Trans-Tasman Mutual Recognition Arrangement on goods

Under the TTMRA goods principle:

• A good that may legally be sold in New Zealand, can also be sold in an Australian jurisdiction, without having to meet Australian sales related regulatory requirements.
• A good that may legally be sold in an Australian jurisdiction, can also be sold in New Zealand, without having to meet New Zealand sales related regulatory requirements.

Subject to some exceptions, New Zealand produced or imported goods need only comply with New Zealand sale related regulatory requirements before it can be sold in another participating jurisdiction, regardless of the differences in regulatory sale requirements between the jurisdictions.

Learn more about exclusions and exemptions.

Goods covered by the Trans-Tasman Mutual Recognition Arrangement

The TTMRA means that goods need only comply with sales-related regulatory requirements that apply in the jurisdiction in which they are produced, or to which they are imported, before they can be sold in another participating jurisdiction. In other words, goods only must comply with the sales-related laws of the participating jurisdiction to which it was originally produced or imported into for sale.

The TTMRA applies to goods of any kind (with some exceptions) and includes:

• Animals or plants.
• Material of microbial origin.
• A package containing goods.
• A label attached to goods.

The TTMRA applies to goods that are:

• Produced in or imported into New Zealand that can be legally sold in New Zealand.
• Produced in or imported into a participating Australian jurisdiction that can be legally sold in that Australian jurisdiction.

The Trans-Tasman Mutual Recognition Act in each jurisdiction over-rides any laws, with certain exceptions, that regulate the production or the sale of goods. The TTMRA applies to regulatory requirements relating to the good itself and requirements relating to and leading up to the point of sale. The TTMRA does not impact post point of sale requirements or any laws applying after sale such as warranties implied into the sale, including those relating to the use of goods.

The TTMRA does not affect the operation of laws that has been excluded or exempt from its operation, such as the export prohibition or restrictions from a participating jurisdiction.

How the Trans-Tasman Mutual Recognition Arrangement operates in practice

The TTMRA goods principle automatically applies in the background once all requirements are met and, subject to some exceptions, over-rides any additional requirements imposed by the domestic laws of the goods’ destination.

There is no pre-approval process to start benefiting from this scheme. Businesses can rely on the relevant Trans-Tasman Mutual Recognition Act for defence to prosecution for an offence against domestic law on the sale of goods so long as the elements for the defence are met.

The requirements of the TTMR Act in relation to goods are:

• The goods can be legally sold (for example, New Zealand imported or produced goods are still required to comply with New Zealand’s laws relating to sale requirements before it can be sold in Australia under the TTMR Act).

and to be able to rely on the defence:

• The goods are labelled at the point of sale stating that they were produced in or imported into the place of origin (for example, New Zealand made goods labelled “Made in New Zealand”).
• The defendant has no reasonable grounds for suspecting that the goods were not so produced or imported
  (for example, no reason to suspect that the New Zealand imported goods were not imported into New Zealand).

Trans-Tasman Mutual Recognition Act as a defence to prosecution

In most cases, the mutual recognition principle overrides sales-related regulatory requirements. However, there is also a specific defence available under the TTMR Act to prosecutions brought in relation to the sale of goods.

Trans-Tasman Mutual Recognition Arrangement legal defence explained

Exemptions and exclusions

The TTMRA has provisions to exclude and exempt certain laws from its scope. The TTMRA principles do not apply to laws that has been excluded or exempt from the TTMRA.

Exclusions from the Trans-Tasman Mutual Recognition Arrangement

Exclusions are categories of laws that may indirectly relate to the sale of goods and were never intended to be subject to the TTMRA because of their importance to each jurisdiction’s sovereignty. In developing the TTMRA, the parties identified a number of laws which could unintentionally affect the application of mutual recognition principles. Specific laws or requirements that fall within one of these exclusions are automatically outside the scope of the TTMRA to the extent they deal with sale of goods requirements under section 10(2) of the TTMR Act.

Trans-Tasman Mutual Recognition Act 1997(external link) — New Zealand Legislation

Laws that fall into the following categories that relate to the sale of goods are excluded from the operation of the TTMRA:

• Customs controls and tariffs – to the extent that laws provide for the imposition of tariffs and related measures (for example, anti-dumping and countervailing duties) and the prohibition or restriction of imports (for example, firearms).
• Intellectual property – to the extent that laws provide for the protection of intellectual property rights.
• Taxation – to the extent that laws provide for the imposition of taxes on the sale of locally produced and imported goods in a non-discriminatory way.
• Specified international obligations – to the extent that laws implementing those obligations deal with the requirements relating to the sale of goods.
  
