Commonwealth Numbered Regulations - Explanatory Statements
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INTERNATIONAL ORGANISATIONS (PRIVILEGES AND IMMUNITIES--SQUARE KILOMETRE ARRAY OBSERVATORY) REGULATIONS 2020 (F2020L00950)
Explanatory Statement
Issued by the Authority of the Minister for Foreign Affairs
International Organisations (Privileges and Immunities) Act 1963
International Organisations (Privileges and Immunities - Square Kilometre Array Observatory) Regulations 2020
The International Organisations (Privileges and Immunities) Act 1963 (the Act) makes provisions relating to the privileges and immunities of certain International Organisations and of persons connected therewith, and for other purposes.
Section 13 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 5 of the Act provides that the regulations may declare an organisation of which Australia and other countries are members to be an international organisation to which the Act applies.
Section 6 of the Act provides that the regulations may confer privileges and immunities on international organisations to which the Act applies and persons connected therewith.
Australia is a State Party to the Convention establishing the Square Kilometre Array Observatory (Convention) signed on 12 March 2019. A copy of the text of the Convention is accessible at the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
The International Organisations (Privileges and Immunities - Square Kilometre Array Observatory) Regulations 2020 will give effect to Australia's obligations pursuant to Annex A of the Convention. In particular, the International Organisations (Privileges and Immunities - Square Kilometre Array Observatory) Regulations 2020, confers privileges and immunities to the Square Kilometre Array Observatory (SKAO) and specified categories of persons.
The purposes of the Regulations are to:
- declare the SKAO as an organisation to which the Act applies and to confer on it juridical personality and legal capacity; and
- confer privileges and immunities that are necessary for the effective conduct of activities in Australia by the SKAO, its officers, representatives and experts.
Details of the International Organisations (Privileges and Immunities - Square Kilometre Array Observatory) Regulations 2020 are set out in the Attachment.
In accordance with section 17 of the Legislation Act 2003, all relevant Commonwealth Government Departments were consulted in the preparation of the Regulations. No public consultation was undertaken in relation to the Regulations.
The Office of Best Practice Regulation advised (reference number 23846) that a Regulatory Impact Statement is not required as the Regulations will not result in any additional regulatory requirements or costs for businesses, community organisations or individuals.
The Regulations have been assessed to be compatible with human rights for the purposes of the Human Rights (Parliamentary Scrutiny) Act 2011. A Statement of Compatibility is set out below.
The Regulations commenced on the day after registration and is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Details of the International Organisations (Privileges and Immunities - Square Kilometre Array Observatory) Regulations 2020
Part 1 - Preliminary
Section 1 - Name
Section 1 provides that the name of the Regulations are the International Organisations (Privileges and Immunities - Square Kilometre Array Observatory) Regulations 2020 (the Regulations).
Section 2 - Commencement
Section 2 provides that the Regulations will commence on the day after this instrument is registered.
Section 3 - Authority
Section 3 provides that the Regulations are made under the authority of the International Organisations (Privileges and Immunities) Act 1963 (the Act).
Section 4 - Definitions
Section 4 provides for the definition of certain terms used in the Regulations, including 'Act', 'competent authority', 'Director-General', 'Member State', 'Member State representative' 'official activity', 'SKAO', 'SKAO Convention', 'SKAO expert', 'SKAO official', 'SKAO representative', 'taxable supply' and 'taxable invoice'.
Part 2 - Privileges and immunities of the Square Kilometre Array Observatory and other persons
Section 5 - Act applies to the SKAO
Section 5 provides that the Square Kilometre Array Observatory (the SKAO) is an international organisation to which the Act applies, and regulations may therefore be made under the Act in relation to the SKAO.
Section 6 - SKAO to have juridical personality and legal capacities
Section 6 confers legal personality and capacities on the SKAO. Specifically it provides that the SKAO is a body corporate with perpetual succession, and is able to: enter into contracts; acquire, hold and dispose of assets and property; institute and be party to legal proceedings.
