Recognition of Foreign Administrative Acts:

Report from Australia to the XIX^th International Congress of Comparative Law

RTF version

Contents

Introduction
The concept of "administrative act" and its classification as "foreign"
Domestic and foreign administrative acts in Australian law
Act of state doctrine in Australian law
Enforcement of domestic and administrative acts in Australia
General considerations on taking administrative action in Australia
Procedural requirements in making subordinate legislation
Extradition between Australia's States
The service of administrative acts
Recognition and enforcement of foreign court judgments
Recognition and execution of foreign administrative acts
Mutual Recognition Act
TTMRA
Australia's national occupational licensing law
Other COAG reforms
Environmental regulation in Australia
The EU's role in recognising and executing foreign administrative acts
International conventions on the recognition and execution of administrative acts and the legalisation of public documents
Australia's non-statutory arrangements involving mutual recognition
Mutual recognition arrangements between Australian and the European Union
Other bilateral agreements involving mutual recognition to which Australia is a party
Claims for foreign taxation debts in Australia
Bilateral agreements on social security entitlements
Below treaty level mutual recognition arrangements
Specific mutual recognition treaties
The Apostille Convention
Australian implementation of the Apostille Convention
Judicial consideration of Apostilles in Australia
Legalisation of documents outside the Apostille Convention
Law governing the legalisation and translation of foreign public documents for the purpose of proving their existence or authenticity
Obtaining an Apostille in Australia
Conclusion

Introduction

This subject may have been inspired by topical issues in the European Union (EU) concerning how administrative acts of one member state should be given effect to in other member states (i.e. transnational administrative acts).^[1] Various models are available, including mutual recognition, harmonisation and uniformity of requirements. A key issue is whether the enforcement of another member state's administrative acts should require a prior recognition or authorisation from the enforcing member state i.e. an administrative "exequatur". If not, should the enforcing state have a discretion whether or not to enforce such an administrative act? A regime which requires registration or recognition of another jurisdiction's administrative acts before they can be enforced (similar to the requirements for registering and enforcing a foreign court judgment) presents problems where there is voluminous administrative decision-making. Those problems include a heavy demand on resources, cost and delay.

An alternative approach asks whether preconditions for recognition should be abolished and replaced by an automatic enforcement principle under EU law. Negotiating such an outcome can be costly, time consuming and diminish individual state sovereignty and innovation.

Similar issues arise in Australia at both a national and international level. Australia is a federation comprising six separate States and two internal Territories. Australia's federal structure means that the issue of recognition of "foreign" administrative acts arises not only in the context of Australia's interaction with other countries, but also in the interaction within Australia between its constituent States and Territories. For more than a century Australia has sought solutions, with varying degrees of success, to the issues which confront the EU. As Professor Henry Ergas recently concluded in a report to the Queensland Competition Authority:

The Australian Federation is today characterised by formal monetary union, highly centralised fiscal coordination, and, with fewer and fewer exceptions, the unimpeded movement of goods, services, labour and capital across state boundaries. This level of seamlessness has not always been thus, but since Federation, Australian governments have moved, albeit erratically and intermittently, towards greater harmonisation of economic regulation. (Emphasis in original). ^[2]

As will emerge below, Australia is a party to numerous national and international arrangements involving mutual recognition, some of which have a domestic statutory foundation and are therefore part of Australia's domestic law, while others are to be found in treaties and other bilateral arrangements which may only be binding as part of international law. Under Australian law, treaties are not binding domestically unless they have been ratified by legislation. Current developments in Australia indicate that, in some areas, mutual recognition arrangements have been or are being replaced or supplemented by stronger models based on harmonisation or uniformity of requirements. That is the case with mutual recognition within Australia of particular occupations, which will soon be governed by a national occupational licensing scheme.

How the issues of recognising and enforcing administrative acts made in other jurisdictions can most effectively and efficiently be resolved is complex. It is not surprising that different jurisdictions have adopted a range of measures which reflect their individual political and legal structures. The Australian experience necessarily reflects its own constitutional arrangements, including its common law based legal system.

The concept of "administrative act" and its classification as "foreign"

Domestic and foreign administrative acts in Australian law

The definition in Australian law of the concept of an "administrative act" arises at various levels. First, the doctrine of the separation of powers, which is entrenched in the Australian Constitution, requires a distinction to be drawn between legislative, judicial and administrative (or executive) powers and actions. This can have important constitutional ramifications. For example, under the Australian Constitution judicial power can only be exercised by courts which are specifically mentioned in s 71 of the Constitution. By the same token, such courts cannot exercise legislative or executive powers which are non-judicial. The position is different in the various States of the Commonwealth of Australia which do not have the doctrine of the separation of powers entrenched in their individual constitutions. As might be imagined, there has been considerable case law in Australia directed to defining the limits of legislative, judicial and executive power. ^[3]

Secondly, the distinction between legislative and administrative acts may have a bearing on the grounds of review which are available to challenge the validity of those acts. Although there is some overlap in the grounds upon which the validity of subordinate legislation and administrative actions or decisions may be challenged, the scope of review is arguably broader in the case of administrative acts. The validity of both primary and secondary Commonwealth legislation may be challenged on constitutional grounds (as may administrative actions). Secondary legislation, such as regulations and rules, may also be challenged on the basis that they are ultra vires or beyond the power under which they were made (see Brennan J's description of the ambit of judicial review of subordinate legislation in South Australia v Tanner (1989) 166 CLR 161 at 173). Although Australian courts have generally rejected attempts to review administrative acts or decisions on the ground of lack of proportionality, it is well-established that that head of review is available to challenge the validity of subordinate legislation.

Most domestic administrative actions or decisions are amenable to judicial review in Australia, particularly if they are made in the exercise of a legislative power (somewhat different and complex issues arise if an administrative decision is made in the exercise of a non-legislative power, as to which see further below). At the Commonwealth level, judicial review of administrative action may be either constitutional or statutory in its source. In the former case, judicial review is confined to jurisdictional error or error of law on the face of the record. What constitutes jurisdictional error is a fertile source of litigation. Recent Australian jurisprudence counsels against adopting a formulaic approach to the question which merely seeks to rely on well-established individual heads of judicial review or other formulas or categories (see Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531 at [64] and [71]-[73] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ and Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [77] and [98] per Robertson J). The current emphasis is very much on a close and careful examination of the subject matter, scope and purpose of the statutory basis for the making of a particular administrative decision with a view to identifying whether an alleged error in the making of that decision involves jurisdictional error and therefore produces invalidity.

Judicial review of Federal administrative action may also be sought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) (many Australian states or territories have similar systems of statutory judicial review alongside their traditional common-law judicial review systems). The ADJR Act identifies the various heads of judicial review under which administrative decisions or conduct may be challenged. They include procedural unfairness, exercising a power for an improper purpose, failing to take into account relevant considerations and taking into account irrelevant considerations or unreasonableness. The ambit of judicial review under the ADJR Act is not confined to either jurisdictional error or error of law on the face of the record. Significantly, however, this statutory judicial review jurisdiction is generally confined to review of decisions of an administrative character made under an enactment (or conduct related thereto). This jurisdictional limitation has given rise to a vast body of case law directed to three primary issues. First, what is a "decision". Secondly whether a decision has an administrative character as opposed to a judicial or legislative character. Thirdly, whether a decision which has an administrative character was made under an enactment.

As to the first of those issues, it is now generally accepted that action only constitutes a decision for the purposes of the ADJR Act if it is an ultimate or operative determination of an issue (or is an intermediate decision made under a specific statutory provision), as distinct from the determination of issues arising in the course of making such an ultimate decision (see Australian Broadcasting Tribunal v Bond (1990) 171 CLR 321).

As to the second issue, which focuses on the classification of functions, it is evident that the categories overlap and the characterisation of any particular decision as legislative, judicial or administrative turns substantially on the context in which the issue arises (see RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 185 ALR 573 and Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582). The following factors may be relevant to characterisation:

(a) legislative decisions determine the content of rules in general and are usually prospective in application, whereas administrative decisions apply rules to particular cases;

(b) Parliamentary control of the relevant decision (as in a power of disallowance) is indicative of it having a legislative character;

(c) a requirement of broad public consultation indicates that the decision is one of a legislative rather than an administrative character;

(d) provision for review of the decision on the merits, such as by the Federal Administrative Appeals Tribunal (the AAT), is indicative of an administrative decision; and

(e) the fact that a decision has a binding legal effect also suggests that it is legislative.

For completeness, it might also be noted that many Commonwealth administrative decisions may also be amenable to merits review by the AAT. Under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) the AAT conducts a merits review (i.e. not confined to a consideration of the legality of an administrative decision) of a wide range of Commonwealth administrative decisions. Such review involves the AAT stepping into the shoes of the primary decision-maker and deciding on the basis of all the material which is placed before it what is the correct or preferable decision. The AAT's jurisdiction is not at large in the sense of applying to every Commonwealth administrative decision. It only has jurisdiction to review statutory administrative or executive decisions which the Commonwealth Parliament has determined by legislation to bring within its jurisdiction.

An issue which is bound to receive closer attention in Australian administrative law is the extent to which the courts can review administrative action taken in the exercise of non-statutory powers. Although that issue has arisen in some cases, the current legal position in Australia is not settled. The leading decision currently is that of the Full Court of the Federal Court in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 where judicial review was sought of the Federal Cabinet's consideration of whether or not to nominate a national park (in which the applicant had mining and exploration rights) for inclusion in the World Heritage List. The company wished to argue that it had been denied procedural fairness in the processes leading up to Cabinet's decision. Two of the three judgments of the Full Court expressed serious reservations on the grounds of non-justiciability about Cabinet decision-making ever being susceptible to judicial review. Wilcox J also suggested that even if a matter was justiciable, judicial review might be inappropriate in a particular case where, for example, issues of national security or international relations were prominent.

In other contexts, judicial review of non-statutory administrative action has been held to be available. An example is the decision of the Full Court of the Victorian Supreme Court in Victoria v Master Builders' Association of Victoria [1995] 2 VR 121, where the Court held that judicial review was available in respect of a non-statutory blacklist of allegedly corrupt builders which had been collected and maintained by a Victorian government agency. The Court held that procedural fairness was owed and had been denied to builders whose names appeared on the blacklist.

There is little jurisprudence in Australia on the general specific issue of what is a "foreign administrative act". Presumably that is because the issue is only likely to arise in particular legal contexts, such as the meaning of that or a similar phrase in a statute, regulation or treaty. The resolution of the question will ultimately turn on the proper construction of the relevant legal instrument. For example, the identification or enforcement of a foreign administrative act or decision may arise in the context of a bilateral agreement between Australia and a partner country on social security benefits (see below). The issue may also arise under the Extradition Act 1988 (Cth). Under that legislation, the process of extraditing a person from Australia is commenced by an extradition country invoking the powers of a magistrate under s 12 and of the Attorney-General under s 16. Those processes will normally involve the requesting extradition country providing supporting documentation which specifies particulars of the offences alleged and the proceedings taken in respect of them in the extradition country. It appears that the normal practice is for such supporting documentation to be certified by the Australian Embassy in the extradition country (see, for example, Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528).

