Mutual Recognition (New South Wales) Act 1992 (NSW)

Mutual Recognition (New South Wales) Act 1992 No 61 An Act to enable the enactment of legislation applying uniformly throughout Australia for the recognition of regulatory standards adopted in Australia regarding goods and occupations. 1 Name of Act and purpose (1) This Act may be cited as the Mutual Recognition (New South Wales) Act 1992. (2) The purpose of this Act is to enable the enactment of legislation applying uniformly throughout Australia for the recognition of regulatory standards adopted in Australia regarding goods and occupations. 2 Commencement This Act commences on a day to be appointed by proclamation. 3 Interpretation In this Act, the Commonwealth Act means the Act of the Parliament of the Commonwealth, enacted as referred to in section 4 (1) (a), and as amended and in force from time to time. 4 Enactment of uniform mutual recognition legislation (1) The following matters, to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, are referred to the Parliament of the Commonwealth for a period commencing on the day on which this Act commences and ending on the day provided under section 5B as the day on which the reference under this Act terminates, but not longer, namely, the matters to which the Schedule relates but only to the extent of— (a) the enactment of an Act in the terms, or substantially in the terms, set out in the Schedule, and (b) the amendment of that Act (other than the Schedules), but only in terms which are approved by the designated person for each of the then participating jurisdictions. (2) For the purposes of this section, a participating jurisdiction is— (a) a State for which there is in force an Act of its Parliament that refers to the Parliament of the Commonwealth the matters mentioned in subsection (1), or that adopts the Commonwealth 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 of the Commonwealth to enact the Commonwealth Act or that enables the Commonwealth Act to apply in relation to it. (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. (4)–(6) (Repealed) 5 Approval of amendments For the purposes of section 4 (1) (b), the Governor may, by proclamation, approve the terms of amendments of the Commonwealth Act. 5A Reference of matters concerning amendment of Commonwealth Act (1) The mutual recognition matters are referred to the Parliament of the Commonwealth, but only to the extent of the making of laws with respect to those matters by making express amendments of the Commonwealth Act. (2) The mutual recognition matters are— (a) the matter of providing for individuals lawfully authorised to carry on an occupation in a State to carry on the occupation in another State, and (b) the matter of providing for goods that may be sold lawfully in a State to be sold lawfully in another State, whether with or without the need to comply with some or all of the applicable legal requirements of the other State. (3) However, subsection (2)(b) does not include the matter of providing for— (a) an alteration of the process specified by the Commonwealth Act, section 47(2) and (3), as in force when this section commences, for making regulations amending the Commonwealth Act, Schedule 1 or 2, or (b) the repeal or amendment of exemptions from the operation of the Commonwealth Act, Part 2, specified in the Commonwealth Act, Schedule 1 or 2. (4) The operation of each of section 4(1) and subsection (1) is not affected by the other subsection. (5) The reference of a matter under subsection (1) has effect only if and to the extent that— (a) the matter is not included in the legislative powers of the Parliament of the Commonwealth otherwise than by a reference under the Constitution of the Commonwealth, section 51(xxxvii), and (b) the matter is included in the legislative powers of the Parliament of the State. (6) To avoid doubt, it is the intention of the Parliament of the State that the Commonwealth Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this section by— (a) provisions of Commonwealth Acts the operation of which are based on legislative powers that the Parliament of the Commonwealth has apart from the reference under subsection (1), and (b) provisions of instruments made or issued under the Commonwealth Act or under provisions referred to in paragraph (a). (7) Despite any other provision of this section, a reference under subsection (1) has effect for, but no longer than, the period— (a) beginning when this section commences, and (b) ending at the end of the day fixed under section 5B as the day on which the reference is to terminate. (8) In this section— applicable legal requirements, in relation to goods that are sold, means requirements, prohibitions, restrictions or conditions imposed by or under law that apply to the goods or their sale. express amendment of the Commonwealth Act means the direct amendment of the text of that Act, whether by the insertion, omission, repeal, substitution or relocation of words or matter, by another Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the Commonwealth Act. goods means goods of any kind, and includes animals. lawfully authorised, in relation to carrying on an occupation, means to hold or have a licence, permit, certificate, registration or other form of qualification or authorisation required by or under law to carry on the occupation. occupation means an occupation, trade, profession or calling of any kind. sold includes— (a) sold by wholesale or retail, and (b) distribution for sale or have in possession for sale, and (c) agree to sell, and (d) barter, and (e) expose or offer for sale, and (f) supply by way of exchange, lease, hire or hire-purchase. State, when used in relation to a State other than New South Wales, includes a Territory. 5B Termination of references (1) The reference made by section 4(1)(b) is terminated on the commencement of section 5A. (2) The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day as the day on which— (a) the references made by section 4(1)(a) and 5A(1) both terminate, or (b) the reference made by section 5A(1) terminates. (3) The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (2), in which case the revoked proclamation is taken, for the purposes of sections 4 and 5A, never to have been published. (4) A revoking proclamation has effect only if published before the day fixed under subsection (2). (5) The revocation of a proclamation published under subsection (2) does not prevent publication of a further proclamation under that subsection. 5C Effect of termination of amendment reference before other reference (1) If the reference made by section 5A(1) (the amendment reference) terminates before the reference made by section 4(1)(a), the termination of the amendment reference does not affect— (a) laws that were made under that reference before that termination, whether or not they have come into operation before that termination, or (b) the continued operation in the State of the Commonwealth Act as in operation immediately before that termination or as subsequently amended or affected by— (i) laws referred to in paragraph (a) that come into operation after that termination, or (ii) provisions referred to in section 5A(6). (2) Accordingly, the amendment reference continues to have effect for the purposes of subsection (1) unless the reference under section 4(1)(a) is terminated. 