Automatic Mutual Recognition (Australian Capital Territory) (Exemptions—Dangerous Substances) Declaration 2022

This instrument, the Automatic Mutual Recognition (Australian Capital Territory) (Exemptions,Dangerous Substances) Declaration 2022, makes a time‑limited exemption from the automatic deemed registration rule in the Commonwealth Mutual Recognition Act 1992 for particular ACT dangerous‑substances registrations. The declaration is made under s 42S of the Mutual Recognition Act 1992 (the Act) and is effective in the Australian Capital Territory only (s 3; Simplified outline). It commenced on 1 July 2022 (s 2) and excludes, until 1 July 2025, registrations under the Dangerous Substances (Explosives) Regulation 2004 and the Dangerous Substances (General) Regulation 2004 from the operation of the Act’s automatic deemed registration mechanism (s 6).

Mechanically, the exemption means that persons who would otherwise obtain a deemed ACT registration via the Mutual Recognition automatic deemed registration process may not rely on that deemed registration in respect of the specified dangerous‑substances occupations and activities while the exemption is in force. The instrument identifies the statutory basis used to make the exclusion (s 3: s 42S of the Act) and records the territorial and temporal limits: it is an ACT‑only instrument, and the exclusion expires on 1 July 2025 by operation of s 6 read with the commencement schedule in s 2.

The instrument sets out the decision maker’s stated rationale for the exclusion (s 7): there is a declared significant risk to health and safety in the ACT arising from dangerous substances, especially asbestos; the instrument signals concern that features of the AMR scheme , notably the “notification of intention to work” and information‑sharing provisions , could result in a diminution of regulatory oversight once an interstate supplier has made the one‑off notification; and that the ACT has a high proportion of interstate workers. The instrument also records that WorkSafe ACT is the relevant regulator whose ongoing regulatory relationship with individuals may be affected, and that a nationally consistent approach to dangerous‑substances legislation will be progressed during the exemption period (s 7).

The instrument contains a Human Rights Act 2004 (ACT) statement (s 8). The Chief Minister records consideration of s 40B of the Human Rights Act and s 27B(1) (the right to work and to choose occupation). The statement explains that the exclusion may limit the right to work but is not a prohibition: individuals can still carry on dangerous‑substances activities in the ACT provided they meet the ACT’s registration requirements (s 8). The exclusion is expressed to be necessary, proportionate and reasonable to preserve safeguards for worker and public health and safety during transition to AMR arrangements or while national consistency is progressed (s 8).

The instrument contains no new registration regime, penalty, or enforcement mechanism; it operates by excluding specified ACT registrations from automatic deeming under the Mutual Recognition Act and leaves existing ACT registration requirements and regulator functions intact (see ss 6 and 8).

The instrument rests on a small number of legally and practically relevant concepts that determine its effect.

• Exclusion from automatic deemed registration: The core legal mechanism is an exclusion under s 42S(1)(a) of the Mutual Recognition Act 1992, whereby a specified ACT registration is "excluded from the operation of automatic deemed registration" in the ACT until a stated date (s 6). The instrument identifies the specific legislative instruments (the Dangerous Substances (Explosives) Regulation 2004 and the Dangerous Substances (General) Regulation 2004) whose registrations are excluded (s 6).

• Temporal and territorial limits: The exclusion is time‑limited, operative until 1 July 2025 (s 6), and is explicitly expressed to have effect only in relation to the Australian Capital Territory (Simplified outline). The commencement clause confirms the instrument as a whole commenced 1 July 2022 (s 2).

• Risk justification and regulatory oversight: The instrument ties the exclusion to a "significant risk" threshold under s 42S(2) of the Act. The significant risk is characterised as threats to worker and public health and safety arising from dangerous substances, particularly asbestos, and a risk of diminished regulatory oversight under the AMR process because the AMR notification of intention to work is a one‑off step (s 7). The instrument therefore treats ongoing regulatory engagement between WorkSafe ACT and persons working with dangerous substances as a central regulatory objective.

• Interaction with AMR scheme features: The instrument explicitly references two AMR features: notification of intention to work and information‑sharing powers and obligations. It reasons that, notwithstanding those AMR provisions, the notification mechanism may reduce the ongoing regulatory relationship (s 7). The instrument thereby treats the AMR automatic deemed registration process as a mechanism with potential oversight gaps for dangerous‑substances work.

