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Australian Year Book of International Law |
Rebecca Mikhail, Philip Kimpton and Julie Dowdle[∗]
The Australian Citizenship Legislation Amendment Act 2002 repeals section 17 of the Australian Citizenship Act 1948 so that adult Australians do not lose their Australian citizenship on acquisition of another citizenship. It also extends the descent and resumption provisions to give young people more opportunities to acquire Australian citizenship and provides for children who acquire Australian citizenship to be given their own citizenship certificates.
The amendments also introduce new mechanisms aimed at strengthening the Australian citizenship process. For example, it imposes a ten-year ban on the grant of a certificate of Australian citizenship to a person who is a ‘serious repeat offender’ in relation to a sentence of imprisonment. It also highlights that a person who has committed a ‘people-smuggling’ offence before the grant of Australian citizenship may be subject to the deprivation of Australian citizenship.
The Border Security Legislation Amendment Act 2002 amends the Customs Act 1901, the Customs Administration Act 1985, the Fisheries Management Act 1991, the Migration Act 1958 and the Evidence Act 1995. The major effects of the amendments are to:
• increase the powers of Customs officers at airports;
• require that goods in transit through Australia be reported to Customs;
• require that all in transit goods be examined and certain in-transit goods be seized;
• require that mail be electronically reported to Customs;
• require certain airlines and shipping operators to report passengers and crew to Customs and the Department of Immigration and Multicultural Affairs;
• require certain airlines to provide Customs with access to their computer reservation systems;
• allow the Australian Fisheries Management Authority to disclose vessel monitoring system data to Customs;
• tighten provisions concerning the carriage of approved firearms and personal defence equipment by Customs officers; and
• restore the power to arrest persons who assault, resist, molest, obstruct or intimidate a Customs officer in the course of his or her duties.
The Charter of the United Nations Amendment Act 2002 (the Amendment Act) amends section 22 of the Charter of the United Nations Act 1945 (the Act) which concerns the use of ‘freezable assets’. Under the Act ‘freezable assets’ are defined as assets owned or controlled by a proscribed person or entity, or listed assets, or assets derived or generated from assets owned or controlled by a proscribed person or entity or listed assets. A ‘proscribed person or entity’ is a person or entity either listed by the Minister for Foreign Affairs under section 15 of the Act or proscribed by regulation under section 18 of the Act. Part 4 of the Act contains offences of dealing with freezable assets and of giving an asset to a proscribed person or entity.
The purpose of the Amendment Act is to give holders of assets the same ability as owners of assets to apply to the Minister for Foreign Affairs for permission to use the asset in a specified way or make the asset available to a specified proscribed person or entity. The Amendment Act also permits the Minister for Foreign Affairs to issue a notice giving such permission on his or her own motion.
The Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and other Measures) Act 2002 (the Act) inserts new provisions into the Criminal Code Act 1995 to criminalise the smuggling of persons from Australia to another country, or from a country other than Australia to a third country, with or without transit through Australia. Where there is no transit through Australia, the offences apply where the person who organised or facilitated the smuggling either engaged in that conduct in Australia or is an Australian citizen or resident. The Act prohibits the making, providing or possessing of false travel or identity documents intended for use in securing the unlawful entry of a person into a foreign country, and taking possession of or destroying another person’s travel or identity documents.
In addition the Act makes it an offence to take or send a firearm from one state or territory to another in the course of trade and commerce between states and territories, intending that the firearm will be disposed of in the other state and in circumstances that would constitute an offence against the firearm law of that other state or territory. The Act also makes a number of minor amendments to the theft and fraud offences in the Criminal Code Act 1995, Crimes Act 1914, Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990, International Transfer of Prisoners Act 1997 and Financial Transaction Reports Act 1988. The people-smuggling offences and all but one of the associated document offences are based on the Protocol Against The Smuggling of Migrants By Land, Sea and Air, Supplementing The United Nations Convention Against Transnational Organized Crime, to which Australia is a signatory.
The Criminal Code Amendment (Anti-hoax and Other Measures) Act 2002 amends Part 10.5 of the Criminal Code Act 1995 by adding new offences relating to the sending of dangerous, threatening or hoax material through the post or similar services. Services are defined in the Act to include commercial courier and parcel and packet carrying services. The new offences replace the postal offences that were in sections 85S, 85X and 85Y of the Crimes Act 1914. The amendments also increase the penalties for such offences.
The Criminal Code Amendment (Espionage and Related Matters) Act 2002 (the Act) establishes new espionage offences in Part 5.2 of the Criminal Code Act 1995 (the Criminal Code). The Act provides that espionage includes situations where a person communicates, or makes available information concerning the Commonwealth’s security or defence with the intention of prejudicing the Commonwealth’s security or defence or to advantage the security or defence of another country. The maximum penalty for a person convicted of espionage under the Act is 25 years imprisonment. The Act also sets out procedural matters in relation to the prosecution of offences under Part 5.2 of the Criminal Code and provides for the forfeiture of articles that have been dealt with in contravention of Part 5.2. Prosecutions under Part 5.2 of the Criminal Code require the consent of the Attorney-General and hearings may be conducted in a closed court.
In addition the following offences under the Crimes Act 1914 are repealed by the Act: harbouring spies, illegal use of uniforms, special powers of arrest without warrant, arrest of persons in or about prohibited places, search of suspects, offences by directors or officers of companies and imprints as evidence. The Act stipulates that certain provisions do not commence if either the Suppression of the Financing of Terrorism Act 2002 or the Security Legislation Amendment (Terrorism) Act 2002 receive Royal Assent before the Act.
