Mutual Recognition (Western Australia) Act 2020

Adoption under section 51(xxxvii). The central legal mechanism is the State’s referral of power. The Act adopts the Commonwealth Act “as a law of the State” by reference to the Commonwealth Act’s text. The term “adopt” is used in the constitutional sense, and section 3 confirms it has the same meaning as in section 51(xxxvii). This is not a mere incorporation by reference into WA legislation; it is a referral that gives the Commonwealth Act (as amended from time to time within the limits of the adoption) binding force in WA. The adoption is not static: the Schedules may be amended by Commonwealth regulations, and such amendments take effect in WA without further State legislation, subject only to the tabling requirement in section 4(4).

Dual adoption structure. Section 4(1) adopts the Commonwealth Act as originally enacted and all amendments before Royal Assent (30 November 2020). Section 4(1A) separately adopts the amendments made by the Mutual Recognition Amendment Act 2021. This structure allows the termination provisions in sections 9 and 10 to apply differently to the two adoptions. The Governor can terminate the adoption of the 2021 amendments while leaving the 1992 Act (as originally adopted) in force, or vice versa. However, section 9(2) prohibits fixing a termination day for the original adoption that is earlier than the termination day for the 2021 amendment adoption. This ensures the original adoption cannot be ended before the later amendments, avoiding a gap where WA would have only the newer amendments but not the base Act.

Disclosure and immunity. Section 6 creates a permissive disclosure power for WA registration authorities to share information with registration authorities in other participating jurisdictions when specific events occur. It does not mandate disclosure; it says “may give”. The events triggering the power are: suspension or cancellation of registration; refusal to renew; imposition of a condition; disciplinary action; or commencement of civil/criminal proceedings relevant to the registration or occupation. The information that can be disclosed includes identifying details, information about the registration and conditions, and information about the event and its outcome. Section 7 provides broad immunity from civil and criminal liability for disclosures made in good faith under section 6 or under certain sections of the Commonwealth Act (sections 33, 37, 42M, 42N, 42P, 42V). It also protects against breach of confidentiality, privacy, or secrecy duties, and states it is not unprofessional conduct. The State is also relieved of vicarious liability.

Scheme reviews. Section 8 defines a “scheme review” as a review of the operation and effectiveness of the Intergovernmental Agreement on Automatic Mutual Recognition of Occupational Registration dated 11 December 2020 and the Commonwealth Act, carried out under clause 12 of that agreement. If the Minister receives a report from such a review, they must table it in each House as soon as practicable. The Minister may redact sensitive, confidential, or personal information before tabling.

Termination and revocation. Sections 9 and 10 give the Governor power to unilaterally terminate the State’s adoption of the Commonwealth Act, in whole or in part, by proclamation. This is a significant unilateral exit mechanism. The termination can be revoked before the fixed day if a revoking proclamation is published in the Gazette before the termination day. A revoking proclamation is retrospective: the terminated proclamation is taken never to have been made.

The Act directly affects three main groups: individuals seeking to practice an occupation in WA under mutual recognition; goods suppliers seeking to sell products in WA under mutual recognition; and State and Commonwealth regulatory authorities.

Occupational licence holders. Individuals who hold occupational registration in another State or Territory can rely on the Commonwealth Act (as adopted) to be deemed registered in WA for the equivalent occupation, without needing to undergo separate WA qualification or examination processes. This includes doctors, nurses, electricians, teachers, lawyers, real estate agents, and hundreds of other licensed occupations. The Act imposes no additional WA-specific obligations on these individuals beyond those in the Commonwealth Act. However, the information-sharing provisions in section 6 mean that if disciplinary action or registration issues arise in WA, WA authorities may send details to the individual’s home jurisdiction authority. This increases the risk that interstate consequences follow WA disciplinary events.

Businesses trading goods. Suppliers of goods that are legally sold in another State or Territory can sell them in WA without meeting additional WA standards or requiring separate approvals, provided the goods comply with the Commonwealth Act’s mutual recognition principles. This reduces the cost of entering the WA market for interstate suppliers. However, the temporary exemption power under section 5 (by WA regulations) and under the Commonwealth Act section 15 means that certain goods or local laws may be temporarily exempted from mutual recognition. Businesses must monitor both Commonwealth and WA regulations to see if exemptions apply.

