under their substantive or interim deemed registrations in other states as well.

a. For example, a person carrying on an activity in a second State under ADR does not comply with laws for the manner in carrying on the activity resulting in damage to important infrastructure. The LRA in the second State informs the person that an investigation is underway. Immediately, the person’s ADR ends (see paragraphs 42G(1)(b), 42D(4)(a)). Under clause 42M, the person’s substantive registration for the occupation covering the activity in their home State would also end, as would any interim deemed registration the person held in another state.

131. Clause 42G sets out when a person’s ADR ends, which includes the circumstances listed at subclause 42D(4).

132. Another effect of this clause is that a decision of an LRA in a state in relation to a person’s ADR is generally reviewable in accordance with the laws of that state.

133. An LRA can choose to reinstate any substantive registration or interim deemed registration that has been cancelled or suspended as a result of subclause (1) if it thinks it is appropriate (subclause (2)). Although, it is important to note that a person’s ADR in other states will still be affected, even if the home State has reinstated the person’s substantive registration (see paragraph 42D(4)(b)).

a. For example, State A suspends a person’s ADR on disciplinary grounds. As a result, the person’s substantive registration in their home State (State B) is also suspended (subclause 42M(1)). The home State decides to reinstate the

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person’s substantive registration under subclause 42M(2). However, the person still cannot work in State A under ADR, or in State C, D etc under ADR, because the person’s ADR in State A is still suspended on disciplinary grounds, meaning they do not have ADR in any state under paragraph 42D(4)(b). In this circumstance, the person would need to resolve the suspension with State A. If State A lifted the suspension, the person could have ADR in State A and in other states.

134. A person can seek AAT review of a decision of an LRA under subclause (2) not to reinstate any cancelled or suspended registration (see subsection 34(1) as amended by item 71).

135. Subclauses (3) to (5) support cross-jurisdictional compliance and enforcement activities in relation to ADR. For the purposes of taking action in relation to ADR, a state Minister can determine that officers or authorities in another state are governed under the law of the Minister’s state (subclause (3)). The Minister must first gain the consent of the Minister of the other state. This extends to officers or authorities however described in state law.

136. For the purposes of gaining the consent of the Minister of the other state, a person authorised by the first-mentioned state Minister can provide information to another person authorised by a Minister of the other state (subclause (4)). When providing this information, a person does not have to comply with requirements relating to secrecy, privacy or confidentiality (subclause (4)) (see definition of ‘requirements in subsection 4(1) as amended by item 12).

137. This limitation on the operation on requirements relating to secrecy, privacy and confidentiality is necessary to facilitate information sharing across states to enable compliance and enforcement action in relation to ADR and is consistent with existing sections 37 and 38, which provide for information sharing in relation to MR under Part 3.

138. When a person receives information in accordance with this clause, the person must comply with requirements relating to secrecy, privacy or confidentiality that would apply if the information were provided from within the person’s state (subsection (5)) (see definition of ‘requirements in subsection 4(1) as amended by item 12). For example, the person may be required to store the information in a particular way or there may be limitations on the use of the information.

Clause 42N – Notifying other local registration authorities of suspension or cancellation

139. This clause broadly requires a second State LRA that cancels or suspends a person’s ADR to inform all other relevant LRAs in other states. It also provides for the public to access information about the cancellation or suspension if the LRA already keeps a public register.

140. This is essential to the proper functioning of the MR and AMR schemes as cancellation or suspension of a person’s ADR means that the person is not eligible to

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access either scheme (see section 19 and clause 42D(4)(b)). Cancellation and suspension also has consequences for the person’s registrations in other states, including the person’s substantive registration in their home State and any interim deemed registration the person holds in another state under Part 3 (see clause 42M).