The Criminal Code Amendment (Offences Against Australians) Act 2002 (the Act) amends the Criminal Code Act 1995. The effect of the Act is to make it an offence to murder, commit manslaughter or intentionally or recklessly cause serious harm to an Australian where that conduct occurs outside Australia. Perpetrators of such offences can be prosecuted in Australia with the written consent of the Attorney-General.
The Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (the Act) amends the Criminal Code Act 1995 (the Criminal Code) by inserting a new division, Division 72 – International terrorist activities using explosive or lethal devices, into the Criminal Code. The effect of Division 72 is to make it an offence to place bombs or other lethal devices in prescribed places with the intention of causing death or serious harm or causing extensive destruction that would cause major economic loss. This gives effect to the International Convention for the Suppression of Terrorist Bombings.
The Act prescribes a penalty of life imprisonment for persons who are convicted of offences under Division 72. Proceedings for an offence under Division 72 must not commence without the written consent of the Attorney-General. In addition, the Act amends the Extradition Act 1988 to ensure that offences in the Act shall not be regarded, for the purposes of extradition, as political offences.
The Criminal Code Amendment (Terrorist Organisations) Act 2002 (the Act) amends the Criminal Code Act 1995 (the Criminal Code) so that regulations made from the commencement of the Act specifying organisations for the purpose of the definition of ‘terrorist organisation’ in Division 102 take effect in accordance with section 48 of the Acts Interpretation Act 1901. ‘Terrorist organisations’ for the purposes of Division 102 are organisations that are engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act or organisations specified in regulations. Organisations may be specified in regulations if the Minister is satisfied on reasonable grounds that the organisation is identified in a United Nations Security Council decision relating to terrorism and that the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.
Division 102 of the Criminal Code contains a number of offences relating to terrorist organisations. These offences include directing activities of a terrorist organisation, membership of a terrorist organisation, recruiting for a terrorist organisation and providing training to, or receiving training from, a terrorist organisation.
The Customs Legislation Amendment Act (No 1) 2002 (the Act) amends the Customs Act 1901 (the Customs Act), the Passenger Movement Charge Collection Act 1978, the A New Tax System (Goods and Services Tax) Act 1999, the A New Tax System (Wine Equalisation Tax) Act 1999 and the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 (the Trade Modernisation Act).
The main purposes of the Act are to amend the Customs Act so that valuation provisions are consistent with the Agreement on the Implementation of article VII of the General Agreement on Tariffs and Trade 1994 and allow for the seizure of special forfeited goods without warrant in the Protected Zone in certain circumstances.
The Family Law Amendment (Child Protection Convention) Act 2002 gives effect to Australia’s obligations under the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996.[1] Item 26 of the Act inserts a copy of the text of the Convention in a schedule to the Family Law Act 1975.
The Convention establishes conflict of law rules to be applied in parental responsibility litigation that has an international aspect. These rules govern questions on whether a court has jurisdiction to hear an international parental responsibility dispute, which country’s law is to be applied in determining international parental responsibility disputes, what conditions must be satisfied to ensure international recognition and enforcement of parenting orders and what obligations courts in Australia and overseas have to cooperate in the protection of children.
The International Criminal Court Act 2002 ensures Australia’s compliance with its international obligations under the Rome Statute of the International Criminal Court[2] (the Statute). The Statute establishes a permanent International Criminal Court (the ICC) to try individuals accused of ‘the most serious crimes of concern to the international community as a whole’, namely genocide, crimes against humanity and war crimes (article 5). The ICC will also try individuals accused of the crime of aggression, once the states that are parties to the Statute agree upon a definition of aggression. The Statute entered into force on 1 July 2002.
The Statute contains obligations on state parties to it to ‘cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court’ (article 86). The obligations to cooperate with the ICC are contained in Part 9 of the Statute, and include, for example, requests for the arrest or provisional arrest of a person and the surrender of a person to the ICC; identification and location of a person or items; taking or producing evidence, including expert reports; and questioning any person being investigated or prosecuted.
This Act contains provisions allowing Australia to comply with its international obligations on ratification by putting in place procedures to comply with requests for assistance or the enforcement of sentences. The Act also contains provisions to ensure Australian sovereignty is protected. In particular, it affirms the primacy of Australian law and declares that no person can be arrested on a warrant issued by the Court or surrendered to the Court without the consent of the Attorney-General.
The International Criminal Court (Consequential Amendments) Act 2002 amends the Criminal Code Act 1995 (Criminal Code) to ensure Australia’s compliance with the provisions of the Rome Statute.
The Act creates offences in Australia that are the equivalent of the crimes of genocide, crimes against humanity and war crimes in the Rome Statute, so that Australia retains the right and power to prosecute any person accused of a crime under the Statute in Australia rather than surrender that person for trial in the International Criminal Court. It also creates offences in Australia relating to crimes against the administration of justice of the International Criminal Court and establishes various legal principles to be applied in prosecuting these offences, such as command responsibility, the defence of superior orders and the primacy of Australia’s jurisdiction.
The Act also makes consequential amendments to the Director of Public Prosecutions Act 1983, the Geneva Conventions Act 1957, the Migration Act 1958, the Telecommunications (Interceptions) Act 1979 and the Witness Protection Act 1994.