Registration authorities in WA. Bodies such as the Australian Health Practitioner Regulation Agency (for health practitioners), the Legal Practice Board of WA, the Building and Energy division of the Department of Mines, Industry Regulation and Safety, and other occupational licensing bodies are directly affected. They are given a permissive disclosure power under section 6, which they may choose to exercise or not. They also have obligations under the Commonwealth Act to recognise interstate registrations, which they cannot refuse unless an exclusion or exception applies. The immunity in section 7 protects their staff when disclosing information in good faith.

State and local government regulators. The Act may limit the ability of local governments or State agencies to impose their own standards on goods and occupations if those standards would conflict with mutual recognition. For example, local government health standards for food handling must yield to interstate mutual recognition unless exempted. The temporary exemption power in section 5 allows the State to carve out certain goods or laws from mutual recognition, but the power is limited to regulations made under section 15 of the Commonwealth Act (which itself is subject to certain conditions).

Commonwealth and other State authorities. While the Act is a WA law, it facilitates information sharing across jurisdictions. Other participating jurisdictions’ registration authorities can receive information from WA authorities. The immunity provisions protect WA authorities when giving information, but not necessarily when receiving it. Also, the scheme review tabling requirement ensures that reports reviewing the intergovernmental agreement (which includes the Commonwealth’s role) are made transparent to WA Parliament.

The Act itself imposes relatively few direct duties or rights because it is primarily an adoption statute. The substantive duties and rights arise from the Commonwealth Act. However, the WA Act adds specific duties and rights in its own provisions.

Disclosure duty (permissive, not mandatory). Section 6(3) gives WA registration authorities a right to disclose specified information to corresponding authorities in other participating jurisdictions when certain events occur. They have no duty to do so; the power is discretionary. However, if they choose to exercise it, they must comply with the limits in section 6(3): only information about the individual’s name, address and identifying details; information about the registration and any conditions; and information about the event and its outcome. They cannot disclose broader information. The trigger events (suspension, cancellation, non-renewal, conditions, disciplinary action, relevant proceedings) are specific; disclosure for other reasons is not authorised.

Right to immunity. Any person (including an officer or employee of a registration authority) who gives information in good faith under section 6 or under the listed Commonwealth Act provisions has a right not to incur civil or criminal liability for giving it. They also have the right not to have the giving treated as a breach of confidentiality, privacy, or secrecy duties, or as a breach of professional ethics or unprofessional conduct. The State is relieved of vicarious liability. This right is valuable to regulators who might otherwise face defamation or privacy claims.

Duty of the Minister to table review reports. Under section 8(3), the Minister has a duty to cause any scheme review report (as defined) to be laid before each House of Parliament as soon as practicable after receiving it. This is a positive obligation, not discretionary. The Minister may exercise a right to redact sensitive, confidential, or personal information before tabling. The duty only arises if a report is prepared and the Minister receives it. If no report is prepared, there is no duty.

Right of the Governor to terminate adoption. Section 9 gives the Governor the right to terminate one or both adoptions by proclamation, subject to the restriction in section 9(2). The Governor also has the right under section 10 to revoke a termination proclamation before it takes effect, with retrospective effect. This is a significant power, but it must be exercised by formal proclamation.

Duty to comply with the Commonwealth Act. While not stated explicitly in the WA Act, the effect of section 4 is that the Commonwealth Act (as adopted) has the force of law in WA. Persons and authorities in WA must comply with its duties. For example, a WA registration authority cannot refuse to register an interstate qualified person unless the Commonwealth Act allows it (e.g., under an exclusion). The WA Act gives no override of those duties.

No private right of action. The Act does not create any new private cause of action. The immunity in section 7 protects those giving information, but does not create a right for individuals to sue for wrongful disclosure (since the disclosure power is permissive and protected). Individuals whose information is disclosed may have remedies under other laws (e.g., privacy torts) unless the immunity applies, but the immunity only applies to good faith disclosures.

The Mutual Recognition (Western Australia) Act 2020 does not itself impose any penalties. It is a machinery adoption statute. The penalties for non-compliance arise from the Commonwealth Act as adopted. Those penalties include potential criminal offences for providing false or misleading information in connection with mutual recognition applications, and civil penalties for unregistered practice in occupations where registration is required and mutual recognition is not available. However, the WA Act does not replicate those penalties; it relies on the Commonwealth Act’s penalty provisions.

