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1996
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
TRANS-TASMAN MUTUAL
RECOGNITION BILL 1996
EXPLANATORY MEMORANDUM
(Circulated
by authority of the Minister for Industry, Science and Tourism,
the Hon John
Moore, MP)
79477 Cat. No. 96 5440 2 ISBN 0644
481471
TRANS-TASMAN MUTUAL RECOGNITION BILL 1996
OUTLINE
The purpose of this Bill is to enable the enactment of legislation
applying uniformly throughout Australia for the recognition of regulatory
standards adopted in New Zealand regarding goods and occupations.
The
Northern Territory and the Australian Capital Territory are treated as States
for the purposes of this Explanatory Note, and accordingly references to a State
extend to either Territory except where otherwise stated.
The Bill forms
part of a larger legislative scheme that involves the enactment of Bills by the
States, the Commonwealth and New Zealand. The larger legislative scheme has an
Australian component and a New Zealand component.
This Bill is concerned
with the Australian component of the larger legislative scheme. The
Trans-Tasman Mutual Recognition Bill 1996 of New Zealand is concerned
with the New Zealand component of the legislative scheme. That Bill was
introduced into the Parliament of New Zealand on 18 July 1996.
The
Commonwealth, State and New Zealand Bills will implement the 1996 Trans-Tasman
Mutual Recognition Arrangement. The purpose of the Arrangement is to give
effect to a scheme implementing two mutual recognition principles between the
parties relating to the sale of goods and the registration of occupations,
consistent with the protection of public health and safety and the environment.
The mutual recognition principles are as follows:
(a) if goods may be
legally sold in New Zealand they may be sold in an Australian jurisdiction, and
vice versa; and
(b) if a person is registered to practise an occupation
in New Zealand, he or she will be entitled to practise an equivalent occupation
in an Australian jurisdiction, and vice versa.
The objective of the
Arrangement is to remove regulatory barriers to the movement of goods and
service providers between Australia and New Zealand, and to thereby facilitate
trade between the two countries. This will enhance the international
competitiveness of Australian and New Zealand enterprises, increase the level of
transparency in trading arrangements, encourage innovation and reduce compliance
costs for business.
The Arrangement recognises that it builds on, and is
a natural extension of, the 1992 Mutual Recognition Agreement between the
Commonwealth and the States. Legislation implementing the Mutual Recognition
Agreement has been proclaimed by the Commonwealth and all States and
Territories. The Commonwealth legislation, the Mutual Recognition Act
1992, was proclaimed on 17 February 1993 and commenced on 1 March
1993.
At the time of signing the domestic Mutual Recognition Agreement
the parties agreed to review in due course with New Zealand the potential
benefits of participation by New Zealand in a scheme implementing mutual
recognition principles.
It was subsequently agreed that the framework for
mutual recognition reflected in the Australian Mutual Recognition Act
1992 should be the basis for a scheme implementing mutual recognition
principles in New Zealand and Australian jurisdictions, with necessary changes
to reflect the trans-Tasman nature of the scheme.
The Trans-Tasman Mutual
Recognition Arrangement was finalised after the release of a discussion paper -
A Proposal for the Trans-Tasman Mutual Recognition of Standards for Goods and
Occupations - by the Council of Australian Governments and the Government of
New Zealand in April 1995. Input was sought from industry, standards setting
bodies, the professions and other groups in Australia and New Zealand. Some 142
written submissions were received. The comments received during the
consultation process were taken into account in deciding upon the final lists of
exemptions and exclusions from the Arrangement.
The Trans-Tasman Mutual
Recognition Arrangement was signed by all Australian Heads of Government at the
meeting of the Council of Australian Governments held on 14 June 1996.
The Arrangement was subsequently signed by the Prime Minister of New Zealand on
9 July 1996.
The Parties to the Trans-Tasman Mutual Recognition
Arrangement have agreed to submit to their respective Parliaments legislation
implementing the Arrangement, and to use their best endeavours to secure the
passage and bringing into force of legislation by early 1997. The participating
parties to the Arrangement will be those which have secured the passage or the
making of legislation implementing the Arrangement and caused that legislation
to come into force and remain in force.