• Human rights balancing: The instrument engages the ACT Human Rights Act 2004. The Chief Minister records consideration of the right to work under s 27B(1) and concludes that the exclusion does not render unlawful interference because it does not prevent work; rather it requires compliance with ACT registration requirements that are described as "necessary, proportionate and reasonable" to safeguard worker health and safety (s 8).

• Administrative posture: The instrument is framed as temporary and enabling change during the exemption window. It records that a "reliable and robust, nationally consistent approach to dangerous substances legislation will ensure that the regulator, WorkSafe ACT, can properly exercise its obligations and powers under AMR" and that this will be "progressed during the exemption period" (s 7). The instrument thus establishes a limited pause in AMR automaticisation for these particular ACT regulatory settings while further work is undertaken.

The instrument identifies a circumscribed set of affected persons and institutions, directly and indirectly.

• Individuals and businesses carrying on activities covered by the Dangerous Substances (Explosives) Regulation 2004 and the Dangerous Substances (General) Regulation 2004 in the ACT: Section 6 expressly excludes registrations under those two ACT regulations from the automatic deemed registration provisions of the Mutual Recognition Act until 1 July 2025. Practically, that means any person who would otherwise have obtained deemed ACT registration through AMR for the listed dangerous‑substances occupations or activities cannot rely on the automatic deeming mechanism and must instead meet the ACT registration requirements to lawfully carry out the relevant activities in the ACT during the exemption period. The Human Rights statement reiterates that individuals remain able to carry on such activities provided they meet relevant ACT registration requirements (s 8).

• Interstate suppliers and interstate workers: The instrument repeatedly refers to interstate workers and suppliers within the AMR scheme. It identifies a risk arising from the ACT having a "high proportion of interstate workers" (s 7). The instrument therefore directly affects interstate workers or suppliers who, relying on AMR, could otherwise enter the ACT and be treated as registered by deeming; those persons will be required to comply with ACT registration requirements during the exemption.

• WorkSafe ACT and ACT regulatory authorities: The instrument names WorkSafe ACT as the regulator whose ongoing regulatory relationship with persons working with dangerous substances could be diminished under AMR’s notification arrangements (s 7). The exemption is justified as necessary to preserve WorkSafe ACT’s ability to "properly exercise its obligations and powers under AMR" while national consistency is progressed (s 7). Consequently, WorkSafe ACT will continue to regulate registrations under the relevant ACT regulations without the complication of automatic deeming for the stated period.

• Commonwealth AMR administration: The instrument interacts with the Commonwealth Mutual Recognition Act. By operation of s 3, the instrument is made under s 42S of the Mutual Recognition Act and it excludes specified ACT registrations from AMR’s automatic deemed registration. The effect is to limit the immediate reach of AMR within the ACT for the specified categories.

• Broader public and workers in the ACT: The stated purpose (s 4; s 7) links the exemption to public and worker health and safety. The instrument thereby affects the community at large in that it is intended to maintain or preserve existing ACT safeguards for dangerous substances during the exemption period.

The instrument itself is short and does not create novel statutory duties or rights outside its exclusionary effect; nonetheless it produces a set of operative duties and rights by reference.

• Duty to comply with ACT registration requirements for dangerous substances activities in the ACT while the exemption operates: By excluding registrations under the two specified regulations from automatic deemed registration, the instrument makes clear that individuals who wish to carry on activities covered by those regulations in the ACT must be registered under those ACT regulations rather than relying on a deemed registration under the AMR process (s 6; s 8). The Human Rights statement explicitly states that "all individuals who wish to carry on an activity covered by dangerous substances occupations in the ACT must meet particular registration requirements set out in ACT law" (s 8). Thus the operative duty for affected persons is compliance with the existing ACT registration framework.

• Right to carry on the activity conditional on meeting ACT registration requirements: The instrument and its Human Rights statement (s 8) emphasise that the exclusion does not bar persons from carrying on the relevant activities in the ACT; it requires them to meet ACT registration requirements first. That is expressed as a qualified right , access to work remains available subject to those registration steps.

• Regulatory obligations and powers retained by WorkSafe ACT: The instrument frames the exemption as preserving WorkSafe ACT’s ability to "properly exercise its obligations and powers under AMR" (s 7). While the instrument does not restate WorkSafe ACT’s statutory regime, it expresses an intention that WorkSafe ACT will continue to have effective regulatory oversight over dangerous‑substances activities in the ACT during the exemption period.

• Temporal limitation on the right to use AMR’s automatic deeming: A practical right that would otherwise exist under the Mutual Recognition Act , the right to be treated as registered by operation of AMR , is curtailed for the specified registrations in the ACT during the period to 1 July 2025 (s 6). The instrument therefore imposes a time‑limited restriction on the exercise of that AMR‑derived right within the ACT for the listed registrations.