The International Tax Agreements Amendment Act (No 1) 2002 (the Act) amends the International Tax Agreements Act 1953, which operates to give effect to certain tax treaties that generally relieve double taxation and provide certainty as to the applicable tax rules in particular international transactions. The purpose of the Act is to give the force of law in Australia to the following treaties:
• an Agreement between the Government of Australia and the Government of the Russian Federation for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income; and
• a Protocol amending the Convention on 6 August 1982 between the Government of Australia and the Government of the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income.
The International Tax Agreements Amendment Act (No 2) 2002 (the Act) amends International Tax Agreements Act 1953, which operates to give effect to certain tax treaties that generally relieve double taxation and provide certainty as to the applicable tax rules in particular international transactions. The purpose of the Act is to give the force of law in Australia to the following treaties:
• a Protocol amending the Convention of 21 May 1980 between the Government of Australia and the Government of Canada for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (the Canadian Convention); and
• a Second Protocol amending the Agreement of 20 August 1980 between the Government of Australia and the Government of Malaysia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (the Malaysian Agreement).
Since September 2001 persons attempting to enter Australia unlawfully by boat have been taken to Nauru or Papua New Guinea, where any claims for protection are being assessed. The Migration Legislation Amendment (Transitional Movement) Act 2002 allows for a small number of exceptional situations where it may be necessary to bring one of these people (‘transitory persons’) to Australia. These situations include medical treatment, trials at which the person is to provide evidence in the prosecution of people smugglers; or transit through Australia, either to return to their country of origin or to a third country.
The definition makes clear that ‘transitory person’ does not include a person who has been assessed to be a refugee under the Convention Relating to the Status of Refugees[3] (the Convention).
However, section 198C entitles certain transitory persons to make a request to the Refugee Review Tribunal for an assessment of whether the person is covered by the definition of refugee in article 1A of the Convention. A transitory person who is brought to Australia and remains in Australia for a continuous period of six months is entitled to make such a request
The Plant Breeder’s Rights Act 1994 (PBRA) was enacted to ensure Australia’s compliance with the International Convention for the Protection of New Varieties of Plants 1991[4] (UPOV 91). The Plant Breeder’s Rights Amendment Act 2002 provides clarification to the current PBRA.
Section 11 of the PBRA establishes that the breeder has the right to disallow acts of production, reproduction, conditioning, offering for sale, sale, import, export, and stocking in relation to the propagating material of the plant variety. As an exemption to the provisions of section 11, section 18 does not require the breeder’s authorisation for any action that enables propagating material to be used as either a food/fuel or for any other purpose that does not involve propagation.
The Amendment deletes section 18 and inserts a new provision to the effect that the breeder is able to exercise their right of authorisation for acts under section 11, except where that act is restricted by other Commonwealth, state or territory legislation. When such legislation restricts the breeder’s right and authorises a person to do an act that would normally be subject to the breeder’s authorisation, equitable remuneration must be paid to the breeder. This amendment aligns the PBRA with UPOV 91 with the just outcome that the breeder is rewarded in such circumstances.
The Proceeds of Crime Act 2002 (the Act) implements Australia’s obligations under the International Convention for the Suppression of the Financing of Terrorism and resolutions of the United Nations Security Council. The Act also gives effect to Australia’s obligations under the Council of Europe Money-Laundering Convention and other international instruments that deal with confiscating proceeds of crime.
The purpose of the Act is to deprive criminals of the proceeds and benefits gained from criminal conduct, and to prevent the re-investment of those proceeds and benefits in further criminal activities. The Act operates to:
• enable the freezing and confiscation of property used in, intended to be used in, or derived from terrorism offences;
• establish a regime for confiscating unlawfully acquired property, without first requiring a conviction (which operates in addition to the conviction based confiscation regime); and
• permit the forfeiture of any proceeds derived from the commercial exploitation of a person’s notoriety in connection with committing a criminal offence.
The Proceeds of Crime (Consequential Amendments and Transitional Provisions) 2002 (the Act) supplements the Proceeds of Crime Act 2002 by providing transitional provisions and making consequential amendments to other Commonwealth legislation as follows:
• the money laundering offences in the Proceeds of Crime Act 1987 are repealed and replaced by new provisions in the Criminal Code Act 1995;
• the Mutual Assistance in Criminal Matters Act 1987 is amended to include provisions that related to foreign orders and certain offences from the Proceeds of Crime Act 1987;
• the Financial Transaction Reports Act 1988 is amended to include the record retention provisions previously included in the Proceeds of Crime Act 1987;
• the Bankruptcy Act 1966 and Family Law Act 1975 are amended to clarify the relationship between those Acts and proceedings under the Proceeds of Crime Act 2002;
• the Taxation Administration Act 1953 is amended to expand access by authorised law-enforcement agencies to taxation information for the purpose of civil forfeiture investigations and proceedings;
• the Telecommunications (Interception) Act 1979 is amended to enable the National Crime Authority to pass information gained through telephone interception to the Commonwealth Director of Public Prosecutions (the DPP) and state and territory equivalents in conviction-based proceeds of crime proceedings;
• the Administrative Decisions (Judicial Review) Act 1977 is amended such that decisions by the DPP and an approved examiner relating to the conduct of a compulsory examination under the Proceeds of Crime Act 2002 are not subject to that Act; and
• the Australian Federal Police Act 1979 is amended to specifically confer powers under the Proceeds of Crime legislation on the Australian Federal Police.