To come into effect, the
trans-Tasman mutual recognition scheme requires at least one State to enact
legislation referring or requesting the enactment of a Mutual Recognition Act to
the Parliament of the Commonwealth. The Trans-Tasman Mutual Recognition (New
South Wales) Bill 1996, introduced into the Parliament of New South Wales on
30 October 1996, refers to the Parliament of the Commonwealth under
paragraph (xxxvii) of section 51 of the Commonwealth Constitution the power to
enact an Act in the terms, or substantially in the terms, set out in the
schedule to that Bill.
The reference does not extend to amendments to
the proposed Commonwealth Act made after its original enactment. However,
Schedules 1-4 to the proposed Act will be able to be amended by regulations in
accordance with the proposed Act.
The proposed Commonwealth Act will
apply to those States that refer power to enact the Commonwealth Act or request
enactment of it, or adopt the Commonwealth Act afterwards (under paragraph
(xxxvii) of section 51 of the Commonwealth Constitution).
The
Commonwealth Act will provide a comprehensive scheme for mutual recognition
which will operate independently of other State laws and therefore will not
require modification of those laws to enable its implementation. This is
achieved through section 109 of the Commonwealth Constitution, which
provides that a Commonwealth Act prevails over a State Act to the extent of any
inconsistency.
The referral of power to the Commonwealth may be
terminated by a Governor of a referring State by proclamation, but only after a
period of five years after the commencement of the proposed Commonwealth Act.
Schedules 1, 2 and 3 of the proposed Act specify and describe exemptions
and exclusions to the trans-Tasman mutual recognition scheme relating to laws,
as agreed by the parties. The parties also agreed to exempt certain laws
relating to occupations which are set out in Schedule 4 to the proposed Act.
The Governor-General is given power to make regulations for the purposes of
amending the Schedules but only with the approval of the designated person for
each participating jurisdiction. The designated person for New Zealand is a
Minister, for a State it is the Governor or a Minister, for the Australian
Capital Territory it is the Chief Minister and for the Northern Territory it is
the Administrator.
Schedule 5 of the proposed Act specifies principles
that Australian local registration authorities must have regard to when dealing
with personal information obtained or to be obtained under the proposed
Act.
The proposed Act enables the Administrative Appeals Tribunal to
review decisions on certain matters arising under the Act.
FINANCIAL IMPACT
Some Commonwealth regulatory agencies will incur costs in undertaking
“Co-operation Programmes” with New Zealand agencies as required by
the Trans-Tasman Mutual Recognition Arrangement and the proposed Act.
The
legislation provides for appeals to the Commonwealth Administrative Appeals
Tribunal against decisions of Australian occupational registration bodies and
depending upon the use of this facility there may be some call on resources for
the Tribunal. The operation of the 1992 Mutual Recognition Agreement (which
also provides for appeals to the Tribunal) suggests that the number of appeals
to be considered by the Tribunal will be small.
TRANS-TASMAN MUTUAL RECOGNITION BILL 1996
NOTES ON CLAUSES
PART 1 - PRELIMINARY
Clause 1 - Short title
The clause provides for the
proposed Act to be cited as the Trans-Tasman Mutual Recognition Act
1996.
Clause 2 - Commencement
The clause provides for
Part 1 of the proposed Act to commence on the day on which the Act receives the
Royal Assent. The remaining provisions of the Act are to commence on a day or
days to be fixed by Proclamation of the Governor-General.
Clause 3 -
Principal purpose
The principal purpose of the proposed Act is to
enact legislation for the purpose of recognising within Australia regulatory
standards adopted in New Zealand regarding goods and occupations.