141. This clause provides that, if an LRA in a second State (the second State authority) cancels or suspends a person’s ADR to carry on an activity, the second State authority must, without delay, notify all other LRAs for an occupation that covers that activity of the matters listed in subclause (2) (subclauses (1) and (2)).

a. The matters listed include the person’s name and address; information identifying the person’s automatic deemed registration; the fact that disciplinary action was taken to suspend or cancel the automatic deemed registration (unless the cancellation was done at the request of the person as mentioned in paragraph 42G(2)(a)); whether the suspension or cancellation would be subject to an appeal; information relating to the reason for taking the action; if the registration is suspended—the period of the suspension; any information requested by another local registration authority to: determine whether a person’s registration for an occupation should be reinstated; or ensure completeness of its registers.

142. The second State authority must also record the suspension or cancellation in any register and publish notice of the suspension or cancellation, if required under the laws of the state (subsection (4)). The other state LRA may also update its registers and publish information about the suspension or cancellation in accordance with that state’s laws (subsection (5)).

143. Once the other LRA receives information from the second State authority about the cancellation or suspension, the LRA must notify the second State authority if any other information is reasonably required in relation to the suspension or cancellation (subsection (3)). The second State LRA must provide this information to enable the other state LRA to consider reinstating the person’s registration or ensuring completeness of its registers (subsection (2)(g)).

144. Subclauses (6) to (8) deal with the application of privacy requirements during the information sharing process.

145. When an LRA gives information to another LRA under this clause, it does not have to comply with any requirements relating to secrecy, privacy or confidentiality (subclause (6)) (see definition of requirements in subsection 4(1) as amended by item 12).

a. This limitation on the operation of privacy, secrecy and confidentiality requirements is necessary to enable LRAs to perform their registration functions by sharing information relevant to a person’s ADR and is consistent with existing sections 37 and 38, which provide for information sharing between LRAs in relation to MR under Part 3.

146. This clause does not affect any other obligation or power to provide information that might be imposed on the LRA (subclause (7)). For example, an LRA could be

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compelled by a court or tribunal to provide information in relation to a proceeding a person commences to challenge the cancellation or suspension and that information could be subject to confidentiality orders.

147. Once an LRA receives information under this clause, it must comply with requirements relating to secrecy, privacy or confidentiality that would apply if the information had been given from within the LRA’s state (paragraph (8)(a)) (see definition of ‘requirements in subsection 4(1) as amended by item 12). The LRA may use the information for the purposes of the person’s registration (either under the MRA or under another law or scheme) in the LRA’s state (paragraph (8)(b)).

Clause 42P – Notifying other local registration authorities of other disciplinary action

148. This clause broadly requires an LRA in a second State to inform other relevant LRAs in other states about disciplinary proceedings in relation to a person’s ADR, provided the LRA and the person know about the proceedings.

149. This is essential to the proper functioning of the MR and AMR schemes as a person’s ADR ends if they are subject to disciplinary proceedings, including preliminary investigations (see paragraph 42D(4)(a)), which also has consequences for the person’s registrations in other states (see clause 42M), including the person’s substantive registration in their home State and any interim deemed registration the person holds in another state under Part 3.

150. This clause provides that, if an LRA in a second State (the second State authority) is aware of disciplinary proceedings (including preliminary investigations) that are being taken in relation to a person’s ADR, and the person has been informed of these proceedings (or investigations), the second State authority must notify any other LRA (for an occupation that covers the activity) of the matters listed in subclause (2) without delay (subclauses (1) and (2)). This includes the person’s name and address and the fact that disciplinary action (including preliminary investigations) is being taken in relation to the ADR.

151. In some states, the LRA for a particular registration is not the body responsible for overseeing conduct and taking disciplinary action against a person who has that registration. This section is intended to enable an LRA that either takes disciplinary action itself, or that becomes aware that another authority is taking disciplinary action, to inform LRAs in other states.

152. The reference to disciplinary proceedings (including preliminary investigations) is intended to capture activities of a regulator, rather than an employer.

153. Subclauses (3) to (5) deal with the application of privacy requirements during the information sharing process.

154. When an LRA gives information to another LRA under this clause, it does not have to comply with any requirements relating to secrecy, privacy or confidentiality (subclause (3)) (see definition of requirements in subsection 4(1) as amended by item 12).