Similar issues have arisen in the context of legislation and treaties relating to mutual assistance in criminal matters, as is illustrated by the decision of the Full Court of the Federal Court in Dunn v Australian Crime Commission (2009) 174 FCR 336. A delegate of the Commonwealth Attorney-General made a request to Switzerland for assistance and information in relation to an extensive investigation in Australia into the conduct of certain persons suspected of having committed serious offences against Australia's taxation laws. The request was made under the Mutual Assistance in Criminal Matters Act 1987 (Cth), the Mutual Assistance in Criminal Matters (Switzerland) Regulations 1994 (Cth) and the Treaty between Australia and Switzerland on Mutual Assistance in Criminal Matters 1991, signed 25 November 1991, [1994] ATS 7 (entered into force 31 July 1994) (MACM Treaty). The regulations provided that the Act applied subject to the MACM Treaty. The MACM Treaty provided that a request for assistance had to include a description of the essential acts or omissions alleged or sought to be ascertained. There was also a discretion under the MACM Treaty to refuse assistance if the request concerned a fiscal offence. Mr Dunn brought judicial review proceedings challenging the validity of Australia's request. His argument that the request insufficiently identified the suspected offences and did not contain an adequate description of the essential acts or omissions alleged or sought to be ascertained failed at first instance and also on appeal. It is notable that the proceedings focused on the lawfulness of the steps taken in Australia to enlist Switzerland's assistance. In rejecting the appeal, the Full Court emphasised at [53] that the question whether there was compliance with the treaty was to be determined as a matter of substance and not mere form.

Before dealing at greater length with the recognition of foreign administrative acts generally it is convenient to pause and briefly discuss what might be described as a narrow and special sub-category of foreign administrative acts, namely those which involve high level acts of state and, under Australian law, may attract what is known as the "act of state doctrine".

Act of state doctrine in Australian law

The act of state doctrine has been developed and applied in many common law countries as a means of dealing with the issue of the interaction between the actions of a foreign state and domestic legal proceedings. The doctrine is said to be founded upon the fundamental principles of the separation of powers, state sovereignty and the comity of nations. The doctrine is discussed at some length by the Full Court of the Federal Court in Habib v Commonwealth (2010) 183 FCR 62 (Habib). The doctrine has a long history. It was recognised many years ago in the Supreme Court of the United States in Underhill v Hernandez 168 US 250 (1897), where Fuller CJ said:

 

Every sovereign State is bound to respect the independence of every other sovereign State, and the Courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.

The effect of the doctrine is that, where it applies, Australian courts will not examine the legality of certain acts performed overseas by a foreign state in the exercise of sovereign authority. At the heart of the doctrine lies a recognition that certain high level matters of foreign affairs are not justiciable.  

In Habib, the Commonwealth argued that the Court should dismiss a major part of a civil case brought by the applicant against the Commonwealth. The applicant was a dual Australian-Egyptian citizen. He alleged that during October 2001 he was arrested in Pakistan by the Pakistani government with the assistance of US agents. He claimed that during his detention he was repeatedly tortured and that one or more Australian officials were involved in his interrogations in Pakistan. He alleged that the presence of Australian officials constituted the torts of misfeasance in public office and the intentional infliction of harm by aiding and abetting his torture. He sought damages.

The Commonwealth argued that Mr Habib's case should be struck out because its resolution in his favour would require the Court to find that the acts of agents of foreign states outside Australia were illegal. This was said to be contrary to the act of state doctrine. In rejecting the Commonwealth's argument, the Full Court was agreed that the common law doctrine could not operate to bar the determination by the Court of the question whether Australian officials had acted beyond the lawful scope of the Commonwealth's executive power. In addition, Jagot J (with whom Black CJ agreed) stated that the doctrine did not apply in the particular circumstances of the case. Her Honour drew attention to the significance of the fact that torture was contrary to international law and that any concern for the sensibilities of Australia's military partners needed to be weighed against those partners being signatories to a Convention against torture. It was also significant that the claim was brought by an Australian against Australian officials and, while findings of fact concerning foreign officials may need to be made, none of those officials would be subject to Australian jurisdiction involuntarily. Another relevant consideration was that the alleged actions could not be justified by any foreign government on the basis that they were in the public interest. That suggests that the Court recognised that there is an exemption to the act of state doctrine where there is an allegation that clear international law rules have been violated. In effect, there is a public policy or public interest exemption to the doctrine.

Enforcement of domestic and administrative acts in Australia^[4]

Enforcement of an administrative act or decision in Australia normally requires judicial involvement and the obtaining of appropriate relief, which may involve the giving of a sanction for non-compliance with the administrative decision or the making of a court order which compels compliance. However, there are various areas where compliance with an administrative act can be achieved through the issuance of administrative penalties, known as infringement notices. An infringement notice is a pecuniary penalty that is issued by the administrative authority which must be paid by the person to whom it is issued, usually within 28 days.^[5] The amount of the penalty is dependent upon the particular infringing conduct^[6] and the statute under which the infringement notice is issued. These penalties are significantly lower than the penalties under court processes. In some schemes the infringement notice is 80% lower than the maximum penalty.^[7]

Under the Competition and Consumer Act 2010 (Cth), if the regulator (the Australian Competition and Consumer Commission) has reasonable grounds to believe that a person has infringed certain provisions of that Act, the Commission may issue an infringement notice.^[8] Conduct which attracts an infringement notice under that Act includes engaging in unconscionable conduct, engaging in unfair practices and prohibited consumer transactions.^[9]  Notably, it does not include more complex matters related to market manipulation, such as cartel behaviour, the enforcement of which must involve court proceedings.  

A person can make written representations to the regulator to have an infringement notice withdrawn.^[10] Failing to pay an infringement notice can result in the regulator choosing to prosecute the alleged prohibited conduct in court.^[11]

Infringement notices are available under a number of Australian regulatory schemes, both Federal and State, including telecommunications,^[12] companies,^[13] and energy and climate change schemes.^[14]

In addition to infringement notices, some Australian regulators also achieve compliance with administrative acts outside the courts through the proferring of voluntary undertakings from the person who is in contravention. A regulator cannot compel the giving of an undertaking as a punitive measure. Under various legislative schemes a regulator can accept a written undertaking from a person that the person will undertake certain actions or refrain from undertaking certain actions to comply with legislative requirements. If the undertaking is not complied with, the regulator can apply to a court for appropriate relief. In these circumstances the regulator does not need to show that the person failed to comply with the substantive provisions of the Act, it need only show that the undertaking has not been honoured.  

General considerations on taking administrative action in Australia

There is no general Administrative Procedure Act in Australia as there is, for example, in the United States. Hence there is no general statute which prescribes detailed procedures for the making of all administrative decisions. There are, however, common law and statutory requirements which apply to the making of particular administrative decisions. Probably the most important of those requirements relates to procedural fairness, which is sometimes referred to as natural justice. It has two elements. First, there is the hearing rule. In a leading case in the High Court, Kioa v West (1985) 159 CLR 550 at 584, Sir Anthony Mason stated that the law had developed in Australia to a point where it could be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. That does not mean, however, that the contents of procedural fairness are the same in every case. Rather, they fluctuate according to a range of matters which include, where relevant, the statutory context in which the issue arises, the stage of administrative decision-making involved, the nature of the rights and interests affected, the nature of the administrative functions etc. In National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 at 326, Brennan J said:

 

The terms of the statute which creates the function, the nature of the function and the administrative framework in which the statute requires the function to be performed are material factors in determining what must be done to satisfy the requirements of natural justice.

Thus a wide range of factors may need to be taken into account in determining what practical steps are required to satisfy procedural fairness in a particular case. Those practical steps include such matters as the timing, service and content of any prior notice or allegation which needs to be given before an adverse administrative decision is made; whether or not the person potentially affected is entitled to an oral hearing as opposed to a hearing on the papers; whether or not there is an obligation to disclose copies of documentary materials to be considered or whether it is sufficient to provide a summary; whether there is a right to cross-examine witnesses; whether a hearing is to be conducted in private or in public and whether there is a right to legal representation.  

Given the uncertainty which can be presented by the operation of the common law principles of procedural fairness, especially in determining the content of procedural fairness in a particular case, it is unsurprising that it has been seen as desirable to specify the necessary practical steps in primary or secondary legislation. Indeed, in some areas, the legislature has gone to some lengths to indicate that the procedural requirements set out in legislation are exhaustive and leave no room for supplementation or modification by common law creativity. That is well illustrated by the history of the attempts in Australia's migration legislation to displace common law procedural fairness principles with a statutory code of procedural requirements. For example, detailed amendments were made to Australia's Migration Act 1958 (Cth) (Migration Act) in 1992 with the stated intention of creating an exhaustive procedural code for determining asylum seeker applications. The explanatory memorandum to those amendments expressly stated that it was intended to "replace the codified principles of natural justice with clear and fixed procedures". In Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 the High Court held that the Parliament had not manifested a sufficiently clear intention to exclude procedural fairness.

The other limb of procedural fairness relates to bias. The Australian test for bias as it applies to administrative decision-makers exercising public power is whether, having regard to all relevant circumstances, a fair-minded and informed member of the public might entertain a reasonable apprehension that a decision-maker may lack impartiality (see, for example, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337)^[15]. Australian courts have recognised that the test for bias is flexible and takes into account such matters, for example, as the role and function of the particular decision-maker. So in Minister for Immigration and Multicultural Affairs; ex parte Jia (2001) 205 CLR 507, the High Court held that the rules against bias had to accommodate the political environment in which a Minister operated. By a majority the Court held that statements made by the Minister in a radio interview about the law governing character requirements in these decisions and explaining his own views on how these requirements should operate did not indicate pre-judgement on his part so as to disqualify him from determining a particular visa application.

If further illustration is required to demonstrate how the bias principles as they apply to administrative decision-makers operate very differently to the principles governing judicial officers, it is to be found in another High Court decision, Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka (2001) 206 CLR 128. In that case, a member of Australia's Refugee Review Tribunal kept a personal website which included frank and candid comments about the Tribunal's operation, his duties and the applicants who appeared before the Tribunal. The High Court held that the information did not give rise to a reasonable apprehension of bias.

Procedural requirements in making subordinate legislation

As a general statement, Australian law rarely recognises any non-statutory obligation to consult in the making of subordinate legislation (see, for example, Bread Manufacturers of NSW v Evans (1981) 180 CLR 404). Although Australia does not have a general statute which details procedures applying to the making of administrative decisions, it does have legislation which applies at both a Federal and state level relating to public consultation in the making of subordinate legislative instruments.^[16] For example, the Legislative Instruments Act 2003 (Cth) (the LIA) applies to all Federal instruments made in the exercise of the power delegated by the Parliament that are of "a legislative character". The difficulty of classifying functions as legislative, administrative or judicial was alluded to above. Section 5 of the LIA seeks to overcome that difficulty by providing its own definition of "legislative character", which focuses on whether an instrument determines the law or alters the content of the law, as opposed to applying the law in a particular case; as well as asking whether the instrument has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right or varying or removing an obligation or right.

