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.