Automatic Mutual Recognition (Australian Capital Territory) (Exemptions—Construction Occupations) Declaration 2025

The central concept is automatic deemed registration under the Mutual Recognition Act. Part 3A of the MRA provides that, from July 2022, a person who holds substantive registration in one jurisdiction (the home state) for an occupation is automatically deemed to hold registration in any other participating jurisdiction without further assessment, subject to limited exceptions. This is the AMR scheme. Section 42S of the MRA allows a participating jurisdiction to declare that specified registrations are excluded from the operation of automatic deemed registration in that jurisdiction, if the relevant minister is satisfied there is a significant risk to health and safety, consumer protection, or the environment. That is the legal basis for this instrument. The exemption operates as a carve-out from the default AMR rule for the ACT only. The concept of “significant risk” is defined in the instrument by reference to the ACT’s demerit point system under the Construction Occupations (Licensing) Act 2004 (ACT). According to the risk statement, the ACT has a gradated disciplinary framework that includes demerit points as both an educational tool and a penalty for non-compliance. The MRA provides (in section 36B) that automatic deemed registration ends if the individual becomes the subject of criminal, civil or disciplinary proceedings in any state, including preliminary investigations, and that this also affects the home state registration. The instrument claims that the issuing of a demerit point constitutes disciplinary proceedings, and thus an interstate worker relying on deemed registration in the ACT could lose that registration and potentially their home state registration for a minor infraction. The instrument further claims this would create a disproportionate two-tier regulatory framework, with interstate workers subject to different compliance consequences than ACT-licensed workers. The exemption lasts until 30 June 2027, after which the AMR regime will apply to these occupations unless a further exemption is made. The instrument also includes a human rights statement (s 8) that acknowledges a potential limitation on the right to work under the Human Rights Act 2004 (ACT) but argues it is reasonable and justified because the exemption is necessary for safety and consumer protection, and because individuals can still obtain ACT licences or use the section 19 mutual recognition pathway.

The primary group affected is individuals who hold construction occupation registrations in another Australian state or territory and wish to work in the Australian Capital Territory. For these individuals, automatic deemed registration is not available for the ten specified occupations. They must instead apply for an ACT licence under the Construction Occupations (Licensing) Act 2004 (ACT) or, if eligible, apply for mutual recognition under section 19 of the MRA (which involves a slower assessment process and may require additional evidence). This imposes a direct compliance cost and time delay on interstate workers. The instrument also affects businesses in the ACT that employ or subcontract licensed construction workers. Such businesses cannot rely on an interstate worker’s deemed registration; they must ensure those workers hold an ACT licence or a current mutual recognition certificate. Non-compliance could expose the business to liability under ACT law. The ACT regulator, Access Canberra, is affected because it must continue to process applications for licences from interstate workers and maintain the existing licensing framework, rather than relying on the AMR system to handle incoming workers. The regulator also continues to operate the demerit point system. The instrument does not affect interstate workers outside the ACT; they can still use AMR to work in other states, unless those states have their own exemptions. The instrument does not affect ACT-licensed workers travelling to other states, as the exemption applies only in the ACT. Consumers in the ACT are indirectly affected: the declared purpose is to maintain existing safeguards, but the cost may be reduced labour mobility and potentially higher prices for construction services. The instrument also affects other state and territory regulators, who may see fewer ACT-bound workers using AMR, and who may need to coordinate on alternative arrangements before the 2027 sunset.

The instrument does not impose any new duties. Instead, it removes a right that would otherwise exist: the right to rely on automatic deemed registration under Part 3A of the MRA for the identified construction occupations in the ACT. For interstate workers, the key right that remains is the right to apply for an ACT licence under local law, or to apply for mutual recognition under section 19 of the MRA. Section 19 mutual recognition is a separate, pre-existing pathway that requires the host state to accept the home state registration after an assessment, but it is not automatic and involves a formal application and possible conditions. The instrument does not affect the right of ACT-licensed workers to use AMR in other states. For the ACT regulator, the key duty is to administer the local licensing regime fairly and without discrimination against interstate applicants. The instrument itself does not impose any positive obligation on the regulator, but the Human Rights Act statement references the duty under section 40B of the Human Rights Act 2004 (ACT) for public authorities to act compatibly with human rights, and the instrument claims the exemption is consistent with that duty. For businesses and consumers, there is no new duty under this instrument, but they have an interest in ensuring that workers are properly licensed. The instrument also imposes a duty on the Commonwealth minister or delegate to ensure the exemption is justified under section 42S and to review it appropriately. Practically, the main duty for any person relying on the exemption is to ensure they do not mistakenly assume automatic deemed registration is available for these occupations in the ACT.

