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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Mutual Recognition (Western Australia)
Bill 2001
CONTENTS
1. Short title 3
2. Commencement 3
3. Interpretation 3
4. Adoption of Commonwealth Act 3
5. Regulations for temporary exemptions for goods 4
6. Validation 4
7. Expiry of Act 4
NOTE
page i
3--1
Western Australia
LEGISLATIVE ASSEMBLY
Mutual Recognition (Western Australia)
Bill 2001
A Bill for
An Act to continue the adoption of the Mutual Recognition Act 1992
of the Parliament of the Commonwealth (and any amendments made
to it before the enactment of this Act) which provides for the
recognition within each State and Territory of the Commonwealth of
regulatory standards adopted elsewhere in Australia regarding
goods and occupations, and for related purposes.
page 1
Mutual Recognition (Western Australia) Bill 2001
Background to the enactment of this Act
1. The Parliaments of New South Wales and Queensland each
referred matters to the Parliament of the Commonwealth for the
purposes of section 51(xxxvii) of the Constitution of the
5 Commonwealth so as to enable the enactment and amendment of
legislation to provide for the recognition within each State and
Territory of the Commonwealth of regulatory standards adopted
elsewhere in Australia regarding goods and occupations.
2. The Parliament of the Commonwealth subsequently enacted the
10 Mutual Recognition Act 1992.
3. The Mutual Recognition (Western Australia) Act 1995 adopted that
Commonwealth Act for the purposes of section 51(xxxvii) of the
Constitution of the Commonwealth for the period 9 December
1995 to 28 February 2001 (both dates inclusive).
The Parliament of Western Australia enacts as follows:
page 2
Mutual Recognition (Western Australia) Bill 2001
s. 1
1. Short title
This Act may be cited as the Mutual Recognition (Western
Australia) Act 2001.
2. Commencement
5 This Act is deemed to have come into operation on 1 March 2001.
3. Interpretation
(1) In this Act --
"adopt" has the same meaning as it has in section 51(xxxvii) of
the Constitution of the Commonwealth and "adopted
10 provision", "adoption" and "adopts" have corresponding
meanings;
"Commonwealth Act" means the Mutual Recognition Act 1992
of the Commonwealth;
"termination day" means the day, if any, fixed under
15 subsection (2).
(2) The Governor may, by proclamation, fix a day as the day on
which the adoption of the Commonwealth Act under this Act
ceases to have effect.
4. Adoption of Commonwealth Act
20 (1) Subject to this section, the State of Western Australia adopts the
Commonwealth Act as originally enacted and any amendments
made to it before this Act receives the Royal Assent.
NOTE: The text of the Commonwealth Act as at the time of the enactment
of this Act, is set out in a note at the end of this Act.
25 (2) The adoption of the Commonwealth Act under this Act does not
operate so as to give effect to any adopted provision before that
provision commences as a law of the Commonwealth.
page 3
Mutual Recognition (Western Australia) Bill 2001
s. 5
(3) For the avoidance of doubt, it is the intention of the Parliament
of the State that a Schedule to the Commonwealth Act as
adopted under this Act may be amended from time to time by
regulations made under the Commonwealth Act.
5 (4) The adoption of the Commonwealth Act under this Act ceases
to have effect at the end of the termination day.
5. Regulations for temporary exemptions for goods
Without limiting any other power to make regulations under any
other Act, the Governor may make regulations for the purposes
10 mentioned in section 15 of the Commonwealth Act as adopted
under this Act.
6. Validation
Anything done or purported to have been done after the expiry
of the Mutual Recognition (Western Australia) Act 1995 and
15 before the enactment of this Act is to be regarded as having the
same effect, and as having always had the same effect, as it
would have had if the Mutual Recognition (Western Australia)
Act 1995 had not expired.
7. Expiry of Act
20 This Act expires at the end of the termination day.
page 4
Mutual Recognition (Western Australia) Bill 2001
Mutual Recognition Act 1992 (Cwlth) Note
NOTE
Commonwealth of Australia
Mutual Recognition Act 1992
Contents
5 PART 1 -- PRELIMINARY
1. Short title
2. Commencement
3. Principal purpose
4. Interpretation
10 5. Application of this Act to States
6. Operation of this Act
7. Crown bound
PART 2 -- GOODS
8. Mutual recognition
15 9. Entitlement to sell goods
10. Requirements that do not need to be complied with
11. Requirements that do need to be complied with
12. Defences to offences regarding sale
13. Goods that comply with local law
20 14. Permanent exemptions
15. Temporary exemptions
PART 3 -- OCCUPATIONS
Division 1 -- Preliminary
16. Mutual recognition
25 17. Entitlement to carry on occupation
18. Application of this Part
Division 2 -- Entitlement to registration
19. Notification to local registration authority
20. Entitlement to registration and continued registration
30 21. Action following notice
22. Postponement of registration
23. Refusal of registration
24. Notification of decision
Division 3 -- Interim arrangements
35 25. Deemed registration
26. Duration of deemed registration
27. Activities under deemed registration
page 5
Mutual Recognition (Western Australia) Bill 2001
Note Mutual Recognition Act 1992 (Cwlth)
