Automatic Mutual Recognition (Australian Capital Territory) (Exemptions—Labour Hire Provider) Declaration 2022

This instrument, the Automatic Mutual Recognition (Australian Capital Territory) (Exemptions,Labour Hire Provider) Declaration 2022, mechanically removes a specific class of registrations from the operation of the Mutual Recognition Act 1992’s automatic deemed registration regime in the Australian Capital Territory for a fixed period. Concretely, it declares that, for the purposes of s 42S(1)(a) of the Mutual Recognition Act 1992 (Commonwealth), a registration under the Labour Hire Licensing Act 2020 (ACT) is excluded from automatic deemed registration in the ACT until 1 July 2025 (s 6). The instrument therefore temporarily prevents individuals who would otherwise obtain a deemed ACT registration under the Mutual Recognition Act’s automatic mutual recognition (AMR) pathway from being treated as registered labour hire providers in the ACT by operation of mutual recognition, unless they meet ACT registration requirements directly under the Labour Hire Licensing Act 2020.

The instrument is limited in geographic and temporal scope. It has effect only in relation to the Australian Capital Territory (s 4) and the table in the commencement provision records that “the whole of this instrument” commences on 1 July 2022 (s 2). The exemption itself runs until 1 July 2025 (s 6). The instrument is made under the Commonwealth Mutual Recognition Act 1992, specifically under s 42S of that Act (s 3).

The instrument sets out the executive rationale for the exclusion: it identifies a “significant risk” to the health and safety of workers or the public in the ACT if labour hire provider registrations were subject to automatic deemed registration under AMR (s 7). The statement in s 7 describes how, under existing ACT licensing arrangements, an ACT licence establishes “a regular regime of assessment” and information-gathering, including a licence application requirement to inform the Labour Hire Licensing Commissioner of intended industries of operation and notification of changes. The instrument claims that those flows of information, compiled on a public register and relied on by hirers and regulators, could be diminished under AMR for individuals relying on automatic deemed registration (s 7). The instrument therefore excludes ACT labour hire provider registrations from AMR for three years to allow time to implement further risk mitigation strategies (s 7).

Finally, the instrument includes a Human Rights Act consideration (s 8). It records that the Chief Minister considered s 40B of the Human Rights Act 2004 (ACT) and s 27B(1) (the right to work), and states the view that the exclusion is not incompatible with those rights because it does not prevent carrying on labour hire activities; rather, it requires individuals to meet ACT registration requirements before operating, which the instrument says are “necessary, proportionate and reasonable” safeguards (s 8).

This is a technical, time-limited declaration that overrides a mutual recognition effect for a specified occupation category in the ACT, while leaving substantive enforcement and licensing powers to the Labour Hire Licensing Act 2020 and the ACT regulator. The instrument itself does not amend licensing standards, set fees, or create new offences; it only creates an exclusion from the AMR deemed-registration mechanism and records the policy justification for that exclusion (ss 3, 6, 7, 8).

The instrument rests on a small set of legal and administrative concepts, stated in the instrument and used to justify the exemption. Set out below are those concepts and how the instrument uses them.

• Exemption from automatic deemed registration: The central legal mechanism is an exclusion from “the operation of automatic deemed registration in the Australian Capital Territory” for registrations under the Labour Hire Licensing Act 2020. The instrument invokes s 42S of the Mutual Recognition Act 1992 as the source of power to make that exclusion (s 6; s 3). The exclusion is time-limited to 1 July 2025 (s 6).

• Geographic limitation: The instrument explicitly limits its effect to the Australian Capital Territory (s 4). It does not purport to change the Mutual Recognition Act nationally; rather, it uses a trigger in the Mutual Recognition Act to declare that, within the ACT, labour hire provider registrations do not attract deemed registration under AMR for the stated period (s 3; s 6).

• Risk-based justification: The instrument frames the exemption as necessary because of a “significant risk in the ACT to the health and safety of workers or the public” (s 7). The text links that risk to a possible “diminution in regulatory oversight under AMR” for individuals operating as labour hire providers by relying on automatic deemed registration (s 7).

