4. The Occupational Model
Page Index
- Requirements relating to occupations not affected by mutual recognition
- Equivalent occupations
- Obtaining registration under the MRA
- Appeal mechanisms
- Mechanisms available if a registration authority has concerns about the competency of persons registered in another jurisdiction
- Ministerial Declarations
4.1 Under the MRA, a person who is registered to practise an occupation in one jurisdiction is entitled to practise an equivalent occupation in any other jurisdiction without the need to undergo further testing or examination.
4.2 The Agreement covers all occupations in which some form of legislation-based registration, certification, licensing, approval, admission or any other form of authorisation is required by individuals in order to legally practise the occupation.
TopRequirements relating to occupations not affected by mutual recognition
4.3 The MRA does not affect the operation of laws that regulate the manner of carrying on an occupation. These laws include requirements relating to trust accounts, fees and continuing education. However, these laws must:
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apply equally to all persons carrying on or seeking to carry on the occupation; and
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not be based on the attainment or possession of some qualification or experience relating to fitness to practise the occupation.
4.4 This means that the MRA does not affect any requirements of a jurisdiction that regulate the ongoing activities of people registered to practise an occupation. A person registered under the MRA must, therefore, comply with any requirements for ongoing registration in that occupation. However, these requirements must apply equally to all other persons registered to practise the occupation. In addition, they must not be based on attaining a certain qualification or level of experience.
4.5 Recognition under the MRA focuses on a person's registration in their original jurisdiction, rather than on the requirements for registration (eg possession of a qualification). This means that requirements for initial registration cannot be imposed on practitioners from other jurisdictions as a condition of obtaining registration under the MRA. For example, a person cannot be required to up-grade their qualifications to bring themselves into line with local registration requirements.
TopEquivalent occupations
4.6 The mutual recognition principle only applies to occupations that are 'equivalent' (Mutual Recognition Act 1992: s16). Two occupations are taken to be equivalent if the activities authorised to be carried out under registration are substantially the same (Mutual Recognition Act 1992: s29). Equivalence can be achieved through the imposition of conditions on registration (eg restricting registration to certain activities), by a registration authority, or on appeal by the Administrative Appeals Tribunal (see below).
TopObtaining registration under the MRA
4.7 A person seeking registration under the MRA must lodge a written notice with the relevant registration authority containing certain basic information relating to his or her current registration (Mutual Recognition Act 1992: s19(1)).
4.8 Registration authorities have one month from the date of lodgement of the notice to formally grant, postpone or refuse registration (Mutual Recognition Act 1992: s21). If a registration authority neither grants, postpones or refuses registration before the expiry of the one month period, the person is entitled to immediate registration. When granted, registration takes effect from the date of lodgement of the notice. Figure 1 outlines the registration process.
Figure 1: The registration process
Deemed registration
4.8.1 A person is eligible for deemed registration from the date of lodgement of the notice and can carry on his or her occupation pending the grant or refusal of registration (Mutual Recognition Act 1992: s25). A person with deemed registration may carry on his or her occupation as if he or she has been granted substantive registration, subject to any conditions attaching to their existing substantive registration or to any requirements of substantive registration (eg regarding insurance, fidelity funds and trust accounts).
4.8.2 Deemed registration continues until it is cancelled, suspended or otherwise ends under the conditions set out in the mutual recognition legislation. For example, deemed registration will end if a person is granted substantive registration or refused registration.
Substantive registration
4.8.3 Substantive registration will generally be granted within one month of the date that the written notice seeking registration under the MRA was lodged (Mutual Recognition Act 1992: s26). Registration may be renewed, and subject to the laws of the registering jurisdiction, the entitlement to registration will continue whether or not the person's registration in his or her original jurisdiction ceases.
Conditions on registration
4.8.4 A registration authority may impose similar conditions on registration to any already applying to a person's original registration or which are necessary to achieve equivalence between occupations (Mutual Recognition Act 1992: s27). Individuals should be advised in writing if conditions on registration are to be imposed. The registration authority should set out its reasons in full, and should advise the person of his or her right to appeal against the decision to impose conditions.
Postponement of registration
4.8.5 A registration authority may postpone a grant of registration (Mutual Recognition Act 1992: s22). It must do so within one month of the date of lodgement of a notice seeking registration. A registration authority may postpone a grant of registration if statements, documents or information in the written notice are materially false or misleading; the person's circumstances have materially changed since the lodgement date; or the registration authority decides that the occupation for which registration is sought is not an equivalent occupation.
4.8.6 Postponement can apply for a maximum of six months. A person's deemed registration is not effected by a registration authority's decision to postpone the grant of registration.
Refusal of registration
4.8.7 A registration authority may refuse to grant a person registration (Mutual Recognition Act 1992: s23). Registration may be refused if statements, documents or information in the written notice are materially false or misleading; or the authority decides that the occupation is not an equivalent occupation and equivalence cannot be achieved by imposing conditions or limits on registration.
Suspension or termination of registration
4.8.8 A registration authority may suspend or terminate a person's registration if it becomes aware that a person has had his or her registration suspended or terminated in any participating jurisdiction, or is otherwise personally prohibited from practising as a result of criminal, civil or disciplinary proceedings in any jurisdiction.
TopAppeal mechanisms
4.9 When notifying a person of its decision to refuse, postpone or impose conditions on registration, a registration authority must advise the person that an application for review may be made to the relevant appeals tribunal. Applicants who disagree with the decision of a registration authority can seek a review of that decision (Mutual Recognition Act 1992: s34).
4.10 The Administrative Appeals Tribunal (AAT) hears appeals relating to decisions of registration bodies under the MRA. After reviewing the decision of a registration authority, the Tribunal may decide in one of two ways:
1. that the person is entitled to registration and, if relevant, specify or describe conditions to achieve equivalence; or
2. that the two occupations are not equivalent and the person is not entitled to registration. However, in that instance, the tribunal must be satisfied that:
the activities involved in the occupations are not substantially the same (even with the imposition of conditions); or
by allowing the person to practise, registration could pose a real threat to public health and safety or the environment.
4.11 Registration authorities are required to give effect to Tribunal declarations and act in accordance with them when considering other applications for registration.
4.12 Tribunal declarations refusing the grant of registration on the basis of a threat to health, safety or the environment have effect for 12 months. During this period, the party in whose jurisdiction the declaration applies must refer the matter to the relevant Ministerial Council to examine the registration requirements for the occupation in question and determine whether any changes to the standards applying to the occupation should be introduced.
TopMechanisms available if a registration authority has concerns about the competency of persons registered in another jurisdiction
Referral to a Ministerial Council
4.13 Sometimes the issue of the appropriate competency standards needed to gain registration to practise a particular occupation may arise. If the issue substantially concerns the protection of public health, safety or the environment, a participating government may refer the matter to the relevant Ministerial Council for determination. The Ministerial Council must endeavour to make a determination within 12 months of receiving a referral. Ministerial Council determinations require a vote in favour by not less than two-thirds of the total number of participating parties to the Agreement.
4.14 Ministerial Council determinations must be made in accordance with the COAG Principles and Guidelines for Standard Setting and Regulatory Action. Determinations are to be submitted to Heads of Government for approval through the COAG Committee on Regulatory Reform. Unless the determination is revoked by one third or more of Heads of Government within three months, the participating parties are required to take action to implement the determination.
TopMinisterial Declarations
4.15 Ministers from any two or more jurisdictions may jointly declare that specified occupations are equivalent. They may also specify or describe conditions that will achieve equivalence. Ministerial Declarations only have effect in the jurisdictions of the parties making them, and prevail over any inconsistent decisions of the AAT.