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(New South Wales) Bill 1996
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
This Bill consists of a series of clauses together with a Schedule that contains
a proposed Commonwealth Act.
The object of this Bill is to enable the enactment of legislation (in the form of
the proposed Commonwealth Act) 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.
Overall legislative scheme
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 two components:
*
an Australian component, and
*
a New Zealand component.
This Bill is concerned with the Australian component of this larger legislative
scheme. It provides or contributes to the legislative power for the enactment
of the proposed Commonwealth Act.
The Trans-Tasman Mutual Recognition Bill 1996 of New Zealand is
concerned with the New Zealand Component of this total legislative scheme.
That Bill was introduced into the Parliament of New Zealand on 18 July
1996.
Background
The Trans-Tasman Mutual Recognition Arrangement was signed by the
Commonwealth and the States on 14 June 1996 and by New Zealand on
9 July 1996.
The purpose of the Arrangement is to give effect to a scheme implementing
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 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.
The Arrangement recognises that it builds on, and is a natural extension of,
the 1992 Mutual Recognition Agreement between the Commonwealth and
the States. The Arrangement states that, as far as possible, the mutual
recognition scheme contemplated by the 1996 Arrangement should be
consistent with the scheme established by the 1992 Mutual Recognition
Agreement.
The 1992 Mutual Recognition Agreement was the basis for a scheme for
legislation applying uniformly throughout Australia for the mutual
recognition by the States of each other's differing regulatory standards
regarding goods and occupations. The Mutual Recognition Act 1992 of the
Explanatory note page 2
Commonwealth was enacted as the result of State legislation. In the case of
New South Wales, power was given for the enactment of the Act by the
Mutual Recognition (New South Wales) Act 1992.
The scheme contemplated by the 1996 Arrangement is similar to the scheme
under the 1992 Agreement in many respects. However, whereas the 1992
scheme principally affects the States, the 1996 scheme affects the
Commonwealth and New Zealand as well as the States.
The terms of the proposed Commonwealth Act are based on and similar to
the Mutual Recognition Act 1992.
Policy result to be achieved by the Commonwealth, State and
New Zealand Bills (the overall legislative package)
The Commonwealth, State and New Zealand Bills will implement the 1996
Trans-Tasman Mutual Recognition Arrangement. The Arrangement is based
on two key principles in relation to goods and occupations:
(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 State Bill
This Bill refers to the Parliament of the Commonwealth under paragraph
(xxxvii) of section 5 1 of the Commonwealth Constitution the power to enact
an Act in the terms, or substantially in the terms, set out in the Schedule to
the Bill.
The proposed Schedule contains a Bill for a Commonwealth Act with the
short title of the Trans-Tasman Mutual Recognition Act 1996. Amendment of
the proposed Commonwealth Act is not referred to the Commonwealth.
However, Schedules 14 to the proposed Commonwealth Act will be able to
be amended by regulations in accordance with the proposed Commonwealth
Act.
The referral of power to the Commonwealth may be terminated by the
Governor by proclamation, but only after the period of 5 years after the
commencement of the proposed Commonwealth Act.
Explanatory note page 3
The citation of the proposed Commonwealth Act will be able to be changed
to include "1997" in the event that the Commonwealth Bill does no
t
complete its parliamentary passage in 1996, as the Commonwealth Bill
would still be "substantially in the terms" set out in the Schedule to the State
Bill.
The Commonwealth Bill
The Commonwealth Bill set out in the State Bill gives effect to the two key
principles in relation to goods and occupations within Australia:
(a)
if goods may be legally sold in New Zealand they may be sold in an
Australian jurisdiction, 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.
The Commonwealth Bill provides the mechanics for recognising these
principles. The Schedules to the Commonwealth Bill detail exemptions and
exclusions in relation to laws, goods and occupations and also provide for
privacy of information collected under the proposed Commonwealth Act.