The only enforcement-relevant provisions in the WA Act are: (a) the disclosure and immunity provisions, which shield persons from liability for information sharing, and (b) the termination proclamation mechanism, which is a political rather than penal enforcement tool. If a registration authority fails to comply with the Commonwealth Act (e.g., by refusing to recognise an interstate occupational registration without lawful basis), the affected individual may seek judicial review under the Commonwealth Act or possibly under the WA Act as the vehicle that gives that Act force. The WA Act itself contains no specific enforcement mechanism, civil penalty, or offence.

The immunity in section 7(1)(a) states that “no civil or criminal liability is incurred” for giving information in good faith. This is a defence, not a penalty. Section 7(2) relieves the State of liability for others’ good faith conduct. This provision essentially removes any potential penalty or liability that might otherwise apply under defamation, privacy, or confidentiality laws. It does not create penalties for non-disclosure; it only creates protection for disclosure.

There is no enforcement body designated under the WA Act. Enforcement of mutual recognition obligations falls to the relevant occupational registration authorities and, ultimately, the courts. If a WA registration authority breaches its obligation to give effect to an interstate registration, the injured party could seek an injunction or declaratory relief. However, the WA Act does not create a statutory right of complaint to any specific tribunal.

Commonwealth Mutual Recognition Act 1992. The primary interaction is adoption. The WA Act makes the Commonwealth Act operate as WA law. Without this adoption, the Commonwealth Act would not bind WA authorities because the Commonwealth Parliament does not have plenary power under section 51(xxxvii) unless the States refer power. The WA Act is the referral vehicle. As a result, the Commonwealth Act applies in WA with full force, subject to the terms of the adoption (including the possibility of termination). Any amendment to the Commonwealth Act after the cut-off dates in the WA Act would not automatically apply in WA unless the WA Act is further amended to adopt later amendments, or unless the Governor has not terminated the adoption and the Commonwealth amendment is within the scope of the adopted version.

Occupational licensing laws in WA. The WA Act overrides any WA occupational licensing legislation that would otherwise require an interstate qualified person to obtain a WA-specific licence, complete WA training, or pay additional fees. This is the essence of mutual recognition. However, the override is not absolute: the Commonwealth Act includes exclusions for certain occupations (e.g., those involving specific local conditions) and allows temporary exemptions under section 15. The WA Act’s regulation-making power under section 5 for temporary exemptions reinforces that the State can carve out certain occupations or goods from mutual recognition, but only as permitted by the Commonwealth Act. Thus, WA’s own occupational laws still apply to persons who are not relying on mutual recognition.

Privacy and confidentiality laws. Section 6(3) states that information may be given “despite any written law relating to confidentiality, privacy or secrecy.” This overrides WA privacy legislation (including the Privacy Act 1988 (Cth) to the extent it applies to State authorities under referral arrangements) and any secrecy provisions in specific Acts (e.g., health practitioner legislation, legal profession Acts). Section 7(1)(b) confirms that giving information is not a breach of any such duty. This is a deliberate carve-out to facilitate information sharing across jurisdictions for regulatory enforcement purposes.

Goods and services legislation. The Act interacts with WA fair trading Acts, product safety laws, and standards. Mutual recognition means that goods legally sold in another State can be sold in WA unless exempted. This limits the ability of WA to impose stricter local standards (e.g., for vehicle safety, electrical goods, or food labelling) without triggering mutual recognition issues. The temporary exemption power provides some flexibility.

Tabling requirements for delegated legislation. Section 4(4) requires the Minister to table any regulations made under the Commonwealth Act that amend Schedules. This is a transparency mechanism that interacts with the usual disallowance provisions for delegated legislation in WA. It gives WA Parliament oversight of changes to the mutual recognition scheme that affect WA.

Intergovernmental Agreement on Automatic Mutual Recognition of Occupational Registration. The Act’s section 8 defines “scheme review” by reference to this agreement. The agreement itself is not enacted but is the basis for the review obligation. The Act imposes a duty to table reports, thereby giving legal effect to the accountability mechanism in the intergovernmental agreement.

Termination and revocation: effect on other laws. If the Governor proclaims termination of the adoption under section 9, the Commonwealth Act ceases to apply in WA. That would revive the full operation of WA’s domestic occupational licensing and goods laws without mutual recognition. The termination can be selective, so WA could end the later (2021) amendments while keeping the original 1992 Act. This would revert to the older mutual recognition rules for WA (presumptively with fewer automatic mutual recognition features for occupations, since the 2021 amendment introduced automatic mutual recognition for occupational registration). The revocation power allows the State to reverse such a decision before it takes effect.