• Human rights balancing: The instrument records the Chief Minister’s assessment under the Human Rights Act 2004 (ACT), specifically s 40B and s 27B(1). It states that any limitation on the right to work is "reasonable and justified" because the exclusion allows the ACT to "address risks associated with the transitioning to AMR while ensuring there is no diminution in current levels of safeguards in relation to the health and safety of workers or the public" (s 8). That is the instrument’s articulated rights‑and‑duties balance.

The instrument itself does not create new offences, penalties or enforcement mechanisms. Its operative effect is exclusionary: it prevents specified ACT registrations from being automatically deemed under the Mutual Recognition Act, thereby preserving the application of existing ACT registration, compliance and enforcement regimes for dangerous substances activities in the ACT until 1 July 2025 (s 6; s 8).

• No new penalties in the declaration: Nowhere in the instrument are new penalties, infringement regimes, or penalty amounts prescribed. The declaration instead references existing ACT regulations as the operative source of registration and, by implication, the source of any compliance obligations and enforcement powers (s 6; s 8).

• Enforcement to remain with ACT regulators, principally WorkSafe ACT: The instrument identifies WorkSafe ACT as the relevant regulator whose regulatory relationship with individuals might otherwise be diminished under AMR and which the exemption intends to preserve (s 7). Therefore, enforcement against non‑compliance with registration requirements for dangerous substances occupations will follow the ACT’s usual regulatory pathways under the Dangerous Substances (Explosives) Regulation 2004 and the Dangerous Substances (General) Regulation 2004.

• Interaction with AMR enforcement mechanisms: The instrument refers to "information sharing powers and obligations" under the AMR scheme (s 7) but treats them as insufficient to prevent a potential diminution of regulatory oversight because AMR’s notification of intention to work is a single event. The instrument does not alter AMR’s enforcement mechanisms; it simply removes the application of automatic deemed registration to the specified ACT registrations, so that AMR’s enforcement architecture is not engaged for those registrations in the ACT during the exemption.

• Practical enforcement consequence: Because the exclusion prevents deemed registration, persons who fail to obtain the requisite ACT registration (rather than assuming they are covered by AMR deeming) could be treated as unregistered under ACT law and therefore subject to whatever enforcement, compliance and penalty regimes apply under those ACT dangerous‑substances regulations. The specifics of those enforcement measures are not set out in this instrument; they remain in the Dangerous Substances Regulations and other ACT law.

• Administrative obligations and monitoring: The instrument signals an ongoing administrative task , progressing a nationally consistent approach to dangerous substances legislation during the exemption period (s 7). That administrative work implies monitoring and potential regulatory reform activity, the outcomes of which could change enforcement practice or regulatory requirements after the exemption ends. The instrument itself does not provide a timetable or procedural detail for that work.

The declaration is explicitly framed as a limited modification to the interplay between the Commonwealth Mutual Recognition Act 1992 and ACT dangerous‑substances regulatory law. The instrument names the legal provisions and instruments it touches.

• Relationship with the Mutual Recognition Act 1992: The instrument is made under s 42S of the Mutual Recognition Act 1992 (s 3) and, in substance, exercises the power in s 42S(1)(a) to exclude certain registrations from "automatic deemed registration" in the ACT (s 6). The instrument therefore operates as a subordinate instrument under the Commonwealth Act that modifies the default mutual recognition effect for a specific set of ACT registrations for a limited period.

• Interaction with ACT dangerous‑substances regulations: The declaration identifies two ACT subordinate instruments , the Dangerous Substances (Explosives) Regulation 2004 and the Dangerous Substances (General) Regulation 2004 , as the source of registrations excluded from AMR’s automatic deeming (s 6). The declaration does not modify those regulations; rather it preserves their primacy within the ACT for the stated period by preventing the AMR mechanism from automatically importing registrations via deeming.

• Interaction with AMR procedural features (notification and information sharing): The instrument expressly refers to "the provisions under the AMR scheme relating to notification of intention to work and information sharing powers and obligations" but records a judgment that these features may not prevent a diminution of regulatory oversight because AMR’s notification is a one‑off event and does not necessarily preserve an ongoing regulatory relationship (s 7). The declaration thus treats AMR’s notification and information sharing provisions as insufficient in the context of dangerous substances, and excludes the relevant ACT registrations accordingly.