Part 3 of the LIA also contains provisions requiring public consultation in the making of subordinate legislation. Where the person creating the subordinate legislation considers that the proposed legislative instrument is likely to have a direct, or substantial indirect, effect on business, or restrict competition then the person creating the subordinate legislation must be satisfied that any appropriate consultation that is reasonably practicable has been undertaken.^[17] Making the determination that sufficient consultation has occurred can include considering whether the consultation drew upon expert knowledge and whether the consultation ensured that those likely to be affected by the subordinate legislation had an adequate opportunity to comment on its content.^[18] It is significant to note, however, that the LIA expressly provides that non-compliance with public consultation requirements does not affect the validity or enforceability of the relevant instrument.^[19] The requirements are therefore merely aspirational.

In many particular areas of administrative decision-making there are subject-specific statutes or regulations which prescribe relevant procedures. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) creates a number of mandatory consultation processes, not only with the public and interested parties but also with representatives of state governments. For example, before the Minister can declare a property to be a World Heritage property,^[20] designate a property as a wetland,^[21] create a civil penalty,^[22] and suspend a bilateral, or multilateral environment protection agreement,^[23] there must be consultation with the appropriate Minister of the relevant State and a reasonable opportunity must be given to him or her to comment on the proposal. Consultation with members of the public is also normally required. Before the Minister can designate that a particular action is a "controlled action", which is an action which would be prohibited without specific approval,^[24] he or she must seek public comment which must then be taken into account when reaching a decision.^[25] In relation to threatened species, the Minister must ensure that there is an approved form of conservation advice in relation to each species of flora and fauna. Furthermore, before approving a document as approved conservation advice, the Minister must consult with the scientific committee which is set up under the Act.^[26]

Some of Australia's mutual recognition arrangements also impose procedural requirements, including obligations to consult with partner jurisdictions on particular matters. For example, under the Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTMRA) the exclusions listed in Schedule 1 (customs controls and tariffs, intellectual property, taxation and business franchises and the implementation of international obligations) cannot be amended unless all participating jurisdictions have been consulted and have endorsed the amendment (s 44). Similar obligations apply to amendments to the list of permanent exemptions in Schedule 2 (s 45).

Under the Agreement on Mutual Recognition in Relation to Conformity Assessment, Certificates and Markings between Australia and the EU (see further below), procedural matters have generally been left to a joint committee made up by representatives of the two parties. The joint committee is responsible for such matters as amending the sectoral annexes and for exchanging information in relation to the operation of the agreement.

Specific provision is also made under some Australian statutes for foreign public administrations to participate in Australian court proceedings. As noted above, for example, the Extradition Act 1988 (Cth) provides for a foreign state to make an application in a particular statutory form to have a magistrate issue an arrest warrant for a particular person and to make a request to the Attorney-General for a person to be extradited.

Provision is made under both rules of court and the Foreign Evidence Act 1994 (Cth) (Foreign Evidence Act) for evidence to be taken overseas for the purposes of Australian court proceedings. There is no comparable across the board provision for the taking of evidence overseas for the purposes of administrative decision-making. However, specific provision is made for that to occur in particular areas. For example, Part 7 of the Migration Act contains provisions which permit the Refugee Review Tribunal to take evidence on oath or affirmation overseas in the course of determining an application to review an adverse asylum seeker decision (s 428(2)).  

Extradition between Australia's States

Due to the division of responsibilities between the State and Federal governments in Australia, as well as the independent nature of the States, the criminal law systems of each jurisdiction are independent. If a crime is committed in one State it does not mean that a person can be charged, tried and incarcerated in another State for that offence. However, the process of domestic extradition has been significantly simplified by Commonwealth legislation, namely the Service and Execution of Process Act 1992 (Cth) (SEPA). Once an arrest warrant has been issued a person can be arrested by any member of any State's police.^[27] After arrest, the warrant must be produced before a magistrate in the same state where the arrest occurred, who must order that the person either be taken to where the warrant was issued, or released on bail to go to that place, unless the magistrate is satisfied that the warrant is invalid.^[28] The magistrate's decision is reviewable in the Supreme Court of the relevant State or Territory and is in the nature of a rehearing.^[29]

The SEPA also deals with the service of process and subpoenas in both civil and criminal legal proceedings, as well as similar matters in the context of adjudication by administrative tribunals.

The service of administrative acts

There is no general law in Australia governing the "service" of administrative decisions. Some individual statutory regimes specifically provide for notification of particular administrative decisions. A good example is to be found in Part 7 of the Migration Act which contains detailed provisions relating to matters such as the methods by which decisions of the Refugee Review Tribunal or other relevant documents can be provided to a visa applicant. Those methods include service by hand to the applicant personally, handing a document to another person at the applicant's last residential or business address, dispatch by prepaid post or transmission by fax, e-mail or other electronic means (see s 441A). The legislation goes on to provide that if a document is served by one of the specified methods, it is deemed to have been received. Such certainty is important, not the least because it impacts upon the time periods within which review rights must be exercised.

The need for certainty is also evident in other aspects of Australia's migration laws, including the need for certainty in fixing the time when a valid application for a visa has been made. For example, a person's eligibility to be considered for a particular type of visa can depend upon whether at the time the application is made the person also holds another visa. The practical difficulties which can emerge are well illustrated by a recent decision of the Full Court of the Federal Court in Chen v Minister for Immigration and Border Protection (2013) 216 FCR 241; [2013] FCAFC 133. In that case, the applicant's eligibility for a particular business skills visa depended upon her also holding another current visa at the time her application was made. The relevant regulation applying to the particular visa required that an application be made at an office of Immigration. A booklet published by the Department advised applicants that they must lodge their applications for the particular visa either by posting the application to a specified post office box or by courier to the street address of the Department in Adelaide. The applicant, through her agent, posted her application by express post on 18 December 2012 to the nominated post office box. The application was delivered to that box the following morning (i.e. 19 December 2012) but was not collected by the Department until the following day. The applicant's existing visa expired on 19 December 2012, meaning that she no longer held a current visa on 20 December 2012. The Department took the view that the application was not valid because it had not been made at an office of Immigration on 19 December 2012 in circumstances where the Department maintained that its nominated post office box was not part of its office. Although that argument was successful at first instance, it was reversed on appeal.

Recognition and enforcement of foreign court judgments

The recognition and enforcement of foreign court judgments in Australia is dealt with under the Foreign Judgments Act 1991 (Cth) (Foreign Judgments Act).^[30] The Foreign Judgments Act applies to superior courts and specified inferior courts of various countries who are listed in a schedule to the Foreign Judgments Regulations 1992 (Cth). There are currently 36 countries so listed.^[31] The Foreign Judgments Act draws a distinction between money and non-money judgments. In the case of an enforceable money judgment, the judgment must be final and conclusive and given by a superior or inferior court of a listed country to be eligible for registration. Once a foreign judgment is properly registered by the Federal Court or a Supreme Court of a State or Territory in Australia, the foreign judgment has the same force and effect for the purposes of execution of process as though it were a judgment of an Australian court. There is no equivalent legislation in Australia dealing across the board with the recognition and enforcement of foreign administrative acts.

There are also Federal Court Rules which deal with the procedure for seeking registration of a foreign judgment in that Court. The originating application seeking registration must be accompanied by a copy of the judgment which is certified by the original court and, if appropriate, by a translation into English which is authenticated by an affidavit. Provisions dealing with the reciprocal enforcement of judgments are also set out in Part 2 of the Foreign Judgments Act, which also specifies the grounds on which a registered foreign judgment may be set aside. They include that the judgment has been wholly satisfied, was obtained by fraud, has been reversed on appeal, was registered in contravention of the Foreign Judgments Act or that the foreign court had no jurisdiction. A register of registered judgments is maintained by the Registrar of the relevant Australian Court.

The Federal Court Rules also contain detailed provisions concerning the service overseas of Australian court documents. An originating application in respect of Australian proceedings can only be served on a person in a foreign country if the Court has granted leave. A person may apply for such leave in accordance with a relevant convention^[32] or the law of a foreign country. Leave to serve an originating application overseas will only be given if the Court is satisfied that it has jurisdiction in the proceedings, that the proceedings are of a kind specified in r 10.42 (which sets out proceedings such as those based on a cause of action arising in Australia, breach of a contract in Australia, a tort committed in Australia etc), and that the moving party must demonstrate that it has a prima facie case for all or any of the relief claimed in the proceedings.

As noted above, the taking of evidence overseas is dealt with in the Foreign Evidence Act. Under s 7 of that Act, a superior court may, if it appears in the interests of justice to do so, on an application of a party to the proceedings make an order relating to a person outside Australia giving evidence before a judge of the Court or an appointed officer.

The Federal Court Rules also contain provisions relating to the taking of evidence on commission overseas (see Pt 29, Div 29.2). This rule could be used in a situation where a witness is outside Australia, is unwilling or unable to attend a court hearing in Australia and cannot be compelled to do so. If an order is made under s 7 of the Foreign Evidence Act, the Federal Court Rules contain provisions relating to the procedures which must be followed in order to obtain from the Registrar of the Court an appropriate letter of request. Express provision is made for relevant documents relating to the request to be translated if necessary (see r 29.12).

Recognition and execution of foreign administrative acts

Although there is no general or overarching law in Australia governing matters relating to the validity, efficacy and enforceability of foreign administrative acts, there are various particular statutory and non-statutory schemes dealing with mutual recognition under which these issues can arise. It is convenient to deal in this part of the paper with two important Australian statutory regimes relating to mutual recognition, namely the Mutual Recognition Act 1992 (Cth) (Mutual Recognition Act) and the TTMRA. Both schemes relate to goods and occupations. Although there is no requirement under either scheme for a prior administrative exequatur in respect of goods, the position is different when it comes to occupations. It is also important to note that because both schemes have a statutory basis, the rights and obligations they create are enforceable in the courts. Provision is also made for specific decisions to be reviewed by independent administrative appeals tribunals. The limitations of a mutual recognition model in respect of occupations have resulted in recent moves to introduce in Australia a national licensing scheme for particular occupations which has the hallmarks of a uniformity of requirements model which I will discuss below.

I will also discuss below other mutual recognition arrangements to which Australia is a party as a result of non-statutory agreements, including treaties and conventions.