Section 7 - Privileges and immunities of the SKAO
Section 7 provides that the SKAO will have the privileges and immunities including items 1, 2, 4, 6 and 7 specified in the First Schedule to the Act.
These include:
* immunity of the Organisation and its property and assets from suit and from other legal processes;
* inviolability of the SKAO's property, assets and premises of the SKAO;
* inviolability of the SKAO's archives;
* exemption from duties on the importation or exportation of goods by the SKAO for its official use and publications of the SKAO imported or exported by it; and
* -xemption from the liability to pay or collect taxes on income, property, assets and transactions of the SKAO.
Section 7 sets out an exemption from immunity from suit or other legal process in relation to:
* an arbitration under Article 14 of the SKAO Convention;
* the attachment, in accordance with a final order of a court, of any amount payable salary, wages or other remuneration by the SKAO to an employee or former employee;
* a counter-claim made against the SKAO by a party to proceedings commenced by SKAO; or
* a matter that is not within SKAO's official activities.
Section 7 provides that the inviolability of the premises is subject to:
* the condition that they are not used for unlawful purposes or as a refuge for any person from judicial or administrative proceedings; and
* a person may enter for the purpose of protecting them in the event of a fire or other emergency
Section 7 provides that SKAO's privileges in relation to indirect tax are limited to concessions on acquisitions intended for an official activity, mentioned in subsection 11C of the Act in relation to those in sub-section 11(1) of the Regulations, including: goods, mail services, telecommunications services, electricity or gas services, protection of premises, removal of goods services, freight and cartage, which amount to $200 or more (including indirect tax) on a single tax invoice. In addition to acquisition of goods (freed from section 7 excise duties), warehoused goods and real property, construction or renovation services and others things subject to an arrangement with the Commonwealth.
Section 8 - Privileges and immunities of Member State representatives and former member State representatives
Section 8 provides that a person who is accredited to the SKAO as a representative of a Member State other than Australia will have the privileges and immunities specified in items 2 and 3 of Part I of the Third Schedule to the Act. This includes:
* immunity from suit and from other legal process in respect of acts and things done in their capacity as a representative; and
* inviolability of papers and documents.
Former Member State representatives will have the immunity specified in Part II of the Third Schedule to the Act being the immunity from suit and other legal process in respect of acts and things done in their capacity as a representative.
Section 9 - Privileges and immunities of SKAO officials and former SKAO officials
Section 9 applies to persons who hold an office in the SKAO and includes the Director-General of the SKAO. Section 9 states that these officials of SKAO have the privileges and immunities specified in items 1, 2, 3, 4 and 7 of Part I of the Fourth Schedule to the Act.
These include:
* immunity from suit or other legal process in respect of acts and things done in the capacity as an SKAO official;
* the right to import furniture and effects free of duties when first taking up a post in Australia and to export furniture and effects free of duties when leaving Australia on the termination of his or her functions.
* exemption from taxation on salary and emoluments received from the SKAO. This does not include pension or annuity paid by the SKAO;
* exemption from the application of laws relating to immigration and the registration of aliens which is also extended to their spouse and any dependent relatives; and
* exemption from the obligation to perform national service.
Section 9 limits privileges and immunities of an SKAO official who is an Australian citizen or a permanent resident of Australia to only items 1 and 4 of the Fourth Schedule.
These include:
* immunity from suit and other legal process in respect of acts and things done in his or her official capacity; and
* immunity from the obligation to perform national service.
Former SKAO officials enjoy the immunity outlined in item 2 of the Fourth Schedule, which is:
* immunity from the suit and other legal process in respect of acts and things done in the capacity as an SKAO officer.
Section 10 - Privileges and immunities of SKAO experts, SKAO representatives and former SKAO representatives
Section 10 states that an SKAO representative, meaning a person who is participating in the work of the SKAO or serving on a committee of the SKAO, will have the privileges specified in items 2 and 3 of Part I of the Fifth Schedule to the Act.