The object of the Prohibition of Human Cloning Act 2002 (the Act) is to address concerns about scientific developments in relation to human reproduction and the utilisation of human embryos. The Act addresses these issues by prohibiting the creation, importation, exportation or implantation of a human-embryo clone and certain other embryos for ethical and safety reasons and by regulating activities that involve the use of certain human embryos created by assisted reproductive technology.
In addition to a number of other penalties for various offences, the Act sets a maximum penalty for creating a human-embryo clone at 15 years imprisonment or a monetary penalty of up to $495,000 for a corporation and $99,000 for an individual.
The Protection of the Sea (Prevention of Pollution from Ships) Amendment Act 2002 (the Act) amends the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the Prevention of Pollution Act). The purpose of the Act is to correct unintended effects of the International Maritime Convention Legislation Amendment Act 2001, which amended the Prevention of Pollution Act.
The Act essentially provides for an offence where there is an escape or discharge of pollutants (eg oil, noxious substances, garbage) from a ship in the exclusive economic zone.
The Research Involving Human Embryos Act 2002 establishes the National Health and Medical Research Council Embryo Research Licensing Committee (the NHMRC Licensing Committee), a scheme for the assessment and licensing of certain activities involving the use of excess embryos created by assisted reproductive technology and provides for a centralised, publicly available database of information about all licences issued by the NHMRC Licensing Committee.
The Security Legislation Amendment (Terrorism) Act 2002 (the Act) amends the Criminal Code Act 1995 to make it an offence to engage in a terrorist act, provide or receive training for a terrorist act, direct organisations concerned with a terrorist act, possess things connected with a terrorist act, collect or make documents likely to facilitate a terrorist act and acts in preparation for, or planning, a terrorist act. With the exception of the offence of engaging in a terrorist act, it is not necessary for a terrorist act to occur for a person to be prosecuted for a terrorism offence. The terrorism offences generally carry a penalty of life imprisonment.
The Act provides a regime for the Attorney-General to proscribe an organisation that has specified terrorist connection or that has endangered, or is likely to endanger, the security or integrity of the Commonwealth, and to make membership or other specified links with such an organisation an offence. The Act also replaces the treason offence in the Crimes Act 1914 with a new offence in the Criminal Code Act 1995, and amends the Australian Protective Service Act 1987 and the Crimes (Aviation) Act 1991 to provide the Australian Protective Service with the power to deal with terrorist-related offences and to exercise the aircraft security-officer function on intra-state flights.
The Suppression of the Financing of Terrorism Act 2002 implements Australia’s obligations under United Nations Security Council Resolution 1373 and the International Convention for the Suppression of the Financing of Terrorism.
The Act amends the Criminal Code Act 1995, the Financial Transaction Reports Act 1988, the Mutual Assistance in Criminal Matters Act 1987 and the Charter of the United Nations Act 1945 to:
• create an offence directed at those who provide or collect funds with the intention that they be used to facilitate terrorist activities;
• require cash dealers to report transactions that are suspected to relate to terrorist activities;
• enable the Director of the Australian Transaction Reports and Analysis Centre, the Australian Federal Police Commissioner and the Director-General of Security to disclose financial transaction reports information directly to foreign countries, foreign law-enforcement agencies and foreign intelligence agencies; and
• introduce higher penalty offences for providing assets to, or dealing in assets of, persons and entities engaged in terrorist activities.
The Torres Strait Fisheries Amendment Act 2002 (the Act) amends the Torres Strait Fisheries Act 1984 to allow for the appointment of the Chair of the Torres Strait Regional Authority to the Torres Strait Protected Zone Joint Authority (the PZJA). The PZJA is the joint Commonwealth and Queensland government body responsible for the management of traditional and commercial fishing in the Australian waters of the Torres Strait Protected Zone. The Act also includes amendments to the decision-making process in light of the appointment.
The Australia New Zealand Food Authority Amendment Act 2001 (the Amendment Act) creates a new statutory authority, Food Standards Australia New Zealand (FSANZ), to replace the Australia New Zealand Food Authority (ANZFA).
Full commencement of the Amendment Act took place after amendments to the current Treaty with New Zealand for the operation of the joint food standards system (currently titled ‘Agreement between the Government of Australia and the Government of New Zealand Establishing a System for the Development of Joint Food Standards, done at Wellington on 5 December 1995’)[5] entered into force.
The Australia New Zealand Food Authority Amendment Regulations 2001 (No 1) amends the Australia New Zealand Food Authority Regulations 1994 (the Principal Regulations) by inserting a new Schedule 2A prescribing the organisations and public bodies from which nominations of Board Members are to be sought.
The purpose of the Regulations is to amend the Australia New Zealand Food Authority Regulations 1994 to implement the new food regulatory system arising from the replacement of Australia New Zealand Food Authority with Food Standards Australia New Zealand.
The Regulations:
• change the name of the regulations from ‘Australia New Zealand Food Authority Regulations 1994’, to ‘Food Standards Australia New Zealand 1994’;
• prescribe the appropriate government agencies with which the Food Standards Australia New Zealand (the Authority) must consult in developing food regulatory measures or variations to food regulatory measures;
• provide for a 28-day time limit in which the applicant must make a written request for reconsideration of a decision, as well as a 28-day time limit in which the Authority must reconsider the matter and notify the applicant of its decision;
• prescribe the agencies to which the Authority may disclose confidential commercial information; and
• make consequential amendments to give effect to changes in terminology arising under the Australia New Zealand Food Authority Amendment Act 2001.