  New Zealand:
  • Ozone Layer Protection Act 1990
  • Trade in Endangered Species Act 1989
  • United Nations Act 1946

For example, a law providing for an import ban is introduced in New Zealand for any goods containing asbestos would be excluded from the TTMRA. This means that goods containing asbestos from Australia could not be imported into or sold in New Zealand.

The laws listed in the Exclusions including specific laws are listed in the schedules of the mirror legislations of the Trans-Tasman Mutual Recognition Act. Any jurisdiction may unilaterally add new laws, or another provision of a law, to any of the categories. Laws listed in the Exclusions schedule of the Acts may also be amended unilaterally by any party as long as the amendment merely removes or reduces the extent of one of that party’s excluded laws, or substitutes another of that party’s laws that falls within the categories above. The categories of laws excluded from the TTMRA can only be amended to add another category if all the participating jurisdictions agree.

Exemptions from the Trans-Tasman Mutual Recognition Arrangement

Exemptions are more specific laws that have been carved out of the scope of the TTMRA over time due to particular risks or divergence between the countries’ laws. Exemptions can be temporary or permanent.

Temporary exemptions

Jurisdictions can put in place temporary exemptions for a particular law or goods. Participating jurisdictions can unilaterally invoke a temporary exemption for the purpose of protecting the health and safety of persons in New Zealand (or an Australian jurisdiction, as the case may be) or avoiding, remedying, or mitigating any adverse effects of activities on the environment in New Zealand (or an Australian jurisdiction as the case may be). Temporary exemptions invoked by the New Zealand Government are made by Regulation, whereas temporary exemptions made by Australian jurisdictions are declared by or under an Act or Regulation. Temporary exemption lasts up to 12 months. There are provisions to extend a temporary exemption, although a number of pre-conditions must be met, including the endorsement of no fewer than two-thirds of the participating jurisdictions.

Permanent exemptions

Certain laws relating to the sale of goods are permanently exempt from the TTMRA in areas where the parties considered that the application of the TTMRA principles would not be appropriate.

The TTMR Act allows for permanently exempt laws to be amended or replaced providing this does not increase the scope of the exemption. Adding new permanent exemptions under the TTMR Act require the unanimous agreement of the participating jurisdictions. A participating jurisdiction can unilaterally remove or reduce the extent of its permanently exempt laws at any time under the TTMRA.

New permanent exemptions can be created but the bar for exemptions is high and requires the unanimous agreement of all participating jurisdictions (that is, New Zealand, and the Commonwealth, States, and Territories of Australia).

Examples of current permanent exemptions under the New Zealand and Australian Trans-Tasman Mutual Recognition Acts include laws relating to:

• Firearms and other offensive weapons
• Fireworks
• Gaming machines
• Pornographic material
• Road vehicles
• Therapeutic goods
• Tobacco products
• Hazardous substances, industrial chemicals and dangerous goods
• Quarantine and endangered species legislation

All participating jurisdictions has their own TTMRA legislation that sets out their specific laws related to the sale of goods that are permanently exempt from the TTMRA.

For a full list of exemptions, you should consult your jurisdiction’s TTMRA legislation:

• New Zealand Trans-Tasman Mutual Recognition Act 1997(external link)— New Zealand Legislation
• Commonwealth of Australia Trans-Tasman Mutual Recognition Act 1997 (Cth)(external link) — Australian Government Federal Register of Legislation
• Australian Capital Territory Trans-Tasman Mutual Recognition Act 1997 (ACT)(external link) — ACT Government ACT Legislation Register
• New South Wales Trans-Tasman Mutual Recognition (New South Wales) Act 1996 [PDF 249KB](external link) — NSW Government NSW legislation
• Northern Territory Trans-Tasman Mutual Recognition Act 1997(external link) — Northern Territory Government Norther Territory Legislation
• Queensland Trans-Tasman Mutual Recognition (Queensland) Act 2003(external link) — Queensland Government Queensland Legislation
• South Australia Trans-Tasman Mutual Recognition (South Australia) Act 1999(external link) — Government of South Australia South Australian Legislation
• Tasmania Trans-Tasman Mutual Recognition (Tasmania) Act 2003(external link) — Tasmanian Government Tasmanian Legislation
• Victoria Trans-Tasman Mutual Recognition (Victoria) Act 1998(external link) — Victorian Legislation
• Western Australia Trans-Tasman Mutual Recognition (Western Australia) Act 2007(external link) — Government of Western Australia Western Australian Legislation