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a. This limitation on the operation of secrecy, privacy and confidentiality requirements is necessary to enable LRAs to perform their registration functions by sharing information relevant to a person’s ADR and is consistent with existing sections 37 and 38, which provide for information sharing between LRAs in relation to MR under Part 3.

155. This clause does not affect any other obligation or power to provide information that might be imposed on the LRA (subclause (4)), such as information the LRA is required to produce to a court.

156. Once an LRA receives information under this clause, it must comply with requirements relating to secrecy, privacy or confidentiality that would apply if the information had been given from within the LRA’s state (paragraph (5)(a)) (see definition of requirements in subsection 4(1) as amended by item 12). The LRA may use the information for the purposes of the person’ registration (either under the MRA or under another law or scheme) in the LRAs state (paragraph (5)(b)).

Clause 42Q – Formalities requiring personal attendance

157. This clause provides that a person is not required to physically travel to the second State in order to have, or be entitled to, ADR. It is similar to section 41 in Part 3.

a. For example, a person would not be required to physically travel to the second State to lodge a notification to work under ADR in that state. Personal attendance may be required for the purposes of complying with local laws and regulatory actions, such as a requirement to attend an interview or disciplinary hearing in person or be present when a search warrant is executed.

Clause 42R – Effect of automatic deemed registration on obligations in other States

158. This clause provides that, unless the contrary intention appears, if a law of a second State imposes obligations on a person working in that state under ADR, the person is not required to comply with that law in relation to another state.

a. For example, State A requires a project manager working in the state under ADR to keep an employee register of workers they manage. If the project manager performs work under ADR in State B, they do not need to comply with this requirement in respect to their employees working in State B.

Division 3—General provisions

Clause 42S – Exempting registrations because of significant risk to consumer protection etc.

159. Generally, all registrations that can be recognised under the MR scheme can be recognised under the AMR scheme. However, this clause allows a state Minister to exempt specific registrations from the AMR scheme on certain grounds for up to five

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years. This means that a person cannot work under ADR if the state Minister considers that doing so could pose a significant risk.

160. Under this clause, a Minister of a state may declare, by legislative instrument, that a specified registration in the Minister’s state (either for an occupation or for an activity covered by an occupation) is excluded from ADR (paragraph 1(a)). Alternatively a Minister of a state may declare, by legislative instrument, that a specified registration in their state (either for an occupation or for an activity covered by an occupation) is excluded on the basis of a specified registration in one or more other states (paragraph (1)(b)).

a. For example, a Minister in State A could declare that the registration for the occupation of plumber in State A is exempt from ADR. This would mean that a person who has a plumbing registration from any other state would not be able to access ADR for a plumbing registration in State A.

b. Alternatively, a Minister in State A could declare that the registration for the occupation of plumber in State A is specifically exempted from ADR for people registered as plumbers in State B. This would mean a person from State B who has a plumbing registration does not have access to ADR in State A, but registered plumbers from States C and D etc would be entitled to access ADR in State A.

161. A state Minister can only make the declaration if the Minister is satisfied that it is necessary because of a significant risk, arising from particular circumstances or conditions in the Minister’s state, to one or more of the matters listed in paragraphs (1)(c)-(f):

a. consumer protection; b. the environment; c. animal welfare; ord. the health or safety of workers or the public.

162. The Minister must be able to identify the particular circumstances or conditions leading to the significant risk, but the circumstances or conditions do not have to be unique to the Minister’s state. One or more states could declare the same exemption on the same grounds if there are circumstances or conditions in each state that pose the significant risk.

163. A significant risk to the public could include a significant risk to a segment of the public, such as children or another vulnerable group.

164. The declaration must include a statement explaining the risk to one or more of the matters listed in paragraphs (1)(c)-(f) (subclause (2)).

165. The exemption is only effective in the declaration state and is given effect by the appropriate LRA for that specific occupation in that state (subclauses (3) and (4)).

