WARNING:
This Digest is prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments.
This Digest was available from 20 January 1997.
CONTENTS
Trans-Tasman Mutual Recognition Bill 1996
Date Introduced: 4 December 1996
House: Representatives
Portfolio: Industry, Science and Tourism
Commencement: Royal Assent for the Preliminary
Part, and Proclamation for the main provisions of the Act.
The Bill facilitates the enactment of national legislation
operative throughout Australia to recognise the regulatory
standards applied in New Zealand regarding goods and
occupations.The Bill is part of a scheme of mutual recognition
involving all States and Territories in Australia, the Commonwealth
of Australia and the nation of New Zealand.
In late 1992, the Commonwealth Parliament passed the Mutual
Recognition Act 1992.The Mutual Recognition Act 1992
broadly applies to goods and occupations, with some specified
exceptions, throughout Australia.The legislation facilitates the
free movement of goods and the recognition of occupations across
State and Territory borders.Essentially, provided the goods in
question, or the practitioner of a recognised occupation, have
satisfied the regulatory standards in one State then they are taken
to have satisfied the requirements applicable in another State.In
the case of occupations, mutual recognition also requires that
there is an equivalent occupation in the other State.
Apart from enhancing competition and consumer choice, mutual
recognition also enhances the guarantees contained in sections 92
and 117, respectively, of the Constitution, in that trade and
commerce among the States shall be absolutely free, and that a
resident in one State shall not be subjected to discrimination
because he or she is a resident of another State.Since federation,
section 92 (freedom of interstate trade) has become the most
litigated section in the Constitution.From time to time, alleged
barriers to interstate trade, such as State-regulated packaging,
processing, testing and labelling requirements applied to a variety
of goods, have been challenged in the High Court.This has been a
costly and time consuming aspect of federation.Mutual recognition
is a positive development aimed at breaking down artificial
barriers to trade and employment on a national basis.This
initiative has been loosely described as a form of internal common
market for Australia. (1)
In April 1995, the then Prime Minister, Hon Paul Keating MP,
announced the release of a discussion paper on A Proposal for
the Trans-Tasman Mutual Recognition of Standards for Goods and
Occupations.This paper was the result of negotiations between
the Council of Australian Governments (COAG) and the New Zealand
Government.The Trans-Tasman proposals builds upon the significant
reforms achieved by COAG regarding the Mutual Recognition Agreement
of 1992 which, as noted above, applies throughout Australia.
Tariff barriers have already been eliminated between Australia
and New Zealand under the Closer Economic Relations (CER) Trade
Agreement.Trans-Tasman mutual recognition extends that initiative
to further reduce barriers arising out of divergent regulations and
standards in Australia and New Zealand.It is possible to conceive
that the Trans-Tasman Mutual Recognition Agreement (TTMRA) may
become an example to the other APEC nations and show the way for a
reduction of regulatory barriers throughout the Pacific. (2)
On 9 July 1996, the Prime Minister, Hon John Howard MP,
announced that the TTMRA had been signed by the New Zealand Prime
Minister, after signature by COAG Ministers in Australia on 14 June
1996.Legislative action in New Zealand to implement the TTMRA has
been delayed pending the completion of the New Zealand national
election.
The TTMRA has two main principles.The first is that goods should
be sold between Australia and New Zealand without restrictions
caused by differences in product standards or other regulatory
requirements.The second is that persons registered to practice in a
mutually recognised occupation should have mobility between
countries without the need to undergo further testing or
examination.
There will have to be some exemptions arising from necessary
regulation, such as quarantine, endangered species, firearms,
censorship and certain chemicals.Compatibility requirements will
also be necessary for certain goods, such as those which involve
electromagnetic processes and radio telecommunications. (3)
The Second Reading speech specifically mentioned that medical
practitioners will be an exception to mutual recognition. (4)
This Bill forms part of a larger legislative scheme which also
involves the passage of relevant legislation by the States of
Australia and the nation of New Zealand.Under this scheme, the
States of Australia enact legislation to refer power to the
Commonwealth to legislate on this matter pursuant to section 51
(xxxvii) of the Constitution.New South Wales has already commenced
the process with the passage of the Trans-Tasman Mutual Recognition
(New South Wales) Bill 1996 on 19 November 1996.The remaining
States will adopt and apply the Commonwealth legislation.The
legislatures of the Australian Capital Territory and the Northern
Territory have requested the Commonwealth the legislate on the
TTMRA (to which these Territories were also signatories in their
own right).Any amendments of the Commonwealth law, once enacted,
will require the unanimous agreement of all participant
legislatures.
Should disputes arise over aspects of regulation and
registration, those disputes can be heard by the Administrative
Appeals Tribunal in Australia and a newly-created equivalent
tribunal in New Zealand.This administrative review process is seen
as appropriate to avoid delay and costly litigation in the
courts.
The TTMRA reflects the depth of mutual confidence that exists in
Australia and New Zealand in relation to each country's equivalent
occupations and the standard of goods and services available in
each country.
Part 2 of the Bill - Goods
Clause 6 applies this proposed law on TTMRA to
the States, so long as the State is a participant in the
scheme.
Clause 7 allows the Governor-General to curtail
the operation of the scheme if New Zealand decides not to
participate.
Clauses 9 to 11 apply the TTMRA principle
relating to goods which may lawfully be sold in New Zealand so that
they may be sold lawfully in Australia without proof that they also
comply with any divergent regulatory product and packaging
standards in Australia.
