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Australian Year Book of International Law |
Scobie Mackay and William Story[∗]
The Age Discrimination Act 2004 prohibits discrimination on the basis of age in key areas of public life including employment, education and accommodation; access to premises, goods, services, facilities and land; Commonwealth laws and programs; and requests for information. Exemptions are provided where distinctions on the basis of age were considered legitimate. These include positive discrimination, superannuation, insurance and credit, pensions, allowances and benefits and certain existing Commonwealth programs. Acts done in compliance with specified Commonwealth laws, state and territory laws and awards and agreements are also exempted from the prohibition of discrimination.
In introducing the legislation, the government noted that age discrimination was a matter of international concern. Amongst other matters, the government referred to the adoption, at the Second World Assembly on Ageing in 2002 of the Political Declaration and the Madrid International Plan of Action 2002. To the extent that the Act implements Australia’s responsibilities under certain international instruments, the constitutional basis for the legislation derives (amongst other heads of power) from the external affairs power in the Constitution (s 51(xxix)). The Explanatory Memorandum notes that the relevant international instruments include: the Discrimination (Employment and Occupation) Convention, 1958, adopted by the General Conference of the International Labour Organization on 25 June 1958 (ILO 111); the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; and the Convention on the Rights of the Child.
The Age Discrimination (Consequential Provisions) Act 2004 made various consequential amendments to the Human Rights and Equal Opportunity Commission Act 1986, the Inspector General of Intelligence and Security Act 1986, the Sea Installations Act 1987 and the Workplace Relations Act 1996.
The Age Discrimination Act commenced, and most consequential amendments took effect, on 23 June 2004. Consequential amendments relating to the proposed Australian Human Rights Commission Legislation Act 2004 have not entered into force as the Bill for that proposed legislation was not adopted by Parliament.
This Act amended various Commonwealth Acts relating to agriculture, fisheries and forestry. Amongst other matters, the amendments extended the application of the Quarantine Act 1908 to Christmas Island. According to the Explanatory Memorandum, this reflected ‘the Government’s policy to align conditions and standards in the Indian Ocean Territories with those of comparable communities in the rest of Australia’. The Government had previously extended the Quarantine Act, in a similar manner, to the Cocos (Keeling) Islands. The legislative framework for quarantine applying to Christmas Island is the same as that for the rest of Australia, with provision for quarantine barriers between Christmas Island, the Cocos Islands and the mainland in recognition of the different pest and disease status of these areas.
Those amendments relating to the application of the Quarantine Act to Christmas Island took effect on 27 October 2004.
The Anti-Terrorism Act 2004 amended various Acts in order to strengthen Australia’s counter-terrorism legal framework. In particular, the Act amended:
• Part 1C of the Crimes Act 1914: to permit the period within which police may question suspects arrested on federal terrorism offences, before they must be brought before a magistrate or other judicial officer, to be extended to up to 24 hours. The total investigation period for all other offences is a maximum of 12 hours. The amendments also provide for the investigation period to be suspended to enable investigators reasonable time to obtain relevant information from authorities overseas where obtaining the information is delayed by being in a different time zone;
• the Crimes (Foreign Incursions and Recruitment) Act 1978: to prohibit Australian citizens and those ordinarily resident in Australia from engaging in hostile activities in a foreign state. ‘Hostile activities’ include acting to overthrow a foreign government and engaging in armed hostilities in a foreign state, but do not include acts done by a person in the service of the legitimate armed forces of a foreign state;
• the schedule to the Criminal Code Act 1995 (the Criminal Code): to ensure that membership of a group that a court finds is a terrorist organisation, according to the definition of terrorist organisations in the Criminal Code, is an offence, even where the organisation is not listed in the regulations as such; and
• the Proceeds of Crime Act 2002: to strengthen the restrictions on commercial exploitation of indictable offences. The amendments allow literary proceeds deriving from an indictable offence to be forfeited where the court is satisfied that the person committed the offence (irrespective of whether they have been convicted). Literary proceeds may also be forfeited where they derive from a foreign indictable offence. Again, the court must be satisfied that the person committed the offence, but the person need not have been convicted of it. The definition of foreign indictable offence expressly includes offences triable by a military commission established by order of the President of the United States of America.
The amendments commenced on 1 July 2004.
The Anti-Terrorism Act 2004 (No 2) made further amendments to Australia’s counter-terrorism legal framework. The Attorney-General stated, in the Second Reading Speech, that the Bill did not unnecessarily encroach on civil liberties and that protecting national security should not necessarily be seen as opposed to protecting civil rights, particularly the ‘right to human security’.
