Bills Digest 70 1996-97 Trans-Tasman Mutual Recognition Bill 1996


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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

Passage History

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.

Purpose

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.

Background

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.

Main Provisions

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)).

Endnotes

  1. Bini, M. Australia's Common Market: Mutual Recognition Legislation, Background Paper No. 20, Parliamentary Research Service, Department of the Parliamentary Library, November 1994.
  2. See Press Release Proposed Trans-Tasman Mutual Recognition Agreement, Hon Paul Keating MP, Prime Minister, 11 April 1995.
  3. See Press Release, Trans-Tasman Mutual Recognition Agreement, Hon John Howard MP, Prime Minister, 9 July 1996.
  4. Australia, House of Representatives, Hansard, 4 December 1996: 7415 (Proof).
  5. See reference details at note 1: pp.27-30.
  6. 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.

Contact Officer and Copyright Details

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

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

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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