• Information flows and regulatory oversight: The instrument identifies specific features of the ACT licensing regime that it says are important for compliance and enforcement: licence issuance establishes “a regular regime of assessment” and “information gathering on activities,” licences require disclosure of intended industry or industries, licensees must notify changes once operating, and the information is included on a public register that enables hirers to confirm licensing status (s 7). The instrument contrasts that ongoing, licence-driven information regime with the information realities it anticipates under AMR (s 7).

• Transitional, remedial timeframe: The instrument imposes a three-year exemption period expressly to give time for “further risk mitigation strategies to be implemented” (s 7). The instrument thus operates as a temporary firewall to preserve current information and oversight arrangements while the ACT works on mitigations.

• Human rights balancing: The instrument records a considered balancing exercise under the ACT Human Rights Act. It acknowledges that the exclusion may limit the right to work and the right to choose an occupation freely (s 8). The Chief Minister states the view that the measure does not prevent carrying on labour hire activities but requires satisfying ACT registration requirements, and that such registration requirements are “necessary, proportionate and reasonable” safeguards (s 8).

This instrument directly affects three principal groups and indirectly affects others. The text identifies the affected parties and the flows of obligation, information and choice that change because of the exemption.

• Individuals or entities that supply labour hire services to hirers in the ACT: The primary group affected are “labour hire providers” who would otherwise rely on automatic deemed registration under the Mutual Recognition Act to operate in the ACT. The exemption means that, until 1 July 2025, a person seeking to carry on an activity covered by the occupation of labour hire provider in the ACT cannot rely on AMR deemed registration and instead must meet the ACT’s Labour Hire Licensing Act 2020 registration requirements to be registered in the ACT (s 6; s 8).

• Current ACT labour hire licensees: Individuals or entities already licensed under the Labour Hire Licensing Act 2020 remain within the ACT licensing framework that the instrument identifies as producing regular assessment and information gathering (s 7). The instrument’s rationale explicitly references the benefits of the existing licence application process and public register in allowing hirers to verify suppliers (s 7). The exemption preserves the status and regulatory reach of ACT licences for the three-year period.

• Hirers (organisations and employers who engage labour hire suppliers) operating in the ACT: The instrument identifies hirers as users of the ACT public register to “easily confirm that the supplier is licensed to operate in the Territory” (s 7). By preserving the ACT licensing regime (and its requirement that licensees disclose intended industries and notify changes), the instrument keeps in place the information resource that hirers rely on to make procurement and compliance decisions (s 7). Conversely, if AMR applied and the instrument says there could be a diminution in oversight, hirers might no longer have the same degree of reliable public assurance , the instrument highlights that potential change and is designed to forestall it (s 7).

• The Labour Hire Licensing Commissioner and ACT regulators: The instrument references the Commissioner as the recipient of information through licence applications and change notifications and as the entity that uses that information for compliance and enforcement activity (s 7). The exclusion preserves the Commissioner’s access to information flows generated by ACT licences and prevents a temporary AMR substitution that, according to the instrument, could reduce the Commissioner’s visibility into who is operating and in which industries (s 7).

The instrument itself does not create detailed statutory duties or rights; it operates by excluding a class of ACT registrations from the automatic mutual recognition process. Nonetheless, the decision creates practical duties and rights by reference to existing ACT law and by altering which regulatory pathway applies to affected persons. The instrument and its statements identify, or imply, the following duties and rights as the operative consequences.

• Duty to obtain ACT registration (for suppliers intending to supply labour hire in the ACT during the exemption): The instrument makes clear that registrations under the Labour Hire Licensing Act 2020 are excluded from automatic deemed registration in the ACT until 1 July 2025 (s 6). The practical legal duty that follows is that a person who wishes to carry on an activity covered by the occupation of labour hire provider in the ACT during the exemption period must meet the ACT registration requirements (s 8). The instrument does not itself set out those registration requirements, fees, or procedural steps , those exist in the Labour Hire Licensing Act 2020, which the instrument references as the affected registration type (s 6).

• Duty to disclose intended industries and notify change (existing ACT licence obligations preserved): The instrument describes a pre-existing obligation in the ACT licensing framework that the licence application process requires a labour hire licensee to “inform the Commissioner of their intended industry (or industries) of operation” and to “notify the Commissioner of any changes to this once the supplier is operating” (s 7). The instrument identifies these information duties as part of the licensing framework it intends to preserve during the exemption period.