The Act commenced as a clean bill. It received Royal Assent on 30 November 2020, with sections 1 and 2 commencing that day, and the remainder on 1 March 2021. The Act was subsequently amended by the Mutual Recognition (Western Australia) Amendment Act 2022 (No. 7 of 2022), which commenced on 1 July 2022. The 2022 amendment did four things. First, it inserted the long title (the statement of objects now at the beginning of the Act). Second, it inserted section 4(1A) to adopt the amendments made by the Mutual Recognition Amendment Act 2021 (Commonwealth) - this was the key substantive change. Third, it inserted sections 6, 7, and 8 (disclosure, protection, and tabling of review reports). Fourth, it inserted sections 9 and 10 (termination and revocation). In effect, the 2022 amendment transformed the Act from a simple adoption statute into a more comprehensive piece that includes information-sharing powers, termination mechanisms, and reporting duties. The original 2020 Act had only sections 1-5 and a basic adoption provision (original section 4, which is now subsection (1) of the amended section 4).

The 2022 amendment was necessary because the Commonwealth Mutual Recognition Amendment Act 2021 introduced significant changes aimed at automatic mutual recognition of occupational registration. Western Australia needed to adopt those amendments to participate in the enhanced scheme. The timing meant the 2020 Act had been enacted before the Commonwealth amendments, so a separate amending Act was required. The compilation table confirms the 2022 amendment (Pt. 2 of No. 7 of 2022) commenced on 1 July 2022, after the Commonwealth, other States, and the Northern Territory had already enacted and commenced the 2021 amendments.

The source text for the Mutual Recognition (Western Australia) Act 2020 does not refer to any court cases. As a relatively new and largely procedural Act, it has not attracted significant direct litigation. However, the underlying Commonwealth Mutual Recognition Act 1992 has been litigated in various contexts. Cases have dealt with the interaction between mutual recognition and state licensing laws, the scope of exclusions, and the meaning of “occupation”. Those cases would be relevant to interpreting the Commonwealth Act as adopted in WA, but they are not litigated under the WA Act itself.

The WA Act’s own provisions - disclosure, immunity, termination - have not been the subject of reported decisions as of the compilation date. It is plausible that a challenge could arise if a registration authority discloses information that an individual believes was not in good faith or exceeded the scope of section 6, but no such case is cited in the source. Similarly, the termination power under section 9 could theoretically be challenged as to its vires or procedural compliance, but no litigation is recorded.

Litigants seeking to enforce mutual recognition rights in WA would likely frame their claims under both the Commonwealth Act and the WA Adoption Act, arguing that the WA Act makes the Commonwealth Act’s duties enforceable. The termination provisions in sections 9 and 10 could be contested if a proclamation were made that appears to breach the condition in section 9(2) (termination of the original adoption before the 2021 amendment adoption). However, as of the compilation’s date, no such challenge has arisen.

Termination can be done without Parliamentary debate. The Governor may terminate the adoption of the entire mutual recognition scheme (or part of it) by proclamation alone. There is no requirement for a resolution of Parliament or even prior notification. This gives the Executive significant power to unilaterally withdraw WA from mutual recognition in whole or in part. Businesses and individuals relying on mutual recognition for their WA activities could find that their deemed registration or goods recognition evaporates overnight, subject only to the prospective effect of the proclamation. The revocation mechanism in section 10 allows a reversal but only if published before the fixed day; after that, the termination takes effect and cannot be undone except by new legislation.

Temporary exemptions may be narrower than they appear. Section 5 authorises regulations for the purposes of section 15 of the Commonwealth Act. But section 15 of the Commonwealth Act has its own constraints - exemptions must be temporary, must not be discriminatory in practical effect, and must be justified by public health, safety, or environmental objectives. A WA regulation attempting a broad exemption could be challenged as inconsistent with the Commonwealth Act as adopted, because the adoption gives the Commonwealth Act force and the regulation must be within the scope permitted by that Act.

Disclosure power may catch minor matters. The trigger events in section 6(2) are broadly worded. For example, section 6(2)(c) “a condition is imposed on the individual’s registration” - this could include a routine condition such as requiring continuing professional education, which many registrations have. In theory, that event would permit disclosure. Similarly, commencement of civil or criminal proceedings “relevant to” the registration or occupation could be broadly interpreted. A traffic offence while driving to work might be considered relevant; a bankruptcy proceeding could be. The discretion is with the authority, but the lack of a materiality threshold may encourage cautious disclosure, potentially affecting individuals’ privacy.