Clause 4 - Interpretation
The clause contains definitions
of expressions used in the proposed Act. In particular:
• 'goods' means goods of any kind, including animals or plants,
material of microbial origin, a package containing goods, or a label attached to
goods;
• 'local registration authority' of a participating
jurisdiction for an occupation means the person or authority in the jurisdiction
having the function conferred by legislation of registering persons in
connection with their carrying on of that occupation in the jurisdiction;
• 'occupation' means an occupation, trade, profession, or calling
of any kind that may be carried out only by registered persons, where
registration is wholly or partly dependent on the attainment or possession of
some qualification (for example, training, education, examination, experience,
character or being fit or proper), and includes a specialisation in any of the
above in which registration may be granted;
• 'participating
jurisdiction' refers to clause 50, and covers New Zealand, the Commonwealth, or
a State while the State has the appropriate legislation in force to give effect
to the scheme;
• 'registration' includes the licensing, approval,
admission, certification (including by way of practising certificates), or any
other form of authorisation, of a person required by or under legislation for
carrying on an occupation; and
• 'Australian Tribunal' means the
Administrative Appeals Tribunal.
The clause also provides that a law
specified or described in a Schedule to the proposed Act includes any
regulations or other statutory instruments under that law and amendments to that
law, unless the Schedule states otherwise.
Clause 5 - Operation of
this Act in relation to the Commonwealth
The clause provides that the
proposed Act has effect despite anything in Commonwealth laws made before the
commencement of the proposed Act, and that Commonwealth laws made after the
commencement of the proposed Act should be construed a having effect subject to
the proposed Act.
The clause also provides that the proposed Act
generally does not affect the operation of the Mutual Recognition Act
1992.
Clause 6 - Operation of this Act in relation to the
States
The clause provides that the proposed Act only applies to a
State while it is a participating jurisdiction, and does not affect the
operation of any other law of a State so far as it can operate concurrently with
the proposed Act.
Clause 7 - Operation of this Act in relation to
New Zealand
The clause provides that the Governor-General may declare
by Proclamation that the proposed Act will cease to have effect if New Zealand
is or will become a non-participating jurisdiction.
Clause 8 - Crown
bound
The proposed Act binds the Crown in the right of the
Commonwealth and of each of the States (while they are participating
jurisdictions).
PART 2 - GOODS
Clause 9 - Trans-Tasman mutual recognition principle
The
clause states that the trans-Tasman mutual recognition principle applying to
goods is as set out in this Part. The Part deals with goods produced in or
imported into New Zealand and their sale in Australia.
Clause 10 -
Entitlement to sell goods
The clause provides that goods produced in
or imported into New Zealand, that may lawfully be sold in New Zealand, may be
sold in an Australian jurisdiction without the need to comply with the
requirements set out in clause 11.
Clause 11 - Requirements that do
not need to be complied with
The clause specifies the requirements
relating to sale that are imposed by an Australian jurisdiction that do not need
to be complied with. Those requirements are as follows:
(a) requirements relating to the goods themselves, for example,
requirements relating to their production, composition, quality or performance;
(b) requirements relating to the way the goods are presented, for
example, requirements relating to their packaging, labelling, date stamping or
age;
(c) requirements that the goods be inspected, passed or similarly
dealt with in or for the purposes of the jurisdiction;
(d) requirements
that any step in the production of the goods not occur outside the jurisdiction;
(e) any other requirements relating to sale that would prevent or
restrict, or would have the effect of preventing or restricting, the sale of the
goods in the jurisdiction.