Legislative result to be achieved by the Commonwealth and
State Bills
The new national scheme for mutual recognition will involve at least one
State enacting legislation referring or requesting the enactment of a Mutual
Recognition Act to the Parliament of the Commonwealth. The
Commonwealth Parliament will then enact the Trans-Tasman Mutual
Recognition Act 1996 in substantially the same terms as those set out in the
proposed State Act.
The Trans-Tasman Mutual Recognition Act 1996 of the Commonwealth will
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 in relation to New Zealand goods and occupations, which will
operate independently of other State laws and therefore will not require
Explanatory note page 4
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.
Clause 2 provides for the commencement of the proposed Act on a day to be
appointed by proclamation of the Governor.
Clause 3 defines the Commonwealth Act to mean the Act to be enacted by
the Parliament of the Commonwealth as referred to in clause 4.
Clause 4 refers power to enact the Bill set out in the Schedule to the State
Bill. The clause does so by referring certain matters to the Parliament of the
Commonwealth. The matters are those to which the Schedule relates, but
only to the extent of the enactment of an Act in the terms, or substantially in
the terms, set out in the Schedule to the State Bill. The referral of those
matters has effect from the commencement of the State Act until a day
(occurring at least 5 years after the commencement of the Commonwealth
Act) fixed by the Governor by proclamation.
Clause 5 enables the Governor to make regulations for the purposes of
section 46 of the proposed Commonwealth Act (Temporary exemptions).
Commonwealth Bill
Part 1--Preliminary
Clause 1 provides for the proposed Act to be cited as the Trans-Tasman
Mutual Recognition Act 1996.
Clause 2 provides for Part 1 of the proposed Act to commence when 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.
Explanatory note page 5
Clause 3 sets out the principal purpose of the proposed Act, which is to enact
legislation for the purpose of recognising within Australia regulatory
standards adopted in New Zealand regarding goods and occupations.
Clause 4 contains definitions of expressions used in the proposed Act. In
particular:
(a)
goods means goods of any kind (including animals, plants, material of
microbial origin, a package containing goods, and a label attached to
goods), and
(b)
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 that occupation in the jurisdiction, and
(c)
occupation means an occupation, trade, profession or calling of any
kind that may be carried on 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, and
(d)
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.
This clause also states that a law specified in a Schedule to the proposed Act
includes any regulations or other statutory instruments under the law and
amendments to the law, unless the Schedule states otherwise.
Clause 5 states that the proposed Act does not affect the operation of any
other law of the Commonwealth, and generally does not affect the operation
of the Mutual Recognition Act 1992 of the Commonwealth.
Clause 6 provides that the proposed Act applies to a State while it is a
participating jurisdiction and does not affect the operation of a law of the
State so far as it can operate concurrently with the proposed Act.
Clause 7 states that the Governor-General may declare by Proclamation that
the Act will cease to have effect on a specified day if New Zealand is or will
become a non-participating jurisdiction.
Clause 8 states that the proposed Act binds the Crown in right of the
Commonwealth and of each of the States (while a participating jurisdiction).
Explanatory note page 6
Part 2--Goods
Clause 9 states that the mutual recognition principle in relation 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 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 (Requirements that do not need to be complied with).
Clause 11 specifies the requirements relating to sale that are imposed by an
Australian jurisdiction and that do not need to be complied with. Those
requirements are as follows:
requirements relating to the goods themselves, for example,
requirements relating to their production, composition, quality or
performance,
requirements 1
relating to the way the goods are presented, for example,
requirements relating to their packaging, labelling, date stamping or
age,
requirements that the goods be inspected, passed or similarly dealt
with in or for the purposes of the Jurisdiction,
requirements that any step in the production of the goods not occur
outside the jurisdiction,
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 contains exceptions to the 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 their business in the jurisdiction (examples include
laws relating to contractual aspects of the sale of goods, registration of
sellers or other persons carrying on occupations, requirement for
business franchise licences, the persons to whom, 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 environmental pollution matters,
Explanatory note page 7
(c)
laws that relate to the inspection of goods (other than laws providing
that inspection is a prerequisite to the sale of the goods in the
jurisdiction) and are directed at matters affecting the health and safety
of persons within the jurisdiction or at environmental pollution
matters.