Division 4 -- Equivalent occupations
28. Equivalent occupations
29. General principle
30. Declarations as to equivalent occupations
5 31. Declarations by Tribunal
32. Declarations by Ministers
Division 5 -- General provisions
33. Disciplinary action
34. Review of decisions
10 35. Costs
36. Residence or domicile
37. Furnishing information
38. Receiving information
39. General responsibilities of local registration authorities
15 40. Fees
41. Formalities requiring personal attendance
42. Saving
PART 4 -- GENERAL
43. References to participating jurisdictions
20 44. Application of mutual recognition principle
45. Machinery provisions regarding limitations etc.
46. Determining place of production
47. Amendment of Schedules
SCHEDULE 1 -- PERMANENT EXEMPTIONS: GOODS
25 SCHEDULE 2 -- PERMANENT EXEMPTIONS: LAWS RELATING TO
GOODS
page 6
Mutual Recognition (Western Australia) Bill 2001
Mutual Recognition Act 1992 (Cwlth) Note
Mutual Recognition Act 1992
No. 198 of 1992
[Incorporating amendments effected by --
· Mutual Recognition Act 1992 (Amendment) Regulations (SR No. 139 of 1999) ]
5 An Act to provide for the recognition within each State and
Territory of the Commonwealth of regulatory standards
adopted elsewhere in Australia regarding goods and
occupations
PART 1 -- PRELIMINARY
10 1 Short title
This Act may be cited as the Mutual Recognition Act 1992.
2 Commencement
The provisions of this Act commence on a day or days to be fixed by Proclamation.
3 Principal purpose
15 The principal purpose of this Act is to enact legislation authorised by the Parliaments
of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution,
and requested by the legislatures of the Australian Capital Territory and the Northern
Territory, for the purpose of promoting the goal of freedom of movement of goods
and service providers in a national market in Australia.
20 4 Interpretation
(1) In this Act, unless the contrary intention appears:
conditions, when used in relation to occupations, means conditions, limitations or
restrictions.
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Mutual Recognition (Western Australia) Bill 2001
Note Mutual Recognition Act 1992 (Cwlth)
deemed registration means deemed registration as defined in section 25.
equivalent, when used in relation to occupations, has a meaning affected by Division
4 of Part 3.
goods means goods of any kind, and includes:
5 (a) animals; or
(b) a package containing goods; or
(c) a label attached to goods.
grant, when used in relation to registration, means grant, issue or otherwise confer
registration.
10 import means import from outside Australia.
labelling of goods includes any means by which, at the point of sale, information is
attached to goods or is displayed in relation to goods without being attached to them.
local registration authority of a State for an occupation means the person or authority
in the State having the function conferred by legislation of registering persons in
15 connection with their carrying on that occupation in the State.
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
20 specialisation in any of the above in which registration may be granted.
participating jurisdiction has the meaning given by section 43.
produce includes to manufacture, and also includes to harvest or otherwise produce in
the course of any form of primary production.
registration includes the licensing, approval, admission, certification (including by
25 way of practising certificates), or any other form of authorisation, of a person required
by or under legislation for carrying on an occupation.
requirements, when used in relation to goods, means requirements, prohibitions,
restrictions or conditions.
sell includes sell by wholesale or retail, and includes distribute for sale, expose or
30 offer for sale or have in possession for sale or agree to sell, and includes barter, and
includes supply by way of exchange, lease, hire or hire-purchase.
State includes the Australian Capital Territory or the Northern Territory.
substantive registration means registration under a law of a State, but does not
include deemed registration.
35 Tribunal means the Administrative Appeals Tribunal.
(2) This Act is to be interpreted in accordance with the Acts Interpretation Act 1901 as in
force at the date on which this Act receives the Royal Assent.
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Mutual Recognition (Western Australia) Bill 2001
Mutual Recognition Act 1992 (Cwlth) Note
5 Application of this Act to States
(1) This Act applies to a State, but only while it is a participating jurisdiction.
(2) Accordingly, a reference in this Act to a State is a reference to a State that is a
participating jurisdiction.
5 6 Operation of this Act
(1) Nothing in this Act affects the operation of any other law of the Commonwealth.
(2) This Act does not limit the operation of a law of a State so far as it can operate
concurrently with this Act.
7 Crown bound
10 Subject to section 5, this Act binds the Crown in right of the Commonwealth and of
each of the States.
PART 2 -- GOODS
8 Mutual recognition
(1) The mutual recognition principle as applying to goods is as set out in this Part.
15 (2) This Part deals with goods produced in or imported into a State and their sale in
another State.