5D Minister required to seek exclusions for certain occupations (1) The Minister must, before or no later than 1 month after section 42T of the amended Commonwealth Act commences, make a declaration using section 42T (a temporary exclusion declaration) to exclude each relevant occupation from the operation of automatic deemed registration. (2) If a temporary exclusion declaration for a relevant occupation is not revoked before the end of the initial exclusion period, the Minister must make a declaration using section 42S of the amended Commonwealth Act (a significant risk exclusion declaration) to continue its exclusion from the operation of automatic deemed registration. (3) The Minister must make further significant risk exclusion declarations for an occupation mentioned in subsection (2) each time a previous significant risk exclusion declaration for the occupation ends for a reason other than revocation. (4) The Minister must comply with subsections (2) and (3) before the previous declaration ends. (5) The Minister must consult with relevant trade unions and industry groups at least once during each 12-month period during which a significant risk exclusion declaration for a relevant occupation is in force about whether the continued exclusion of the occupation is appropriate having regard to the purpose of the amended Commonwealth Act specified by section 3 of that Act. (6) The Minister must not revoke a temporary exclusion declaration or significant risk exclusion declaration for a relevant occupation before it is due to end unless the Minister— (a) has tabled a revocation proposal in each House of Parliament, and (b) the disallowance period for the proposal has ended or all motions to disallow the proposal have been defeated. (7) A revocation proposal for a relevant occupation must state— (a) the trade unions and industry groups the Minister has consulted about the proposal, and (b) the reasons why the Minister is satisfied the end of the exclusion of the occupation from the operation of automatic deemed registration would not— (i) place the public at risk of harm, or (ii) compromise the effective regulation of the occupation in the State. (8) The Interpretation Act 1987, sections 40 and 41 apply to a revocation proposal in the same way as they apply to a statutory rule. (9) This section does not limit or prevent the Minister making or revoking temporary exclusion declarations or significant risk exclusion declarations for occupations other than relevant occupations. (10) In this section— amended Commonwealth Act means the Commonwealth Act as amended by the Mutual Recognition Amendment Act 2021 of the Commonwealth, as in force from time to time. automatic deemed registration has the same meaning as in the amended Commonwealth Act. initial exclusion period means the period of 12 months beginning when section 42T of the amended Commonwealth Act commences. relevant occupation means any occupation for which an individual must be lawfully authorised under a law of the State to carry on activities involving— (a) teaching work, or (b) electrical work, or (c) mining work, or (d) the work of a diesel mechanic, or (e) building, maintenance or construction work, including the following— (i) engineering work, (ii) gasfitting work, including medical gasfitting work and medical gas technician work, (iii) mechanical services and medical gas work, (iv) air-conditioning work, (v) the work of a refrigeration mechanic, (vi) plumbing work, (vii) tunnelling work, (viii) welding work, (ix) drilling work, (x) the work of a fitter and turner, (xi) the work of a shotfirer, (xii) the work of a rigger or dogger, (xiii) the work of a machine and heavy plant operator, (xiv) fire protection work. 6 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 mentioned in section 15 of the Commonwealth Act. Schedule MUTUAL RECOGNITION BILL 1992 A BILL FOR 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 The Parliament of Australia enacts— PART 1 PRELIMINARY — 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 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. 4. Interpretation (1) In this Act, unless the contrary intention appears— "conditions", when used in relation to occupations, means conditions, limitations or restrictions; "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— (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; "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 connection with their carrying on of 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 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 way of practising certificates), or any other form of authorisation, of a person required by or under legislation for the carrying on of 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 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; "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. 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. 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 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. (2) This Part deals with goods produced in or imported into a State and their sale in another State. (3) In this Part, the firstmentioned State is called "the first State", and the other State is called "the second State". 9. Entitlement to sell goods 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, by virtue 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. 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 production, composition, quality or performance; (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 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 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 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; (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 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 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 the goods in the second State; and (b) those laws apply equally to goods produced in or imported into the second State; and (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 (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 (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 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 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 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 (1) This Part does not apply to goods that are specified 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. 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. (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 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. (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 firstmentioned State is called "the first State", and the other State is called "the second State". 17. Entitlement to carry on occupation (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 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 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. 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 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. 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 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 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 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 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 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. (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). (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. (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 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 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 (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 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 (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. (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 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— (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 section 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 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. (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. 23. Refusal of registration (1) A local registration authority may refuse the grant of registration, if— (a) any of the statement