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a. For example, a Minister in State A specifically exempts the electrician registration in State A for people with an electrician registration in State B. This would mean a person from State B who has an electrician registration does not have access to ADR in State A, but registered electricians from State B may have access to ADR in C and D etc.

166. A declaration made by a state Minister under this clause is not subject to disallowance under the Legislation Act 2003. This is because the determination would facilitate the operation of an intergovernmental scheme, and is therefore not subject to disallowance in accordance with subsection 44(1) of that Act.

167. The effect of subclauses (5) and (6) is that the standard sunsetting period of 10 years applies to a determination made by a state Minister under this clause, consistent with subsection 50(1) of the Legislation Act 2003 and despite subsection 54(1) of that Act, but the reference to 10 years must be read as a reference to five years. This means a Minister’s declaration will cease to operate five years after it is made, unless revoked earlier. A state Minister would have to make a new declaration before the end of (every) five years if the Minister continued to be satisfied an exemption should apply.

168. Consistent with section 99 of the Commonwealth Constitution, a declaration made under subclause (1) cannot be used to favour one state over another, wholly or in part (subclause (7)). To the extent a declaration gives such preference, it will be invalid.

Clause 42T – Exempting registrations temporarily

169. This clause enables a Minister of a state, to declare, by legislative instrument, that a specified registration in the Minister’s state (either for an occupation or for an activity covered by an occupation) is excluded from ADR for a period of up to six months following the commencement of the Bill (paragraph (1)(a)). Alternatively, a Minister of a state may declare, by legislative instrument, that a specified registration (either for an occupation or for an activity covered by an occupation) is excluded, for a period of up to six months following the commencement of the Bill, on the basis of a specified registration in one or more other states (paragraph (1)(b)).

170. This is a transitional measure and is intended to give states additional time, after the Bill commences, to identify and consider risks relating to certain registrations and how to best address them.

171. The requirement to include a statement of risks when making an exemption under clause 42S (see subclause 42S(2)) does not apply to temporary exemptions under clause 42T.

172. The Minister of a state must make the declaration under subclause (1) (the exemption declaration) between 1 July 2021 and 31 December 2021.

173. If the Minister of a state considers that six months is not sufficient for the temporary exemption, the Minister can, before the end of 31 December, by legislative instrument, declare that the exemption declaration continues in force until the end of 30 June 2022

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(subclause (2)). The Minister must continue the declaration while the exemption declaration is still in force (that is, before 31 December 2021).

174. Unless revoked earlier, the exemption declaration will cease to operate:

a. at the end of 31 December 2021 (subparagraph (5)(a)(i)); or, b. if the declaration is continued, the exemption declaration will cease to operate

at the end of 30 June 2022 (subparagraph (5)(a)(ii)).

175. This means a temporary exemption can last for a maximum of 12 months from commencement of the Bill.

176. The declaration extending the exemption will cease to operate at the end of 30 June 2022, unless revoked earlier (paragraph (5)(b)).

177. As with exemptions under 42S, the exemption declarations made under this clause are only effective in the declaration state and are given effect by the LRA for the occupation in that state (subclauses (3) and (4)).

178. The declarations are not subject to disallowance under the Legislation Act 2003 as they facilitate the operation of an intergovernmental scheme, consistent with subsection 44(1) of that Act.

179. Consistent with section 99 of the Commonwealth Constitution, an exemption declaration cannot be used to favour one state over another, wholly or in part (subclause (6)). To the extent the declaration gives such preference, it will be invalid.

Clause 42U – Person providing information about home State to local registration authority

180. This clause allows an LRA for an occupation that covers an activity to require a person who has ADR to carry on that activity in the LRA’s state to provide evidence of one or more of the following:

a. the person’s current place of residence;b. the person’s principal place of residence;c. the person’s current place of work;d. the person’s principal place of work.