• Right of hirers to check the public register: The instrument highlights that the ACT licensing framework includes a public register containing industry information, enabling hirers to “easily confirm that the supplier is licensed to operate in the Territory” (s 7). That public-facing registration data is framed as a right-of-access or reliance point for hirers when contracting labour hire services in the ACT.

• Regulatory powers and information-gathering rights of the Labour Hire Licensing Commissioner: The instrument refers to the Commissioner’s role in receiving industry information and using it for compliance and enforcement (s 7). By preserving the ACT licensing regime, the instrument preserves the Commissioner’s regime of assessment and information collection, including the ability to enforce licensing requirements that exist under ACT law.

The declaration itself is not a sanctions instrument and contains no new penalty, enforcement regime, or infringement schedule. It operates by excluding a class of ACT registrations from automatic mutual recognition and thus preserves the existing enforcement architecture under ACT law rather than replacing it. The instrument’s text identifies the Labour Hire Licensing Act 2020 licensing framework and the Labour Hire Licensing Commissioner’s use of licensing information for compliance and enforcement purposes (s 7), but it does not alter or restate the specific penalties or enforcement mechanisms that sit in the Labour Hire Licensing Act or other ACT statutes.

Key enforcement-related consequences that follow from the instrument’s text are:

• Preservation of ACT enforcement mechanisms: By excluding labour hire provider registrations from automatic deemed registration, the instrument ensures that people supplying labour hire in the ACT remain subject to the existing licensing and enforcement regime under the Labour Hire Licensing Act 2020 (s 6; s 7). Any penalties, sanctions or compliance measures applicable to unlicensed operation, false statements in licence applications, failure to notify changes, or other licensing breaches remain matters for the Labour Hire Licensing Act and the Commissioner’s enforcement powers, not for this declaration.

• Reliance on information flows for enforcement: The instrument explicitly links the licensing-based information flows , application disclosures about intended industries and subsequent notifications , with compliance and enforcement activities, stating that such information is “important for compliance and enforcement activities in administering the ACT’s labour hire legislation” (s 7). The implication is that the enforcement regime relies materially on ongoing industry disclosure and the public register, and the exemption preserves those inputs.

• No criminal or civil penalties added or removed: The instrument does not create new offences nor does it repeal or modify existing offences in ACT law. Its operation is limited to excluding the automatic deemed registration effect that would otherwise arise under the Mutual Recognition Act 1992. Any investigation, administrative action, civil penalty or criminal prosecution remains governed by the existing ACT statutory framework.

• Information-sharing and AMR powers remain relevant but limited: The instrument notes that “Notwithstanding the provisions under the AMR scheme relating to notification of an intention to work and information sharing powers and obligations, there could be a diminution in regulatory oversight under AMR” (s 7). That wording records the presence of notification and information sharing under AMR, but it also records a view that those AMR mechanisms may not substitute adequately for the ACT licensing information regime. The effect of the declaration is therefore to avoid reliance on AMR’s notification or information sharing to meet ACT oversight needs during the exemption period.

The instrument operates by reference to several other statutory regimes mentioned in the text. It does not purport to amend those statutes; its interaction is by exclusion and preservation of the status quo for a limited period. The instrument explicitly invokes and interacts with the following laws:

• Mutual Recognition Act 1992 (Commonwealth): The instrument is made under s 42S of the Mutual Recognition Act 1992 (s 3). Its substantive operation is to effect, for the ACT, the exclusion authorised by that provision. The instrument therefore exploits an express power in the Commonwealth regime to exempt particular registrations from the AMR automatic deemed registration effect. The instrument’s description that “registrations ... are excluded from the operation of automatic deemed registration” is framed as having been made “for section 42S(1)(a) of the Act” (s 6). The instrument therefore modifies the operation of the Mutual Recognition Act’s practical effect in the ACT by creating an authorised, time-limited exception.