Immunity applies only to good faith disclosures. If a registration authority discloses information with malice, recklessness, or knowingly false statements, the immunity in section 7 would not apply. That leaves the authority exposed to defamation, breach of confidence, or negligence claims. The phrase “in good faith” is not defined, so courts would need to decide. Authorities might be tempted to err on the side of caution and not disclose anything controversial, defeating the purpose of the provision.

No mandatory notification to the individual. When a WA registration authority discloses information under section 6, there is no obligation to inform the individual that their data has been shared. The individual may not find out until they experience consequences in another jurisdiction. For example, if a condition on a WA registration is disclosed to the home State, the home State might take its own action. The individual has no statutory right to be notified or to challenge the disclosure before it happens. They could seek review only after the fact, and the immunity might shield the authority from damages even if the disclosure were improper (provided good faith existed).

The tabling duty may be hollow. Section 8 requires the Minister to table scheme review reports, but the Minister may redact “sensitive, confidential or personal information”. This is a broad exemption, and the Minister could effectively redact most of the report. Parliament may not see meaningful content. Further, the duty only arises if a report is prepared under the intergovernmental agreement. That agreement may define the review process, but the Minister could choose to not receive a report or to classify something as not a scheme review report. There is no enforcement mechanism if the Minister fails to table promptly.

Compliance with the Mutual Recognition (Western Australia) Act 2020 requires different steps for different actors.

For individuals seeking mutual recognition in WA. The individual should not focus on this Act but on the Commonwealth Mutual Recognition Act 1992 (as adopted). They need to provide a statement of their interstate registration, pay any prescribed fee (capped by the Commonwealth Act), and meet any conditions. The WA Act does not add any extra steps. However, the individual should be aware that if their interstate registration is suspended, cancelled, or subjected to conditions, the WA registration authority may disclose that to the home jurisdiction. There is no compliance action needed from the individual to enable that disclosure - it is a matter between authorities. The individual should keep their interstate registration current and report any changes to WA authorities promptly, as failure to do so might affect their deemed registration.

For WA registration authorities. Compliance involves several obligations. Under the Commonwealth Act, they must accept an interstate registration as sufficient for registration in WA for the equivalent occupation, unless an exclusion applies. They cannot impose additional education or experience requirements. Under section 6 of the WA Act, if they choose to disclose information, they must ensure they are acting in good faith, that one of the trigger events in section 6(2) has occurred, that they only disclose the categories of information listed in section 6(3) (name, address, identifying details, registration information, conditions, event information and outcome), and that the recipient is a registration authority for the occupation in another participating jurisdiction. They should maintain records of the disclosure and the basis for good faith. They do not have to disclose; they have discretion. If they decide not to disclose, they face no penalty. If they do disclose, they should consider whether the immunity in section 7 applies. The immunity protects them only if the disclosure is in good faith. Reckless or malicious disclosure would expose the authority and its officers to liability.

For the Minister. The Minister must ensure that any regulations under the Commonwealth Act that amend Schedules are tabled in each House within 14 sitting days (section 4(4)). The Minister must also table any scheme review report received (section 8(3)). To comply, the Minister should create systems to track notifications of such regulations from the Commonwealth and to receive and file reports under the intergovernmental agreement. The Minister may need to consult with the Parliamentary Counsel to determine what constitutes a scheme review report and whether redactions are appropriate.

For the Governor. The Governor may make regulations under section 5 for temporary exemptions for goods or laws. Any such regulation must be within the scope of section 15 of the Commonwealth Act. Before making such a regulation, the Governor should receive advice from the Minister confirming that the exemption is temporary, does not discriminate between States, and is justified by public health, safety, or environmental grounds. The Governor may also issue proclamations under sections 9 and 10. For a termination proclamation under section 9, careful attention must be paid to the sequencing restrictions: if terminating the adoption under section 4(1A) (2021 amendments), the Governor cannot also terminate the section 4(1) adoption on an earlier date. If the Governor wants to revoke a termination proclamation under section 10, the revoking proclamation must be published in the Gazette before the day fixed in the termination proclamation.

For businesses trading goods. Compliance involves verifying that the goods they intend to sell in WA are either covered by mutual recognition (i.e., legally sold in their home State) or are exempted. They should check both Commonwealth regulations (which may list exempted goods) and WA regulations made under section 5. If the goods are not exempt, they are deemed to comply with WA standards, but the business must still ensure compliance with any conditions in the Commonwealth Act (e.g., labelling requirements that are not discriminatory).