181. Failing to provide evidence affects a person’s entitlement to ADR (see subparagraph 42D(4)(j)(i)).

Clause 42V – Local registration authorities providing and receiving information

182. This clause requires an LRA to provide information if requested by a second State LRA in connection with a person’s ADR. This clause is similar to sections 37 and 38 in Part 3.

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183. This clause is essential to the proper functioning of the AMR scheme because it enables an LRA in a second State to request information from an LRA in the person’s home State, or from an LRA in another state in which the person has registration for the occupation or activity covered by the occupation, including another second State where the person has ADR.

184. This clause applies if an LRA in a second State (the second State authority) notifies another LRA in another state that it requires information in connection with a person’s ADR in the second State, or actual or possible disciplinary action against the person (subclauses (1) and (3)).

185. Once the other LRA receives the request, it must provide the second State authority, as soon as reasonably practicable, with any information reasonably required about the person, including the person’s name and address, information identifying the person’s home State registration and information relating to civil, criminal or disciplinary proceedings (including preliminary investigations) against the person (subsection (2)).

186. Subclauses (4) to (6) deal with the application of privacy requirements during the information sharing process and how the information can be used.

187. When the other LRA gives information to the second State authority under this clause, it does not have to comply with any requirements relating to secrecy, privacy or confidentiality (subclause (4)) (see definition of requirements in subsection 4(1) as amended by item 12).

a. This is necessary to enable LRAs to perform their registration functions by sharing information relevant to a person’s ADR and is consistent with existing sections 37 and 38, which provide for information sharing between LRAs in relation to MR under Part 3.

188. This clause does not affect any other obligation or power to provide information that might be imposed on the other LRA (subclause (5)), such as information an LRA may be required to produce to a court or tribunal, or other information sharing powers that apply to LRAs.

189. Once the second State authority receives information from the other LRA under this clause, it must comply with requirements relating to secrecy, privacy or confidentiality that would apply if the information had been given from within the second State (paragraph (6)(a)) (see definition of requirements in subsection 4(1) as amended by item 12). The second State authority may use the information in connection with the matters listed at paragraph (6)(b), which are:

a. the person’s registration in the second State, which could include for the purpose of taking actual or possible disciplinary action against the person (subparagraph (6)(b)(i)); or

b. a notice lodged by the person in accordance with section 19 (which provides notification requirements where a person is seeking interim deemed registration under Part 3) (subparagraph (6)(b)(ii)).

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Clause 42W – General responsibilities of local registration authorities

190. This clause sets out the general duties of LRAs in relation to AMR under Part 3A, and is similar to the general responsibilities for LRAs in relation to MR under Part 3 outlined at section 39. It also ensures registered people have access to information about how the AMR scheme will operate and how LRAs may share and use their personal information should they enter the AMR scheme.

191. LRAs are required to facilitate the operation of Part 3A (subclause (1)), publish guidelines and information explaining how ADR works in their jurisdiction (subclause (2)) and provide publicly available information about how personal information relating to ADR may be used and collected (subclause (3)).

192. Subclause (4) requires LRAs to publish these guidelines and information within six months of the Bill commencing in their jurisdiction.

Clause 42X – Saving

193. This clause clarifies that there is nothing in Part 3A that prevents a person from seeking or holding registration under other Parts of the MRA or other legislation. For example, a person could hold substantive registration in one state, interim deemed registration for an equivalent occupation under Part 3 in another state and ADR in a third state for an activity covered by an occupation under Part 3A. This clause is similar to section 42 in Part 3.

Part 4—GeneralItem 88 – section 43 – References to participating jurisdictions

194. This item repeals section 43, which defines participating jurisdiction. The Bill incorporates a new definition of participating jurisdiction in subsection 5(4) (see item 16 of the Bill).

195. This item substitutes a new section, which specifies that the MRA does not confer the Commonwealth’s judicial power on an LRA, a tribunal or another body of a state (other than a Court of the state) (new subclause 43(1)).

196. For the purposes of this new section 43, judicial power means the judicial power of the Commonwealth vested in the High Court of Australia, and in other federal courts it invests with federal jurisdiction, such as the Federal Court of Australia, under section 71 of the Commonwealth Constitution (new subclause 43(2)).