• Labour Hire Licensing Act 2020 (ACT): The registrations excluded are registrations “under the Labour Hire Licensing Act 2020 of the Australian Capital Territory” (s 6). The instrument preserves the ACT licensing regime by ensuring those who wish to operate as labour hire providers in the ACT must meet the ACT registration requirements rather than receiving a deemed registration through AMR. The instrument repeatedly references aspects of the Labour Hire Licensing Act’s information and public register requirements when explaining the reasoning for the exclusion (s 7). The instrument does not amend or specify the contents of the Labour Hire Licensing Act itself; it leaves the criteria, obligations and sanctions to that Act.

• AMR notification and information-sharing provisions: The instrument notes that AMR contains “provisions ... relating to notification of an intention to work and information sharing powers and obligations” but states that even with these provisions, “there could be a diminution in regulatory oversight under AMR” (s 7). This records an acknowledged overlap between the Commonwealth’s notification/information-sharing mechanisms and ACT regulatory needs, and the instrument chooses the ACT licensing path because, in the government’s view, those AMR mechanisms might not fully replicate the ACT’s information flows.

• Human Rights Act 2004 (ACT): The instrument records a section 40B(1) consideration under the Human Rights Act 2004 (ACT) and specifically cites s 27B(1) (the right to work and to choose an occupation freely) (s 8). The instrument records the Chief Minister’s view that the exclusion is compatible with human rights because it does not prevent work, but requires meeting the ACT registration requirements, which the instrument describes as “necessary, proportionate and reasonable” measures (s 8). The instrument therefore engages the Human Rights Act as a statutory lens through which the executive action was tested.

The instrument contains an explicit commencement table that covers the provisions “as originally made” and includes a note about the table not being amended to reflect later amendments (s 2). The document as provided contains no recorded subsequent amendments or modification entries. The formal parts of the instrument relevant to amendment history are:

• Commencement details: The table under s 2 records that “The whole of this instrument” commenced on 1 July 2022 (s 2). The instrument also contains a standard note stating: “This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument” (s 2). That language indicates the instrument, as published, is a record of the original text and commencement and should not be taken to contain later amendment history.

• Temporal limit built into the instrument: The substantive exclusion is expressly limited to “until 1 July 2025” (s 6). That date functions as a built-in expiry mechanism rather than an open-ended delegation that would require later repeal or amendment to end. The inclusion of a fixed expiry date reduces the need for amending the instrument to terminate the exclusion, because the instrument will cease to operate by its terms on 1 July 2025.

• No recorded subsequent modifications: The instrument as provided does not include any schedules, amendment notes, or further instruments that alter its content. It contains a single, original enactment dated 30 June 2022 and signed by the Chief Minister (opening text, dated signature). No later variant is supplied within the provided text.

• Note on future amendments: Because the instrument was made under s 42S of the Commonwealth Mutual Recognition Act, any later amendment or replacement of the instrument would presumably itself be another declaration made under the same or an applicable provision. But the instrument itself gives no record of subsequent action.

For practitioners, the practical import is:

• The current instrument is an original, single-declaration instrument commencing 1 July 2022 and running to 1 July 2025 (ss 2, 6).

• There is no internal amendment record in the text supplied. Any change to the instrument’s effect prior to 1 July 2025 would require a further instrument or amendment procedure not contained in this document. The instrument’s own silence on further amendments, and the included expiry date, indicates the intended temporariness of the measure (s 7).

The instrument as provided contains no reference to litigation, judicial review proceedings, or any court decisions. It is an administrative declaration by the Chief Minister under s 42S of the Commonwealth Mutual Recognition Act and includes explanatory material and statements of justification (s 7; s 8), but it does not recount or rely on any litigation history. The document contains:

• No citations of cases or legal challenges: The text does not cite any judicial decisions, appellate rulings, or tribunal matters that either prompted or responded to the instrument.

• No reference to legal challenges to its validity: The instrument’s Human Rights Act statement (s 8) sets out the executive’s consideration of compatibility with human rights obligations but does not reference litigation or judicial findings on those points.

• No mention of judicial consideration of Mutual Recognition Act interaction: There is no record within the instrument of prior disputes about AMR’s operation in the ACT that would indicate a litigation background.

For readers interested in litigation risk or precedent, the instrument itself does not provide materials demonstrating whether its reasoning or enactment has been tested in court. That absence is material: it means the instrument’s appropriateness, reasonableness, and legal validity as an exercise of s 42S have not been evidenced in this text as having been subject to judicial scrutiny. Legal actors wishing to test the instrument’s validity could in principle consider judicial review or other remedies, but the instrument contains no record of any such action. Any enquiries about existing or subsequent litigation would therefore require external research beyond this instrument, as the instrument contains no litigation history.

