New Commonwealth legislation provides a framework for automatic mutual recognition of an individual’s registration as a building practitioner in one State or Territory, in other States and Territories. Once this has been uniformly adopted around Australia and extended to building practitioners (which may be as early as later in 2021), it will streamline the existing mutual recognition application process and make working as a building practitioner easier within Australia across State borders.

We recommend that construction industry participants with registered building practitioners in multiple jurisdictions:

• take note of the new automatic mutual recognition framework (summarised below); and
• be aware of the potential expansion of the scheme to building practitioners by the end of 2021.

The Mutual Recognition Amendment Act 2021 (Cth.) (MR Amendment Act) commenced on 1 July 2021. It amends the Mutual Recognition Act 1992 (Cth) (MR Act) to, amongst other things, provide a new automatic mutual recognition (AMR) scheme.

On 28 June 2021, the Mutual Recognition (Victoria) Amendment Act 2021 (Vic.) received Royal Assent. That Act amends the Mutual Recognition (Victoria) Act 1998 (Vic.) effective from 1 July 2021, which adopts the MR Act (including the AMR scheme) as law in Victoria.

What is it?

Before 1 July 2021, the MR Act only enabled an individual carrying on an occupation in one State to apply for a licence or registration to carry on an equivalent occupation in another State. That involves the submission of an application for mutual recognition, payment of application fees and demonstrating satisfaction with requirements applicable to each jurisdiction.

The AMR scheme now enables an individual who is registered for an occupation in their home State to carry on those activities in other States and Territories without having to apply for, and pay fees for, a second licence.

Essentially, the AMR scheme makes it easier for workers to operate in multiple States and Territories, whilst maintaining safeguards to protect work standards, consumers, workers and others.

As with the pre-existing mutual recognition scheme, the AMR scheme only applies to individuals, and not to other legal entities such as companies.

Who is in?

Victoria, New South Wales, the Australian Capital Territory and Northern Territory have adopted the amendments to date. The other States have committed to joining the scheme, and we expect that they will do so in the coming months.

The AMR scheme only operates between participating jurisdictions. So until the remaining states opt in, AMR will only apply to relevant occupations between the States and Territories that have so far adopted the AMR scheme.

The AMR scheme does not apply to New Zealand occupational registrations and licences. However, the existing processes under the Trans-Tasman Mutual Recognition Arrangements continue to apply.

What is covered?

The Victorian Treasurer has temporarily exempted a number of occupations and activities from the operation of the AMR scheme in Victoria. This includes building practitioners, architects, plumbers, labour hire, professional engineers, environmental auditors and land surveyors.

It is expected that the AMR scheme will begin to apply to these occupations later this year (by 31 December 2021, or at the latest by 30 June 2022 when the Treasurer’s declaration is repealed).

The exemptions in Victoria however, do not prevent a person licensed or registered in Victoria from carrying on work in another participating jurisdiction under the AMR scheme, as long as it is not an exempt registration in that jurisdiction. For example, a practitioner may be able to obtain AMR in another participating jurisdiction to carry out engineering work if engineering work has not been exempted by that other jurisdiction.

What impact will this have on the industry?

The AMR scheme is still subject to certain checks – a person will not necessarily be able to pick up tools in another State automatically. For example, there may be notification requirements in the second State.

For example, an individual intending to carry on a class of prescribed electrical contracting work or a class of prescribed electrical work in Victoria in reliance on automatic mutual recognition must notify the local registration authority (Energy Safe Victoria) before beginning to carry on the activity^[1]. This includes:

• electrical installation work carried out on electricity generation systems
• electrical installation work carried out on all or part of a battery energy storage system
• certain electrical installation work required to carry out a primary work function relating to low voltage fixed electrical equipment
• certain electrical installation work required to carry out a primary work function relating to low voltage fixed electrical equipment.

Automatic deemed registration will also not apply to a person if:

• the person is the subject of certain criminal, civil or disciplinary proceedings in any State
• any registration the person is required to have to carry on the activity, or an occupation that covers the activity, in any State is cancelled or currently suspended as a result of disciplinary action
• the person is otherwise personally prohibited from carrying on the activity, or an occupation that covers the activity, or is subject to any conditions in carrying on the activity, as a result of criminal, civil or disciplinary proceedings in any State
• the person is refused registration in any State for an occupation that covers the activity
• the person is authorised otherwise than under Part 3A to carry on the activity in the second State. For example, the person is substantively registered in another State, has obtained mutual recognition rather than AMR, or is automatically licensed under another scheme
• if a person fails to satisfy a relevant requirement for automatic deemed registration.

Existing Automatic Licensed Occupations Recognition

The Mutual Recognition (Automatic Licensed Occupations Recognition) Act 2014 (NSW) has provided for automatic recognition of a limited list of occupations (such as electricians and electrical contractors)^[2] long before the new AMR scheme commenced. Under that Act, recognised licence holders in another State to New South Wales are deemed to hold the licence in New South Wales in certain circumstances.

^{[1] Registration for carrying out a class of electrical contracting prescribed by regulations under the Electricity Safety Act 1998 for the purposes of Division 1 of Part 3 of the Electricity Safety Act 1998 and registration for carrying out a class of electrical work prescribed by regulations under the Electricity Safety Act 1998 for the purposes of Division 2 of Part 3 of the Electricity Safety Act 1998.}

^{[2] Mutual Recognition (Automatic Licensed Occupations Recognition) Regulation 2021 (NSW).}