Mutual Recognition Act

Although this Commonwealth statute does not deal with the recognition of foreign administrative acts in terms of other sovereign countries, it has some relevance as it introduces the principle of mutual recognition within the legislative framework of the Australian Federation. By "mutual recognition" I mean an agreement between two or more participating jurisdictions to transfer regulatory authority from the jurisdiction where a transaction takes place to the jurisdiction from which a product, person or service originates (see K Nicolaidis, Mutual Recognition of Regulatory Regimes: Some Lessons and Prospects, in OECD 1996, Regulatory Reform and International Market Openness). The stated object of the Mutual Recognition Act is to introduce mutual recognition by the States and Territories of Australia of each other's differing regulatory standards regarding goods and occupations. This object is directed to ensuring the goal of freedom of movement of goods and labour in the Australian national market (noting also that s 92 of the Australian Constitution requires that trade, commerce and intercourse among the States shall "be absolutely free"). The national scheme is based on the Commonwealth statute as well as on statutes passed by the individual participating States and Territories.

As noted above, the scheme operates in respect of both goods and occupations. It applies to the sale of goods and to the registration of occupations. In contrast with the principle of mutual recognition in the EU, the Australian mutual recognition scheme does not currently extend to the manner of sale, transport, storage, handling, inspection, or usage of goods, or to the manner of delivery or provision of services. In contrast, mutual recognition in the EU extends to anything which restricts sale, as well as services. The Australian mutual recognition scheme is also to be contrasted with the Canadian scheme, where it is understood that mutual recognition is extended on a case-by-case basis. In Australia, all goods and registered occupations are subject to mutual recognition unless they are specifically excluded or exempted. The intention is that the Australian scheme be less administratively burdensome and avoid time-consuming negotiations.

As to goods, in broad terms, the Australian scheme operates so that, subject to certain exceptions and exemptions, goods produced in or imported into a State or Territory that may lawfully be sold in that State or Territory may also be sold in another State or Territory without having to comply with prescribed further requirements relating to sale under the laws of the second-mentioned State or Territory. Those further requirements include standards relating to the goods themselves (such as requirements relating to their production, competition, quality or performance) or the way the goods are presented (such as requirements relating to their packaging, labelling, date stamping or age). The scheme also has a range of permanent exemptions, such as firearms, gaming machines and endangered species.

The Australian scheme also applies to occupations. A person who is registered in one Australian State/Territory for an occupation is entitled to be registered in another State/Territory for an "equivalent occupation" (s 17). An important exception to the mutual recognition principle is set out in s 17(2) in that it does not affect the operation of laws which regulate the manner of carrying on an occupation in the second State as long as the laws apply equally and are not based upon a need for qualifications or experience relating to fitness to carry on the occupation. The exemption of conduct requirements from the national scheme has been commented on by the Australian Productivity Commission (Productivity Commission), which has called for increased harmonisation in conduct requirements (see further below).

Section 20 of the Mutual Recognition Act provides that a person who lodges a written notice, in which they seek registration with the local registration authority of the second State, is entitled to be registered in the equivalent occupation as if the law of the second State expressly provided that registration in the first State is a sufficient ground of entitlement to registration. The local registration authority in the second State may impose conditions on registration but not conditions that are more onerous than would be imposed in similar circumstances having regard to relevant qualifications and experience if it were a registration being effected otherwise than under the Mutual Recognition Act.

A local registration authority may refuse a registration if it decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions. Any such refusal decision can be reviewed on its merits by the AAT. There have also been appeals from decisions refusing registration on the grounds that an applicant is not a fit and proper person to be registered (see, for example, Agapis v Plumbers Licensing Board [2013] AATA 187).

Despite the mutual recognition principle embedded in the Act, historically each State and Territory has maintained different licensing regimes. Accordingly, a licence holder who wants to move between jurisdictions is still required to apply for a licence and meet different non-skills requirements as well as pay a separate licence fee for the equivalent licences in any other jurisdiction in which the person wishes to work. There are also some circumstances in which the licence holder may be required to satisfy additional requirements which are not covered by mutual recognition. This can present particular difficulties for workers or businesses who operate in multiple jurisdictions in Australia because they must comply with different licensing and regulatory requirements. These concerns have led to the recent establishment of a national licensing system in Australia, the details of which I will describe below.

The operation and enforcement of the Commonwealth mutual recognition legislation as it applies to goods is illustrated by the Federal Court's decision in Coca-Cola Amatil (Aust) Pty Ltd v Northern Territory of Australia (2013) 215 FCR 377; [2013] FCA 154. That case involved the interaction between the Mutual Recognition Act and a container deposit and recycling scheme established by the Northern Territory which required wholesalers in the Territory to use recyclable or other approved material in beverage containers. The Northern Territory scheme also encouraged recycling by providing for refunds to be paid on the presentation of empty beverage containers at recycling centres and for information about the refund scheme to appear on the containers themselves. Several beverage wholesalers challenged the Northern Territory legislation on the basis that it conflicted with the Mutual Recognition Act. They argued that their beverage containers could lawfully be sold in other Australian States without compliance with requirements such as those imposed by the Northern Territory's scheme and that the mutual recognition principle was therefore engaged. They sought to enforce the mutual recognition principle as enshrined in the Mutual Recognition Act. The action was successful. The Court rejected the Northern Territory's argument that its recycling scheme was covered by exceptions in the Mutual Recognition Act relating to the regulation of the manner of sale of goods (s 11(2)) or the handling of containers (s 11(3)). The Court granted declaratory relief.

TTMRA

The Mutual Recognition Act provided a broad model for the mutual recognition agreement between Australia and New Zealand in the subsequently enacted TTMRA. New Zealand has enacted reciprocal legislation (and each of the participating Australian States has also each passed legislation adopting the Commonwealth Act). The Trans-Tasman mutual recognition scheme also applies to both the sale of goods and the registration of occupations and has similar provisions to the Mutual Recognition Act. It also provides various exceptions and permanent or special exemptions. There are four broad areas which are excluded from the TTMRA: customs controls and tariffs; intellectual property; taxation and specified international obligations. Permanent exemptions relate to such areas as pornographic material, gaming, quarantine laws and container deposit legislation. The permanent exemptions are based on a belief that an individual jurisdiction's sovereignty should prevail over mutual recognition in respect of matters of public standards of decency, environmental protection and giving precedence to the preferences of local citizens.

A special exemption under the TTMRA is also made in the case of various goods, including road vehicles (the other special exemptions relate to hazardous substances, industrial chemicals and dangerous goods, gas appliances, radiocommunications devices and therapeutic goods). That is because the two countries hold different positions on the acceptability of standards set by other countries affecting road vehicles. All vehicles manufactured or imported into Australia have to be assessed for conformity with Australian Design Rules (ADRs) (which in particular instances accept compliance with overseas standards, including some European Standards). In contrast, New Zealand considers that the standards set by certain specified countries satisfactorily safeguard vehicle safety, which relieves New Zealand of the need to have its own separate standards.

The Supreme Court of New South Wales recently dealt with the operation of the ADRs (and related Commonwealth and State legislation dealing with vehicle registration) and their interaction with relevant European Standards in Exclusive Imports Pty Ltd v Roads and Traffic Authority of NSW [2009] NSWSC 603 in the context of the registration in New South Wales of German-manufactured Burstner caravans. The local regulator had refused to register the imported caravans on the basis that their gas cylinders did not comply with State regulations dealing with gas installations. The Court held that such compliance was unnecessary because eligibility for registration simply depended upon compliance with the ADRs and, under the ADRs, the European Standard (EN 1949) applied. The case did not involve the TTMRA.

As to mutual recognition applying to occupations, like the national mutual recognition scheme, the TTMRA is predicated on the notion that the regulatory requirements of one jurisdiction meet community expectations and should be acceptable in another jurisdiction insofar as the right to be registered to carry on an occupation is concerned. Thus no administrative exequatur is required. By the same token, however, neither scheme interferes with a jurisdiction's capacity to regulate the conduct of an occupation post registration according to its own laws. Accordingly, applicants who obtain registration for their occupation under either scheme must still comply with any requirements in the second jurisdiction with regard to such matters as insurance, fidelity funds, trust accounts and discipline. Only one registered occupation is not covered by the TTMRA, namely medical practitioners.

In common with the Mutual Recognition Act, decisions made under the TTMRA are able to be reviewed by the AAT in Australia (and by the Trans-Tasman Occupations Tribunal in New Zealand). Judicial review is also available in an appropriate case to ensure that the participating jurisdictions comply.

Both the Commonwealth and Trans-Tasman mutual recognition schemes have periodically been evaluated by the Productivity Commission. Some individual States have also conducted their own reviews of the Trans-Tasman scheme (for example, Western Australia published its review of that scheme in June 2012). The first review conducted by the Productivity Commission resulted in a report dated 8 October 2003. In broad terms it found that both schemes had been effective in achieving their objectives of assisting the integration of the Australian and New Zealand economies and promoting competitiveness. The Productivity Commission conducted a further review five years later which resulted in another report in 2009. It found that both schemes have increased the mobility of goods and labour around Australia and across the Tasman Sea. Mutual recognition has led to lower regulatory compliance costs for firms in the goods industry. The Productivity Commission also found that increased labour mobility and reduced wage dispersion had occurred which was consistent with the expected effects of mutual recognition of occupational registration.

The Productivity Commission also concluded that the schemes were less effective on the occupations side than on the goods side. This was attributed to differences in occupational standards between jurisdictions and a concern that deficient standards could produce harm. The Productivity Commission noted that conduct requirements can act as a greater impediment to the mobility of service providers than having to re-register and obtain a second occupational licence in the other jurisdiction. The Productivity Commission also noted that, while it had expressed reservations in its 2003 report about the benefits of mutual recognition of conduct requirements, the question ultimately turned on which level of government is best placed to regulate such activities. The Productivity Commission seems to favour a case-by-case assessment of the issue. Some progress has been made in harmonising conduct requirements through a working group of Ministers working under the auspices of the Consumer Affairs Forum Conduct Harmonisation Project. The Productivity Commission recommended in 2009 that allowing ongoing professional development and criminal record checks for mutual recognition registrants, which already applied to local registrants, would mitigate some of the risks created by inter-jurisdictional differences in standards. On the goods side, the Productivity Commission also recommended that a range of goods which were currently exempt ought to be brought within the coverage of the schemes.

A substantial part of the Productivity Commission's 2009 report examined overseas models of mutual recognition with a view to identifying potential improvements for Australia. The report contains an extensive analysis of the operation of mutual recognition arrangements in Europe, Canada and the Asia Pacific Economic Cooperation (APEC) region. Specific reference is made to EU mutual recognition arrangements and in particular to the capacity of member states to continue to impose national product requirements as long as they meet particular criteria (non-discrimination, a legitimate regulatory objective, proportionality to that objective and not necessarily trade restrictive). It was also noted that, in contrast with the Commonwealth and Trans-Tasman schemes, the European model includes a form of mutual recognition of services.

The 2009 report also addresses various models which are available to deal with regulation of goods and occupations across national or international borders. It described the attractions of mutual recognition of regulatory requirements as cost-related because such a model normally involves less negotiating and administrative costs on regulators and stakeholders. In circumstances where existing regulatory requirements are capable of meeting the objectives of regulation, including protecting the public or the environment, jurisdictions may prefer to agree mutually to recognise compliance with each other's regulatory requirements in order to lower the costs associated with mobility and transactions across their borders. Moreover, under this model, while regulatory outcomes are maintained, a degree of jurisdictional independence is also preserved.