• Interaction with WorkSafe ACT’s statutory powers: While the declaration does not restate any specific statutory powers, it frames the exclusion as necessary to ensure that "WorkSafe ACT can properly exercise its obligations and powers under AMR" (s 7). That phrasing indicates that the ACT sees the exemption as ensuring that WorkSafe ACT’s functions under ACT law are not undermined by immediate application of AMR deeming for the specified registrations.

• Human Rights Act 2004 (ACT): The instrument engages the Human Rights Act 2004 (ACT), specifically s 40B (public authorities must not act incompatibly with human rights) and s 27B(1) (the right to work and choose occupation). The Chief Minister records that these rights were considered and concludes the exclusion is compatible because it does not prevent work, but requires compliance with ACT registration requirements (s 8). The instrument thus records a statutory human rights compatibility assessment as part of its legal interaction.

The instrument contains a commencement table and a note about the table’s scope; it does not record subsequent amendments. The text provides the following factual points about its legislative history and amendment posture.

• Original making and date: The instrument is dated 30 June 2022 and was declared by the Chief Minister (front page and signature block). The commencement clause records that the whole instrument commenced on 1 July 2022 (s 2, commencement table). The instrument’s Simplified outline restates that the instrument has effect only in the ACT and describes its purpose.

• Temporary duration set at inception: Section 6 specifies the operative period of the exclusion: registrations under the two named Dangerous Substances Regulations are excluded from automatic deemed registration "until 1 July 2025" (s 6). That temporal limit is expressed in the operative exclusion clause rather than as a separate amendment or sunset provision elsewhere.

• No recorded amendments in the text provided: The instrument includes the standard note in the commencement table that the table relates only to the provisions of the instrument "as originally made" and that it will not be amended to deal with later amendments of the instrument (s 2, note). The instrument as supplied contains no subsequent amendment schedule or recorded amendments to its terms. The presence of that note signals the instrument’s original status and indicates that changes, if any, made after original publication would not be reflected in this particular table.

• Forward work anticipated but not statutorily mandated: The text states that a nationally consistent approach to dangerous substances legislation "will be progressed during the exemption period" (s 7). That is an administrative statement of intent rather than a statutory amendment obligation. The instrument does not prescribe what form any amendment would take, which authorities will implement it, or the timing or mechanism for altering the exemption prior to the 1 July 2025 expiry. It does not, for example, provide triggers for earlier revocation or extension; those matters are not addressed in the text.

• No amendment to the underlying Dangerous Substances Regulations recorded: The declaration does not amend the Dangerous Substances (Explosives) Regulation 2004 or the Dangerous Substances (General) Regulation 2004; it merely excludes registrations under those instruments from AMR automatic deeming for the stated period (s 6). Any future amendment history of those regulations is not addressed in the instrument.

The text of the instrument contains no references to litigation, judicial decisions, or tribunal findings. It does not record any existing or anticipated court proceedings, and no case law is cited or incorporated in the instrument itself. Therefore the instrument, as supplied, has no litigation history recorded within its text.

Given the absence of litigation references in the instrument, two practical consequences follow for legal and compliance practitioners:

• No judicial interpretation recorded: There is no authority in the instrument’s text indicating how courts or tribunals have interpreted the exclusion, AMR interactions, or the Human Rights Act compatibility statement. Any legal questions about the interaction between the declaration and other statutory provisions, the scope of the exclusion, or the degree of permissible regulatory action under the exclusion will therefore lack instrument‑specific judicial precedents cited in the instrument itself.

• Legal uncertainty requires primary‑source analysis if challenged: Because the instrument makes an exclusion under the Commonwealth Mutual Recognition Act and engages human rights balancing under the ACT Human Rights Act, any legal challenge to the exclusion , were one to occur , would have to be brought against the text of the Mutual Recognition Act, the declaration, and the applicable ACT regulatory provisions. The instrument does not indicate whether the ACT executive anticipated or sought to preclude judicial review. It does not record litigation outcomes or settled positions.

For practitioners assessing litigation risk, the following observations are drawn strictly from the instrument text:

• The instrument records the Chief Minister’s consideration of Human Rights Act obligations (s 8). That record may be relevant evidence of administrative process in any challenge under the Human Rights Act, but the instrument does not state that the Human Rights Act prevents judicial review or that any particular judicial remedy is precluded.

