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This Act may be cited as the Mutual Recognition Act 1992.
The provisions of this Act commence on a day or days to be fixed by Proclamation.
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.
The purpose of this Act is to promote the goal of freedom of movement of goods and service providers in a national market in Australia.
Part 2 allows goods that have been produced in or imported into a first State to be sold in a second State without needing to comply with certain requirements in the second State (such as requirements relating to the standards of the goods or the way the goods are presented). Goods may be permanently or temporarily exempted from the application of that Part.
Part 3 provides for individuals who are registered for an occupation in one State to be registered for, and carry on the activities of, an equivalent occupation in a second State. Ministers from 2 or more States may determine which occupations are equivalent between their States.
Part 3A provides for individuals who are registered for an occupation in their home State to carry on activities covered by their home State occupation in a second State. The activities are carried on in the second State under automatic deemed registration. A State Minister may exempt registrations from automatic deemed registration because of a significant risk to consumer protection, the environment, animal welfare or the health or safety of workers or the public.
The mutual recognition principle underlies each of Parts 2, 3 and 3A.
The power to enact this Act is provided by:
the States referring to the Parliament of the Commonwealth the power to enact this Act as originally enacted or subsequently amended, under paragraph 51(xxxvii) of the Commonwealth Constitution; and
the States adopting this Act as originally enacted or subsequently amended, under paragraph 51(xxxvii) of the Commonwealth Constitution; and
section 122 of the Commonwealth Constitution (which deals with Territories).
In this Act, unless the contrary intention appears:
activity means an activity authorised to be carried on under an occupation that requires registration.
automatic deemed registration has the meaning given by subsection 42D(3).
commencement day, for a State, means:
the day this definition commences (unless paragraph (b) applies); or
for a State that is a pre‑adoption State on the day this definition commences—the day the State adopts this Act, as amended by the Mutual Recognition Amendment Act 2021.
conditions, when used in relation to occupations or registration, means conditions, limitations or restrictions.
covers: an occupation covers an activity if a person must be registered for the occupation to carry on the activity.
equivalent, when used in relation to occupations, has a meaning affected by Division 4 of Part 3.
first State:
in, and in relation to, Part 2—has the meaning given by subsection 8(2); and
in, and in relation to, Part 3—has the meaning given by subsection 16(2).
goods means goods of any kind, and includes:
animals; or
a package containing goods; or
a label attached to goods.
grant, when used in relation to registration, means grant, issue or otherwise confer registration.
home State has the meaning given by subsections 42A(3) and (4).
home State registration has the meaning given by paragraph 42D(1)(b).
import means import from outside Australia.
interim deemed registration has the meaning given by subsection 25(2).
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 that occupation in the State.
Local registration authorities are given additional functions under this Act.
mutual recognition matters has the same meaning as in the Mutual Recognition (New South Wales) Act 1992 (NSW).
mutual recognition principle:
as applying to goods—has the meaning given by subsection 8(1); and
as applying to occupations that are equivalent—has the meaning given by subsection 16(1); and
as applying to activities covered by occupations—has the meaning given by subsection 42A(1).
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 subsection 5(4).
pre‑adoption State means a State (other than a Territory) that is a participating jurisdiction, but which has not done either of the following:
before the enactment of the Mutual Recognition Amendment Act 2021, referred the mutual recognition matters to the Parliament of the Commonwealth to the extent of the making of laws with respect to those matters by making express amendments to this Act;
adopted this Act, as amended by the Mutual Recognition Amendment Act 2021.
principal place of residence of a person means the place of residence or home that the person primarily occupies, on an ongoing and permanent basis, as the person’s settled or usual home.
principal place of work of a person, in relation to an activity covered by an occupation, means the place in which the person primarily carries on that occupation.
produce includes to manufacture, and also includes to harvest or otherwise produce in the course of any form of primary production.
public protection requirement means a requirement regarding insurance, fidelity funds, trust accounts, minimum financial requirements or the like that is designed to protect the public, clients, customers or others.
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 carrying on an occupation.
registration fee has the meaning given by subsection 42K(2).
requirements:
when used in relation to goods, means requirements, prohibitions, restrictions or conditions; and
when used in relation to secrecy, privacy or confidentiality, means laws, binding administrative arrangements, directions or other limitations, protections or processes.
second State:
in, and in relation to, Part 2—has the meaning given by subsection 8(2); and
in, and in relation to, Part 3—has the meaning given by subsection 16(2); and
in, and in relation to, Part 3A—has the meaning given by subsection 42A(2).
second State occupation has the meaning given by paragraph 42D(1)(c).
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 interim deemed registration or automatic deemed registration.
Tribunal means the Administrative Review Tribunal.
vulnerable person character test means a character test or a fit or proper person test conducted for the purposes of determining whether a person may carry on an activity in relation to children, young people or vulnerable people.
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.
This Act applies to a State, but only while it is a participating jurisdiction.
Accordingly, a reference in this Act to a State is a reference to a State that is a participating jurisdiction.
Effect of amendments to this Act on pre‑adoption States
Despite subsections (1) and (2), the amendments of this Act made by the Mutual Recognition Amendment Act 2021 do not apply to a pre‑adoption State.
Two versions of this Act will apply in Australia unless all States refer or adopt this Act as amended by the Mutual Recognition Amendment Act 2021.
The amended version of this Act applies in the Australian Capital Territory, the Northern Territory and any State that, before those amendments commence, refers power to the Commonwealth under paragraph 51(xxxvii) of the Commonwealth Constitution to enact the amendments made by the Mutual Recognition Amendment Act 2021.
The unamended version of this Act continues to apply to any pre‑adoption State unless that State adopts those amendments.
Definition of participating jurisdiction
A participating jurisdiction is:
a State (other than a Territory) for which there is in force an Act of its Parliament that, for the purposes of paragraph 51(xxxvii) of the Commonwealth Constitution:
refers to the Parliament of the Commonwealth the power to enact this Act as originally enacted; or
adopts this Act as originally enacted, whether with or without subsequent amendments; or
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 this Act as originally enacted; or
enables this Act as originally enacted, whether with or without subsequent amendments, to apply in relation to the Territory.
Nothing in this Act affects the operation of any other law of the Commonwealth.
This Act does not limit the operation of a law of a State so far as it can operate concurrently with this Act.
Subject to section 5, this Act binds the Crown in right of the Commonwealth and of each of the States.
The mutual recognition principle as applying to goods is as set out in this Part.
This Part deals with goods produced in or imported into a State (the first State) and their sale in another State (the second State).
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, because 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.
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 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;
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;
a requirement that the goods be inspected, passed or similarly dealt with in or for the purposes of the second State;
a requirement that any step in the production of the goods not occur outside the second State;
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.
The mutual recognition principle is subject to the exceptions specified in this section.
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:
the contractual aspects of the sale of goods;
the registration of sellers or other persons carrying on occupations;
the requirement for business franchise licences;
the persons to whom goods may or may not be sold;
the circumstances in which goods may or may not be sold.
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:
those laws apply equally to goods produced in or imported into the second State; and
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.
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:
inspection or the requirement for inspection is not a prerequisite to the sale of the goods in the second State; and
those laws apply equally to goods produced in or imported into the second State; and
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.