These include:
* immunity from suit or other legal process in respect of acts and things done in serving on the committee or participating in the work of the SKAO; and
* inviolability of papers and documents.
Section 10 states that an SKAO expert, meaning a person who is performing a mission on behalf of the SKAO for a defined period of time, will only have the privileges specified in item 3 of Part I of the Fifth Schedule to the Act, which is:
* inviolability of papers and documents.
Section 10 provides former SKAO representatives who have ceased to be an SKAO representative with the immunity specified in Part 2 of the Fifth Schedule to the Act being immunity from suit and other legal process in respect of acts and things done in serving on the committee or participating in the work of the SKAO.
Part 3 - Indirect tax concession scheme
Section 11 - Indirect tax concession scheme - acquisitions
Section 11 provides for indirect tax concessions for the acquisition of goods and services intended for the official use by, or on behalf, of the SKAO.
Section 12 - Indirect tax concession scheme - conditions
Section 12 provides the conditions that must be met in order for the SKAO to receive tax concessions for the acquisition of motor vehicles and other goods and services intended for the official use of the SKAO.
Tax concessions are not available if the SKAO disposes of motor vehicles within 3 years and other goods within 2 years after they were acquired (except where the SKAO disposes of the motor vehicle/goods to a person entitled to an indirect tax concession). Tax concessions are not available on services assigned to a person who is not entitled to an indirect tax concession. The sale of goods as part of a sale and lease-back arrangement is not a disposal of the goods.
If the SKAO disposes of goods within the period specified (3 years for motor vehicles and 2 years for other goods) to a person who is not entitled to a tax concession, there will be an amount to be repaid to the Commonwealth which is specified under sub-section 12(3) of the Regulations.
Section 13 - Indirect tax concession scheme - claims for payment
Section 13 outlines the procedure for claiming a payment under Section 12, which deals with acquisitions under the indirect tax concession scheme, including that a claim for payment must be signed by, or on behalf of, the Director-General of the SKAO and must be sent with the tax invoice for the acquisition. Section 13 also specifies where claims must be sent for processing, and timeframes for making a claim.
Section 14 - Indirect tax concession scheme - manner of payment
Section 14 provides that a payment to the SKAO under the indirect tax concession scheme is to be paid to a single recipient, or an account nominated by, or on behalf of the Director-General of the SKAO.
Part 4 - Exceptions and other matters
Section 15 - General exceptions etc to privileges and immunities
Section 15 provides that the privileges and immunities conferred in the interest of the SKAO and not for the personal benefit of individuals and are subject to the following conditions:
* the SKAO must cooperate at all times and take every measure to prevent any abuse of the privileges and immunities; and
* SKAO officials, representatives, experts and Member State representatives must respect Australian law.
Section 15 provides the exemptions from immunity from civil or criminal process:
* for recovery of damages, injury or death resulting from a motor vehicle accident;
* in relation to offences relating to motor traffic, motor vehicles or the use of a motor vehicle.
Section 16 - Waiver of privileges and immunities
Section 16 provides that the competent authority must waive any privileges or immunities conferred under this Regulations where it considers that retaining it would impede the course of justice and waiving it would not prejudice the interests of the SKAO.
Section 16 states that the SKAO governing body may waive the immunity outlined in item 1 of the First Schedule of the Act, which is immunity of the SKAO, its property and assets from suit and other legal process.
Section 17 - Delegation by Minister
Section 17 provides that the Minister may, by writing, delegate his or her powers under sections 12(1)(b) or 5(b) of the Regulations to the Secretary or another senior official of the Department. This section relies on section 13(1) of the Act.