The Productivity Commission also discussed other models. One such model is based on the harmonisation of requirements and involves aligning different requirements within participating jurisdictions. One of its attractions was said to be the greater certainty such a model could produce for stakeholders. On the other hand, difficulties could arise where regulatory requirements of the individual participating jurisdictions are far apart and the costs of negotiating alignment might be high. Attention was also drawn to the fact that harmonisation could produce regulatory requirements which are more burdensome for some stakeholders than the pre-existing position.

As to a model based on uniformity of requirements involving a single standard applying across all jurisdictions, the Productivity Commission commented that such a model would remove any doubt concerning the quality of goods or practitioners from other jurisdictions which is likely to promote trade and labour mobility. But it recognised that implementing such a model could involve high negotiating costs and could also be handicapped if one or more relevant jurisdictions declined to cooperate (as is the case at present with attempts to harmonise Australia's occupational health and safety laws, which are being resisted by both Victoria and Western Australia). An additional problem is that a uniform requirement may not be readily achievable in all participating jurisdictions. While acknowledging these difficulties, the Productivity Commission supported the introduction of a national licensing scheme for occupations in order to promote labour mobility. It saw one of the advantages of a national licensing system as removing differences in standards which are the source of friction under a mutual recognition regime.

Australia's national occupational licensing law

In 2008, the Council of Australian Governments (COAG) agreed to implement regulation and competition reforms under the banner of a "National Partnership Agreement to Deliver a Seamless National Economy". Under this agreement, 36 separate reforms were identified, comprising 27 deregulation priorities, 8 areas of competition reform and reform to regulation making and review processes. In July 2008, COAG agreed to introduce a national occupational licensing scheme as part of the program aimed at increasing Australia's productivity. This led to the enactment of a national law in 2010 (National Law) (see, eg, the Occupational Licensing National Law Act 2010 (Vic)) which, to date, has been adopted by all Australian States and Territories apart from Western Australia and the Australian Capital Territory. It is expected that the new scheme will be fully operational in 2014. Initially, it will only apply to certain occupations, namely those relating to the property (e.g. real estate agents and property managers), electrical, plumbing and gas fitting, air-conditioning and refrigeration sectors. A second wave of occupations involving building and building-related activities, conveyancers and valuers will follow and the system also has the capacity to extend to other licensed occupations in the future.

The new scheme is intended to overcome some of the limitations of the mutual recognition regime under the Mutual Recognition Act as it applies to occupations. The objective is to develop a national occupation licensing system, remove inconsistencies across State and Territory borders and facilitate a more mobile workforce within Australia. A national licence will be available for persons practising in specified occupations, the eligibility of which will be the same for all States and Territories. The holder of a national licence will be able to work in multiple jurisdictions without having to apply for a new licence when relocating. In contrast with the scheme under the Mutual Recognition Act, the new scheme will not involve recognition of an existing licence in order to obtain an equivalent licence in the other jurisdiction. Rather, a national licence will be introduced. The new scheme will also remove the risk that the grant of an equivalent licence in the second jurisdiction may involve having to obtain multiple licences in order to equal the scope of work of the original licence. The national licence will also remove the need for a licensee who wishes to work in various jurisdictions from having to obtain and renew multiple licences and pay the relevant fees.

The national licensing system is headed by a Ministerial Council. An independent statutory authority was also established in 2012 called the National Occupational Licensing Authority (NOLA). The system adopts a delegated agency model under which NOLA is responsible for occupational licensing policy development, national licensing procedures and guidelines and the development of a national public register for the included occupations. Existing State and Territory regulators will continue to process licence applications as NOLA's delegates in accordance with national procedures. Those regulators will also set and enforce conduct requirements for licence holders (i.e. requirements relating to how a person conducts their business occupation) and set and receive licensing fees. Although fees may vary across jurisdictions, only one fee will be paid by a national licensee. Provision is also made under the National Law for adverse licensing decisions to be reviewed, first by a process of internal review and subsequently by the relevant court or tribunal nominated in the particular jurisdiction.

As noted above, conduct requirements have been excluded at this point from the national licensing system. In a recent submission dated 21 August 2013 to the Productivity Commission, NOLA said that its exclusion meant the retention of "an inefficient system with inconsistencies across jurisdictions and increased confusion for licensees and consumers about the applicable conduct rules and prevents the full benefits of the national system from being achieved".

Other COAG reforms

As noted above, since 2008 Australian governments have been working through COAG to implement regulation and competition reforms with a view to achieving a seamless national economy. In May 2012, the Productivity Commission published a report which assessed some of the reforms up until that time. The report is entitled "Impacts of COAG Reforms: Business Regulation and Vocational Education and Training". One of the major reforms relates to recording personal property securities. A national system of registration, involving one national register, has been introduced by the Personal Property Securities Act 2009 (Cth). That single piece of legislation unifies 70 different Commonwealth, State and Territory laws and 40 different registers dealing with personal property securities.

Other key COAG reforms relate to improving the efficiency of transport regulation by establishing national standards and national regulators for heavy vehicles, rail and maritime safety. A National Construction Code 2013 (Construction Code) has also been formulated which consolidates building and plumbing regulations into a single code and eliminates overlapping regulations. The Construction Code provides a uniform set of technical provisions for the design and construction of buildings and other structures nationally and is given legal effect by legislation in each State and Territory.

Environmental regulation in Australia

An area of ongoing concern and analysis in Australia is environmental regulation and protection. The undertaking of projects with environmental implications may require approvals to be obtained at a Federal, State and local government level, which can cause significant cost and delay. For example, in a research paper published in June 2012 entitled "COAG's Regulatory and Competition Reform Agenda: A High Level Assessment of the Gains", the Productivity Commission noted the need for further reform in the area of environmental regulation. It said that many large scale investment projects in Australia are required to undergo environmental assessment and approval processes under both Commonwealth and State/Territory environmental legislation. It cited the example of a mining resource proponent who obtained approval for a major resource project following an environmental assessment which took in excess of two years, involved more than four thousand meetings, briefings and presentations and produced a 12,000 page report.

Australia's primary national environment law is the the EPBC Act. Under the EPBC Act certain matters are designated as matters of national environmental significance for which the Federal government has primary responsibility to manage and protect. Those matters include world heritage properties, national heritage places, the Great Barrier Reef Marine Park, approval of nuclear matters and nationally threatened species and ecological communities. The interaction between Commonwealth and State environmental regulations in the context of the proposed expansion of a uranium mine was discussed by the Full Court recently in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301; [2013] FCAFC 111.

The EPBC Act makes provision for the Commonwealth to enter into bilateral agreements with a State or Territory as a means of streamlining environmental regulation. An assessment bilateral agreement enables State or Territory processes to be used to assess the environmental impacts of a proposed action while still requiring an ultimate approval decision to be made under the EPBC Act (as well as possibly under State/Territory legislation). An approval bilateral agreement obviates the need for further assessment or approval under the EPBC Act and effectively substitutes a relevant State or Territory regime. For example, there is an approval bilateral agreement in place between the Commonwealth and NSW governments to protect the national heritage and world heritage values of the Sydney Opera House under which the NSW government assumes responsibility for both assessment and approval decisions. Under that 2005 bilateral agreement, approval under relevant provisions of the EPBC Act relating to world heritage and national heritage are not required for actions approved by the relevant NSW decision-maker in accordance with the terms of the agreement and the management plan applicable to the Sydney Opera House.

Concerns have been expressed about some aspects of the operation of bilateral assessment agreements. Some argue that the bilateral process is used solely to streamline assessments and not to create a higher standard of impact assessment. An independent review of the EPBC Act in 2009 conducted by Mr Allan Hawke referred to the view of some critics that bilateral agreements were seen as simply encouraging accreditation of the process that was the "lowest common denominator", or a "race to the bottom".^[33] Other concerns were expressed that such agreements derogate from transparency and accountability when contrasted with assessments undertaken under the EPBC Act. Another main issue with such bilateral assessment agreements was identified as "the breakdown in relations between State and Territory agencies and Commonwealth assessors", with the NSW government complaining that implementation of bilateral assessment agreements had been characterised by complexity and delay. The independent review recommended that steps be taken to promote cooperation between Commonwealth and State agencies and that greater effort should be made to standardise process and information requirements. The review also found that structural and procedural differences between the impact assessment regimes of the States and Territories, as opposed to the Commonwealth, created inefficiencies and delays. Recommendations were made, including that the Commonwealth should make greater use of accredited State and Territory processes of assessment where they meet appropriate standards.

Where an assessment bilateral agreement is in place, the EPBC Act assessment and approval process usually involves the following steps:

 
• projects that may have a significant impact on a matter of national environmental significance or on the environment in a Commonwealth area are still required to be referred to the Commonwealth Minister;
 
• the Commonwealth Minister decides whether a referred project requires approval under the EPBC Act;
 
• if approval is required and the project is to be carried out in a state or territory covered by an assessment bilateral agreement, the Commonwealth Minister notifies the appropriate State or Territory Minister that the project requires approval under the EPBC Act;
 
• the relevant State or Territory Minister then informs the Commonwealth Minister whether the project will be assessed under one of the assessment processes specified in the bilateral agreement;
 
• the EPBC Act assessment procedure will not apply if the project is to be assessed under the specified State/Territory process;
 
• the relevant State/Territory agency must provide the Commonwealth Minister with a report on impacts of the project on the matters that triggered the need for approval under the EPBC Act; and
 
• the Commonwealth Minister then decides whether or not to approve the project under the EPBC Act, including any conditions.

The Federal government recently announced its intention to negotiate strengthened bilateral agreements with Queensland and New South Wales to establish what is described as "a one stop shop" for environmental approvals for certain classes of project and to remove duplication and regulation between the Commonwealth and those States. Under these proposed arrangements, only one approval will be required for particular classes of projects, rather than separate approvals under both Commonwealth and State legislation. Detailed negotiation of the proposed bilateral agreements is expected to take up to a year, highlighting the complexity of the issues involved. Public submissions have been sought on the proposed draft agreements.

The proposed bilateral agreement with NSW has the following relevant features:

 
• reliance on NSW environmental assessment processes for approvals under the EPBC Act in respect of classes of action set out in a schedule, which include actions which are classified as state significant development under the Environmental Planning and Assessment Act 1979 (NSW);
 
• requirements additional to those arising under State environmental legislation are imposed, including the need to issue guidelines or directions to proponents of controlled actions aimed at ensuring that adequate information is provided to enable proponents to submit full assessment documentation;
 
• the Commonwealth Minister has an opportunity to provide input to the guidelines;
 
• additional requirements are also imposed in respect of public consultation; and
 
• detailed provisions also regulate the required content of the assessment report of classes of action covered by the bilateral agreement.