The purpose of the Regulations is to repeal the regulations that implemented sanctions against Eritrea and Ethiopia, the Federal Republic of Yugoslavia (FRY) and Libya due to the Security Council declaring that the sanctions had expired, terminated and been suspended respectively.
The purpose of the Regulations is to amend previous regulations concerning sanctions on Afghanistan to give effect to Security Council Resolution 1390 (2002). The effect of the Regulations is to update elements of the principal Regulations by amending references to the ‘Taliban’, in order that the scope of the Regulations includes reference to ‘bin Laden entities’ and ‘Taliban entities’.
On 16 January 2002, the Security Council passed Resolution 1390, which, among other things, expressed the decision of the Security Council to continue the measures imposed by Resolution 1333 (2000) and take note of the continued application of the measures imposed by paragraph 4(b) of Resolution 1267 (1999).
The purpose of these Regulations is to impose a range of sanctions on Liberia, required by Security Council Resolution 1343 (2001), which could not be implemented under the existing Regulations. Resolution 1343 demands that the Government of Liberia cease its support for rebel forces in Sierra Leone, and imposes a number of obligations on states, including an arms embargo, a ban on the provision of military technical training or assistance, a ban on the importation of all rough diamonds from Liberia and travel restrictions on individuals including senior members of the Government of Liberia and its armed forces and their spouses. Resolution 1343 builds on earlier sanctions imposed in Resolution 788 (1992).
On 28 September 2001, the Security Council passed Resolution 1373 (2001) which, among other things, required states to freeze without delay, funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts, of entities owned or controlled directly or indirectly by such persons, and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities. It also required states to prohibit the making available, directly or indirectly, for the benefit of such persons and entities, of funds, financial assets or economic resources.
The purpose of the proposed Regulations is to implement Australia’s obligations under Resolution 1373 to freeze terrorist assets and to prevent assets being made available to terrorists.
Section 4 of the Crimes at Sea Act 2000 (the Act) defines relevant terms for the purposes of the Act, including the term ‘East Timor’. That provision defines East Timor by reference to its administration by the United Nations Transitional Administration of East Timor (UNTAET). The definition also provides that after the territory ceases to be administered by UNTAET, it is to have the meaning given by regulations.
The term ‘East Timor’ is applied throughout the Act. Most importantly, the term is central to the operation of Part 3A, which provides for cooperation between Australia and East Timor in the enforcement of criminal law. East Timor became an independent nation on 20 May 2002. The purpose of the Regulations is to define ‘East Timor’ now that it has ceased to be administered by UNTAET, to enable cooperation between Australia and East Timor to continue for the purposes of the Act.
The purpose of the Criminal Code Amendment Regulations 2002 (No 1) is to insert Schedule 1 into the Criminal Code Regulations 2002 into which the names of organisations to be specified as ‘terrorist organisations’ can be inserted.
Subsection 102.1(1) of the Criminal Code Act 1995 defines a ‘terrorist organisation’ to be either an organisation engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or an organisation specified in the regulations.
The purpose of this regulation is to insert into the new Schedule 1 the name of an organisation to be specified as a ‘terrorist organisation’ so that the offence provisions of the Code will be applicable to this organisation.
Subsection 102.1(3) of the Code provides that before the Governor-General makes regulations specifying an organisation for the purposes of paragraph 102.1(1)(c) of the Code, the Minister must be satisfied on reasonable grounds that: the Security Council of the United Nations has identified the organisation in a decision relating wholly or partly to terrorism, or in a mechanism under such a decision; and the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.
The Attorney-General was satisfied on reasonable grounds of these matters in relation to ‘Al Qa’ida/ Islamic Army, a.k.a. (a) ‘The Base’, (b) Al Qaeda, (c) Islamic Salvation Foundation, (d) The Group for the Preservation of the Holy Sites, (e) The Islamic Army for the Liberation of Holy Places, (f) The World Islamic Front for Jihad Against Jews and Crusaders, (g) Usama Bin Laden Network, (h) Usama Bin Laden Organization.'
The purpose of the Criminal Code Amendment Regulations 2002 (No 3) is to insert into Schedule 1 of Part 2 of the Criminal Code Regulations 2002 the organisation ‘Jemaah Islamiyah, the network in Southeast Asia, founded by the late Abdullah Sungkar’ and its aliases ‘Jema’ah Islamiyah; Jemaah Islamiya; Jemaah Islamiah; Jamaah Islamiyah; Jama'ah Islamiyah’, in order to apply the offence provisions in Division 102 to persons with links to Jemaah Islamiyah.
The purpose of the Criminal Code Amendment Regulations 2002 (No 4) is to insert into Schedule 1 of Part 2 of the Criminal Code Regulations 2002 the organisation ‘Abu Sayyaf Group’ and its alias ‘Al Harakat Al Islamiyya’ in order to apply the offence provisions in Division 102 to persons with links to Abu Sayyaf Group.