Clause 12 - Requirements that do need to
be complied with
The clause contains exceptions to the trans-Tasman
mutual recognition principle. The principle does not affect the operation of
any laws of an Australian jurisdiction, so long as those laws apply equally to
goods produced in or imported into the Australian jurisdiction and are laws
which fall into one of the following three classes:
(a) laws that
regulate the manner of sale of goods or the manner in which sellers conduct or
are required to conduct their business in the jurisdiction (examples include
laws relating to the contractual aspects of the sale of goods, the registration
of sellers or other persons carrying on occupations, the requirement for
business franchise licences, the persons to whom goods may or not be sold, and
the circumstances in which goods may or may not be sold);
(b) laws that
relate to the transportation, storage or handling of goods and are directed at
matters affecting the health and safety of persons within the jurisdiction or at
preventing, minimising or regulating environmental pollution (including air,
water, noise or soil pollution) within the jurisdiction;
(c) laws that
relate to the inspection of goods (other than laws providing that inspection is
a prerequisite to the sale of goods in the jurisdiction) and are directed at
matters affecting the health and safety of persons within the jurisdiction or at
preventing, minimising or regulating environmental pollution (including air,
water, noise or soil pollution) within the jurisdiction.
Clause 13 -
Defences to offences regarding sale
The clause provides that it is a
defence to a prosecution for an offence against sale of goods laws in an
Australian jurisdiction if the defendant claims that the trans-Tasman mutual
recognition principle applies, and establishes that the goods concerned were
labelled at the point of sale with a statement that they were produced in or
imported into New Zealand, and that the defendant has no reasonable grounds for
suspecting that the goods were not produced in or imported into New Zealand.
The defence cannot be used if the prosecution proves that the trans-Tasman
mutual recognition principle did not apply in the particular case (because for
example the goods did not comply with requirements imposed by the law of New
Zealand).
Clause 14 - Goods that comply with local law
The clause provides that nothing prevents goods from being sold in
an Australian jurisdiction if they comply with the law of the jurisdiction in
which they are sold.
PART 3 - OCCUPATIONS
Division 1 - Preliminary
Clause 15 - Trans-Tasman mutual recognition principle
The
clause states that the trans-Tasman mutual recognition principle as applying to
occupations is as set out in this Part. The Part deals with the ability of a
person registered in connection with an occupation in New Zealand to carry on an
equivalent occupation in Australia.
Clause 16 - Entitlement to carry
on occupation
The clause provides that a person who is registered in
New Zealand for an occupation is entitled to be registered for an equivalent
occupation in an Australian jurisdiction after notifying the local registration
authority in the Australian jurisdiction. Pending registration, the person may
carry on the equivalent occupation in the Australian jurisdiction.
The
trans-Tasman mutual recognition principle does not affect the operation of laws
that regulate the manner of carrying on an occupation in an Australian
jurisdiction, so long as those laws apply equally to all persons carrying on or
seeking to carry on the occupation under the law of the jurisdiction and are not
based on the attainment or possession of some qualification or experience
relating to fitness to carry on the occupation.
Clause 17 -
Application of this Part
The clause deals with aspects of how the
Part applies. It applies to individuals and occupations carried on by them. It
extends to each system of registration for an occupation in cases where more
than one such system is involved (for example, admission as a legal practitioner
by a court and the issue of a practising certificate by another body).
Division 2 - Entitlement to registration
Clause 18 - Notification to local registration authority
The clause enables a person who is registered to practise an
occupation in New Zealand to lodge written notice with the local registration
authority of an Australian jurisdiction seeking registration in an equivalent
occupation. The clause specifies certain matters that must be contained in the
notice and requires the notice to be accompanied by documentary evidence or
information as to the person’s existing registration.
Clause
19 - Entitlement to registration and continued registration
The
clause provides that once a person lodges a notice under clause 18 in an
Australian jurisdiction the person is entitled to be registered in the
equivalent occupation and the entitlement continues (even if the registration in
New Zealand ceases) so as to enable renewal of registration in the Australian
jurisdiction. Continuance of registration is otherwise subject to the law of
the Australian jurisdiction.
The local registration authority of the
Australian jurisdiction may not impose conditions on registration that are more
onerous than would be imposed in similar circumstances (having regard to
qualifications and experience) unless they are conditions that apply to the
person’s registration in New Zealand or that are necessary to achieve
equivalence of occupations.
The clause states that it has effect subject
to the Part (for example, clause 32 relating to disciplinary
action).