Statement of Compatibility with Human Rights
Prepared in accordance with subsection 9(1) and 9(2) of the Human Rights
(Parliamentary Scrutiny) Act 2011
International Organisations (Privileges and Immunities - Square Kilometre Array Observatory) Regulations 2020
Overview
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The International Organisations (Privileges and Immunities -Square Kilometre Array Observatory) Regulations 2020 (the Regulations) is an instrument made under the International Organisations (Privileges and Immunities) Act 1963 (Cth) (the Act).
The Regulations will confer such privileges and immunities to the Square Kilometre Array Observatory (the SKAO) and specified categories of persons (such as officers, representatives and experts) as are required to give effect to Australia's obligations pursuant to Article 6 and Annex A of the Convention establishing the Square Kilometre Array Observatory (Convention).
The purpose of establishing the SKAO is to facilitate and promote global collaboration in radio astronomy, to enable the delivery of transformational science. Australia is one of three 'host States' for the first phase of the Square Kilometre Array project.
In order to achieve this, the SKAO and its representatives are required to be granted privileges and immunities to facilitate their functions when operating overseas.
Privileges and immunities conferred by the Regulations are only those that are necessary to ensure the effective conduct of activities in Australia by the SKAO and ensure the independence of its representatives. The privileges and immunities are conferred in the interest of the SKAO and not for the personal benefit of individuals.
In summary, the Regulations provide that the SKAO:
* is an international organisation to which the Act applies;
* has juridical personality and legal capacities; and
* is entitled to certain privileges and immunities under the Act, being those in items of the First Schedule of the Act (Items 1, 2, 4, 6 and 7); the Third Schedule to the Act (Items 2 and 3 of Part 1 and Part 2); the Fourth Schedule (Items 1, 2, 3, 4 and 7 of Part 1 and Part 2) to the Act.
The privileges and immunities conferred upon the SKAO and its officers may provide exemptions from taxation on salaries and emoluments received from the SKAO; duties on the importation or exportation of goods for official use and publications; currency and exchange restrictions; the liability to pay or collect taxes other than duties for the importation or exportation of goods and of the income, property, assets and transactions of the SKAO from such taxes; and the obligation to perform national service. In addition, the SKAO and certain agents of the SKAO may enjoy immunity from arrest, detention and civil suit. The SKAO may waive any privileges or immunities to which it is entitled.
Human rights implications
The privileges and immunities conferred upon the SKAO in the Regulations are customised and limited to what is necessary for the SKAO and its agents to perform their functions independently. They relate predominantly to exemptions on duties and the payment and collection of taxes, which should not have implications for human rights.
The Regulations limit complete immunity from suit and other legal process to the SKAO. Such immunity could, in principle, limit the right to an effective remedy for breaches of human rights and therefore the operation of Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR). This Article provides that any person "whose rights or freedoms ... are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity." Article 2(3)(c) requires State Parties to the ICCPR to ensure that the competent authorities enforce such remedies when granted.
However, SKAO officials including the Director-General, seeking immunity under the Fifth Schedule of the Act will only be afforded "functional immunity", that is, immunity from suit and legal process in connection to acts performed in their official capacity. These provisions are proportionate, limit the risk of breaching Article 2(3) of the ICCPR, and are necessary in allowing the SKAO to perform its functions.
The need to grant privileges and immunities to international organisations for official functions of the organisation in Australia reflects more than a mere compliance with international obligations. Privileges and immunities are conferred reciprocally between countries and international organisations, to ensure that international representatives are able to: perform their work independently; report freely; and to fulfil their official duties. The privileges and immunities conferred are not only essential in allowing an organisation's representatives to perform their functions, but also as part of a wider and reciprocal legal framework that protects Australian representatives overseas in the performance of their duties without fear of local pressures, harassment, intimidation, attack and arbitrary detention.
Conclusion
In light of Australia's treaty obligations under the Convention, and the international legal framework of reciprocal privileges and immunities that allow foreign representatives to impartially perform their duties overseas, this Regulations have been drafted with the greatest compliance possible to Australia's human rights obligations. The Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to what is necessary in order to allow the SKAO to perform its functions.