The EU's role in recognising and executing foreign administrative acts

In its 2009 report, the Productivity Commission discusses mutual recognition arrangements in Europe as they apply to harmonised and non-harmonised goods, as well as occupations and services. It noted how, at that time, harmonised goods represented approximately 75% of goods traded in the EU, with the balance the subject of the mutual recognition principle. The Productivity Commission also noted the more recent approach to harmonisation in the EU whereby the new directives for each product sector specify mandatory essential requirements and voluntary harmonised standards applicable to that sector. Also noted were EU directives which require products to have third-party certification by conformity assessment bodies (CABs) before being placed on the market.

Although recognising that mutual recognition generally operates successfully for many products in the EU, the Productivity Commission also noted that some businesses still faced barriers to trade in the form of national technical regulations and conformity assessment. Reference was also made to a review carried out in 2006 which drew complaints of over-regulation and "gold plating" at the national level, with claims that member states frequently add national product requirements to EU standards under the cover of meeting additional environmental and social concerns. The Productivity Commission also referred to findings made in 2008 to the effect that: (a) there was a widespread lack of awareness among businesses and national authorities of the principle of free movement of goods; (b) there was legal uncertainty about the burden of proof where a member state refuses entry to a product; and (c) businesses experienced difficulties in determining whether they could lawfully sell products in another member state with different technical requirements. Reference was made to reforms announced in mid-2008 aimed at addressing some of these problems affecting mutual recognition of goods in the EU.

In its 2009 report, the Productivity Commission separately addressed occupations and services in the EU. It noted that, following public consultation, the country of origin principle was removed from the draft Services Directive, permitting member states to continue to impose local regulations on service providers from other jurisdictions but only where those regulations are non-discriminatory; justified for reasons of public policy, public security, public health or environmental protection; and are proportional to their objectives. This was described as a "managed" form of mutual recognition of services regulation whereby host countries retain a significant ability to regulate the provision of services by foreign providers.

International conventions on the recognition and execution of administrative acts and the legalisation of public documents

Australia's non-statutory arrangements involving mutual recognition

As noted above, Australia presently has two major statutorily-based mutual recognition schemes, one of which operates within the Australian Federation, while the other relates to closer economic ties with New Zealand. Australia has also entered into many other mutual recognition arrangements by way of treaties or conventions. Those treaties or conventions have not been incorporated into Australian domestic law and are therefore binding only at international law. I will now describe some of those arrangements.

Mutual recognition arrangements between Australian and the European Union

Australia and the EU have an agreement on mutual recognition in relation to conformity assessment, certificates and markings. The agreement, which is in the form of the treaty, entered into force on 1 January 1999. According to the Australian government, this was the first fully operational mutual recognition agreement on conformity assessment of its type in the world. The agreement is notably more limited in its scope than either of Australia's two statutorily-based mutual recognition schemes. The treaty with the EU provides for mutual recognition of designated CABs. It does not extend to mutual recognition or harmonisation of standards or regulations. Under the agreement each participating country maintains its own internal standards and regulatory regimes against which compliance is assessed by designated CABs located in the other relevant country. This means that conformity assessment involving testing, inspection and certification of products traded between Australia and the European Union and vice versa can be undertaken in the country of export rather than having to be undertaken in the destination country. From an Australian perspective, this means that Australian exporters can establish compliance with relevant EU regulations in Australia and appropriate markings can be applied to the product before export.

The agreement also provides for domestic regulatory authorities to maintain market surveillance programs to ensure that products continue to meet legal health and safety requirements. Such surveillance may result in a challenge to the competence of particular CABs, which is provided for under the agreement. The agreement is currently limited in scope as it only applies to the following specific product sectors: electromagnetic compatibility, telecommunications equipment, machinery, medical devices, automotive products and pharmaceuticals. The agreement sets out conditions under which the parties will accept test reports and certifications issued by the other party's designated CABs.

Commencing on 1 January 2013, major amendments were made to that part of the agreement which relates to medical devices. The amendments clarify and narrow the medical devices covered by the agreement. In particular, activities such as repairing, reconditioning, labelling, packaging or conducting quality control inspections alone are specifically excluded from the definition of "manufacture". The list of high risk medical devices which are not able to be assessed under the agreement has been expanded pending the undertaking of "confidence building activities". The high risk items which have been excluded now include implantable devices. Certain other products have been completely excluded from the agreement, including medical devices that contain tissues, cells or other microbiological items which are intended for use in or on the human body.

Prior to the change of government following the Australian Federal election in September 2013, Australia was also involved in negotiations with the EU to link their respective emissions trading schemes. The countries were working towards an agreement for mutual recognition from 1 July 2018. With the change of government the status of those negotiations is unclear.

Another area where the EU and Australia were able to reach agreement and enter into a bilateral arrangement concerns wine. Understandably the French have been concerned to protect the commercial value of the reputations of their winegrowing regions. In 1981 a French wine group unsuccessfully brought proceedings in an Australian court seeking an interlocutory injunction preventing the use of the word "champagne" in Australia to describe sparkling wine not sourced from the champagne region in France (see Comite Interprofessionel du Vin de Champagne v NL Burton Pty Ltd (1981) 38 ALR 664). The proceedings failed at the interlocutory stage on the basis that it was held that there was no reputation in Australia sufficiently associating sparkling wine called champagne with the champagne region in France. That finding had nothing to do with Australia's reputation for beer drinking!

Australia and the EU held discussions about executing a bilateral agreement on trade in wine with a view to protecting each other's wine descriptions using regional names. In January 1994 the parties executed the Agreement between Australia and the European Community on Trade in Wine. The agreement prohibits the use of French wine descriptions in Australia and reciprocally provides for specified Australian "geographical indications and traditional expressions" to be protected from misuse in the EU. Under art 6 of the agreement the parties are obliged to provide legal means for interested parties to take steps to prevent the use of a traditional expression or a geographical indication identifying wines for wines originating in the place indicated by the relevant geographical indication. This agreement is enforceable in Australia's courts because the agreement was made part of Australia's domestic law under the Australian Wine and Brandy Corporation Act 1980 (Cth).^[34] A Geographical Indications Committee has been established under that Act to deal with applications for the determination of geographical indications for wine in relation to Australian regions. The Committee's determinations are subject to review by the Federal AAT, as is illustrated by the tribunal's decision in Re King Valley Vignerons Inc and Geographical Indications Committee (2006) 93 ALD 422.

Other bilateral agreements involving mutual recognition to which Australia is a party

Australia has similar mutual recognition arrangements on conformity assessment with Singapore, as well as with Norway, Iceland and Liechtenstein (the EFTA agreement) which covers the inspection of medicinal products, telecommunications terminal equipment, low voltage equipment, electromagnetic compatibility, machinery, pressure equipment and automotive products.

The APEC group, of which Australia is a member, has also introduced various mutual recognition initiatives. For example, there are APEC mutual recognition arrangements on conformity assessment of electrical and electronic equipment as well as telecommunications equipment. They provide for limited mutual recognition of selected goods undertaken at a multilateral level. The agreements do not provide for mutual recognition or harmonisation of standards or regulations but are restricted to conformity assessment.

The APEC arrangement concerning electrical and electronic equipment, which was announced in September 1999, has the following features. It is based on the mutual recognition of test reports and certificates of conformity issued by designated test facilities and CABs in partner countries. The object is to reduce duplicative testing and certification, which adds to the costs of exporting goods. Participation can occur at three levels. The first level involves information exchange so that participating countries can familiarise themselves with other countries' regulatory systems. Participants must provide in a standardised format information about their mandatory requirements on regulated electrical and electronic products, to assist exporters of these products in other countries. The second level of participation provides for product testing in the exporting country by designated test facilities, with test reports recognised by the importing country. The third level provides for the certification of products in the exporting country by designated certification bodies, with conformity accepted by the importing country. Participation at the second and third levels requires a country to appoint a designating authority with responsibility for designating, suspending, removing suspension and withdrawing designation of test facilities and/or certification bodies in its jurisdiction. That body also specifies the scope of the testing or conformity assessment activities that may be undertaken.

Limited mutual recognition schemes have also been created by APEC in respect of selected occupations, including engineers and architects. Their object is to facilitate the international mobility of professional engineers and architects within the APEC region by establishing common criteria for the recognition of professional competence. Mutual recognition is limited in that participating countries are not disabled from requiring additional assessment of registered engineers and architects before they are allowed to practice in their jurisdiction.

Australia has also entered into mutual recognition agreements with other countries on many other topics. For example, it is a party to mutual recognition agreements with countries such as the United States, Hong Kong, Argentina and South Africa dealing with securities and investments. Under the 2008 agreement with the US Securities and Exchange Commission, the parties have agreed to consider providing exemptions to exchanges and securities brokers in each other's countries. This means that Australian stock exchanges and brokers could offer their services to American wholesale investors and financial firms without being subject to regulation by the US Commission. Australia has also entered into 12 separate agreements with various jurisdictions, including the EU, on security and the exchange of classified information. There is also a series of agreements and memoranda of understandings on a range of topics to which Australia is a party, including competition and consumer protection, spam and customs cooperation. It might also be added that, apart from mutual recognition agreements entered into at a government to government level, various Australian professional bodies have also entered into mutual recognition agreements with their counterparts in other countries, such as engineers and accountants.

Claims for foreign taxation debts in Australia

Taxation is a matter which is usually reserved for the domestic jurisdiction of a state. However, when a tax debtor is located in an overseas jurisdiction the administrative act of assessing the taxation debt needs to be effected in a foreign jurisdiction. In Australia, where a foreign administrative authority has assessed a person for a taxation debt, it is possible that such a debt can be recouped on that authority's behalf by Australia's Commissioner of Taxation, as if that debt was owed to the Australian authority. This will depend upon the foreign tax debt meeting the criteria set out in the Taxation Administration Act 1953 (Cth).

Before the Commissioner of Taxation will seek to collect a debt which an overseas authority claims is owed to it, it must be classified as a "foreign revenue claim". In order to meet such a classification the claim must meet a variety of criteria.

First, the "foreign revenue claim" must be made by or on behalf of an entity that is, under the relevant international agreement, the competent authority.^[35] Australia has signed 81 international taxation agreements, 45 of which are concerned with double taxation. ^[36] These kinds of treaties are frequently supplemented with a document called a "Mode of Application" or "Memorandum of Understanding". Such a document provides additional information concerning how the particular obligations of the treaty will be implemented. Taxation treaties, whilst expressed in relatively precise terms, do not contain the practical details concerning their implementation, such as the minimum debt required to trigger the obligation to collect a foreign taxation debt, or the time limits for such claims. These kinds of details can be set out in these accompanying documents. It appears that, to date, the Australian Treasury has not published any of these accompanying documents and, presumably, no such document has been published by another party to such an agreement.^[37]

Other international agreements contain obligations to assist in the recovery of taxation debts owed to foreign authorities^[38], such as the OECD Convention on Mutual Administrative Assistance in Tax Matters, opened for signature 1 June 2011, [2011] ATNIF 28 (entered into force 1 June 2011) to which Australia is a party, along with 57 other states. Australia has also entered into certain special arrangements which relate to particular subject matters, such as the special arrangements in relation to the mining of natural gas signed with East Timor.^[39]

The second criterion is that the foreign revenue claim must be made consistently with the provisions of the relevant agreement. This can be particularly important where certain foreign revenue claims are precluded by the terms of the treaty in relation to certain types of business, such as shipping or other carriage,^[40] and income from the sale of real property.^[41]

The other final criteria are that the foreign revenue claim must be made in an approved form, specify the amount owed by the debtor in Australian currency and be accompanied by a declaration by the competent authority stating that the claim fulfils the requirements of the agreement under which the claim is made.^[42] These criteria are important as they are the formal process by which the foreign administrative act is served in Australia. The act is not served on the debtor, but upon the Australian government who is required to take actions to facilitate the execution and fulfilment of the foreign administrative act.