Clause 20 - Action following notice
The clause
provides that registration must be granted within one month of lodging a notice
under clause 18 and if granted takes effect from the date of lodgement of that
notice. Within that month the local registration authority may postpone or
refuse the grant of registration. If the registration authority does neither
within that month, registration is automatic at the end of that month and no
objection may be entered by the registration authority except where fraud is
involved.
Clause 21 - Postponement of registration
The
clause specifies the circumstances in which a local registration authority of an
Australian jurisdiction may postpone registration. The postponement may not
extend beyond 6 months and if it does registration is automatic at the end of
that 6 month period unless registration was refused at or before the end of that
period. Earlier registration may be granted on a review by the Australian
Tribunal.
Clause 22 - Refusal of registration
The clause
specifies the grounds on which a registration authority of an Australian
jurisdiction may refuse registration. Those grounds are that a statement or
information in the notice under clause 18, or documentary evidence or
information provided as to existing registration, is materially false or
misleading or that the registration sought is not for an equivalent occupation
and equivalence cannot be achieved by imposing conditions.
A decision
to refuse to grant registration on the ground that an occupation is not an
equivalent occupation takes effect at the end of a specified period of not less
than two weeks after the person concerned has been notified unless it has been
previously revoked or an application for review made to the Australian Tribunal.
On such an application the Tribunal may make whatever orders it considers
appropriate.
Clause 23 - Notification of decision
The
clause requires a local registration authority to give notice in writing of its
decision as to registration.
Division 3 - Interim arrangements
Clause 24 - Deemed registration
The clause provides that
pending determination of a notice under clause 18 the person lodging the notice
has 'deemed registration'. Deemed registration does not of itself provide a
basis for registration in another Australian jurisdiction.
Clause 25
- Duration of deemed registration
The clause deals with the duration
of a person’s deemed registration. It ceases when the person is
registered by the local registration authority of an Australian jurisdiction, or
if that authority refuses registration, or if substantive registration in every
other participating jurisdiction ceases. It may be cancelled or suspended in
accordance with this Part and is not affected by postponement of the grant of
substantive registration.
Clause 26 - Activities under deemed
registration
The clause enables a person with deemed registration in
an Australian jurisdiction to carry on the equivalent occupation in the
jurisdiction but subject to certain limitations. Those limitations include the
limits conferred by the person’s substantive registration in New Zealand
as well as by the person’s deemed registration.
Division 4 - Equivalent occupations
Clause 27 - Equivalent occupations
The clause states that
the equivalence of occupations carried on in different participating
jurisdictions is to be determined in accordance with this Part.
Clause
28 - General principle
The clause provides that occupations for
which persons may be registered in New Zealand are to be taken as equivalent if
the activities authorised under the registration for the occupation in an
Australian jurisdiction are substantially the same. This equivalence may be
achieved by the imposition of conditions.
Clause 29 - Declarations
as to equivalent occupations
The clause provides that this Part is
to be given effect in accordance with relevant declarations made under this
Division regarding equivalent occupations. If an inconsistency arises between a
declaration of the Australian Tribunal under clause 30 and a declaration of
Ministers under clause 31, the Ministerial declaration prevails. A declaration
does not affect the registration of a person already registered unless it is
made by the Australian Tribunal in relation to that person specifically.
Clause 30 - Declarations by Australian Tribunal
The
clause enables the Australian Tribunal to make an order, on a review of a
decision of a local registration authority under the proposed Act, that a person
registered in an occupation in New Zealand is or is not entitled to registration
in an Australian jurisdiction in a particular occupation.
On such a
review, the Australian Tribunal may also specify conditions that will achieve
equivalence and may make a declaration that occupations carried on in New
Zealand and in an Australian jurisdiction are not equivalent if it is satisfied
as to certain matters (for example, that the activity or class of activity, if
carried out by a person not conforming to the appropriate standards, could
reasonably be expected to expose persons in the Australian jurisdiction to a
real threat to their health or safety or could reasonably be expected to cause
significant environmental pollution, including air, water, noise or soil
pollution).
