Legal Harmony: Oz and N.Z. Share the Love

Australia and New Zealand are like a couple of squabbling siblings most of the time.  We make jokes at each others’ expense, including our different accents (they really are different!), and we love to beat each other at sports.  You would have seen plenty of references to this rivalry if you ever watched the Flight of the Conchords.  But when it comes to the big stuff we’ve (usually) got each others’ back all the way.  We love each other.  Really.  There, I said it.

Our love for each other is evident in the work that’s been done to harmonize the regulatory environments of Australia and New Zealand since the entry into force of the “Closer Economic Relations” free trade agreement in 1983.  The two countries recognize that there are many advantages to allowing goods, services and people to move as freely as possible between them, and for businesses to be able to operate  under similar regulatory requirements in each country.  In fact, the ultimate vision is to move towards a single economic market.

Over the years, there have been a wide range of reciprocal arrangements made and bilateral agreements reached on different matters.  Some of these require new legislation to be enacted in each country in order for them to be implemented.   In particular, the Trans-Tasman Mutual Recognition Arrangement, which is a “cornerstone of a single economic market and a powerful driver of regulatory coordination and integration,” resulted in overarching legislation being enacted in 1997 in Australia and New Zealand.

Most recently, the Trans-Tasman Proceedings Act 2010 was passed by the New Zealand parliament last week.  The Australian version of this legislation was enacted in March of this year.  The statutes arose from a 2008 treaty aimed at improving the resolution of disputes involving parties from the two countries and ensuring that court orders of the other country can be easily enforced.  This followed a 2006 report by a working group of officials from New Zealand and Australia that had been established in 2003 to examine the issues and come up with proposals.  The legislation:

Allows civil proceedings from one country to be served on a defendant in the other country as of right.

Expands the range of civil court judgments from one country that can be enforced in the other, and streamlines the process for enforcement of those judgments.

Introduces a common statutory test to determine whether a court in one country should decide a dispute or ‘give way’ to a court in the other country.

Facilitates greater use of technology to enable parties and their lawyers to appear remotely in proceedings in the other country.

Improves regulatory enforcement between countries by allowing civil pecuniary penalties and certain criminal regulatory fines imposed in one country to be enforced in the other.

On the domestic front, the states and territories that make up the Australian federation are also sharing the love in a pretty big way.  I’m often asked “what is the law in Australia” on a particular issue, and of course I need to check whether the matter is something that only the Commonwealth (federal) government can legislate on, or if it is solely the subject of state legislation.  Sometimes there will be relevant legislation at both levels of government.  Another thing I can check is if there is a model law that has been enacted in each state and territory, or that is in the process of being developed.  I’ve come across a few examples of such harmonization of the laws, including the development of model health and safety legislation and work towards the implementation of national consumer protection laws.

The Council of Australian Governments , and specifically the various Ministerial Councils (which can include New Zealand Cabinet Ministers as well), initiate and oversee the harmonization process in different policy areas.   There probably isn’t agreement all the time, and particular proposals require a lot of discussion and consultation, but the identification of shared interests (and a good dose of mutual respect and trust) means that progress can be made towards a state of legal harmony.  At which point we can all just focus on making fun of each other.