If a claim meets the above criteria, it is registered in Australia on the Foreign Revenue Claims Register and becomes a pecuniary liability owed to Australia by the debtor.^[43] The amount owed by the debtor becomes due and payable 30 days after notice of the particulars of the foreign revenue claim is given to the debtor, or a later day if specified. Once a tax debt is registered, the debtor cannot dispute the tax debt and the Commissioner of Taxation can commence legal proceedings to collect the debt.^[44] Furthermore, the Australian Taxation Office has advised that proceedings cannot then be brought in the jurisdiction of the claiming state challenging the tax debt owed to Australia.^[45] It seems that proceedings may be brought in the jurisdiction of the claiming state challenging the assessment of the debt, but such a claim has no bearing on Australian tax law. It appears that the only opportunity that a person has to prevent the debt becoming payable is to seek an injunction before the foreign revenue claim is registered. However, it appears likely that a person would not know about a foreign revenue claim until notice is provided to them by the Commissioner of Taxation that the debt has been registered.

Under the International Tax Agreements Act 1953 (Cth), many specified treaties and agreements with other countries concerning taxes on income and fringe benefits have become part of Australia's domestic law and are therefore enforceable in Australian courts.

Bilateral agreements on social security entitlements

Perhaps reflecting its strong and diverse multicultural composition (more than 30% of Australians were born overseas), Australia currently has 29 separate bilateral agreements with various countries relating to social security. Those countries are Austria, Belgium, Canada, Chile, Croatia, Cyprus, the Czech Republic, Denmark, Finland, Germany, Greece, Hungary, Ireland, Italy, Japan, Korea, Latvia, Malta, the former Yugoslav Republic of Macedonia, the Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, Slovenia, Spain, Switzerland and the United States of America. Each of those bilateral agreements has been made part of Australia's domestic law by their inclusion in a schedule to the Social Security (International Agreements) Act 1999 (Cth). Consequently, the provisions of such agreements are enforceable in Australian courts and tribunals, as is reflected, for example, in a decision of the Federal AAT in Cerro v Secretary of the Department of Social Security [1995] AATA 135, where the Tribunal held that a particular pension received by the applicant fell outside of the scope of the bilateral agreement between Italy and Australia. In reaching that conclusion, the Tribunal took into account a letter from the Italian Ministry for Work and Social Security which indicated that, based on its enquiries, the applicant received an Italian pension which was of a type which was not covered by the bilateral agreement.

The bilateral agreements reflect the fact that there are many people in Australia with work or residential connections with other countries, which may entitle them to receive pensions or other social security benefits from those other countries as well as Australia. The agreements are based on the concept of recognising and giving effect to laws and administrative arrangements relating to particular social security benefits in a partner country. Partner countries make concessions against their social security eligibility rules so that people covered by a bilateral agreement may access payments for which they might otherwise not be eligible. Responsibility for certain social security payments is shared between the country where a person has lived during their working years and Australia. Generally, a social security pension, such as an age pension, which is available in one country can be accessed in the other country, however, the paying country generally maintains some discretion in the currency and delivery mechanisms used.

Under these bilateral arrangements, Australia usually equates social insurance periods/residence in the relevant countries with periods of Australian residence in order to meet the minimum qualifying periods for Australian pensions. The partner country generally counts periods of Australian working life or residence as periods of social insurance in order to meet their minimum qualifying periods for payment. Unlike most other countries, Australia does not have a national insurance scheme and social security benefits are paid out of consolidated revenue and not a specific social security insurance fund. Accordingly, Australian pensions are income and asset tested.

An example of such a bilateral arrangement on social security is the Agreement between Australia and the Hellenic Republic (Greece) on social security, signed 23 May 2007. [2008] ATS 14 (entered into force 7 August 2007) (Australia-Greece Treaty). That agreement allows a person to lodge a claim for payment of specified social security benefits from either country. It also permits a person to add together their periods of residence in Australia and periods of social security coverage in Greece so as to meet the minimum eligibility requirements. For example, in order to meet the minimum requirements for the Greek age pension the person can add periods of Australian working life residence to their periods of coverage in Greece. The relevant Greek pension authorities make all decisions about repayments.

There are provisions in the Australia-Greece Treaty which deal specifically with administrative matters, such as the lodgement of documents. Such provisions are found in Part V of the agreement. Under art 14, a claim, notice or appeal concerning a benefit may be lodged in either country in accordance with administrative arrangements made by the two countries pursuant to art 18. The details of those arrangements are not spelt out in the Australia-Greece Treaty. Article 17 also deals with the subject of exchange of information and mutual assistance. Subject to their respective national laws, both countries have agreed to communicate with each other any information necessary for the application of the Australia-Greece Treaty or for the purposes of their respective social security laws and furnish assistance to each another with regard to the determination or payment of any benefit affected by the Australia-Greece Treaty. Specific provision is made to emphasise that any disclosure of information about an individual is confidential and can only be used for the purposes of implementing the Australia-Greece Treaty and the domestic legislation to which it relates. Specific provision is also made prohibiting the disclosure of any information concerning a person received from being transferred or disclosed to another country without the prior consent of the relevant partner country.

Finally, it might be noted that, under the Australia-Greece Treaty, specific provision is made for communications to occur in any of the official languages of the two countries.

Below treaty level mutual recognition arrangements

Australia has entered into several non-treaty mutual understandings with New Zealand. Some of these agreements have come to have force in Australia by virtue of domestic legislation.

For example, in relation to civil aircraft safety, there are the Arrangement between the Australian and New Zealand Governments on Mutual Recognition of Aviation-Related Certification, signed 13 February 2007 (Arrangement for MRARC) and the Operational Arrangement between the Civil Aviation Safety Authority of Australia and the Civil Aviation Authority of New Zealand in relation to Mutual Recognition of Air Operator Certificates, signed 16 March 2007. Under the Australian Civil Aviation Act 1988 (Cth) (Civil Aviation Act) and its subsidiary regulations, the Civil Aviation Regulations 1988 (Cth), these mutual arrangements are given legislative force.^[46] Various provisions of the Civil Aviation Act take advantage of these agreements to facilitate air travel between Australia and New Zealand.

These agreements have recently attracted attention with the development in New Zealand of the "Martin Jetpack". This ducted fan powered personal flying device recently received approval from the New Zealand Civil Aviation Authority for manned test flights and has been categorised in New Zealand as a "micro-light" aircraft. This raises a difficult issue for regulators, as the "ANZA Mutual Recognition Principle" under the Arrangement for MRARC provides that where a person is authorised to carry out a particular aviation activity in New Zealand, the person may carry out the same kind of aviation activity in Australia.^[47] The ANZA Mutual Recognition Principle only applies to aircraft which carry less than 30 passengers and after each party agrees that the safety outcomes of the respective civil aviation safety regimes in relation to a particular aircraft are equivalent. Despite this limitation, reports in relation to the test flights indicate that consultation is already occurring with Australian officials.^[48]

Specific mutual recognition treaties

Another kind of mutual recognition treaty which Australia has entered into is similar to those outlined above, in that it involves the mutual recognition of the capacity of a foreign authority to declare that goods or services meet the standards of another state party. However, instead of covering multiple areas which are outlined in an annex, these treaties tend to relate to a single subject area, as is the case with the Agreement between the Government of Australia and the Government of Denmark concerning Mutual Recognition of Tonnage Certificates, signed 15 May 1980, [1984] ATS 7 (entered into force 15 May 1980). That treaty provides for the mutual recognition of the certification of the carrying capacity of cargo ships issued by Australian and Danish authorities in the territory of the other party.

Not all of these treaties are bilateral, for example the Convention for the Mutual Recognition of Inspections in respect of the Manufacture of Pharmaceutical Products, opened for signature 8 October 1970, [1993] ATS 2 (general entry into force 26 May 1971, entry into force in Australia 25 January 1993) has 11 state parties, including Australia. These treaties do not provide for sectoral annexes, but can include designating authorities and CABs to provide for future flexibility.

The Apostille Convention

The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, opened for signature 5 October 1961, [1995] ATS 11 (concluded on 5 October 1961) (the Apostille Convention) entered into force in Australia on 16 March 1995. Its introduction in Australia has simplified the authentification of public documents and facilitates their cross border use. Before the introduction of the Apostille Convention, a lengthy and expensive process of 'legalisation' had to be undertaken in order to establish the authenticity of a foreign public document. This process, known as 'chain authentification', would require the dispatch of documents from one consulate to another in order to verify their authenticity. The issuing of certificates under the Apostille Convention (Apostilles) by competent authorities greatly reduces the delay that chain authentification would cause as a document which bears an Apostille is exempt from any other process of legalisation.^[49] It is important to note that the effect of affixing an Apostille is simply to certify the authenticity of the signature on the public document (including the capacity in which the person signing the document has acted). It does not authenticate the content of the signed document.^[50]

Australian implementation of the Apostille Convention

Australia has given effect to its obligations under the Apostille Convention through the Foreign Evidence Act. Section 37 of the Foreign Evidence Act provides that where an Apostille is present on a document, the Apostille is evidence of the authenticity of the signature on the document, as well as the capacity of the person who signed the document. Where an Apostille is present, Courts and decision-makers must not require any other kind of legalisation. Section 46 of the Foreign Evidence Act sets out the terms of the Apostille Convention in full, including an example of an Apostille. The Apostille is described there, as it is in the Convention as being "in the form of a square with sides at least 9 centimetres long".

Judicial consideration of Apostilles in Australia

There have been few instances in Australia of judicial consideration of the Apostille process, however it is worth highlighting one particular example. In Cabal v United Mexican States (No 3) [2000] FCA 1204; (2000) 186 ALR 188^[51], French J (as his Honour then was) dealt with an application by two Mexican nationals for judicial review of a Federal Magistrate's decision to extradite them. Part of their claim was that the documents which had been relied upon by the Federal Magistrate had not been properly authenticated. Notably, they objected to arrest warrants which bore Apostilles. For present purposes it is sufficient to note that one of the Apostilles objected to was rectangular, rather than square. His Honour stated at [182]:

An objection was taken that the apostille does not comply with the prescribed form in the Hague Convention and does not certify the warrant. The objection as to form appears to be related to the shape of the apostille being rectangular rather than square. This is not an objection which I regard as affecting its efficacy. [The warrant] is duly authenticated.