The purpose of the Criminal Code Amendment Regulations 2002 (No 5) is to insert into Schedule 1 of Part 2 of the Criminal Code Regulations 2002 the organisation ‘Harakat Ul-Mujahideen’ and its aliases ‘Al-Faran, Al-Hadid, Al-Hadith, Harakat Ul-Ansar, HUA and Harakat Ul-Mujahidin / HUM’ in order to apply the offence provisions in Division 102 to persons with links to Harakat Ul-Mujahideen.
The purpose of the Criminal Code Amendment Regulations 2002 (No 6) is to insert into Schedule 1 of Part 2 of the Criminal Code Regulations 2002 the organisation ‘Armed Islamic Group’ and its aliases ‘Al Jamm’ah Al-Islamiah Al-Musallah; GIA; Groupement Islamique Armé’ in order to apply the offence provisions in Division 102 to persons with links to the Armed Islamic Group.
The purpose of the Criminal Code Amendment Regulations 2002 (No 7) is to insert into Schedule 1 of Part 2 of the Criminal Code Regulations 2002 the organisation ‘Salafist Group for Call and Combat/ GSPC’ and its alias ‘Le Groupe Salafiste Pour La Prediction et le Combat’ in order to apply the offence provisions in Division 102 to persons with links to Salafist Group for Call and Combat/ GSPC.
The purpose of the amending Regulations is to, among other things, impose sanctions against Liberia in accordance with Security Council Resolution 1343 (2001) by prohibiting the exportation of arms and related material to Liberia, and also insert into Schedule 8 of the Regulations the drug zolpidem.
Security Council Resolution 1343 (2001) in part provides that all states shall take the necessary measures to prevent the sale or supply to Liberia, from their territories, of arms and related material of all types. In relation to the drug zolpidem, the United Nations Commission for Narcotic Drugs decided in March 2001 that zolpidem (a psychotropic substance) should be included in Schedule IV of the United Nations Convention on Psychotropic Substances 1971. The inclusion of zolpidem in Schedule 8 to the Regulations will ensure that Australia meets its international obligations under this Convention.
The purpose of the amending Regulation is to repeal the regulations that prohibit the exportation of certain goods to Libya, including law-enforcement equipment, aircraft and aircraft components, airfield equipment and goods related to crude oil refining and exportation.
The Security Council, through Resolution 1192 (1998), decided that sanctions imposed after the 1988 Lockerbie bombing would be suspended immediately if the Secretary-General reported to it that the two Libyans accused of carrying out the attack had arrived in the Netherlands for the purpose of trial. On 8 April 1999, the Security Council noted that the conditions under Resolution 1192 had been fulfilled and the sanctions were suspended from that date. Following the suspension of sanctions, the approach taken by the Australian government was to exercise its discretion to permit additional trade with Libya to take place. It is now considered appropriate that the Australian legislation implementing the sanctions should be repealed.
The purpose of the amending Regulations is to prohibit the exportation of rough diamonds from Australia in accordance with Australia’s obligations under the Interlaken Declaration of 5 November on the Kimberley Process Certification Scheme for Rough Diamonds.
The United Nations Security Council has adopted a number of sanctions that have endeavoured to stem the flow of rough diamonds from rebel-held conflict areas (known as ‘conflict’ diamonds). Australia has implemented these sanctions by prohibiting the importation of rough diamonds from Sierra Leone and Liberia and unset diamonds from Angola.
The purpose of the amending Regulations is to, inter alia, implement sanctions against Liberia in accordance with Security Council Resolution 1343 (2001), and include the drug zolpidem in Schedule 4 that will ensure that Australia meets its international obligations under the United Nations Convention of Psychotropic Substances 1971.
The purpose of the amending Regulations is to prohibit the importation of rough diamonds into Australia in accordance with Australia’s obligations under the Interlaken Declaration of 5 November 2002 on the Kimberley Process Certification Scheme for Rough Diamonds.
The Regulations amend Schedule 2A to the Designs Regulations 1982 to include the Seychelles in the list of Convention countries. This reflects the fact that the Seychelles has acceded to the Paris Convention for the Protection of Industrial Property.[6]
The main purpose of the Regulations is to amend the fees for various transactions with the Patent, Trade Marks and Designs Offices. These fee amendments have arisen from a recent comprehensive fee review, which found that the current fee arrangements could be improved.
The Regulations also include Tonga and Nepal in the lists of Convention countries scheduled to the Patents, Trade Marks and Designs Regulations. This reflects the fact that these countries have acceded to the Paris Convention for the Protection of Industrial Property.[7]
The purpose of the proposed Regulation is to prescribe the criteria that must be met before a fisheries management plan can be accredited by the Minister for the Environment and Heritage.
The proposed regulations prescribe three criteria for the accreditation of fisheries management plans, namely, they must be:
• plans that are in force, or in force in the future, under either the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984;
• plans that have been endorsed by the Environment Minister under an Agreement made under section 146; and
• in the form in which the plan was endorsed.
The criteria would, for the first time, provide the basis for the Environment Minister to make a decision on whether to accredit a management plan for a fishery under section 33 of the Environment Protection and Biodiversity Conservation Act 1999.
The Regulations provide that the Hashemite Kingdom of Jordan is an extradition country, and will enable Australia to deal with any extradition request received from Jordan. Jordan will not be able to grant extradition to Australia until further arrangements, such as an extradition treaty, have been concluded. Extradition under the Regulations is subject to the various safeguards set out in the Act. For example, extradition is not permitted where the fugitive is sought for or in connection with her or his race, religion, nationality or political opinions or is to be tried, sentenced or detained for a political or military offence.
