EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 42
Issued by the authority of the Minister for Innovation, Industry, Science and Research
Trans-Tasman Mutual Recognition Act 1997
Trans-Tasman Mutual Recognition Act 1997 Amendment Regulations 2010 (No. 1)
The Trans-Tasman Mutual Recognition Arrangement (TTMRA) is a non-treaty agreement between the Commonwealth, State and Territory Governments of Australia and the Government of New Zealand, which gives effect to mutual recognition principles relating to the sale of goods and the registration of occupations. In respect of goods, a good that can be sold legally in Australia may be sold in New Zealand and vice versa; in respect of occupations, a person registered to practise an occupation in Australia is entitled to practise the same occupation in New Zealand and vice versa. The Minister for Innovation, Industry, Science and Research (the Minister) is responsible for the goods component of the TTMRA.
The Trans-Tasman Mutual Recognition Act 1997 (the Act) recognises, within Australia, those regulatory standards adopted in New Zealand regarding goods and occupations. However, the Act also provides for circumstances where the mutual recognition principle will not apply; these circumstances are covered by provisions for exclusions, permanent exemptions, special exemptions and temporary exemptions; permanent exemptions and special exemptions are set out at Schedules to the Act.
The purpose of the Regulations is to permanently exempt from the operation of the Act section 9B of the South Australian Summary Offences Act 1953 (SA section 9B). SA section 9B prohibits the sale of drug paraphernalia known colloquially as bongs, ice pipes, hash pipes, cocaine kits, hookahs, shishas and ghalyans.
On 8 June 2008, South Australia made regulations to temporarily exempt SA section 9B from the operation of the Act in order that SA section 9B would remain enforceable. However, subsection 46(4) of the Act provides that temporary exemptions operate for a maximum period of 12 months. South Australia then sought the agreement of the Ministerial Council on Drug Strategy (MCDS) to permanently exempt SA section 9B from the operation of the Act. The MCDS agreed, and the MCDS Chair sought the agreement of the Council of Australian Governments to the permanent exemption. The proposal has been supported unanimously by all participating jurisdictions.
Section 45 of the Act sets out the circumstances in which a permanent exemption may be made under the Act. Subsection 45(3) provides that the Governor-General may make regulations amending Schedule 2 (Permanent Exemptions) of the Act. Subsection 45(4) provides that a regulation may not be made unless all participating jurisdictions have endorsed the regulation.
Section 43 of the Act provides that a jurisdiction endorses a regulation by publishing a notice endorsing the terms of the regulations in the jurisdiction’s official gazette (subsection 43(1) refers) and that the making of a recommendation by the Minister to the Governor-General for the making of the regulations constitutes the Commonwealth’s endorsement (subsection 43(2) refers).
The Regulations have the effect of implementing Heads of Government decisions. The designated person for each participating jurisdiction has endorsed the Regulations and they have been published in the official gazettes of all participating jurisdictions as required under subsection 43(1) of the Act. All participating jurisdictions have endorsed the Regulations as required under subsection 45(4) of the Act.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
Overview
The Trans-Tasman Mutual Recognition Act 1997 was enacted to facilitate the mutual recognition of regulatory standards between Australia and New Zealand, addressing the need for streamlined cross-border trade in goods and the recognition of professional occupations. This Act enables goods legally sold in one country to be sold in the other and allows professionals registered in one country to practice in the other, subject to certain exclusions and exemptions. The 2010 Amendment Regulations further refine the application of the Act by permanently exempting certain goods from mutual recognition, specifically addressing the sale of drug paraphernalia under the South Australian Summary Offences Act 1953. This amendment was enacted following a unanimous agreement among all participating jurisdictions to align with the broader objectives of the Trans-Tasman Mutual Recognition Arrangement, ensuring that regulatory standards are consistently applied to maintain public safety and order.
Scope and Application
The Trans-Tasman Mutual Recognition Act 1997 applies to the mutual recognition of regulatory standards between Australia and New Zealand, covering both goods and occupations. Within Australia, the Act recognises the regulatory standards of New Zealand for the sale of goods and the registration of occupations, facilitating a seamless exchange of these between the two countries. However, the Act also includes provisions for exclusions, permanent exemptions, special exemptions, and temporary exemptions, which are outlined in the Act and its schedules. The Act applies to individuals and entities engaging in the sale of goods or practising regulated occupations across the trans-Tasman region, but it does not extend to other areas outside the scope of the TTMRA. The Act's reach is jurisdictional, applying to the Commonwealth, state, and territory governments in Australia and the government of New Zealand. The Trans-Tasman Mutual Recognition Act 1997 Amendment Regulations 2010 (No. 1) extend or restrict the application of the Act by permanently exempting certain goods, such as drug paraphernalia, from the mutual recognition principle. These Regulations were enacted to align with decisions made by the Ministerial Council on Drug Strategy and the Council of Australian Governments, ensuring all participating jurisdictions have endorsed the amendments as required by the Act.
Key Provisions
The Trans-Tasman Mutual Recognition Act 1997 Amendment Regulations 2010 (No. 1) (the Regulations) amend the Trans-Tasman Mutual Recognition Act 1997 (the Act) by permanently exempting the sale of drug paraphernalia, specifically bongs, ice pipes, hash pipes, cocaine kits, hookahs, shishas, and ghalyans, from the mutual recognition principle. These items are prohibited for sale in South Australia under section 9B of the South Australia Summary Offences Act 1953 (SA section 9B). The Regulations are in response to the Ministerial Council on Drug Strategy’s agreement to permanently exempt SA section 9B from the Act, with all participating jurisdictions endorsing this exemption.
Under the Act, as amended by the Regulations, the sale of the specified drug paraphernalia in South Australia will not be recognised by other Australian jurisdictions, and vice versa. This exemption aligns with the objectives of the South Australian government to maintain control over the sale of these items, which are considered harmful and associated with drug use. The Regulations ensure that the prohibition on the sale of these items remains enforceable within South Australia while preventing their sale in other parts of Australia under the guise of mutual recognition.
The Regulations impose obligations on the parties and entities they govern by requiring South Australia to enforce SA section 9B, thereby preventing the sale of the specified drug paraphernalia within its borders. Other Australian jurisdictions are required to respect this exemption and not recognise the sale of these items under the mutual recognition principle. The Regulations also require all participating jurisdictions to endorse the exemption through official notices published in their respective gazettes, as outlined in section 43 of the Act.
Breaches of the Regulations and the provisions of SA section 9B may result in civil or criminal consequences. For example, selling drug paraphernalia in South Australia in contravention of SA section 9B may result in fines or imprisonment as prescribed under the South Australia Summary Offences Act 1953. Although the Act itself does not specify penalties, the penalties for breaches of SA section 9B would apply. The specific penalties for such offences are determined by the laws of South Australia, which may include fines and imprisonment terms as set out in the South Australia Summary Offences Act 1953.