(3) In this Part, the first-mentioned State is called "the first State" and the other State is
called "the second State".
9 Entitlement to sell goods
20 The mutual recognition principle is that, subject to this Part, goods produced in or
imported into the first State, that may lawfully be sold in that State either generally or
in particular circumstances, may, because of this Act, be sold in the second State
either generally or in particular circumstances (as the case may be), without the
necessity for compliance with further requirements as described in section 10.
25 10 Requirements that do not need to be complied with
The further requirements referred to in section 9 are any one or more of the following
requirements relating to sale that are imposed by or under the law of the second State:
(a) a requirement that the goods satisfy standards of the second State relating to
the goods themselves, including, for example, requirements relating to their
30 production, composition, quality or performance;
page 9
Mutual Recognition (Western Australia) Bill 2001
Note Mutual Recognition Act 1992 (Cwlth)
(b) a requirement that the goods satisfy standards of the second State relating to
the way the goods are presented, including, for example, requirements relating
to their packaging, labelling, date stamping or age;
(c) a requirement that the goods be inspected, passed or similarly dealt with in or
5 for the purposes of the second State;
(d) a requirement that any step in the production of the goods not occur outside
the second State;
(e) any other requirement relating to sale that would prevent or restrict, or would
have the effect of preventing or restricting, the sale of the goods in the second
10 State.
11 Requirements that do need to be complied with
(1) The mutual recognition principle is subject to the exceptions specified in this section.
(2) The first exception is that the principle does not affect the operation of any laws of the
second State that regulate the manner of the sale of goods in the second State or the
15 manner in which sellers conduct or are required to conduct their business in the
second State (including laws set out in the examples below), so long as those laws
apply equally to goods produced in or imported into the second State.
Examples: Laws relating to the following:
(a) the contractual aspects of the sale of goods;
20 (b) the registration of sellers or other persons carrying on occupations;
(c) the requirement for business franchise licences;
(d) the persons to whom goods may or may not be sold;
(e) the circumstances in which goods may or may not be sold.
(3) The second exception is that the principle does not affect the operation of any laws of
25 the second State regarding the transportation, storage or handling of goods within the
State, so long as:
(a) those laws apply equally to goods produced in or imported into the second
State; and
(b) those laws are directed at matters affecting health and safety of persons in the
30 second State or at preventing, minimising or regulating environmental
pollution (including air, water, noise or soil pollution) in the second State.
(4) The third exception is that the principle does not affect the operation of any laws of
the second State regarding the inspection of goods within the State, so long as:
(a) inspection or the requirement for inspection is not a prerequisite to the sale of
35 the goods in the second State; and
(b) those laws apply equally to goods produced in or imported into the second
State; and
page 10
Mutual Recognition (Western Australia) Bill 2001
Mutual Recognition Act 1992 (Cwlth) Note
(c) those laws are directed at matters affecting the health and safety of persons in
the second State or at preventing, minimising or regulating environmental
pollution (including air, water, noise or soil pollution) in the second State.
12 Defences to offences regarding sale
5 (1) It is a defence to a prosecution for an offence against a law of the second State in
relation to the sale of any goods if the defendant expressly claims that the mutual
recognition principle applies and establishes that:
(a) the goods were labelled at the point of sale with a statement to the effect that
the goods were produced in or imported into the first State; and
10 (b) the defendant had no reasonable grounds for suspecting that they were not so
produced or imported.
(2) The defence is not available if the prosecution proves that the mutual recognition
principle did not apply in the circumstances of the alleged offence (because, for
example, the goods did not comply with requirements imposed by the law of the first
15 State).
(3) Any relevant presumptions or evidentiary procedures under the law of the first State
are available to the prosecution or defendant in relation to matters sought to be proved
by the prosecution under subsection (2).
(4) Any relevant defences under the law of the first State are available to the defendant in
20 relation to matters sought to be proved by the prosecution under subsection (2).
(5) This section does not affect any defence that is available apart from this section.
13 Goods that comply with local law
(1) Nothing in this Part prevents goods from being sold in the second State if (apart from
this Act) they comply with the relevant requirements imposed by or under the law of
25 the second State.
(2) Nothing in this Part requires the labelling of goods as mentioned in section 12 if (apart
from this Act) they comply with the relevant requirements imposed by or under the
law of the second State.
14 Permanent exemptions
30 (1) This Part does not apply to goods described in Schedule 1.
(2) This Part does not affect the operation of laws described in Schedule 2.
(3) Unless otherwise stated in Schedule 2, a law described in that Schedule includes any
amendment or replacement of that law, but only to the extent that the amendment or
replacement deals with the same subject-matter.
page 11
Mutual Recognition (Western Australia) Bill 2001
Note Mutual Recognition Act 1992 (Cwlth)
15 Temporary exemptions
(1) This Part does not apply to the sale in the second State of goods, or affect laws of the
second State, for the time being declared by or under an Act or regulation of the State
to be goods or laws to which this section applies.