The Regulations give effect in Australian domestic law to the extradition provisions of the International Convention for the Suppression of Terrorist Bombings (the Convention) 1998. The Convention requires each party to make it an offence to unlawfully and intentionally deliver, place, discharge or detonate (or attempt to unlawfully and intentionally deliver, place, discharge or detonate) an explosive or other lethal device in, into or against a place of public use, a state or government facility, a public transportation system or an infrastructure facility with the intent to cause death or serious bodily injury, or with the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.
Article 9 of the Convention provides for extradition between parties of persons accused of Convention offences. The Convention entered into force for Australia on 8 September 2002. The effect of the Regulations is that Convention offences are deemed to be extradition offences under the Act in relation to the other parties to the Convention. Extradition under the Regulations operates in accordance with the Act.
Section 111B of the Family Law Act 1975 provides that the regulations may make such provision as is necessary to enable Australia to perform its obligations, or obtain any advantage or benefit, under the 1980 Hague Convention on the Civil Aspects of International Child Abduction[8] (the Convention).
The objects of the Convention are to secure the prompt return of children wrongfully removed to or retained in any Convention country, and to ensure that rights of custody and access to children under the laws of a Convention country are effectively respected in other Convention countries.
The purpose of the proposed Regulations is to add the Slovak Republic, Brazil, Malta, Trinidad and Tobago, Uruguay and Uzbekistan to the list of Convention countries in Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986.
The Fisheries Management Act 1991 (the Act) gives effect to the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America 1987 (the Treaty) to which Australia is a party. Subsection 4(7) of the Act provides for amendments to the Treaty to be given effect to by regulations.
Amendments to the Treaty were agreed to by all states parties to the Treaty in March 1999 and were accepted by Australia in October 2001. It was hoped that all the instruments of ratification of the amendment to the main body of the Treaty and notices of acceptance of amendments to the Treaty annexes from all states parties would be deposited during 2001. Because it was thought that the coming into force of the amendments was imminent, the Fisheries Management Amendment Regulations 2001 (No 3) were made to give effect to the Treaty amendments. The 2001 Regulations were to commence immediately on the coming into force of the amendments of the Treaty.
Contrary to expectations, the necessary instruments of ratification have not been deposited with the depositary, and the amending regulations have therefore not been notified in the Gazette. It is not possible to predict the time of entry into force of the amendments because it is dependent on the acceptance processes of other states party to the Treaty. These Regulations therefore repeal the 2001 Regulations to avoid the need to extend the time for entry into force of the regulations, perhaps several times.
The International Transfer of Prisoners Act 1997 provides the Commonwealth legislative framework for Australia’s participation in the international transfer of prisoners scheme. Under this scheme, Australians imprisoned overseas, and foreign nationals imprisoned in Australia, will be able to apply to be transferred to serve the balance of their sentence in their home country. Transfer countries will be declared by Regulation once appropriate international arrangements have been finalised.
The Regulations prescribe a number of forms under the Act for the international transfer of prisoners. These forms include those used by prisoners applying for a transfer from Australia.
Section 8 of the International Transfer of Prisoners Act 1997 (the Act) provides that the regulations may apply the Act to a foreign country and may declare the country to be a transfer country for the purposes of the Act.
The International Transfer of Prisoner (Thailand) Regulations 2002 declares that Thailand is a transfer country, and applies the Act to Thailand subject to the Agreement between the Government of Australia and the Government of the Kingdom of Thailand on the Transfer of Offenders and Co-operation in the Enforcement of Penal Sentences.
Section 8 of the International Transfer of Prisoners Act 1997 (the Act) provides that the regulations may apply the Act to a foreign country and may declare the country to be a transfer country for the purposes of the Act.
The International Transfer of Prisoner (Transfer of Sentenced Persons Convention) Regulations declares that member states to the Council of Europe Convention on the Transfer of Sentenced Persons[9] (the Convention) are transfer countries, and applies the Act to each country outlined in Schedule 2, subject to the Convention.
The Convention entered into force for Australia on 1 January 2003.
On 28 September 2001, the United Nations Security Council adopted a resolution in which the UN sanctions against Sudan were lifted. Australia is obliged under the Charter of the United Nations to comply with decisions of the Security Council.
The purpose of the Regulations is to give effect to the above resolution of the United Nations Security Council by repealing the Migration (Republic of Sudan-United Nations Security Council Resolution No 1054) Regulations 1996, as amended by the Migration (Republic of Sudan-United Nations Security Council Resolution No 1054) Amendment Regulations 1999. The repeal provisions apply particularly to the granting of visas.
The purpose of the Migration Amendment Regulations 2002 (No 2) is to amend provisions relating to the application for and grant of certain visas, waive or expand certain conditions, amend the operation of certain aspects of the merits review process for visa applicants, and make various technical amendments.
More particularly, the Regulations effect changes to the Migration Regulations 1994 to prescribe the People’s Republic of China (PRC) as a safe third country in relation to certain Vietnamese refugees who settled in the PRC but who subsequently entered Australia without lawful authority.
The purpose of the Regulations is to implement the objectives of the United Nations Security Council Resolution 1390 (2002), which imposes sanctions against persons designated by a Committee of the Security Council. Australia is obliged under the Charter of the United Nations to comply with decisions of the Security Council.