Such declarations must be published and notified to
appropriate authorities in other participating jurisdictions. The local
registration authority must give effect to the decision of the review.
Clause 31 - Declarations by Ministers
The clause enables a
Minister from New Zealand and a Minister from one or more Australian
jurisdictions to declare jointly that specified occupations are equivalent and
to specify conditions that will achieve equivalence. Such a declaration has
effect only in relation to the participating jurisdictions concerned and must be
given effect by the appropriate local registration authorities.
Division 5 - General provisions
Clause 32 - Disciplinary action
The clause provides that
if a person's registration in an occupation in New Zealand is cancelled or
suspended, or subject to a condition, on disciplinary grounds or as a result of
or in anticipation of criminal, civil or disciplinary proceedings, the person's
registration in an equivalent occupation in an Australian jurisdiction is
affected in the same way (whether or not the registration was effected under the
proposed Act). However, the local registration authority of the Australian
jurisdiction may reinstate any cancelled or suspended registration or waive
conditions if it thinks it appropriate.
Clause 33 - Review of
decisions
The clause allows a person to apply to the Australian
Tribunal for review of a decision of a local registration authority under the
proposed Act.
Clause 34 - Costs
The clause empowers the
Australian Tribunal to order a party in proceedings to pay costs if the party
has acted unreasonably.
Clause 35 - Co-operation with and membership
of Trans-Tasman Occupations Tribunal (NZ)
The clause requires the
Australian and New Zealand Tribunals to cooperate so as to promote consistency
between their decisions. The Australian Tribunal is required to have regard to
decisions of the New Zealand Tribunal and the President of the Australian
Tribunal is permitted to include members of the New Zealand Tribunal on the
Australian Tribunal for the purpose of hearing reviews under the proposed Act.
The President of the Australian Tribunal may only invite members of the New
Zealand Tribunal to sit on the Australian Tribunal in accordance with
arrangements made from time to time between the President and the Chairperson of
the New Zealand Tribunal.
The clause prohibits members of the New
Zealand Tribunal receiving remuneration or allowances for service on the
Australian Tribunal (these are to be paid by the New Zealand Tribunal). The
clause also provides that service by a member of the Australian Tribunal on the
New Zealand Tribunal is taken to be service as a member of the Australian
Tribunal.
Clause 36 - Residence or domicile
The clause
states that residence or domicile in a particular participating jurisdiction is
not to be a prerequisite or factor in a person's entitlement to registration
under the proposed Act.
Clause 37 - Furnishing information
The clause requires a local registration authority of an Australian
jurisdiction to furnish without delay information about a person registered in
that jurisdiction reasonably required by a local registration authority of
another participating jurisdiction. The request for information must be in
connection with the person's application for registration in the jurisdiction,
the person's deemed registration, or actual or possible disciplinary action
against the person. The information may be furnished despite any law relating
to secrecy, confidentiality or privacy.
Clause 38 - Receiving
information
The clause provides that once information is received by
a local registration authority under clause 37 the information is subject to any
law relating to secrecy, confidentiality or privacy applicable to information
provided under the law of the jurisdiction under which that authority is
constituted or exercises its functions.
Clause 39 - General
responsibilities of local registration authorities
The clause sets
out the general duties of local registration authorities under the proposed Act.
They must facilitate the operation of this Part in relation to the occupations
for which they are responsible and make use of the power to impose conditions in
such a way as to promote the trans-Tasman mutual recognition principle. They
must prepare guidelines and information regarding the operation of this Part in
relation to the occupations for which they are responsible. Such guidelines and
information must be available within six months of the commencement of this
clause. Local registration authorities must also have regard to the principles
relating to information privacy set out in Schedule 5 when dealing with personal
information obtained under the Act. The principles do not create separately
enforceable rights or duties.