The Declaration itself does not create any criminal offences or civil penalties. Instead, it maintains the existing enforcement framework under the Construction Occupations (Licensing) Act 2004 (ACT) and the Mutual Recognition Act 1992 (Cth). If an individual carries on a regulated construction activity in the ACT without holding a valid ACT licence and without being covered by a valid mutual recognition exemption or section 19 registration, they may be subject to penalties under ACT law. The ACT legislation typically imposes maximum fines for unlicensed work, and in serious cases may involve court proceedings. Enforcement is undertaken by the ACT regulator, Access Canberra, which has powers to investigate, issue infringement notices, and refer matters for prosecution. The demerit point system under the ACT Act remains in place; accumulation of demerit points can lead to disciplinary action including suspension or cancellation of an ACT licence. That system is claimed to be the reason for the exemption, but it remains applicable to ACT-licensed workers and to interstate workers who obtain ACT licences. The exemption does not change enforcement priorities; it simply means that an interstate worker cannot rely on deemed registration as a defence to unlicensed work. There is also an indirect enforcement dimension under the MRA: if a person uses automatic deemed registration in another state but later comes to the ACT, they cannot rely on that deemed registration here. The risk statement notes that under section 36B of the MRA, if disciplinary proceedings (including demerit points) are taken, the deemed registration ends, and this can affect the home state registration. The instrument is intended to avoid that cascade effect. However, the instrument does not impose any penalty for attempting to rely on deemed registration; rather, the consequence is that the person would be unlicensed and liable under ACT law.

This Declaration is made under and interacts with the Mutual Recognition Act 1992 (Cth), specifically section 42S. It overrides the operation of Part 3A of the MRA (automatic deemed registration) for the specified occupations in the ACT. Other provisions of the MRA, such as the standard mutual recognition scheme under Part 2 remain unaffected. This means a person can still apply under section 19 for mutual recognition, which involves the host state (ACT) assessing whether the home state registration is equivalent. The instrument does not affect the operation of the MRA in any other state or territory. It also interacts with the Construction Occupations (Licensing) Act 2004 (ACT), which sets out the full licensing requirements for the ten occupations. The exemption effectively preserves the ACT’s complete regulatory control over entry to those occupations, meaning an interstate worker must satisfy the ACT’s criteria for licensing (qualifications, experience, insurance, etc.) before working in the ACT. The instrument also interacts with the Human Rights Act 2004 (ACT). Section 40B of that Act requires public authorities to act compatibly with human rights. The Declaration includes a statement (s 8) that the exemption is compatible with the right to work under section 27B, because it does not prevent anyone from working; they can still obtain an ACT licence or use section 19 mutual recognition. That statement is the drafter’s opinion and could be tested if a person challenged the exemption as an unreasonable limitation on the right to work. The instrument also interacts with the Legislation Act 2003 (Cth) regarding its sunset and repeal provisions (s 9). The repeal of the 2022 Declaration under Schedule 1 ensures that the earlier exemption ceases and is replaced by the 2025 Declaration. There is no interaction with criminal law enforcement beyond the underlying ACT licensing laws.

This Declaration is a new instrument that repeals and replaces the Automatic Mutual Recognition (Australian Capital Territory) (Exemptions,Construction Occupations) Declaration 2022. The 2022 Declaration was the original exemption made when the AMR scheme commenced. That declaration expired or was due for renewal, and this instrument extends the exemption for a further two years, from 1 July 2025 to 30 June 2027. The instrument itself has not been amended since its commencement. The repeal of the 2022 Declaration is set out in Schedule 1. There is no other amendment history disclosed in the instrument. The simplified outline and the risk statement make clear that this exemption is intended to be temporary, with a view to developing alternative arrangements before the sunset date. Any future amendments would require a new declaration or variation under section 42S. The instrument contains no transitional provisions or savings for individuals who may have been relying on the 2022 Declaration. The 2022 Declaration presumably ended on 30 June 2025, and this instrument picks up from 1 July 2025. There is no gap in coverage, as the commencement is 1 July 2025. The instrument does not amend the primary legislation (the MRA or the ACT Act); it is a standalone instrument of a legislative character.