In particular, the amendments inserted a new offence of ‘Association with a Terrorist Organisation’ in the Criminal Code (scheduled to the Criminal Code Act 1995). This made it an offence for a person to intentionally associate, on two or more occasions, with someone whom the person knows to be a member or to promote or direct the activities of a listed terrorist organisation. The person must intend that the association assist the organisation to expand or continue to exist and the association must in fact provide support to the organisation. The offences are punishable by up to three years imprisonment and are subject to certain exceptions for close family members, certain religious associations, provision of humanitarian aid and providing certain types of legal assistance. Some additional safeguards were included following the Senate Legal and Constitutional Committee report on the Bill.
The Transfer of Prisoners Act (1983) was amended to provide that the Attorney-General may order the transfer of federal, state and territory prisoners between state or territory prisons on the grounds that it is necessary in order to protect the security of Australia. Decisions of the Attorney-General based on security grounds were exempted from review under the Administrative Decisions (Judicial Review) Act 1977 by amendments to that Act.
The amendments commenced on 16 August and 17 August 2004.
The Act contained various amendments which were part of, but not passed with, the Anti-Terrorism Bill (No 2) 2004. The Act amended:
• the Passports Act 1938: to allow authorities to demand, confiscate and seize foreign travel documents so that persons suspected of serious offences or harmful conduct may not leave Australia on a foreign travel document. Previously, persons with foreign travel documents who had their Australian passports cancelled and seized for security or law enforcement grounds could sometimes still depart Australia using their foreign documents. New offences were created dealing with false or misleading conduct in relation to, and improper use and possession of, foreign travel documents. The offences are similar to already existing offences for Australian travel documents;
• the Australian Security Intelligence Organisation (ASIO) Act 1979: to give ASIO power to demand the surrender of a person’s passports (both Australian and foreign) to prevent that person from leaving Australia, where the person is subject to a request by the Director-General of ASIO to the Minister for consent to apply for a questioning warrant. New offences were created for failing to surrender a passport as required and leaving Australia when subject to a request for consent to apply for a questioning warrant; and
• the forensic procedure provisions in the Crimes Act 1914: to facilitate effective disaster victim identification if a disaster causing mass casualties (such as a terrorist attack or an aircraft disaster) occurred in Australia.
The amendments to the Passports Act and the ASIO Act came into effect on 13 September 2004. The remaining amendments came into effect on 16 August and 22 December 2004.
The Act made various amendments to the Australian Federal Police (AFP) Act 1979 (AFP Act) including various amendments necessary to complete the integration of the Australian Protective Service (APS) into the AFP. The APS was previously within the Attorney-General’s Department.
The amendments outline the powers and functions of AFP employees designated as protective service officers. In particular, they may deal with ‘protective service offences’, which include certain offences under the Crimes (Internationally Protected Persons) Act 1976; the Defence (Special Undertakings) Act 1952; the Nuclear Non-Proliferation (Safeguards) Act 1987; the Crimes Act 1914; and the Criminal Code. These and various other Acts were amended to reflect the new legislative framework.
Most amendments relating to the integration of the APS into the AFP commenced on 1 July 2004.
This Act amended the Australian Sports Drug Agency (ASDA) Act 1990 to enable ASDA to implement the World Anti-Doping Code (the Code).
The Code contains a uniform set of anti-doping rules. It was developed by the World Anti-Doping Agency and, pursuant to the Copenhagen Declaration on Anti-Doping in Sport, was adopted on 5 March 2003 by over 80 governments and numerous sporting organisations. The Declaration is not legally binding in international law but, on 19 October 2005, the United Nations Economic, Scientific and Cultural Organisation adopted the International Convention against Doping in Sport, which, amongst other matters, obliges states parties to give effect to the Code. Australia ratified the Convention on 17 January 2006, and it will enter into force once it has been ratified by 30 parties.
The amendments, intended to enable adoption and implementation of the Code by the commencement of the Athens Olympic Games in August 2004, came into effect on 30 July 2004.
Aviation security arrangements were amended significantly by legislation made in 2004. Further amendment may be expected following the release on 21 September 2005 of the review of airport security and policing in Australia by the Rt Hon Sir John Wheeler JP, DL.
The Aviation Transport Security Act 2004 established a regulatory framework for combating unlawful interference with aviation. In so doing, the Act was intended to enable Australia to meet its obligations under the Convention on International Aviation (the Chicago Convention) by complying with the revised International Civil Aviation Organization standards of aviation security (Annex 17) established under that Convention.
