National Licensing for Property Occupations Consultation Regulation Impact Statement

5Implementation

Implementation of national licensing

Administrative responsibility for national licensing would be undertaken by the National Occupational Licensing Authority (licensing authority), and it would be established in Sydney. The licensing authority is a statutory authority, governed by a board of up to 10 members, including an independent chair, and reporting to a ministerial council. The role of the licensing authority is to develop consistent national policy for obtaining a licence and to administer the national system. In doing this, it must consult with stakeholders in relevant occupational areas and establish occupational licence advisory committees. During the implementation phase, the licensing authority will regularly consult with a jurisdictional reference group on issues that arise regarding the implementation of the national system and on progress with the development of licence policy.

Under the Occupational Licensing National Law Act 2010 (National Law), the licensing authority would delegate its responsibility for the operation of licensing services to nominated regulators in each state or territory that has adopted the National Law. Service agreements will be used to establish consistent licence requirements and service delivery standards for national licensing arrangements across jurisdictions. Licence holders and applicants will therefore continue to interact with regulatory offices in their home jurisdiction in most instances, which will help minimise the costs of implementing national licensing.

National licensing will not encompass the standards and behaviour (conduct) of licensees once they have obtained a licence. These, together with compliance and enforcement, will remain the responsibility of states and territories. However, the National Law will provide for certain grounds for disciplinary action to be taken and for the full range of disciplinary action that can occur. Breaches of jurisdictional conduct requirements may also have an outcome on the licence. All disciplinary outcomes that affect a licence will be recorded on the national licensing register.

Transitional arrangements

1. Deeming of current licence holders

The Intergovernmental Agreement for a National Licensing System for Specified Occupations provides for deeming arrangements for current licence holders to transition to the national licensing scheme. Any licensee who is deemed into the scheme is considered to fulfil the skills-based requirements needed for continuing eligibility while they continue to hold that licence. Current jurisdictional licensees will be transitioned into the national licensing system based on the following deeming principles:

‘No disadvantage’ –all current licence holders would be able to do tomorrow, under national licensing, what they are able to do today. The deeming process will authorise a licensee to do a similar scope of work under national licensing to that authorised under their current jurisdictional licence.

Current licensees would not be required to undertake any additional training or testing to be eligible for the relevant national licence category.

A jurisdiction will not be required to adopt a national licence category that is not currently regulated by that jurisdiction when national licensing commences, in accordance with clause 4.2(f) of the intergovernmental agreement.

Some work currently requiring a licence would not be regulated work under national licensing and a licence will no longer be required for that work.

Adoption of a ‘best fit’ approach – some licences will not have a direct equivalent and a current category may map to more than one category or a category plus an endorsement. Alternatively, some categories may have a scope of work that is significantly less than that proposed for a national licence and conditions or restrictions may be applied to achieve a best fit. It is necessary to apply restrictions and conditions to ensure licensees are not transitioned to licences that would allow them to undertake a wider scope of work than their current licences allow, as this could pose an unacceptable safety risk to themselves and the community.

Each jurisdiction has undertaken a process to map straightforward, like-to-like equivalences of jurisdictional licences to the relevant national licence category or categories. This mapping, which covers some 80 per cent of current jurisdictional licences, will be incorporated into the jurisdictional transitional legislation.

The exception to this is for those licensees that have conditions or directions applied as a result of disciplinary action; in these cases, the licence will be transitioned ‘as is’.

Following is information on the deeming of jurisdictional licences under specific circumstances.

Administrative transactions that were initiated before national licensing begins

All applications for the issue, renewal or restoration of a licence lodged before the national licensing system commencement date will continue to be assessed under the relevant jurisdictional licensing legislation in place immediately prior to the commencement of the national licensing. The licence would then be transitioned to a national licence as outlined in 5.2.1.

Disciplinary and court processes and actions that were initiated before national licensing begins

All applications lodged in relation to disciplinary and court processes and actions, including internal reviews, before the national licensing commencement date will continue to be assessed under the relevant jurisdictional licensing legislation in place immediately prior to the commencement of national licensing. The decision will take effect as though it was made under the National Law. If a decision is made under the old law for the disciplinary action and an appeal within the given appeal period has not been made at the time when national licensing commences, the right to appeal will continue under the old law.