The instrument itself does not cite any legal cases or litigation history. There is no reference to any court decisions regarding the ACT demerit point system, the MRA, or the previous 2022 Declaration. This is not surprising, as the instrument is a legislative instrument and such instruments rarely reference case law. However, the underlying Mutual Recognition Act 1992 has been the subject of litigation in various contexts, particularly around the scope of occupational registration and mutual recognition obligations. No such cases are mentioned here. The risk statement suggests that the demerit point system might give rise to disputes about whether it constitutes “disciplinary proceedings” under section 36B of the MRA, but no court has yet ruled on that specific issue. The Human Rights Act statement anticipates potential challenges to the exemption on human rights grounds, but again no prior litigation is referenced. Practitioners should be aware that if a worker’s deemed registration is affected by demerit points, that could lead to judicial review or administrative appeals under the ACT’s civil and administrative tribunal. Those cases would be decided under the ACT Act, not this Declaration. The exemption itself could theoretically be challenged in the Federal Court as beyond power or as an unreasonable exercise of discretion under section 42S, but no such challenge is noted.

Several practical pitfalls arise from this instrument. First, an interstate worker who holds, for example, a New South Wales builder licence may assume that automatic deemed registration covers them in the ACT for all occupations. Unless they check this specific Declaration, they could inadvertently perform regulated work without a valid ACT licence, exposing them to penalties for unlicensed work. The exemption is not obvious from the MRA itself; it is a separate legislative instrument. Second, the exemption applies to registrations under the ACT Construction Occupations (Licensing) Act 2004. If an interstate worker’s occupation is not one of the ten listed, or if the occupation is defined slightly differently in the home state, they might still be covered by deemed registration. But the list is broad and includes most building trades. Third, the demerit point system is claimed to be the justification, but the exemption does not remove the demerit point system. An interstate worker who obtains an ACT licence becomes subject to that system, including the risk that demerit points could affect their home state registration through the operation of section 36B of the MRA (if they later rely on deemed registration elsewhere). The exemption merely avoids the immediate loss of deemed registration in the ACT, but the underlying MRA provision linking home state registration to disciplinary proceedings remains. Fourth, the sunset date of 30 June 2027 is fixed. If alternative arrangements are not developed by then, the AMR regime will apply automatically, and all the claimed risks about demerit points triggering loss of registration will apply with full force. The instrument does not create a transition period. Fifth, the Human Rights Act statement is only a statement; it does not bind any court. If a worker challenges the exemption as an unjustified limitation on the right to work, the court may disagree. Sixth, the instrument repeals the 2022 Declaration but does not preserve any rights that workers may have acquired under that Declaration. Since the 2022 Declaration excluded the same occupations, workers who relied on it would have been in the same position; there is no grandfathering.

Compliance with this instrument is passive but requires awareness. For an interstate worker who wishes to perform work in the ACT in one of the ten listed construction occupations, the correct approach is to obtain an ACT licence under the Construction Occupations (Licensing) Act 2004 before commencing work. Alternatively, the worker may apply for mutual recognition under section 19 of the MRA. This involves submitting an application to the ACT regulator, along with evidence of home state registration, and paying the relevant fee. The regulator must then grant registration unless there are substantial differences in standards or other grounds for refusal. This process is not immediate; it can take weeks or months. The worker should not rely on the automatic deemed registration provisions of Part 3A of the MRA, as that pathway is excluded. For an employer in the ACT who engages interstate workers, the employer should verify that the worker holds either an ACT licence (with the correct classification) or a current mutual recognition certificate issued under section 19. Relying on a statement that the worker is “registered in another state” is insufficient. The employer should keep copies of the worker’s licence or certificate in their records. For the ACT regulator (Access Canberra), compliance means continuing to administer the local licensing regime, accepting applications for mutual recognition under section 19, and not treating an interstate worker as deemed registered for these occupations. The regulator should also ensure that any demerit point actions are processed correctly and that the risk of triggering section 36B of the MRA for home state registrations is properly assessed. For legal practitioners advising clients, the takeaway is to check whether a client’s occupation is listed in this instrument before advising on whether AMR is available in the ACT. If the client holds one of the ten registrations, they must use the ordinary licensing pathway or section 19 mutual recognition. The instrument does not affect compliance for ACT-licensed workers working in other states; they can still rely on AMR in those states unless a similar exemption exists there. All parties should monitor the sunset date of 30 June 2027; if no further exemption is made, the AMR scheme will apply to these occupations in the ACT from that date, and compliance obligations will change accordingly.