5 (2) Any such exemptions have effect only if they are substantially for the purpose of
protecting the health and safety of persons in the State or preventing, minimising or
regulating environmental pollution (including air, water, noise or soil pollution) in the
State.
(3) No such exemption operates (together with the period of any previous exemption) for
10 longer than a period of 12 months or an aggregate period of 12 months.
PART 3 -- OCCUPATIONS
Division 1 -- Preliminary
16 Mutual recognition
(1) The mutual recognition principle as applying to occupations is as set out in this Part.
15 (2) This Part deals with the ability of a person who is registered in connection with an
occupation in a State to carry on an equivalent occupation in another State.
(3) In this Part, the first-mentioned State is called the first State, and the other State is
called the second State.
17 Entitlement to carry on occupation
20 (1) The mutual recognition principle is that, subject to this Part, a person who is
registered in the first State for an occupation is, by this Act, entitled after notifying the
local registration authority of the second State for the equivalent occupation:
(a) to be registered in the second State for the equivalent occupation; and
(b) pending such registration, to carry on the equivalent occupation in the second
25 State.
(2) However, the mutual recognition principle is subject to the exception that it does not
affect the operation of laws that regulate the manner of carrying on an occupation in
the second State, so long as those laws:
(a) apply equally to all persons carrying on or seeking to carry on the occupation
30 under the law of the second State; and
(b) are not based on the attainment or possession of some qualification or
experience relating to fitness to carry on the occupation.
page 12
Mutual Recognition (Western Australia) Bill 2001
Mutual Recognition Act 1992 (Cwlth) Note
18 Application of this Part
(1) This Part applies to individuals and occupations carried on by them.
(2) This part extends to an occupation carried on by an individual, where the individual is
subject to more than one system of registration or more than one local registration
5 authority in a State, and accordingly this Part applies in relation to each such system
of registration and each such authority.
(3) Without limiting subsection (2), an example of such an occupation is that of a legal
practitioner, which involves both the admission as a legal practitioner by a court and
the issue of a practising certificate by another body.
10 Division 2 -- Entitlement to registration
19 Notification to local registration authority
(1) A person who is registered in the first State for an occupation may lodge a written
notice with the local registration authority of the second State for the equivalent
occupation, seeking registration for the equivalent occupation in accordance with the
15 mutual recognition principle.
(2) The notice must:
(a) state that the person is registered for the occupation in the first State and
specify that State; and
(b) state the occupation for which registration is sought and that it is being sought
20 in accordance with the mutual recognition principle; and
(c) specify all the States in which the person has substantive registration for
equivalent occupations; and
(d) state that the person is not the subject of disciplinary proceedings in any State
(including any preliminary investigations or action that might lead to
25 disciplinary proceedings) in relation to those occupations; and
(e) state that the person's registration in any State is not cancelled or currently
suspended as a result of disciplinary action; and
(f) state that the person is not otherwise personally prohibited from carrying on
any such occupation in any State, and is not subject to any special conditions
30 in carrying on that occupation, as a result of criminal, civil or disciplinary
proceedings in any State; and
(g) specify any special conditions to which the person is subject in carrying on
any such occupation in any State; and
(h) give consent to the making of inquiries of, and the exchange of information
35 with, the authorities of any State regarding the person's activities in the
relevant occupation or occupations or otherwise regarding matters relevant to
the notice.
page 13
Mutual Recognition (Western Australia) Bill 2001
Note Mutual Recognition Act 1992 (Cwlth)
(3) The notice must be accompanied by a document that is either the original or a copy of
the instrument evidencing the person's existing registration (or, if there is no such
instrument, by sufficient information to identify the person and the person's
registration).
5 (4) As regards the instrument evidencing the person's existing registration, the person
must certify in the notice that the accompanying document is the original or a
complete and accurate copy of the original.
(5) The statements and other information in the notice must be verified by statutory
declaration.
10 (6) The local registration authority may permit the notice to be amended after it is lodged.
20 Entitlement to registration and continued registration
(1) A person who lodges a notice under section 19 with a local registration authority of
the second State is entitled to be registered in the equivalent occupation, as if the law
of the second State that deals with registration expressly provided that registration in
15 the first State is a sufficient ground of entitlement to registration.
(2) The local registration authority may grant registration on that ground and may grant
renewals of such registration.
(3) Once a person is registered on that ground, the entitlement to registration continues,
whether or not registration (including any renewal of registration) ceases in the first
20 State.
(4) Continuance of registration is otherwise subject to the laws of the second State, to the
extent to which those laws:
(a) apply equally to all persons carrying on or seeking to carry on the occupation
under the law of the second State; and
25 (b) are not based on the attainment or possession of some qualification or
experience relating to fitness to carry on the occupation.
