8. Interaction with Other Related Initiatives
Page Index
Trans Tasman Mutual Recognition
The Trans Tasman Mutual Recognition scheme builds on, and is a natural extension of, the Mutual Recognition Agreement between the Commonwealth and States and Territories of Australia. In the original Intergovernmental Agreement underpinning the Australian MRA, provision was made for extending the scheme to include New Zealand at some time in the future. It represents a significant step in developing an integrated trans Tasman economy and allows goods to be traded freely between New Zealand and Australia and enhances the freedom of individuals to work in both countries.
The TTMRA scheme commenced operation on 1 May 1998, with the coming into force of legislation in Australia and in New Zealand. All Australian States and Territories have signed an Intergovernmental Agreement underpinning the scheme and are expected to enact legislation in support of the scheme.
The scheme is identical in terms of the principles for goods and occupations. The legislation enacted by both the Commonwealth Government and the Government of New Zealand is very similar in text and effectively builds on the original legislation for the Australian MRA. There are a number of subtle differences based on legislative drafting styles of the two countries, but essentially, given that both Acts are written in a plain language form, they are closely aligned in both format and text.
There are some differences between the Australian MRA and the TTMRA. Following the launch of the TTMRA in May 1998, a Users' Guide has been published to assist regulatory authorities, business and registered occupations to understand the operation of TTMRA (A Users' Guide to the Trans-Tasman Mutual Recognition Arrangement (TTMRA) 1998). The Users' Guide makes specific reference to the COAG Principles and Guidelines for National Standard Setting and Regulatory Action. These principles and guidelines must be used when developing regulatory requirements for both goods and occupations. The implications of the principles and guidelines for the Australian MRA will be addressed further in this section of the Report.
The TTMRA has a number of exclusions which relate to the sale of goods. These exclusions include laws relating to:
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customs controls and tariffs;
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intellectual property;
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taxation; and
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specified international obligations.
Each of these exclusions relate to laws which are governed by the Commonwealth rather than by State and Territory jurisdictions. These exclusions have been included in the Arrangement on the basis that it is in the best public interest to permit individual jurisdictions to maintain regulatory control over these areas of responsibility. The majority of laws relating to these exclusions are designed to prevent criminal activity within the specified areas.
The TTMRA has similar permanent exemptions to the Australian MRA but also includes agricultural and veterinary chemicals and certain risk-categorised food.
In addition to exclusions and permanent exemptions, there are a series of special exemptions and cooperation programs which have been established while further examination is conducted of each countries' regulatory requirements to determine the appropriateness or otherwise of allowing mutual recognition principles to operate. These special exemptions will apply regulatory requirements in the areas of:
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therapeutic goods;
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hazardous substances, industrial chemicals and dangerous goods (including consumer product safety standards);
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electro magnetic compatibility and radio communication standards;
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road vehicles; and
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gas appliances.
These special exemptions last for 12 months in each instance but can be rolled over until each cooperation program is completed. Before each 12 month period expires the regulatory authorities responsible must submit to Heads of Government a jointly agreed annual cooperation report through the relevant Ministerial Council. This report is designed to indicate what has been achieved in the previous year in progressing the cooperation program and, if appropriate, to provide a justification for a further 12 month extension. These special exemptions and cooperation programs have again been justified on the grounds of public health and safety or environmental protection.
The wording of the TTMRA and the MRA in relation to exempting quarantine from their operation is deliberately different. The wording of the TTMRA and MRA was written to reflect the respective international and national contexts in which the schemes operate.
A separate New Zealand occupational appeals tribunal was established because New Zealand did not have an equivalent of the Administrative Appeals Tribunal. The Administrative Appeals Tribunal remains as the appeal authority within Australia while the Trans Tasman Occupations' Tribunal has been established in New Zealand to deal with appeals against decisions of the New Zealand registration authorities. To promote consistency between the decisions of the two tribunals, each tribunal is required to have regard to decisions made by the other. Provision has also been made for cross membership between the tribunals. It is anticipated that a memorandum of understanding will be established to maximise cooperation and exchange of information between the two tribunals.
Notwithstanding the comments in relation to the exemption for quarantine, none of the fundamental differences between the Trans Tasman Mutual Recognition Arrangement and the Australian MRA provide any specific justification for changing the Mutual Recognition Act 1992 or the Intergovernmental Agreement which underpins it. Parties to the TTMRA will undertake a general review of the scheme's operation in 2003 in conjunction with a second five yearly review of the MRA. It is then intended that further reviews of the TTMRA and the MRA will occur concurrently every five years.
Recommendation 30
That further reviews of the MRA, to consider potential improvements to the scheme, take place every 5 years. That the next review take place in 2003 in conjunction with the first review of the TTMRA.
COAG Principles and Guidelines
In April 1995, COAG endorsed a Report of CRR on Principles and Guidelines for National Standard Setting and Regulatory Action (the principles and guidelines). The principles and guidelines outline an assessment process to be followed by Ministerial Councils and national regulatory bodies when considering and developing regulatory proposals. The requirement to implement the principles and guidelines was transmitted to Ministerial Councils following the April 1995 COAG meeting.
COAG agreed to a further Report on Monitoring Compliance with the Principles and Guidelines in 1997. The CRR reported to COAG in November 1997 on compliance. The Report recommended, in summary, that the protocols to the operation of Ministerial Councils be amended to reflect the need to adhere to the principles and guidelines, and that the principles and guidelines be amended to give effect to the role set out for the Office of Regulatory Review under the National Competition Policy Agreements. This latter role required the Office of Regulatory Review to monitor compliance and provide advice to Ministerial Councils in standard setting and have regard to both national competition policy and mutual recognition issues. The importance of adherence to these principles and guidelines has been incorporated into the guidelines for the TTMRA. The Review Group considers that the principles and guidelines provide a fundamental process for ensuring compliance with the requirements of the MRA in respect of goods and occupations, and, in addition, a means of reviewing any potential anti-competitive regulatory regimes which may occur when changes are made to aspects of the MRA.
Other International MRAs
In March 1994, the Department of Industry, Science and Technology (DIST) commenced negotiations with the European Union (EU) to develop a Mutual Recognition Agreement on Conformity Assessment. These negotiations continued with the States and Territories throughout 1995 and 1996, culminating in a draft Agreement between the European Union and Australia which was initialled in July 1996. The final Agreement was signed by Australia and the EU on 24 June 1998.
This EU-MRA will assist the free movement of traded goods between Australia and all the countries of the EU. The EU-MRA will enable all conformity assessment requirements, in selected product areas, to be satisfied in the country of origin prior to the export of the goods.
The EU-MRA covers the following sectors:
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Machinery;
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Pressure Vessels;
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Low-Voltage Electrical Equipment;
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Telecommunications Terminal Equipment;
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Electromagnetic Compatibility;
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Automotive Products;
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Medicinal Products - Good Manufacturing Practice (GMP); and
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Medical Devices.
An intergovernmental agreement has been developed between the Commonwealth, State and Territory governments to underpin the administrative and regulatory arrangements for the scheme.
A similar MRA is to be signed by Australia with the European Free Trade Association (EFTA) countries of the European Economic Area.
Negotiations have also progressed with Japan to develop a similar Conformance Assessment MRA covering a number of product sectors.
Within each of these arrangements, the ability to assess conformance against each other's standards are recognised by the establishment of mutual confidence in conformance assessment procedures.
The Review Group did not consider that there were any implications for the Australian MRA scheme in respect of these international arrangements