Clause 13 provides that it is a defence to a prosecution for an offence against
sale of goods laws in an Australian jurisdiction if a person claims that the
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 also establishes that the person had no
reasonable grounds for suspecting that the goods were not so produced or
imported. The defence cannot be used if the prosecution proves that the
mutual recognition principle did not apply in the particular case (because for
example the laws did not comply with requirements imposed by the law of
New Zealand).
Clause 14 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 states that the mutual recognition principle as applying to
occupations is as set out in this Part. The Part deals with the ability of a
person who is registered in connection with an occupation in New Zealand to
carry on an equivalent occupation in Australia.
Clause 16 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 mutual recognition
principle does not affect the operation of laws that affect the manner of
carrying on an occupation in the Australian jurisdiction so long as those laws
apply equally to all persons seeking to carry on the occupation or carrying it
on and are not based on the attainment or possession of some qualification or
experience relating to fitness to carry on the occupation.
Clause 17 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 issue of a practising
certificate by another body).
Explanatory note page 8
Division 2--Entitlement to registration
Clause 18 enables a person who is registered in New Zealand for an
occupation 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 provides that once a person lodges a notice under clause 18
(Notification to local registration authority) 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 cannot 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--Disciplinary
action).
Clause 20 provides that registration must be granted within one month of
lodging a notice under clause 18 and when granted takes effect from the date
of lodgment 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.
Clause 21 specifies the circumstances in which the local registration
authority of the 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 Administrative Appeals Tribunal of the Commonwealth.
Clause 22 specifies the grounds on which the local registration authority of
the 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
Explanatory note page 9
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
Administrative Appeals Tribunal. On such an application, the Tribunal may
make whatever orders it considers appropriate.
Clause 23 requires a local registration authority to give notice in writing of
its decision as to registration.
Division 3Interim arrangements
Clause 24 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 deals with the
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 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 states that the equivalence of occupations carried on in different
participating jurisdictions is to be determined in accordance with this Part.
Clause 28 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 provides that this Part is to be given effect to in accordance with
relevant declarations under this Division regarding equivalent occupations. If
an inconsistency arises between a declaration of the Administrative Appeals
Explanatory note page 10
Tribunal (see clause 30) and a declaration of Ministers (see clause 31), the
ministerial declaration prevails. A declaration does not affect the registration
of a person already registered unless it is made by the Administrative
Appeals Tribunal in relation to that person specifically.
Clause 30 enables the Administrative Appeals 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 Administrative Appeals 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. Such declarations must be
published and notified to appropriate authorities in other participating
jurisdictions. The local registration authority must give effect to the decision
on the review.
Clause 31 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 to by the appropriate local registration
authorities.
Division 5General provisions
Clause 32 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). The local registration
authority of the Australian jurisdiction may in such cases reinstate the
registration or waive conditions if it thinks it appropriate.
Clause 33 allows a person to apply to the Administrative Appeals Tribunal
for review of a decision of a local registration authority under the proposed
Act.
Clause 34 empowers the Administrative Appeals Tribunal to order a party in
proceedings to pay costs if the party has acted unreasonably.
Explanatory note page 11
Clause 35 provides for consistency of decisions made by the Administrative
Appeals Tribunal and the Trans-Tasman Occupations Tribunal of New
Zealand.
Clause 36 states that residence or domicile is not to be a prerequisite or
factor in a person's entitlement to registration under the proposed Act.
Clause 37 requires a local registration authority of an Australian jurisdiction
to promptly furnish 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
seeking of registration by the person 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 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 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 relevant occupations and make use of the power to impose conditions in
such a way as to promote the mutual recognition principle. They must
prepare guidelines and information as to the operation of this Part. Such
guidelines and information are to be available within six months of the
commencement of the clause. The clause also requires local registration
authorities to have regard to the privacy principles set out in Schedule 5. The
principles do not create separately enforceable rights or duties.