(5) The local registration authority may impose conditions on registration, but may not
impose conditions that are more onerous than would be imposed in similar
circumstances (having regard to relevant qualifications and experience) if it were
30 registration effected apart from this Part, unless they are conditions that apply to the
person's registration in the first State or that are necessary to achieve equivalence of
occupations.
(6) This section has effect subject to this Part.
21 Action following notice
35 (1) Registration must be granted within one month after the notice is lodged with the
local registration authority under section 19.
(2) When granted, registration takes effect as from the date the notice was lodged.
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Mutual Recognition (Western Australia) Bill 2001
Mutual Recognition Act 1992 (Cwlth) Note
(3) However, the local registration authority may, subject to this Part and within one
month after the notice was lodged, postpone or refuse the grant of registration.
(4) If the local registration authority neither grants the registration nor takes action under
subsection (3) within the period of one month after the notice is lodged, the person is
5 entitled to registration immediately at the end of that period and no objection may be
taken to the notice on any of the grounds on which refusal or postponement may be
effected, except where fraud is involved.
22 Postponement of registration
(1) A local registration authority may postpone the grant of registration if:
10 (a) any of the statements or information in the notice as required by section 19 are
materially false or misleading; or
(b) any document or information as required by subsection 19(3) has not been
provided or is materially false or misleading; or
(c) the circumstances of the person lodging the notice have materially changed
15 since the date of the notice or the date it was lodged; or
(d) the authority decides that the occupation in which registration is sought is not
an equivalent occupation.
(2) If the grant of registration has been postponed, the local registration authority may in
due course grant or refuse the registration.
20 (3) The local registration authority may not postpone the grant of registration for longer
than a period of 6 months, and the person is entitled to registration immediately at the
end of that period, unless registration was refused at or before the end of that period.
(4) Nothing in subsection (3) prevents earlier registration from being granted on a review
by the Tribunal.
25 23 Refusal of registration
(1) A local registration authority may refuse the grant of registration if:
(a) any of the statements or information in the notice as required by section 19 are
materially false or misleading; or
(b) any document or information as required by subsection 19(3) has not been
30 provided or is materially false or misleading; or
(c) the authority decides that the occupation in which registration is sought is not
an equivalent occupation and equivalence cannot be achieved by the
imposition of conditions.
(2) A decision to refuse to grant registration on the ground that the occupation in which
35 registration is sought is not an equivalent occupation takes effect at the end of a
specified period (not less than 2 weeks) after the person is notified of the decision,
unless it has been previously revoked or there is an application for review to the
page 15
Mutual Recognition (Western Australia) Bill 2001
Note Mutual Recognition Act 1992 (Cwlth)
Tribunal, in which case the Tribunal may make whatever orders it considers
appropriate.
24 Notification of decision
A local registration authority must give the person who lodges a notice in accordance
5 with section 19 a notice in writing of its decision to grant registration, or to postpone
or refuse the grant of registration, or to impose conditions on registration.
Division 3 -- Interim arrangements
25 Deemed registration
(1) A person who lodges a notice under section 19 with a local registration authority of a
10 State is, pending the grant or refusal of registration, taken to be registered as provided
in section 20.
(2) Such registration is called "deemed registration" in this Act.
(3) Deemed registration in one State does not of itself provide a basis for registration in
another State.
15 26 Duration of deemed registration
(1) A person's deemed registration in the second State continues until it is cancelled or
suspended or otherwise ceases in accordance with this Part.
(2) A person's deemed registration in the second State ceases if the person becomes
substantively registered in the State in connection with the occupation concerned.
20 (3) A person's deemed registration in the second State ceases if the local registration
authority of the State refuses to grant registration, subject to any determination of the
Tribunal.
(4) A person's deemed registration in the second State ceases if the person ceases to be
substantively registered in every other State mentioned in the notice as required by
25 paragraph 19(2)(c).
(5) A local registration authority of the second State may cancel a person's deemed
registration in the second State if the person requests cancellation.
(6) Deemed registration is not affected by postponement of the grant of substantive
registration.
30 27 Activities under deemed registration
(1) A person who has deemed registration in the second State may carry on the
occupation in the second State as if the deemed registration were substantive
registration in the second State.
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Mutual Recognition (Western Australia) Bill 2001
Mutual Recognition Act 1992 (Cwlth) Note
(2) However, the person may do so only:
(a) within the limits conferred by the person's substantive registration in the first
State; and
(b) within the limits conferred by the person's deemed registration in the second
5 State; and
(c) subject to any conditions or undertakings applying to the person's registration
in the first State, unless waived by the local registration authority of the
second State under this section; and
(d) subject to any conditions applying to the person's deemed registration.