This instrument is terse and technical, and it raises several operational, timing and evidentiary points that practitioners and affected parties should note. The instrument itself highlights many of these points; the remainder are logical implications of its mechanics as set out in the text.

• Time-limited exclusion , watch the expiry date: The exclusion operates only until 1 July 2025 (s 6). The three-year window is explicit and automatic. Parties who plan to rely on AMR should monitor whether the exemption is extended, replaced, or allowed to lapse; the instrument itself indicates the three-year term is to “provide time for further risk mitigation strategies to be implemented” (s 7). Do not assume permanence.

• AMR notification and information-sharing are not treated as equivalent to ACT licensing information: The instrument notes that AMR contains notification-of-intention-to-work and information-sharing powers but asserts that these may not supply the ongoing, industry-specific information that the ACT licensing regime provides (s 7). Practically, providers relying on AMR notifications should not assume those processes will satisfy ACT compliance expectations in place of an ACT licence during the exemption period.

• Declaration does not change licensing criteria or fees: The instrument excludes AMR deemed registration but does not alter the Labour Hire Licensing Act 2020’s substantive requirements, fees or procedural steps (s 6). A provider who has previously relied on mutual recognition to perform in the ACT must still satisfy whatever the ACT licensing law requires to operate lawfully.

• Public register reliance by hirers: The instrument identifies the public register as a key verification tool for hirers (s 7). For hirers, relying on mutual recognition verification channels may not provide the same public-facing evidence that an ACT licence does. Contracting teams should continue to require evidence of ACT registration until and unless the exemption ceases.

• Information gaps and enforcement visibility: The instrument expressly raises the risk that “ongoing information about the industries in which the labour hire provider intends to operate may not be available to the Labour Hire Licensing Commissioner from time to time during the period of the licence, nor readily available to the hirer” if AMR applied (s 7). That is the central operational “gotcha” the instrument is designed to avoid, but it is also a reminder that providers must be attentive to the ACT’s disclosure and notification expectations once licensed under the Labour Hire Licensing Act 2020.

The instrument’s practical compliance pathway is straightforward because it does not create new licensing content but instead preserves the ACT’s existing licensing process. Compliance requires reading the instrument together with the Labour Hire Licensing Act 2020 and engaging the ACT licensing pathway. The instrument itself identifies the essential compliance steps and the reasons for them.

1. Identify whether your activities fall within the occupation of “labour hire provider” as regulated by the Labour Hire Licensing Act 2020. The instrument’s exclusion is specifically framed as applying to “a registration under the Labour Hire Licensing Act 2020 of the Australian Capital Territory” (s 6). If your activities are captured, you must not rely on automatic deemed registration under AMR in the ACT during the exemption period.

2. If you intend to carry on labour hire activities in the ACT during the exemption period (1 July 2022 to 1 July 2025), apply for registration under the Labour Hire Licensing Act 2020. The instrument repeatedly emphasises that the exclusion means individuals must meet “particular registration requirements set out in ACT law” (s 8). The instrument does not provide the procedural steps or lists of required documents; those are to be found in the Labour Hire Licensing Act 2020 and the Registrar/Commissioner’s published application materials. Ensure you consult those sources for required forms, fees, fit-and-proper person tests, or other criteria.

3. At application, disclose your intended industry or industries of operation and ensure continuing updates. The instrument emphasises that the ACT licensing regime requires a labour hire licensee, through the licence application process, to “inform the Commissioner of their intended industry (or industries) of operation” and to “notify the Commissioner of any changes to this once the supplier is operating” (s 7). Compliance therefore requires, at a minimum: (a) accurate disclosure of intended industries at application; and (b) timely notification to the Commissioner of any change in industry or operational scope while licensed.

4. Ensure registration details are properly recorded and accessible: The instrument highlights that industry disclosure is included on the public register and used by hirers to confirm licensing status (s 7). Confirm with the Commissioner’s office how your licence particulars will appear, and ensure that any public-facing representations about your ACT operations are consistent with the register.