The intended effect of the Regulations is to prevent the grant of a visa to a person who falls within the definition of ‘UNSC-designated person’ and allow the Minister to cancel a visa if the Minister is satisfied that the visa holder falls within the definition of ‘UNSC-designated person’.
A ‘UNSC-designated person’ is any of the following persons designated by the Committee under paragraph 2 of the Resolution:
• Usama bin Laden;
• members of the Al-Qaida organisation or of the Taliban; and
• other individuals, members of a group, undertakings or entities associated with the above, who have been designated by the Committee in accordance with Resolution 1267 (1999) or Resolution 1333 (2000) of the United Nations Security Council.
The purpose of the Regulations is to amend the Migration Regulations 1994 to prescribe the following islands as ‘excised offshore places’ pursuant to paragraph (e) of the definition of ‘excised offshore place’ in subsection 5(1) of the Migration Act 1958:
• Bernier Island, Dorre Island, Dirk Hartog Island and Faure Island.
These islands were identified by the Department of Immigration and Multicultural and Indigenous Affairs as being on the likely route of people seeking to enter Australia without authority. The effect of being an ‘excised offshore place’ is that persons who are not citizens of Australia who arrive in such places without authority – usually in the form of a visa – cannot make a valid application for a visa.
The purpose of the Regulations is to omit regulation 5.15B of the Migration Regulations 1994.
Regulation 5.15B prescribes the following islands as ‘excised offshore places’ pursuant to paragraph (e) of the definition of ‘excised offshore place’ in subsection 5(1) of the Migration Act 1958:
• Bernier Island, Dorre Island, Dirk Hartog Island and Faure Island.
The effect of being an ‘excised offshore place’ is that persons who are not citizens of Australia who arrive in such places without authority – usually in the form of a visa – cannot make a valid application for a visa.
Regulation 5.15B was inserted in response to concerns that a fishing vessel, heading directly for the Western Australian coast in the region of these islands, was carrying persons who might seek to enter Australia unlawfully by landing on the mainland or one of those islands. Subsequent to the insertion of regulation 5.15B, the boat was intercepted and the persons on board detained under the Fisheries Management Act 1991.
The effect of the amended Regulations is that the Attorney-General may consider requests from the United States of America, the United Kingdom, Ireland, South Africa and Canada for assistance to enforce in Australia a civil-forfeiture order made in one of those countries, or assistance to make in Australia a restraining order on the basis of civil-forfeiture proceedings in one of those countries.
Prescribing those five countries is in accordance with ensuring that the Commonwealth is enforcing civil orders made on a similar basis to the Proceeds of Crime Act 2002.
The Regulations give effect in Australian domestic law to the mutual assistance provisions of the International Convention for the Suppression of Terrorist Bombings 1998 (the Convention). The Convention requires each party to make it an offence to unlawfully and intentionally deliver, place, discharge or detonate (or attempt to unlawfully and intentionally deliver, place, discharge or detonate) an explosive or other lethal device in, into or against a place of public use, a state or government facility, a public transportation system or an infrastructure facility with the intent to cause death or serious bodily injury, or with the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.
Article 10 of the Convention provides for mutual assistance between parties of persons accused of Convention offences. The Regulations provide that, subject to the Convention, the Act applies to parties to the Convention. Mutual assistance under the Regulations operates in accordance with the Act, and is subject to the various safeguards set out in the Act. For example, mutual assistance is not to be provided where the request relates to the prosecution or punishment of a person for political or military offences, or where the prosecution or punishment is on account of a person’s race, sex, religion, nationality or political opinions.
The purpose of the Regulations is to amend the Indirect Tax Concession Scheme package for the Taipei Economic and Cultural Office (TECO) to afford it enhanced tax concessions based on those afforded to the Australian Commerce and Industry Office and staff in Taipei and to amend the principal regulations to harmonise the treatment of TECO in terms of privileges and immunities to other organisations operating under the Vienna Convention on Diplomatic Relations.
The above regulations refer to and amend a number of Agreements on Social Security between Australia and countries such as Canada, The Kingdom of the Netherlands, the Republic of Austria, the Republic of Portugal, New Zealand, Canada, Spain, the Federal Republic of Germany, and the United States of America.
The purpose of the Space Activities Amendment Regulations (the amendments) is to amend the principal Regulations to improve Australia’s existing licensing and safety regime for activities connected with the launch and return of space objects, to give effect to the Treasurer’s Fourth Determination to exempt from the Goods and Services Tax fees payable to the Commonwealth for certain approvals connected with the launch and return of space objects, and to make a number of minor technical amendments.
The Trans-Tasman Mutual Recognition Arrangement (TTMRA) is a non-treaty agreement between the Commonwealth, state and territory governments of Australia and the Government of New Zealand. The purpose of the TTMRA is to give effect to mutual recognition principles relating to the sale of goods and the registration of occupations. In respect of goods, a good that can be legally sold in Australia may be sold in New Zealand and vice versa; in respect of occupations, a person registered to practise an occupation in Australia is entitled to practise the same occupation in New Zealand and vice versa.
The purpose of the regulations is to update the list of goods specified in Schedule 3 of the Act and implementing Heads of Government decisions in relation to the extension of Special Exemptions status for goods covered by Schedule 3 for a further twelve months.
[∗] Office of International Law, Attorney-General’s Department, Canberra.
[7] Ibid.
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URL: http://www.austlii.edu.au/au/journals/AUYrBkIntLaw/2004/11.html