10 (3) Without limiting anything in this Division:
(a) the person may not carry on the occupation in the second State without
complying with any requirements regarding insurance, fidelity funds, trust
accounts and the like that are designed to protect the public, clients, customers
or others; and
15 (b) a person who has deemed registration in an occupation in the second State is
subject to any disciplinary provisions and arrangements that are applicable to
persons who are substantively registered in that State; and
(c) references in the law of the second State to persons registered in an
occupation under the law of that State (however expressed) extend to persons
20 who have deemed registration for the occupation under this Act.
(4) However, the local registration authority of the second State may waive any condition
imposed under the law of the first State, or any undertaking given to the local
registration authority of the first State, if it thinks it appropriate in the circumstances.
(5) The local registration authority of the second State may impose conditions as if
25 deemed registration were substantive registration, but it must not impose conditions
that are more onerous than would be imposed in similar circumstances (having regard
to relevant qualifications and experience) if it were registration effected apart from
this Part, unless they correspond to conditions or undertakings that apply to the
person's registration in the first State or that are necessary to achieve equivalence of
30 occupations.
Division 4 -- Equivalent occupations
28 Equivalent occupations
The equivalence of occupations carried on in different States is to be determined in
accordance with this Part.
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Mutual Recognition (Western Australia) Bill 2001
Note Mutual Recognition Act 1992 (Cwlth)
29 General principles
(1) An occupation for which persons may be registered in the first State is taken to be
equivalent to an occupation for which persons may be registered in the second State if
the activities authorised to be carried out under each registration are substantially the
5 same (whether or not this result is achieved by means of the imposition of conditions).
(2) Conditions may be imposed on registration under this Part so as to achieve
equivalence between occupations in different States.
(3) This section has effect subject to any relevant declarations in force under this
Division.
10 30 Declarations as to equivalent occupations
(1) This Part is to be given effect in accordance with relevant declarations (if any) made
under this Division regarding equivalent occupations.
(2) If a declaration made by the Tribunal and a declaration made by Ministers are
inconsistent, the ministerial declaration prevails.
15 (3) A declaration under this Part does not affect the registration of any person already
registered (except in the case of a declaration made by the Tribunal in relation to that
person specifically).
31 Declarations by Tribunal
(1) On a review, the Tribunal may make an order that a person who is registered in a
20 particular occupation in a particular State is or is not entitled to registration in another
State in a particular occupation, and may specify or describe conditions that will
achieve equivalence.
(2) On such a review, the Tribunal may make a declaration that occupations carried on in
2 States are not equivalent, but only if the Tribunal is satisfied that:
25 (a) the activities involved in the occupations are not substantially the same (even
with the imposition of conditions); or
(b) registration in one State should not entitle registered persons to carry on a
particular activity or class of activity in the other State, where:
(i) the activity or class of activity is a material part of the practice of a
30 person registered in the first State for the occupation; and
(ii) 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 other State to a real threat to their health or safety or
could reasonably be expected to cause significant environmental
35 pollution (including air, water, noise or soil pollution); and
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Mutual Recognition (Western Australia) Bill 2001
Mutual Recognition Act 1992 (Cwlth) Note
(iii) it is not practicable to protect the health or safety of such persons from
that threat or the environment from such pollution by regulating the
manner in which services in the occupation are provided.
(3) The Registrar or other proper officer of the Tribunal must cause a notice setting out
5 the terms of a declaration under this section to be promptly published in the Gazette.
(4) A declaration made on the basis of paragraph (2)(b) has effect for no longer than
12 months, and the local registration authority must promptly notify appropriate
authorities in each other State and the Commonwealth of the declaration.
(5) The local registration authority is to give effect to the decision on the review, and
10 must thereafter act in conformity with the decision in relation to other persons seeking
registration.
32 Declarations by Ministers
(1) A Minister from each of 2 or more States may jointly declare, by notice in the
Gazette, that specified occupations are equivalent, and may specify or describe
15 conditions that will achieve equivalence.
(2) The declaration may be amended or rescinded in the same way.
(3) The declaration has effect only in relation to the States concerned.
(4) The appropriate local registration authority is to give effect to the declaration.
Division 5 -- General provisions
20 33 Disciplinary action
(1) If a person's registration in an occupation in a State:
(a) is cancelled or suspended; or
(b) is subject to a condition;
on disciplinary grounds, or as a result of or in anticipation of criminal, civil or
25 disciplinary proceedings, then the person's registration in the equivalent occupation in
another State is affected in the same way.
(2) However, the local registration authority of the other State may reinstate any
cancelled or suspended registration or waive any such condition if it thinks it
appropriate in the circumstances.
30 (3) This section extends to registration effected apart from this Act.
(4) This section has effect despite any other provisions of this Part.
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Mutual Recognition (Western Australia) Bill 2001
Note Mutual Recognition Act 1992 (Cwlth)
34 Review of decisions
(1) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to
the Tribunal for review of a decision of a local registration authority in relation to its
functions under this Act.