Clause 40 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 provides that registration or entitlement to registration under this
Part does not require compliance with any requirements as to personal
attendance in the relevant Australian jurisdiction.
Clause 42 states that nothing prevents a person from seeking registration in
an occupation apart from the Act.
Explanatory note page 12
Part 4--Exclusions and
exemptions
e
Clause43
Clause 43 is a definitional clause, and provides that for the purposes of this
Part a jurisdiction endorses a regulation by publishing a notice in the Gazette
of that jurisdiction. However, a recommendation by a Commonwealth
Minister to the Governor-General for a regulation amounts to endorsement of
it by the Commonwealth.
Clause 44 provides for the exclusion from the proposed Act of laws of an
Australian jurisdiction to the extent set out in Schedule 1 (Exclusions). The
Governor-General may make regulations amending Schedule 1 but all
participating jurisdictions must endorse the regulation, unless the regulation
merely omits or reduces the effect of a law as set out in Schedule 1 or adds a
consistent law of a State to the Schedule (in which case only the endorsement
of the State is needed).
Clause 45 provides for the permanent exemption from the proposed Act of
laws of an Australian jurisdiction to the extent set out in Schedule 2
(Permanent exemptions). The Governor-General may make regulations
amending Schedule 2. Any such regulation must be made with the
endorsement of all participating jurisdictions. However, that requirement
does not apply to a regulation that merely omits or reduces the extent of an
exemption from the law of a State (in which case only the endorsement of the
State is needed).
Clause 46 provides for the temporary exemption from the proposed Act of
the sale of particular goods in an Australian jurisdiction or of laws of
Australian jurisdiction relating to particular goods. Such exemptions only
have effect if they are substantially for the protection of the health and safety
of persons within the jurisdiction or directed at environmental pollution
matters. The exemption only has effect for 12 months (either continuously or
as an aggregate).
Clause 47 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, 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).
Explanatory note page 13
Clause 48 provides for the special exemption from the proposed Act of laws
of an Australian jurisdiction to the extent set out in Schedule 3 (Special
exemptions). Such an exemption only operates for 12 months after the clause
commences but this may be extended by regulations made by the
Governor-General. Endorsement of all of 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 provides for the exemption from the proposed Act of laws of an
Australian jurisdiction to the extent set out in Schedule 4 (Exempt laws
relating to occupations). The Governor-General may make regulations
amending Schedule 4 and the endorsement of all participating jurisdictions is
required, unless the regulation omits a law of a State (in which case only the
endorsement of the State is needed).
Part 5General
Clause 50 defines participating jurisdiction for the purposes of the proposed
Act as being New Zealand (while there is an Act in force that corresponds to
the proposed Commonwealth Act), the Commonwealth, or a State (while it
has an Act sustaining or adopting the proposed Commonwealth Act).
Clause 51 provides that the 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 mutual
recognition principle in relation to more than one Australian jurisdiction.
Clause 52 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 the relevant Australian
jurisdiction.
Clause 53 provides a method for determining where goods are produced for
the purposes of the proposed Act.
Clause 54 empowers the Governor-General to make regulations for the
purposes set out in clause 46.
Explanatory note page 14
Schedule 1
Exclusions
The Schedule excludes specified laws relating to goods from the mutual
recognition principle, as referred to in clause 44.
Schedule 2
Permanent exemptions
The Schedule permanently exempts specified laws relating to goods
:he
from
mutual recognition principle, as referred to in clause 45.
Schedule 3
Special exemptions
The Schedule provides limited exemptions for specified laws relating to
goods from the mutual recognition principle, as referred to in clause 48.
Schedule 4
Exempt laws relating to occupations
The Schedule exempts specified laws relating to occupations from the mutual
recognition principle, as referred to in clause 49.
Schedule 5
Privacy of information collected under the
Act
The Schedule sets out requirements relating to privacy of information
collected under the proposed Act to which local registration authorities are
required to have regard, as referred to in clause 39.
Explanatory note page 15