This represents a flexible, purposive approach to the Apostille Convention, focusing upon the process of certification having occurred, rather than the result of that process being a perfectly accurate certificate. Such an approach appears to accord with the object and purpose of the Apostille Convention.

Legalisation of documents outside the Apostille Convention

Not all countries are parties to the Apostille Convention, however the membership of the Apostille Convention has grown substantially in the last 30 years. In circumstances where apostilles were not available, a clause facilitating the legalisation of public documents has been featured in a small number of Australian bilateral treaties concerned with extradition,^[52] mutual assistance in criminal matters^[53] and social security.^[54] However in all of these instances, either Australia or the partner nation has ratified the Apostille Convention subsequent to the entry into force of these treaties.

Australia is also a signatory to several multilateral conventions which facilitate the legalisation of documents in respect of their subject matters.^[55]

Law governing the legalisation and translation of foreign public documents for the purpose of proving their existence or authenticity

The existence and authenticity of foreign public documents, even where there is no Apostille or other legalisation, is governed by the Foreign Evidence Act. Section 39 of the Foreign Evidence Act leaves the acceptance of a document which has a lesser formality than an apostille to the discretion of the person assessing the document. The effect of this is that evidence of foreign administrative acts can be recognised even without an Apostille and without the process of chain identification, if the Court or decision-maker decides that there is evidence that the document is authentic.

Obtaining an Apostille in Australia

Australia's arrangements for obtaining an electronic apostille are similar to many other nations. The Australian Department of Foreign Affairs and Trade (DFAT) provides in person apostille services at a number of offices across the country. Forms and documents can also be posted to the relevant DFAT office to receive an Apostille. DFAT does not provide electronic apostilles. Apostille services are also provided by private companies, such as the Apostille Australia Certificate Service. It does not appear that such private services provide electronic apostilles.

Conclusion

The question of how and when to recognise and give effect to foreign administrative acts can arise whenever countries or individual states become members of political or economic unions. That is true of the EU; it is also the case with the Federation of Australia.

Based on the experience of both Australia and the EU there is a trajectory of available models which may assist in determining how and when to recognise and give effect to foreign administrative acts. Speaking broadly, these models can be described in ascending order as mutual recognition, harmonisation and uniformity of regulatory requirements. Each of these models has been tried at various times and in various contexts in Australia, sometimes underpinned by legislation while at other times supported by treaties or conventions in an international law framework. Dissatisfaction with the concept of mutual recognition as the basis for the regulatory regime applying to the mobility of labour across state borders in Australia has provided the impetus for another statutorily-based regime which will commence operation in 2014. This will be initially limited to a relatively small number of occupations, based upon a model of uniformity of licensing requirements. If that model proves successful more occupations and professions might be brought within its umbrella. The model might also be extended to cover goods and possibly services.

That is not to say, however, that there is universal support in Australia for harmonisation or uniformity of regulatory requirements. Critics point to the cost and time required when adopting these models. That has led to recent calls for any further harmonisation, including strict harmonisation to uniform national standards, being approached on a case-by-case basis with a particular emphasis on the need for there to be robust regulatory impact statements, and rigorous costs-benefit analyses, for any such proposals.

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^* The author gratefully acknowledges the assistance provided by his Associates, Sam Thorpe and Alice Rumble, in preparing this report.

^[1]See, eg, Lafarge, F., Marin, L. 2010. Enforcement of Administrative Decisions between Member States under EU Law: From Exequatur to Automaticity? [online] Published 2010. Accessible from http://www.utwente.nl/mb/pa/staff/marin/Marin_Lafarge.pdf [cited 24 March 2014].

^[2] Ergas, H. Queensland Competition Authority. 2012. An Assessment of National Harmonisation. [online] Published 11 December 2012. Accessible from http://www.qca.org.au/ getattachment/b09563a9-2a12-49a1-935a-d68415ea9b9f/Ergas-Report-An-assessment-of-national-harmonisati.aspx [cited 24 March 2014].

^[3] See generally in the context of administrative actions, Campbell, E., Groves, M. 2006. Enforcement of administrative determinations. In Australian Journal of Administrative Law, 2006, Vol. 13, No. 3, pp. 121-134.

^[4] See generally, Campbell and Groves, above n 3; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

^[5] See, eg, Competition and Consumer Act 2010 (Cth) s 134F.

^[6] See, eg, Competition and Consumer Act 2010 (Cth) s 134C.

^[7] Clean Energy Act 2011 (Cth) s 267.

^[8] Competition and Consumer Act 2010 (Cth) s 134A(1). Infringement notices may only be issued in relation to offences under the Australian Consumer Law, which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

^[9] Competition and Consumer Act 2010 (Cth) s 134A(2).

^[10] Ibid s 134G.

^[11] Ibid s 134E.

^[12] Do Not Call Register Act 2006 (Cth) Sch 3; Spam Act 2003 (Cth) Sch 3; Telecommunications Act 1997 (Cth) s 572E; Broadcasting Services Act 1992 (Cth) s 205Y.

^[13] Australian Securities and Investments Commission Act 2001 (Cth) s 12GXA; Corporations Act 2001 (Cth) s 1317DAC.

^[14] Clean Energy Act 2011 (Cth) s 265; National Electricity (NSW) Law No 20a s 74 as applied by the National Electricity (New South Wales) Act 1997 (NSW); National Gas (NSW) Law No 31a s 277 as applied by the National Gas (New South Wales) Act 2008 (NSW); National Greenhouse and Energy Reporting Act 2007 (Cth) s 39.

^[15] See generally, Griffiths, J. 2010. Apprehended Bias in Australian Administrative Law. In Federal Law Review, 2010, Vol. 38, p. 353.

^[16] At a state level, see, eg, Subordinate Legislation Act 1989 (NSW); Statutory Instruments Act 1992 (Qld) and Subordinate Legislation Act 1992 (Tas).

^[17] Legislative Instruments Act 2003 (Cth) s 17(1).

^[18] Ibid s 17(2).

^[19] Ibid s 19.

^[20] Environment Protection and Biodiversity Conservation Act 1998 (Cth) s 14(2).

^[21] Ibid s 17A(2).

^[22] Ibid s 25(3).

^[23] Ibid s 58.

^[24] Ibid s 67.

^[25] Ibid ss 74(3), 75(1A).

^[26] Ibid s 266B.

^[27] Service and Execution of Process Act 1992 (Cth) s 82.

^[28] Ibid s 83.

^[29] Ibid s 86. It should be noted that there is some controversy regarding both the scope of such a review as well as the concept of "validity", see, eg, Rogers v Chief Commissioner of Victorian Police (2012) 263 FLR 478; [2012] VSC 305 (Pagone J). See generally Campbell and Groves, above n 3.

^[30] See also, the Cross-Border Insolvency Act 2008 (Cth) which adopts into Australian law the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law, which contains extensive provisions dealing with the recognition of foreign judicial or administrative proceedings relating to insolvency. The Model Law is generally regarded as reflecting a universalist approach, however it is essentially procedural in nature.

^[31] See generally Allsop, J. and Ward, D. 2013. Incoherence in Australian Private International Laws, unpublished paper delivered at Sydney Centre for International Law Conference, Sydney Law School, Australia, 10 April 2013.

^[32] See, eg, Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature 15 November 1965, [2010] ATS 23 (general entry into force 10 February 1969, entry into force in Australia 1 November 2010).

^[33] Hawke, A. 2009. Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999, Canberra.

^[34] This Act was renamed in 2010 to the Wine Australia Corporation Act 1980 (Cth).

^[35] Taxation Administration Act 1953 (Cth) ss 263-10, 263-15.

^[36] The other 36 agreements are tax information exchange agreements, available at: www.eoi-tax.org/jurisdictions/au.

^[37] CCH Australia Limited. 2013. Australian Federal Tax Reporter (ITAA 1936 & Others). Sydney : CCH Australia, 2013, 977-859.

^[38] Convention on Mutual Administrative Assistance in Tax Matters, opened for signing 25 January 1988, [2011] ATNIF 28 (entered into force 1 June 2011) art 11.

^[39] See "Annex G – Taxation Code" to the Timor Sea Treaty, signed 20 May 2002, [2003] ATS 13 (entered into force 2 April 2003).

^[40] Agreement between Australia and the Kingdom of Belgium for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, signed 13 October 1977, [1986] ATS 25 (entered into force 1 November 1979) art 8.

^[41] Ibid art 6.

^[42] Taxation Administration Act 1953 (Cth) s 263-15.

^[43] Ibid ss 263-20 - 263-40.

^[44] Ibid s 255-1.

^[45] Australian Taxation Office, Practice Statement, PSLA 2011/13 [69].

^[46] The equivalent New Zealand legislation is the Civil Aviation Act 1990 (NZ) and the Civil Aviation (ANZA Mutual Recognition Agreement) Order 2007 (NZ).

^[47] Arrangement between the Australian and New Zealand Governments on Mutual Recognition of Aviation-Related Certification, signed 13 February 2007 principle 4.

^[48] See Howard, R. 2013. No Flight of Fancy, the Jetpack Is Coming – From New Zealand. In Wall Street Journal. [online] Published 16 September 2013. Accessible from http://online.wsj.com/news/articles/SB10001424127887323981304579078990245523348 [cited 24 March 2014].

^[49] Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, opened for signature 5 October 1961, [1995] ATS 11, (entered into force in Australia 16 March 1995) art 2.

^[50] Ibid art 5.

^[51] This decision was affirmed in Cabal v United Mexican States (2001) 108 FCR 311; [2001] FCA 427.

^[52] See Treaty on Extradition between Australia and the Republic of Venezuela, signed 11 October 1988, [1993] ATS 35 (entered into force 19 December 1993) art 9; Treaty on Extradition between Australia and the Oriental Republic of Uruguay, signed 7 October 1988, [2011] ATS 2 (entered into force 9 January 2011) art 2.

^[53] Agreement between Australia and Finland on Mutual Assistance in Criminal Matters, signed 22 June 1992, [1994] ATS 12 (entered into force 30 April 1994) art 16.

^[54] Agreement between Australia and Japan on Social Security, signed 27 February 2007, [2009] ATS 2 (entered into force 1 January 2009) art 22; Agreement between Australia and the Federal Republic of Germany on Social Security to Govern Persons Temporarily Employed in the Territory of the other State ("Supplementary Agreement"), Concluding Protocol and Implementation Arrangement, signed 9 February 2007, [2008] ATS 13 (entered into force 1 October 2008) art 10.

^[55] Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature 15 November 1965, [2010] ATS 23 (general entry into force 10 February 1969, entry into force in Australia 1 November 2010) art 3; Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations, opened for signature 2 October 1973, [2002] ATS 2 (general entry into force 1 August 1976, entry into force in Australia 1 February 2002); Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996, [2003] ATS 19 (general entry into force 1 January 2002, entry into force for Australia 1 August 2003) art 43.