5 (2) In subsection (1):
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
(3) If a local registration authority gives a person written notice of the making of a
decision referred to in subsection (1), the notice must include a statement to the effect
that:
10 (a) subject to the Administrative Appeals Tribunal Act 1975, application for
review of the decision may be made to the Tribunal by a person whose
interests are affected by the decision; and
(b) except where subsection 28(4) of that Act applies, application may be made in
accordance with section 28 of that Act by or on behalf of that person for a
15 statement in writing setting out the findings on material questions of fact,
referring to the evidence or other material on which those findings were
based, and giving the reasons for the decision.
(4) Any failure to comply with subsection (3) does not affect the validity of the decision.
35 Costs
20 The Tribunal may order a party in proceedings before it to pay costs if the party has
acted unreasonably.
36 Residence or domicile
Residence or domicile in a particular State is not to be a prerequisite for or a factor in
entitlement to the grant, renewal or continuation of registration arising under this Part.
25 37 Furnishing information
(1) A local registration authority of a State must furnish without delay any information
reasonably required by a local registration authority of another State about a person
substantively registered under a law of the first-mentioned State.
(2) The obligation imposed under this section does not apply unless the authority of the
30 other State notifies the authority of the first-mentioned State that the information is
required in connection with:
(a) a notice lodged by a person seeking registration; or
(b) a person's deemed registration; or
(c) actual or possible disciplinary action against the person.
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Mutual Recognition (Western Australia) Bill 2001
Mutual Recognition Act 1992 (Cwlth) Note
(3) The authority of the first-mentioned State may provide the information, despite any
law relating to secrecy or confidentiality.
(4) Nothing in this section affects any obligation or power to provide information apart
from this section.
5 38 Receiving information
If a local registration authority receives information under section 37, the information
is subject to any law relating to secrecy or confidentiality that would apply if the
information were provided under the law of the State under which the authority is
constituted or exercises its functions.
10 39 General responsibilities of local registration authorities
(1) It is the duty of each local registration authority to facilitate the operation of this Part
in relation to the occupations for which the authority is responsible, and in particular
to make use of the power to impose conditions in such a way as to promote the mutual
recognition principle.
15 (2) It is the duty of each local registration authority to prepare and make available
guidelines and information regarding the operation of this Part in relation to the
occupations for which the authority is responsible.
(3) The first such guidelines and information are to be available within 6 months after the
commencement of this section.
20 40 Fees
(1) A local registration authority has power to impose fees in relation to substantive or
deemed registration or the continuance of registration arising under this Part, but any
such fees may not be greater than are applicable for registration apart from this Part.
(2) Nothing in this section prevents the fixing or prescribing of fees referred to in this
25 section under any other law of a State, but the fees may not be greater than can be
imposed under this section.
(3) The local registration authority may impose a condition on substantive or deemed
registration arising under this Part to the effect that a person may not carry out
activities under registration unless a fee or other payment has been paid, but such a
30 condition may not be imposed unless it corresponds to a requirement attaching to
registration apart from this Part.
(4) This section does not authorise the imposition of a tax.
41 Formalities requiring personal attendance
(1) Neither substantive or deemed registration, nor entitlement to registration, under this
35 Part requires compliance with any statutory or other formalities requiring personal
attendance in the second State.
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Mutual Recognition (Western Australia) Bill 2001
Note Mutual Recognition Act 1992 (Cwlth)
(2) This section applies to formalities that would otherwise have to be complied with
before, at or after registration.
42 Saving
Nothing in this Part prevents a person from seeking registration or being registered for
5 an occupation under a law apart from this Part.
PART 4 -- GENERAL
43 References to participating jurisdictions
For the purposes of this Act, a participating jurisdiction is:
(a) a State (other than a Territory) for which there is in force an Act of its
10 Parliament that refers to the Parliament of the Commonwealth the power to
enact this Act, or that adopts this Act, under paragraph (xxxvii) of section 51
of the Commonwealth Constitution; or
(b) a Territory (being the Australian Capital Territory or the Northern Territory)
for which there is in force an Act of its legislature that requests the Parliament
15 of the Commonwealth to enact this Act or that enables this Act to apply in
relation to it.
44 Application of mutual recognition principle
(1) The mutual recognition principle and the provisions of this Act may be taken into
consideration in proceedings of any kind and for any purpose.
20 (2) Nothing in this Act prevents a person from relying on the mutual recognition principle
in relation to more than 2 States.
45 Machinery provisions regarding limitations etc.
In cases where Part 3 provides that conditions or undertakings that apply or are
relevant to registration in the first State also apply or are relevant to registration in the
25 second State, they are to be construed with any necessary adaptations, including the
following (where appropriate and so far as practicable):
(a) references to the first State are to be read as references to the second State;
(b) references to officers or authorities of the first State are to be read as
references to the corresponding officers or authorities of the second State.