Items 89 – section 44 – Application of mutual recognition principle

197. This item incorporates a new legislative note that the MR principles applies in relation to goods (Part 2), MR (Part 3) and AMR (Part 3A).

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Items 90-91 – section 45 – Machinery provisions regarding limitations etc.

198. These items amend section 45 to ensure that any conditions or undertakings imposed on a person’s registration in their home State will be construed with the necessary adaptations on a person’s ADR in the second State. For example, references to home State are to be read as the second State and references to officers or authorities of the home State are to be read as references to the officers or authorities of the second State.

Item 92 – section 46A – Application of amendments made by the Mutual Recognition Amendment Act 2021

199. This item inserts a new clause 46A, which clarifies the application of amendments made by the Bill. New subclause 46A(1) provides that:

a. the amended notification requirements in section 19 of Part 3 apply in relation to any notice given to an LRA in a state after the commencement day for that state (subclause (1));

b. new Part 3A, which provides for AMR of registrations, applies in relation to the carrying on of an activity in the state after the commencement day for that state (subclause (2)); and

c. new section 43, which deals with judicial power, applies in relation to any conferral of power on an LRA or a tribunal or other body of a state (whether before or after the commencement day for the state).

200. Commencement day for a state is defined in subsection 4(1).

201. The effect of this new clause is that changes to section 19 and new Part 3A will not apply in a state until it adopts the amendments, but the changes to new section 43 will apply both before and after the commencement day for a state. All other amendments in the Bill apply to participating jurisdictions (defined in subsection 5(4)) from the day the Bill commences (1 July 2021).

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Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

Mutual Recognition Amendment Bill 2021

1. This Bill is compatible with the human rights and freedoms recognised or declared in international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

Overview of the Bill

2. The Mutual Recognition Amendment Bill 2021 (the Bill) introduces a new uniform scheme of automatic mutual recognition (AMR, Part 3A) into the Mutual Recognition Act 1992 (MRA). AMR enables an individual registered for an occupation in one state (including a Territory) to be taken to be registered to carry on, in a second state, the activities covered by their home State registration. This is supported through the concept of automatic deemed registration (ADR).

3. Safeguards are embedded in the Bill to maintain high standards of consumer and environmental protection, animal welfare, and the health or safety of workers or the public.

a. State laws and conditions. Workers will be required to comply with the laws of the second State, including public protection requirements regarding insurance and the like and satisfying a working with vulnerable people character test. Any conditions a person has on their home State registration will also apply, unless waived by the local registration authority.

b. Oversight by local regulators. Workers will be subject to any applicable disciplinary actions in the second State and, for some registrations, may need to notify the regulator they intend to work in their state.

c. Compliance action. Those subject to disciplinary actions or that have conditions on their registration as a result of disciplinary, civil or criminal action will be excluded from AMR. Information on cancelled or suspended registrations and disciplinary actions for people in the new scheme will be available to regulators and recorded on registers (where required by state laws).

4. The Bill also enables a state Minister to exempt a registration in their state from being subject to AMR for a renewable period of up to five years because of a significant risk to consumer protection, the environment, animal welfare, or the health or safety of workers or the public.

5. Local registration authorities (LRAs), which are responsible for registering individuals for occupations, will play a key role in the effective operation of the scheme. The Bill enables an LRA to confirm a person’s eligibility to access AMR. This ability is provided through information sharing provisions between state LRAs.

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6. The Bill also requires LRAs to share information with interstate LRAs if they take disciplinary action against a person who has ADR as such action may affect the individual’s substantive registration and their future entitlement to ADR in other states. The provisions are intended to reduce the likelihood of non-compliant behaviour in all states in which the person intends to operate, reducing the effect of such non-compliant behaviour on consumers and the broader community. The Bill also ensures that material received by an LRA in relation to a person’s registration will be managed by the receiving LRA in accordance with their requirements (including laws where they exist) governing personal information.