Clause 12 identifies exceptions to automatic
mutual recognition.For example, a law which applies to all goods
irrespective of origin and which, say, regulates who may purchase
the product (e.g. certain products such as liquor and tobacco are
not sold to minors), or who may sell the product, or contractual
aspects of the sale of goods (consumer protection provisions) do
not infringe TTMRA.Likewise, health and safety requirements
attaching to certain goods do not infringe TTMRA.
Clause 13 allows a defence for an Australian
supplier who has sold a New Zealand product which complies with,
say, New Zealand labelling law and the TTMRA principle but the
supplier is then charged with an Australian-based regulatory
offence because the product does not strictly comply with a
particular Australian standard.
[Bills Digest Comment:The PRS Background Paper Australia's
Common Market: Mutual Recognition Legislation, (5) which
discussed the introduction in 1993 of the initial mutual
recognition scheme for Australia, raised the issue of the 'lowest
common denominator factor'.This concept suggests that a mix of
product standards means that mutual recognition has the effect of
allowing acceptance of the lower point in that range of
standards.One solution considered was the establishment of a
centralised body to specify 'minimum standards.This option was
rejected as administratively expensive and unnecessary.It is
suggested that consumers and the market will differentiate between
the range of standards.Enhanced competition and choice will assist
in establishing consumer preference, acknowledging, of course, that
all products in the range must be those which can be lawfully sold,
irrespective of their origin.]
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Part 3 of the Bill - Occupations
Clauses 15 to 26 apply the TTMRA principle that
a registered practitioner of an occupation in New Zealand is
permitted to apply for reciprocal registration in Australia.The
Bill provides that once written notice is lodged with the local
registration authority, the practitioner is entitled to equivalent
registration, provided the notification documents contain necessary
evidence or information as to the practitioner's existing
registration.In somewhat of a rough analogy, it is rather like the
recognition and issue of a reciprocal driver's licence between
jurisdictions.
Clauses 27 to 31 apply an important principle
of 'equivalency' to occupations.'Equivalency' is a recognition that
the range of activities authorised under registration of a
particular occupation is substantially the same in Australia and
New Zealand.The Administrative Appeals Tribunal can make an order,
with or without conditions (where relevant), to resolve a dispute
between a person and a local registration authority.
A New Zealand Minister and a Minister from an Australian State
or Territory may jointly declare equivalency of occupations.Such a
declaration only has effect in those jurisdictions which are party
to the declaration but the declaration is binding on the relevant
local registration authority.
Clause 32 deems a cancellation or suspension of
registration in the 'home' jurisdiction of New Zealand to apply
equally in the reciprocal jurisdiction in Australia unless that
Australian jurisdiction decides to reinstate or waive conditions,
if it thinks such a course of action is appropriate in the
circumstances.
Part 4 of the Bill - Exclusions and Exemptions
Clause 44 applies a list of exclusions,
specified in Schedule 1 to the Bill, from the
operation of this proposed law on TTMRA.These exclusions include
laws dealing with:
- customs controls on prohibited goods, and tariff measures aimed
at anti-dumping
- intellectual property (e.g. patents, trade marks, designs,
copyright, circuit layouts and insignia matters, such as the
Olympic logo) (6)
- non-discriminatory taxation and business franchise laws
- the implementation of relevant international obligations (e.g.
wildlife protection and hazardous waste).
Clause 45 applies permanent exemptions to the
proposed TTMRA law and these permanent exemptions are set-out in
Schedule 2 to the Bill.They include:
- quarantine laws
- laws on endangered species
- laws on firearms and indecent material
- agricultural and veterinary chemicals
- fireworks and gaming machines.
Clause 46 allows temporary exemptions from the
proposed TTMRA law where such an exemption is based substantially
on the need to protect health and safety, or for environmental
purposes.A temporary exemption may run for 12 months.The temporary
exemption can be extended pending ministerial agreement or
legislative action (see Clause 47).
Clause 48 implements some Special
Exemptionswhich are set out in Schedule
3 to the Bill.These special exemptions include laws on
poisons, drugs, controlled substances, dangerous goods and
chemicals, and matters where compatibility is essential, such as in
electromagnetic and radiocommunications equipment.
Clause 49 implements Schedule
4 to the Bill which specifies certain exempt
occupations.At this stage, only medical practitioners are an exempt
occupation.
Schedule 5 to the Bill introduces privacy
principles to information lodged with local registration
authorities (see Clause 39(4)).
- Bini, M. Australia's Common Market: Mutual Recognition
Legislation, Background Paper No. 20, Parliamentary Research
Service, Department of the Parliamentary Library, November
1994.
- See Press Release Proposed Trans-Tasman Mutual Recognition
Agreement, Hon Paul Keating MP, Prime Minister, 11 April 1995.
- See Press Release, Trans-Tasman Mutual Recognition Agreement,
Hon John Howard MP, Prime Minister, 9 July 1996.
- Australia, House of Representatives, Hansard, 4 December 1996:
7415 (Proof).
- See reference details at note 1: pp.27-30.
- It is unnecessary to include intellectual property matters
because under long-standing international conventions, established
procedures, and domestic laws, a 'mutual recognition' registration
system for intellectual property rights already exists.
Brendan Bailey(06 2772434)
17 January 1997
Bills Digest Service
Information and Research Services
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
amendments.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of
the public.
ISSN 1323-9031
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library,
1997.
This page was prepared by the Parliamentary Library,
Commonwealth of Australia
Last updated: 4 March 1997
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