Mutual Recognition Amendment Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 98 (12 May 2021)

• Mutual Recognition Amendment Bill 2021
• Exemption from disallowance16

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Mutual Recognition Amendment Bill 2021

Purpose	This bill seeks to amend the Mutual Recognition Act 1992 to introduce a uniform scheme of automatic mutual recognition, which 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
Portfolio	Prime Minister
Introduced	House of Representatives on 18 March 2021
Bill status	Before the House of Representatives

Exemption from disallowance^[16]

2.45 In Scrutiny Digest 6 of 2021 the committee requested the minister's more detailed advice as to why it is considered necessary and appropriate to leave significant matters to delegated legislation which is exempt from parliamentary disallowance and effective parliamentary accountability or oversight at either the Commonwealth or state level.^[17]

Minister's response^[18]

2.46 The minister advised:

The Bill facilitates the operation of the Intergovernmental Agreement on Automatic Mutual Recognition of Occupational Registration (IGA), which was signed by all jurisdictions, with the exception of the Australian Capital Territory, in December 2020.
The proposed Part 3A provides for the making of determinations or declarations that impose notification requirements or exclude certain occupational registrations from AMR.

This would allow a state or territory Minister to determine or declare by legislative instrument:

• registrations in relation to which a person who intends to carry on the activity covered by the registered occupation must notify the relevant local registration authority before the person begins to carry on the activity;

• registrations that are excluded from automatic deemed registration, if the Minister is satisfied of a significant risk; and

• registrations that are excluded temporarily from automatic deemed registration (for a period ending six months after the commencement of the Bill, which can be extended to 30 June 2022).

These legislative instruments address a key aspect of the IGA which recognises the need for appropriate safeguards to be retained to protect consumers and the health and safety of workers and the public.
By facilitating the operation of an IGA scheme, and authorising a determination or declaration to be made for the purposes of that scheme, the Bill also attracts the operation of subsection 44(1) of the Legislation Act 2003 so as to exempt from disallowance those determinations and declarations under section 42 of the Legislation Act 2003. This is in keeping with current arrangements under the Mutual Recognition Act 1992 where declarations as to equivalent occupations are similarly not subject to disallowance.
If the instruments in the proposed Part 3A were open to being disallowed under section 42 of the Legislation Act, an essential aspect of the IGA, namely the retention of appropriate safeguards to be determined by jurisdictions, would be called into doubt and this in turn could undermine the effective operation of the scheme more generally.
The implementation of AMR, including exemptions of occupational registrations, will be evaluated as part of an independent review agreed by States and Territories and outlined in the IGA.

Committee comment

2.47 The committee thanks the minister for this response. The committee notes the minister's advice that subsection 44(1) of the Legislation Act 2003 applies to instruments made under proposed Part 3A, that exemptions from disallowance are consistent with the current arrangements under the Mutual Recognition Act 1992 and that the Automatic Mutual Recognition scheme will be subject to an independent review. The committee also notes the minister's advice that providing for disallowance by the Commonwealth Parliament would lead to uncertainty in relation to the retention of appropriate safeguards to protect consumers and the health and safety of workers and the public, which will be determined by individual jurisdictions.

2.48 While the committee notes this point, as set out in the committee's original comments on the bill, the committee's concerns in this instance are heightened by the fact that the power to make these non-disallowable instruments is conferred on state ministers, without any apparent mechanisms to make the exercise of these powers by state ministers reviewable or subject to scrutiny by state parliaments. While noting the minister's advice in relation to the intention to subject the Automatic Mutual Recognition scheme to an independent review, it remains unclear to the committee whether decisions made by state ministers under the scheme will be accompanied by an appropriate level of parliamentary accountability or oversight.

2.49 In light of the above, the committee requests the minister's further advice as to what safeguards are in place to ensure that the exercise of an instrument-making power by a state minister is subject to appropriate accountability or oversight at the state level.

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[16] Schedule 1, item 87. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[17] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2021, pp. 30–31.

[18] The minister responded to the committee's comments in a letter dated 4 May 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.