National Licensing for Property Occupations Consultation Regulation Impact Statement

1General policy context

The Council of Australian Governments (COAG) in July 2008 agreed to wide-ranging regulatory reform to increase Australia’s productivity and provide the environment for a seamless national economy. National licensing is one of 27 key areas for reform being overseen by the Business, Regulation and Competition Working Group, which is co-chaired by Commonwealth ministers and has state and territory representation through senior officials.

Many of the challenges facing the economy can only be addressed through more coordinated regulatory arrangements. By moving towards a seamless national economy through the reform of business and other regulation, the COAG reforms aim to provide a more streamlined, consistent and targeted regulatory environment across Australia, reducing inefficiencies and duplication, removing red tape and facilitating flexible and productive operating conditions for businesses and workers across Australia. These reforms have the potential to make life simpler for businesses and consumers, while continuing to provide the necessary protections and access for consumers and the community.

COAG agreed to develop a national licensing system with the following characteristics:

cooperative national legislation

national governance arrangements to manage standard setting and policy issues and to ensure consistent administrative and compliance practices

all current holders of state and territory licences deemed across to the new licence system at its commencement

the establishment of a publicly available national register of licensees

no legislative role for the Commonwealth in the establishment of the new system.

National licensing would initially be applied to five occupational areas, which were chosen based on the following selection criteria:

at least one critical area of the occupation licensed across all jurisdictions

subject to the work on achieving full and effective mutual recognition

their importance to the economy in terms of level of demand, intrinsic mobility and number of licensees

the volume and nature of mutual recognition difficulties.

The five occupational areas are:

electrical

plumbing and gasfitting

property, including conveyancers and valuers

refrigeration and air conditioning

building and building-related occupations.

National licensing is a threshold reform; that is, it sets in place licensing eligibility requirements and the related disciplinary framework as the first step in developing a comprehensive national scheme that could, once fully developed, encompass the requirements for both obtaining a licence and the behaviour and standards (conduct) required to maintain a licence. A separate reform, which seeks to harmonise conduct requirements commencing with property occupations, is being undertaken by the Legislative and Governance Forum on Consumer Affairs (formerly the Ministerial Council for Consumer Affairs). The full benefits of a national licensing system would be realised if this further reform is undertaken.

1. The Occupational Licensing National Law Act 2010

National framework legislation through the Occupational Licensing National Law Act 2010 (National Law) has been passed in six jurisdictions (New South Wales, Victoria, Queensland, South Australia, Tasmania and the Northern Territory) to establish national licensing.

The Bill passed Western Australia’s Legislative Assembly on 24 November 2010 and was referred to the WA Standing Committee on Uniform Legislation and Statutes Review. The committee did not support the Bill in its current form, and Western Australia will consider its position on the passage of the Bill following the consultation period on the Amendment Bill, national regulations and regulation impact statements. The Australian Capital Territory has reserved its right not to implement national licensing if the costs to the Territory outweigh the benefits.

The National Law provides the high-level framework for national licensing policy and regulations. A copy of the National Law can be found on the national licensing website.

During the policy development process, it became clear that some amendments to the National Law will be required. The release of the draft Amendment Bill and draft regulations will coincide with the consultation period to for allow public comment to also occur on these.

2. Policy development process

Under the Intergovernmental Agreement for a National Licensing System for Specified Occupations signed by states and territories in April 2009, the COAG National Licensing Steering Committee was given responsibility to oversee the implementation of national licensing in the interim period before the establishment of the National Occupational Licensing Authority. It reports on progress to the Business, Regulation and Competition Working Group and, through the Commonwealth Treasury, to the Standing Council on Federal Financial Relations. Membership of the steering committee comprises central agency representatives from each jurisdiction.

In considering policy issues, the steering committee and its advisory mechanisms are bound by the objectives and principles in the intergovernmental agreement, including a requirement to comply with COAG’s principles of best practice regulation. These principles include a requirement to establish a case for action; to consider and cost a range of responses, including non-regulatory approaches; and to ensure that the response selected provides the greatest net benefit to the community as a whole. Key stakeholders must be consulted and government action must be ‘effective and proportional’ to the issue being addressed.

The steering committee’s primary source of advice for occupational regulations has been the Interim Advisory Committees established for each of the occupational areas. Each advisory committee has an associated a Regulator Working Group.

Members of the advisory committees represent a balance of expertise relevant to an occupational area across the fields of regulation, industry operations and practices (from both a union and employer perspective), safety, consumer advocacy, insurance (where relevant) and training. The Regulator Working Groups comprise regulator members from each relevant jurisdiction. Membership lists are in Attachment D.

The advisory committees developed policy advice over a period of 18 months. Most of the advice provided by the advisory committees has been incorporated into the steering committee policy advice for the drafting of the national licensing regulations and this Consultation RIS for the property occupations. There are, however, instances where, after having regard to the objectives and principles set out in the intergovernmental agreement, the steering committee formed a different view to that of the advisory committees. Such instances are discussed in Chapter 3.

Government representatives from all jurisdictions provided policy advice and are contributing to the drafting instructions for the regulations, including representatives from Western Australia and the Australian Capital Territory, which have not yet passed the National Law. The impact analysis and cost–benefit calculations take into account the current regulatory arrangements in all jurisdictions.