Clause 40 - Fees
The
clause enables a local registration authority of an Australian jurisdiction to
impose fees in connection with registration under the proposed Act but not fees
greater than those imposed for registration apart from the proposed Act. The
authority may impose a condition on substantive or deemed registration that a
person may not carry out activities authorised by the registration until the
fees have been paid.
Clause 41 - Formalities requiring personal
attendance
The clause provides that registration or entitlement to
registration under this Part does not require compliance with any requirements
as to personal attendance in the Australian jurisdiction concerned.
Clause 42 - Saving
The clause states that nothing
prevents a person from seeking registration or being registered for an
occupation under a law apart from the proposed Act.
PART 4 - EXCLUSIONS AND EXEMPTIONS
Clause 43 - References to endorsing a proposed regulation
The clause provides that for the purposes of this Part, a
jurisdiction (other than the Commonwealth) is deemed to have endorsed a
regulation if it publishes a notice in its official gazette setting out and
endorsing the terms of the regulation before it is made. The Commonwealth is
taken to have endorsed a regulation for the purposes of this Part if the
regulation is in fact made.
Clause 44 - Exclusions
The
clause provides that the proposed Act will not affect the laws of an Australian
jurisdiction specified or described in Schedule 1, to the extent that Schedule 1
indicates they are excluded from the operation of the proposed Act.
The
clause empowers the Governor-General to make regulations amending Schedule 1,
provided all participating jurisdictions have endorsed the regulation. However,
if such a regulation merely amends Part 2 of Schedule 1 by substituting or
adding a law of a State relating to existing areas of exclusion, only the
endorsement of the State is needed.
Clause 45 - Permanent
exemptions
The clause provides that the proposed Act will not affect
the laws of an Australian jurisdiction specified or described in Schedule 2, to
the extent that Schedule 2 indicates they are exempt from the operation of the
proposed Act.
The clause empowers the Governor-General to make
regulations amending Schedule 2, provided all participating jurisdictions have
endorsed the regulation. However, if such a regulation merely omits or reduces
the extent of an exemption of a law of a State from Schedule 2, only the
endorsement of the State is needed.
Clause 46 - Temporary exemptions
The clause provides for the temporary exemption from the proposed
Act of the sale of particular goods in an Australian jurisdiction or of laws of
an Australian jurisdiction relating to particular goods. Such exemptions only
have effect if they are substantially for the purpose of protecting the health
and safety of persons within the jurisdiction or preventing, minimising or
regulating environmental pollution (including air, water, noise or soil
pollution) within the jurisdiction. The exemption only has effect for 12 months
(either continuously or as an aggregate).
Clause 47 - Continuation
of temporary exemptions to enable implementation of Ministerial agreements
The clause provides for a continuation of temporary exemptions
referred to in clause 46. The purpose of the clause is to create a mechanism to
provide an additional period not exceeding 12 months for legislative or other
action to be taken to implement a ministerial agreement arising out of
consideration (generally in the context of a ministerial council) of an
exemption under clause 46.
The Governor-General may make regulations
for the purposes of this clause if they have the effect of continuing or
reviving the effect of an exemption, with or without modification. However, the
endorsement of at least two-thirds of the participating jurisdictions is
required before the regulation may be made. An exemption under this clause
(together with the period of any previous exemption) can only operate for 12
months (either continuously or as an aggregate).
Clause 48 - Special
exemptions
The clause provides that the proposed Act will not affect
the operation of laws of an Australian jurisdiction that relate to goods and
that are specified or described in Schedule 3, to the extent that Schedule 3
indicates that they are exempt from the operation of the proposed Act. Such an
exemption only operates for 12 months after the commencement of this clause, but
may be extended in whole or in part by regulations made by the Governor-General
for further periods each not exceeding 12 months. The endorsement of all the
participating jurisdictions is required before a regulation is made under this
clause. However, that requirement does not apply to a regulation that relates
solely to a law specified in Schedule 3 and will not take effect until after 5
years after the commencement of the clause (in which case only the endorsement
of two-thirds of the participating jurisdictions is needed), or to a regulation
that merely omits expired matter (in which case only Commonwealth endorsement is
needed).
