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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Mutual Recognition (New South Wales)
Amendment Bill 2021
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Mutual Recognition (New South Wales) Act 1992
No 61 3
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2021
New South Wales
Mutual Recognition (New South Wales)
Amendment Bill 2021
Act No , 2021
An Act to amend the Mutual Recognition (New South Wales) Act 1992 to refer certain additional
matters relating to mutual recognition of occupations and goods to the Parliament of the
Commonwealth for the purposes of the Constitution of the Commonwealth, section 51(xxxvii);
and for related purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Mutual Recognition (New South Wales) Amendment Bill 2021 [NSW]
The Legislature of New South Wales enacts--
1 Name of Act
This Act is the Mutual Recognition (New South Wales) Amendment Act 2021.
2 Commencement
This Act commences on the date of assent to this Act.
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Mutual Recognition (New South Wales) Amendment Bill 2021 [NSW]
Schedule 1 Amendment of Mutual Recognition (New South Wales) Act 1992 No 61
Schedule 1 Amendment of Mutual Recognition (New South
Wales) Act 1992 No 61
[1] Section 4 Enactment of uniform mutual recognition legislation
Omit "fixed under subsection (4)" from section 4(1).
Insert instead "provided under section 5B".
[2] Section 4(4)-(6)
Omit the subsections.
[3] Sections 5A-5C
Insert after section 5--
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
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Mutual Recognition (New South Wales) Amendment Bill 2021 [NSW]
Schedule 1 Amendment of Mutual Recognition (New South Wales) Act 1992 No 61
(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.
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Mutual Recognition (New South Wales) Amendment Bill 2021 [NSW]
Schedule 1 Amendment of Mutual Recognition (New South Wales) Act 1992 No 61
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--
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Mutual Recognition (New South Wales) Amendment Bill 2021 [NSW]
Schedule 1 Amendment of Mutual Recognition (New South Wales) Act 1992 No 61
(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.
Page 6
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