Transitioning suspended licensees

All licensees suspended under relevant jurisdictional licensing legislation will continue to remain suspended until the suspension expires and during the period of suspension will not be able to operate in any jurisdiction.

Transitioning disqualified licensees and cancelled licences

A person who currently has a cancelled licence, as a result of a disciplinary action, for a specific occupation and licence type in any jurisdiction but a valid licence in another jurisdiction, for the same category of licence, would not be transitioned to a national licensing system licence if the period of the cancellation has not expired or was made in the last two years. Any valid licence, held for the same category of licence, in a secondary jurisdiction would also be considered disqualified or cancelled and the person would not be able to operate in any jurisdiction. Under the new law this person would be treated as an excluded person nationally until the cancellation or disqualification period has expired. It is recognised that this may be taking away a person’s right; however, this is a fundamental part of the design of the system which is aimed at protecting the public safety and the consumer.

Eligibility for those who initiated training before national licensing system begins

An applicant who completes a qualification or course that was required immediately before the commencement of the National Law, would have met the skill based eligibility requirements provided that, immediately before the commencement date the applicant was enrolled in the course or program for the issue of a jurisdictional licence.

Eligibility for those who completed training before national licensing system begins

An applicant who completes a qualification or course that was required in a jurisdiction immediately before the commencement of the National Law for a jurisdictional licence will be deemed to have met the skills-based eligibility requirement for a national licence for the period of three years from commencement of national licensing for that occupation.

A person holding a qualification not recognised under national licensing should seek advice from the licensing regulator in their jurisdiction about the possibility of obtaining a national licence. A person moving to a jurisdiction where a national licence will be required to undertake the type of work they do, and who does not hold a qualification, will need to contact the licensing authority for details on how to apply for the licence. Options will include seeking recognition of prior learning from a registered training organisation.

Question: In transitioning to national licensing, some qualifications that currently qualify applicants for a jurisdictional licence will not qualify an applicant for the equivalent national licence. Do you agree that these qualifications, if started before the commencement of national licensing, should be deemed to satisfy the skills based eligibility requirements for the equivalent national licence (as proposed under national licensing)? Further to the question above, it is proposed that an individual who completes such a qualification immediately before the commencement of national licensing will have three years to apply for a national licence. After this three year period, measured from the commencement of national licensing, these ‘superseded’ qualifications will no longer be deemed to satisfy the skills based eligibility requirements for a national licence. Do you agree with this proposal? Note: these transitional arrangements only apply to existing jurisdictional licences that have an equivalent licence.

Restoration of a licence that has lapsed

A licence that has lapsed within the restoration period provided in current jurisdictional legislation preceding the commencement of the national licensing system will be restored under the old law and deemed to an equivalent licence under the National Law.

The advisory committee proposed that the grace time period for acceptance of lapsed licences should be up to three years (without any further testing). Licensees whose licences have lapsed for a period of longer than three years will be required to undertake an assessment of their skills, such as recognition of prior learning from a registered training organisation.

Licensees who have been deemed under national licensing will need to reapply for a national licence, which would require the applicant to satisfy the national licensing eligibility criteria, which in some instances may be higher than their existing qualifications.

Question: If your licence lapsed before the commencement of national licensing (meaning you would not have been transitioned to a national licence), the proposed grace period for applying for an equivalent national licence will be the same as the current restoration arrangements in the jurisdiction that issued your licence (if any). Do you agree with this proposal? Note: After the commencement of national licensing, the proposed grace period to restore a lapsed licence is three months. A licensee can only restore their licence if the restoration period has not expired.

Currently in training for a restricted licence

A person in training for a restricted licence that would have been granted under current jurisdictional legislation, but that will not exist under national licensing, will be eligible to apply, for a licence with limitations on the scope of work that make it equivalent to the former jurisdictional restricted licence for a period of up to 12 months following completion of their training.

Question: Certain restricted licence categories will be discontinued under national licensing. Do you agree that a grace period of 12 months should be provided in which an individual that qualified for a discontinued licence will be deemed eligible for an equivalent national licence (with limitations on the scope of work)? Note: The grace period will be measured from completion of the outdated restricted licence qualification. The qualification must have been commenced before the start of national licensing.