7. Since its introduction in 1992, mutual recognition (MR) under the MRA has helped to reduce barriers to occupational mobility for a range of occupations. In its most recent report in 2015, the Productivity Commission found that the current MR arrangements are generally working well but there would be cost savings from automating these processes. The Productivity Commission recommended governments expand the use of AMR to improve the efficiency of MR arrangements.

8. PricewaterhouseCoopers estimated that AMR could lead to additional economic activity of around $2.4 billion over 10 years as a result of savings to workers and businesses, productivity improvements and extra surge capacity in response to natural disasters. Over 168,000 workers would benefit, including 44,000 people who will work interstate that would not otherwise have done so.

9. In late 2020, the Australian and state and territory governments agreed to introduce a uniform scheme for AMR as part of a broader set of regulatory reforms to assist Australia’s economic recovery.

10. AMR will increase the strength and resilience of the Australian economy by reducing the time taken and cost incurred when registered workers seek to take up new job opportunities across jurisdictional borders. A more mobile labour force will respond to new opportunities with more registered workers crossing interstate borders to work and more businesses bidding for work in other states. Improved access to registered workers will drive productivity and competition, lowering prices and improving service quality for consumers and businesses. Communities will also be better placed to respond to national emergencies and disasters with registered workers better able to relocate quickly.

Human rights implications

11. This Bill engages the following human rights:

a. The right to privacy; and b. The right to work.

The right to privacy

12. Article 17 of the International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful

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attacks. The right to privacy includes respect for informational privacy and any provisions of a legislative instrument which permit the disclosure of personal information.

13. This Bill engages this right as a number of measures provide for the transfer of information in relation to an individual’s registration for an occupation, personal information and disciplinary history (specifically see clauses 42M, 42N, 42P and 42V). In particular:

a. Clauses 42N and 42P require an LRA to provide information to interstate LRAs (for occupations that cover the activity) if it cancels or suspends a person’s ADR, or is aware of any disciplinary action taken against a person in relation to the person’s ADR, despite any requirements relating to secrecy, privacy or confidentiality.

b. Paragraphs 42N(4)(a) and (5)(a) provide for LRAs to record the suspension or cancellation in any register in which the LRA records other suspensions or cancellations of registrations in accordance with that state’s laws.

c. Clause 42M(4) provides for the sharing of information, despite any requirement relating to secrecy, privacy or confidentiality, to obtain the consent of a Minister of another state for cross-border compliance action. Such action requires agreement between a Minister of one state and a Minister of another state to determine officers of the other state being declared officers of the first mentioned state (see subclause 42M(3)). Subclause 42M(5) outlines that a person that receives the information (necessary to facilitate the determination) is required to manage the information received in accordance with their state’s requirements relating to secrecy, privacy or confidentiality.

d. Clause 42V provides for an LRA to give to an LRA of another state any information reasonably required about a person, provided that the information is required in connection with the person seeking ADR, including information about their home state registration and actual or possible disciplinary proceedings against the person. This information must be provided once the LRA receives a request from another LRA, despite any requirement relating to secrecy, privacy or confidentiality.

e. The Bill also amends existing sections 37 and 38, which deal with the sharing of information in relation to a person’s substantive registration for the purposes of considering that person’s request for a second State registration, the person’s interim deemed registration or disciplinary action against the person. These provisions in the MRA are being updated to provide for the suspension of privacy laws when the information is shared (in addition to the suspension of secrecy and confidentiality laws which are already prescribed). The Bill also provides that the information should be managed by the receiving LRA in accordance with the receiving state’s privacy requirements (in addition to the secrecy and confidentiality requirements which are already prescribed).

14. The Bill refers to ‘requirements’ in relation to secrecy, privacy and confidentiality. The term ‘requirements’ is intended to capture not only laws relating to secrecy, privacy and confidentiality, but— in states that do not have privacy laws—is also intended to capture binding administrative arrangements directions or other

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limitations, protections or processes relating to these matters (see subsection 4(1) as amended by item 12 of the Bill).

