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TRANS-TASMAN MUTUAL RECOGNITION AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 65 OF 2009)
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 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, and are set out at Schedules to the Act.
The purpose of the Regulations is to:
· extend the Special Exemption status for laws relating to goods covered by Schedule 3 to the Act for a further 12 months to 30 April 2010; and
· move the laws covering the sale of certain Liquefied Petroleum Gas (LPG) appliances from Schedule 3 to the Act (which provides for special exemptions for laws relating to certain goods) to Schedule 2 to the Act (which sets out legislation which is permanently exempted from the operation of the Act).
Schedule 3 currently sets out special exemptions for laws relating to therapeutic goods; radio communications devices; road vehicles; gas appliances; and hazardous substances, industrial chemicals, and dangerous goods (including certain consumer product safety standards). Subsection 48(1) of the Act provides that the laws of an Australian jurisdiction that relate to goods and that are specified or described at Schedule 3 are exempt from the operation of the Act. Subsection 48(2) provides that such Special Exemptions operate for no longer than twelve months from the commencement of section 48. However, these Special Exemptions may be extended for further 12-month periods by regulation. Subsection 48(4) provides that the Governor-General may make regulations amending Schedule 3 for the purposes of extending the exemption period.
Extending the Special Exemption status for a further 12 months allows Australian and New Zealand regulators to continue to develop complementary regulatory arrangements for those matters which are the subject of the current exemptions.
However, there are a number of unresolvable issues regarding LPG appliances not tested to operate safely on universal LPG because there are differing compositions of LPG used in Australia and New Zealand. Certain LPG appliances which can operate safely on New Zealand LPG would pose an unacceptable safety risk to Australian consumers if operated on Australian LPG, and vice versa.
As well, cabinet heaters (being moveable, unflued, LPG fuelled heating appliances designed to be used indoors that incorporate a refillable gas container within the body of the appliance) are prohibited in Australia because of the unacceptable safety risk they pose due to their poor safety performance, the health effect of combustion products, the effect of high water content in the air giving rise to damp conditions and, because of their portability, the opportunity to use them in inappropriate locations such as bedrooms and bathrooms.
The Regulations convert the treatment of laws covering the sale of all LPG appliances (other than those tested and certified for safe use on universal LPG) and cabinet heaters from Special Exemption to Permanent Exemption.
Laws covering the sale of gas appliances not covered by the Permanent Exemption continue to be covered by the Special Exemption for a further 12 months, pending New Zealand amending its regulations for gas appliance safety.
The laws relating to goods covered by Special Exemptions are subject to multi-jurisdictional Cooperation Programs designed to resolve outstanding regulatory issues with the aim of achieving mutual recognition. Three months before the expiry of each 12-month Special Exemption period, the regulatory authorities responsible for pursuing the Cooperation Programs prepare Annual Cooperation Reports which set out the progress towards mutual recognition over the previous year.
The reports recommend and provide a justification for a further 12-month Special Exemption period or other regulatory action, such as the conversion of a Special Exemption to a Permanent Exemption.
In accordance with subsections 45(5)(a) and 48(5) of the Act, it has been agreed by at least two-thirds of participating jurisdictions to extend the Special Exemption for the laws cited at Schedule 3 for a further twelve month period expiring on 30 April 2010, and to make a Permanent Exemption for laws covering the sale of certain gas appliances.
The Regulations have the effect of implementing Heads of Government decisions in relation to the extension of Special Exemptions and the making of a Permanent Exemption. Endorsements of the Regulations have been published in the official gazettes of participating jurisdictions as required under subsection 43(1) of the Act. The making of these Regulations represents endorsement by the Commonwealth as prescribed in subsection 43(2) 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.