30 46 Determining place of production
(1) For the purpose of determining where goods are produced for the purposes of this Act,
goods are taken to be produced in the State where the most recent step has occurred in
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Mutual Recognition (Western Australia) Bill 2001
Mutual Recognition Act 1992 (Cwlth) Note
the process of producing the goods (including, for example, processing, harvesting or
packaging of goods).
(2) Subsection (1) applies even though:
(a) the process of production may be incomplete; or
5 (b) some steps in the process have not yet been carried out; or
(c) some steps in the process were carried out elsewhere, whether in another State
or outside Australia; or
(d) the goods or any components of the goods were imported.
47 Amendment of Schedules
10 (1) The Governor-General may make regulations amending the Schedules.
(2) No such regulation may be made unless the designated person for each of the then
participating jurisdictions has published a notice in the official gazette of the
jurisdiction setting out the terms of the proposed regulation and requesting that it be
made.
15 (3) For the purposes of this section, the designated person for a State is the Governor, for
the Australian Capital Territory is the Chief Minister and for the Northern Territory is
the Administrator.
page 23
Mutual Recognition (Western Australia) Bill 2001
Note Mutual Recognition Act 1992 (Cwlth)
Schedule 1 -- Permanent exemptions: goods
Subsection 14 (1)
1. Firearms and other prohibited or offensive weapons.
2. Fireworks.
5 3. Gaming machines.
4. Pornographic material.
Schedule 2 -- Permanent exemptions: laws relating to
goods
Subsection 14 (2)
10 1. A law of a State relating to quarantine, to the extent that:
(a) the law (or a direction or instrument given or made under the law or some
other action taken under the law) regulates or prohibits the bringing of
specified goods into the State or into a defined area of the State; and
(b) the State or area is substantially free of a particular disease, organism, variety,
15 genetic disorder or any other similar thing; and
(c) it is reasonably likely that the goods would introduce or substantially assist
the introduction of the disease, organism, variety, disorder or other thing into
the State or area; and
(d) it is reasonably likely that that introduction would have a long-term and
20 substantially detrimental effect on the whole or any part of the State.
2. A law of a State to the extent that it is enacted or made substantially for the purpose of
protecting a species or other class of animals or plants from extinction in the State and
that it prohibits or restricts the possession, sale, killing or capture of animals or plants
of that species or other class in the State.
25 3. Ozone Protection Act 1991 of the Australian Capital Territory.
4. Weapons Act 1991 of the Australian Capital Territory.
5. Ozone Protection Act 1989 of New South Wales.
6. Clean Air Act 1963 of Queensland, Part 4A.
7. Hazardous Substances (Chlorofluorocarbons and Other Ozone Layer Depleting
30 Substances) Regulation 1988 under the Health Act 1937-1988 of Queensland.
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Mutual Recognition (Western Australia) Bill 2001
Mutual Recognition Act 1992 (Cwlth) Note
8. Beverage Container Act, 1975 of South Australia.
9. Clean Air Act, 1984 of South Australia, Part IIIA.
10. A law of Tasmania to the extent that it relates to the possession, sale or capture of
abalone, crayfish or scallops of a certain minimum size.
5 11. Chlorofluorocarbons and other Ozone Depleting Substances Control Act 1988 of
Tasmania.
12. Environment Protection Act 1970 of Victoria, section 16 (in relation to ozone
depleting substances), paragraphs 41 (2) (d) and 71(1)(gba).
13. Environmental Protection Regulations 1987 under the Environmental Protection
10 Act 1986 of Western Australia.
14. Business Franchise ("X" Videos) Act 1990 of the Australian Capital Territory.
15. Classification of Publications Ordinance 1983 of the Australian Capital Territory.
16. Crimes Act, 1900 of the Australian Capital Territory, section 92NB
17. Film Classification Act 1971 of the Australian Capital Territory.
15 18. Publications Control Act 1989 of the Australian Capital Territory.
19. Film and Video Tape Classification Act 1984 of New South Wales.
20. Indecent Articles and Classified Publications Act 1975 of New South Wales.
21. Classification of Publications and Films Act of the Northern Territory.
22. Classification of Films Act 1991 of Queensland.
20 23. Classification of Publications Act 1991 of Queensland.
24. Classification of Films for Public Exhibition Act, 1971 of South Australia and
regulations under the Act.
25. Classification of Publications Act, 1974 of South Australia and regulations under the
Act.
25 26. Summary Offences Act, 1953 of South Australia, sections 33 and 35.
27. Classification of Publications Act 1984 of Tasmania.
28. Classification of Films and Publications Act 1990 of Victoria.
29. Censorship of Films Act 1947 of Western Australia.
30. Indecent Publications and Articles Act 1902 of Western Australia.
30 31. Video Tapes Classification and Control Act 1987 of Western Australia.
32. Ozone Protection Act of the Northern Territory.
page 25
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