15. The Bill also engages with the right to privacy by repealing the requirement in paragraph 19(2)(h) for a person who is giving notice to an LRA in relation to MR to give consent to the making of inquiries and exchange of information about the person. Consent is not necessary to empower an LRA to make inquiries or exchange information as such activities are reasonably necessary for its functions of registering a person, are authorised or required by law (see section 37 and clause 42N) and are not subject to privacy laws as discussed above. To ensure an individual is aware of how their information may be shared, the Bill requires LRAs to publish how personal information will be dealt with under the MRA (clause 42W and section 39).

16. In order to be permissible, an interference with the right to privacy must be reasonable in the circumstances and authorised by a law consistent with the ICCPR. The United Nations Human Rights Committee (UNHRC) has interpreted ‘reasonable’ to mean ‘proportional to the end sought’ and ‘necessary in the circumstances of any given case.’1

17. The information sharing provisions in the Bill are necessary and proportionate to the legitimate objective of ensuring the effective operation of the MR and AMR schemes and to ensuring these schemes are only available to individuals who can adequately and safely perform work in accordance with the laws covering the manner of carrying on the occupation and activities covering the occupation. LRAs and persons are limited in the reasons for which information may be provided. In particular, LRAs can only use the information for the purposes of registering the person in the LRA’s state, taking disciplinary action against the person or determining their eligibility for interim deemed registration and ADR. These uses are necessary and consistent with an LRA’s primary function of registering individuals and for any enforcement and compliance role an LRA may have. LRAs must also provide publicly information about how an individual’s personal information, when participating in the schemes, may be used. Further, an LRA that receives the information is subject to privacy, secrecy and confidentiality requirements that apply in its state and must use and deal with that information accordingly.

The right to work

18. Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the rights of everyone to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

19. The Bill engages and promotes the right to work in Article 6 of the ICESCR by broadening opportunities for individuals to take up employment across Australian jurisdictions as a means of ensuring Australians, including displaced and

1 Office of the United Nations High Commissioner for Human Rights, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (10 April 1992, adopted 31 March 1994) [8.3]: https://juris.ohchr.org/Search/Details/702 .

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underemployed registered workers, can take more easily up job opportunities wherever they arise.

20. By expanding the legislative framework for the MR of occupations, the Bill promotes the right to work by enabling a person who is registered for an occupation in one jurisdiction to also be considered registered to perform the same activities in another jurisdiction (clause 42B), and without the need for further application processes or additional registration fees (clause 42K refers).

21. The Bill operationalises this concept through ADR to make it simpler, quicker and less expensive for people to work across jurisdictions.

22. The Bill incorporates some limitations on ADR, including a requirement that a person comply with local laws (such as a requirement to obtain a working with vulnerable person character test). States can also exempt specified registrations if they consider there is a significant risk to consumer protection, the environment, animal welfare or the health or safety of workers or the public. An individual that is subject to disciplinary, civil or criminal action or who has their registration cancelled or suspended is excluded from eligibility for ADR.

23. The Bill also provides for a state Minister to declare a registration temporarily exempt from ADR for a period of up to six months after commencement of the Bill, with an option to continue the declaration for a further period to 30 June 2022 if needed. This allows states to have additional time to identify risks and consider how to best address them, prior to these registrations becoming part of the AMR scheme.

24. These limitations are necessary and proportionate to ensuring consumers are protected and to maintaining public health and safety.

Conclusion

25. This Bill is compatible with human rights because it promotes the protection of the human right to work by making it easier and less expensive for registered workers to work across jurisdictions. To the extent that it may limit the right to privacy, those limitations are reasonable, necessary and proportionate because there are limitations on the reasons for which the information can be given and on what the information can be used for. Further, once an LRA or person receives the information, they must comply with local privacy requirements and LRAs must publish publicly available information about how a person’s personal information in connection with their registration in the MR and AMR scheme may be used.

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