• The instrument’s reliance on s 42S of the Mutual Recognition Act points to the Commonwealth statutory power under which the exclusion was made. Any judicial scrutiny of the validity of the instrument would centre on the proper exercise of that power and whether the s 42S(2) "significant risk" threshold has been correctly applied, but the instrument itself contains only the executive statement of the significant risk with supporting factual assertions (s 7). The instrument does not include annexed factual materials or detailed empirical evidence beyond the statements it contains.

This instrument is short but contains several points that can create practical pitfalls for regulated parties, advisers and regulators. The following "gotchas" are drawn strictly from the instrument’s text.

• Temporary, fixed‑term exclusion: The exclusion runs only until 1 July 2025 (s 6). Parties who plan operations in the ACT on the assumption the exemption is permanent risk non‑compliance when the exemption expires. The instrument notes the exemption will be used while a nationally consistent approach is progressed (s 7), but it contains no guarantee or detail on what reforms will follow. Practitioners should not assume continuity beyond the sunset date.

• Effect is jurisdictionally limited to the ACT: The instrument "has effect only in relation to the Australian Capital Territory" (Simplified outline). That means the exclusion does not apply in other jurisdictions. Interstate workers or suppliers unable to rely on AMR in the ACT may still rely on AMR elsewhere; conversely, a person who holds a deemed registration in another jurisdiction should not assume it operates in the ACT while the exclusion is in place.

• The declaration removes an avenue rather than adds a requirement: The instrument does not create a new registration regime; it excludes specified ACT registrations from automatic deeming under the Commonwealth Act (s 6). The practical effect is that those wishing to carry on dangerous‑substances activities in the ACT must comply with ACT registration requirements. Failing to appreciate that the "default" AMR pathway is removed for the listed registrations is a compliance risk.

• One‑off AMR notification may be inadequate for dangerous‑substances work: The instrument singles out the AMR's notification-of-intention mechanism as a source of concern because "once a supplier notifies of an intention to work, no further notification is required" and this may diminish the ongoing regulatory relationship between WorkSafe ACT and individuals working with dangerous substances (s 7). Parties relying on the AMR notification process may underestimate how that process interacts with ACT regulators, particularly for high‑risk activities such as asbestos removal.

• High proportion of interstate workers: The instrument observes that the ACT has a "high proportion of interstate workers" (s 7). For employers or labour hire firms hiring interstate workers, this may mean additional administrative burdens when those workers seek to operate in the ACT for activities covered by the excluded registrations. Employers should not assume interstate registrations automatically satisfy ACT law during the exemption.

The instrument is primarily procedural in effect: it withdraws the AMR automatic deeming avenue for certain ACT dangerous‑substances registrations and thereby places the onus on affected persons to ensure they meet ACT registration requirements. For regulated parties and advisers, the following steps (derived from the instrument’s content) will be the essential compliance checklist.

• Identify whether the activity is covered by the excluded regulations: The instrument expressly excludes "a registration under the Dangerous Substances (Explosives) Regulation 2004 and the Dangerous Substances (General) Regulation 2004" from automatic deemed registration in the ACT until 1 July 2025 (s 6). The first compliance task is to determine whether the occupation or activity in question falls within those regulations. The instrument does not define categories beyond the named regulations; compliance depends on how the work is classified under those ACT instruments.

• Do not rely on AMR automatic deeming during the exemption period: Because the instrument excludes the named registrations from automatic deemed registration, persons should not assume AMR will supply them with an ACT registration for those activities while the exemption is in force (s 6). Instead, they must pursue whatever registration process the Dangerous Substances Regulations require.

• Apply for and secure ACT registration where required: The Human Rights statement reiterates that "all individuals who wish to carry on an activity covered by dangerous substances occupations in the ACT must meet particular registration requirements set out in ACT law" (s 8). The operative step is therefore to initiate and complete the ACT registration process prescribed in the relevant Dangerous Substances Regulation(s). The instrument does not provide the registration form, fees or timeline; those particulars must be obtained from the ACT regulatory authority.

• Engage with WorkSafe ACT: The instrument identifies WorkSafe ACT as the regulator whose oversight the exemption aims to protect (s 7). Parties should therefore engage with WorkSafe ACT for guidance on registration, compliance obligations, and any information requirements. WorkSafe ACT will be central to maintaining regulatory relationships and may provide practical instructions or compliance checklists aligned with ACT law.

• Plan for interstate workers and suppliers: Given the instrument’s focus on interstate workers and suppliers (s 7), employers and labour hire firms should account for the extra administrative steps required when workers from other jurisdictions are to perform dangerous‑substances work in the ACT. Do not assume an interstate licence or AMR notification suffices for ACT work during the exemption.