Clause 49 - Exemptions relating to occupations
The clause provides that the proposed Act will not affect the
operation of laws of an Australian jurisdiction that relate to occupations and
that are specified or described in Schedule 4, to the extent that Schedule 4
indicates that they are exempt from the operation of the proposed Act.
The clause enables the Governor-General to make regulations amending
Schedule 4, provided all participating jurisdictions have endorsed the
regulation. However, if such a regulation merely amends schedule 4 by omitting
a law of a State, only the endorsement of the State is needed.
PART 5 - GENERAL
Clause 50 - References to participating jurisdictions
The
clause defines 'participating jurisdiction' for the purposes of the proposed Act
as being:
(a) New Zealand, while there is in force an Act of its
Parliament that corresponds to the proposed Act;
(b) the Commonwealth;
(c) a State which has, under paragraph (xxxvii) of section 51 of the
Commonwealth Constitution, adopted the proposed Act or referred power to the
Commonwealth Parliament to enact the proposed Act; or
(d) a Territory
which has in force an Act requesting the Commonwealth Parliament to enact the
proposed Act or enabling the proposed Act to apply in relation to it.
Clause 51 - Application of Trans-Tasman mutual recognition principle
The clause provides that the trans-Tasman mutual recognition
principle and the proposed Act may be taken into consideration in proceedings of
any kind and for any purpose. The clause also ensures that a person may rely on
the trans-Tasman mutual recognition principle in relation to more than one
Australian jurisdiction.
Clause 52 - Machinery provisions regarding
limitations etc.
The clause enables conditions or undertakings
imposed on the registration of a person in an occupation in New Zealand to be
construed with necessary adaptations for the purposes of registration in an
Australian jurisdiction.
Clause 53 - Determining place of production
The clause provides a method for determining where goods are
produced for the purposes of the proposed Act.
Clause 54 -
Commonwealth regulations for temporary exemptions
The clause enables
the Governor-General to make regulations for the purposes set out in clause 46.
SCHEDULE 1 - EXCLUSIONS
Schedule 1 specifies and describes laws which are excluded from
the operation of the proposed Act, so far as they relate to customs controls and
tariffs, intellectual property, taxation and business franchises, and the
implementation of international obligations. The laws specified or described in
the schedule are excluded only to the extent that they would be affected by the
trans-Tasman mutual recognition principle as applying to goods.
SCHEDULE 2 - PERMANENT EXEMPTIONS
Schedule 2 specifies and describes laws which are exempted from
the operation of the proposed Act. These are laws relating to quarantine,
endangered species, firearms and other prohibited or offensive weapons,
fireworks, indecent material, ozone protection, agricultural and veterinary
chemicals, gaming machines and risk categorised foods.
SCHEDULE 3 - SPECIAL EXEMPTIONS
Schedule 3 specifies and describes laws which are exempted from
the operation of the proposed Act (pending the completion of 'cooperation
programmes' between Australian and New Zealand regulatory authorities which will
determine whether to apply the trans-Tasman mutual recognition principle to the
affected goods, permanently exempt the goods from the operation of the proposed
Act, or introduce harmonised standards for such goods). These are laws relating
to therapeutic goods; hazardous substances, industrial chemicals and dangerous
goods; road vehicles; electromagnetic compatibility and radiocommunications
equipment; and gas appliances.
SCHEDULE 4 - EXEMPT LAWS RELATING TO OCCUPATIONS
Schedule 4 specifies that laws of Australian jurisdictions
relating to the occupation of medical practitioners are exempted from the
operation of the proposed Act.
SCHEDULE 5 - PRIVACY OF INFORMATION COLLECTED UNDER THE ACT
Schedule 5 specifies principles that Australian local registration
authorities must have regard to when dealing with personal information obtained
or to be obtained under the proposed Act.