Amongst other matters, the Act:
• requires aviation industry participants to develop and comply with aviation security programs;
• mandates minimum security requirements such as a requirement for all passengers and other persons to be screened and cleared prior to entering certain areas of an airport and/or boarding an aircraft);
• provides for airports to be designated as ‘security controlled airports’ with different security requirements in determined areas;
• imposes reporting obligations;
• outlines powers of officials acting under the Act; and
• provides a range of enforcement mechanisms.
The Act provides specifically that its purpose does not include preventing lawful advocacy, protest, dissent or industrial action that does not compromise aviation security, and the definition of ‘unlawful interference with aviation’ does not include such activities. The Act replaced Parts 3 and 3A of the Air Navigation Act 1920 and the operative provisions came into effect on 10 March 2005.
The Aviation Transport Security (Consequential Amendments and Transitional Provisions) Act 2004 deals with consequential and transitional matters arising from the enactment of the Aviation Transport Security Act 2004.
This Act amended the procedures in the Criminal Code Act 1995 (the Criminal Code) for listing of a terrorist organisation in the regulations.
The amendment removed the requirement (originally enacted by the Security Legislation Amendment (Terrorism) Act 2002) that, before an organisation is listed, it must be identified in or pursuant to a decision of the United Nations Security Council relating wholly or partly to terrorism. The Attorney-General must still be satisfied on reasonable grounds that the organisation is engaged in terrorist activity and must arrange for the Leader of the Opposition in the House of Representatives to be briefed about a proposed listing. In determining whether to list an organisation, the Attorney-General typically reviews advice provided by ASIO, the Attorney-General’s Department, the Chief General Counsel, the Director-General of Security and the Department of Foreign Affairs and Trade.
As well as being listed by regulations, an organisation may be found by a Court to be a terrorist organisation (that is, as part of a terrorism prosecution). Some organisations are also expressly identified as terrorist organisations in the Criminal Code. The Criminal Code provides a range of offences related to terrorist organisations including membership of, directing the activities of, recruiting persons to, training or receiving training from and providing support and resources to a terrorist organisation.
The amendments came into effect on 10 March 2004.
These enactments amended various Acts to give effect to the Thailand-Australia Free Trade Agreement (TAFTA).
The Customs Amendment (Thailand-Australia Free Trade Agreement Implementation) Act 2004 amended the Customs Act 1901 to introduce new rules of origin for goods that are the produce of Thailand. Goods that satisfy the rules of origin may enter Australia at preferential rates of customs duty.
The Customs Tariff Amendment (Thailand-Australia Free Trade Agreement Implementation) Act 2004 amended the Customs Tariff Act 1995 to provide duty-free access or preferential rates of customs duty for goods meeting the new rules of origin in the Customs Act referred to above. Customs duty for certain goods is to be phased out by 2015. The amendments also provide a mechanism to initiate safeguard measures on sensitive products including canned tuna, processed pineapple and pineapple juice, if necessary.
The TAFTA was signed on July 2004. Following an exchange of diplomatic notes certifying that each country had completed its necessary internal requirements for its entry into force, it entered into force on 1 January 2005.
This Act amended the Customs Act 1901, the Customs Legislation Amendment Act (No 1) 2002 and the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 (the ITM Act), the Import Processing Charges (Amendment and Repeal) Act 2002 and the Migration Act 1958.
Amongst other matters, significant amendments were made to the Customs Act to allow for the introduction of a new computer system (the Integrated Cargo System, or ICS) by the Australian Customs Service. The ICS was introduced in late 2005, and its implementation proved difficult, with various problems initially slowing the flow of goods from ports. The ICS now appears to be running smoothly.
The amendments also inserted provisions to allow the Minister to order the detention of certain imported goods when the Minister considers that it is in the public interest to do so; amended the definition of commander in relation to Commonwealth ships and aircraft; amended provisions allowing ships to be detained to make it clear that those ships can travel on the high seas to reach the place they are being taken; and expanded the definition of ‘arrival’ in respect of ships and aircraft.
The amendments commenced at various times.
This Act amended the Customs Act 1901 to give Customs officers powers, in designated places in airports and ports, to detain people who are suspected of involvement in a serious crime, are subject to certain warrants or are on bail subject to a condition that they do not leave Australia. The amendments also require operators of vessels or aircraft leaving the country to report to Customs the people on board the ship or aircraft. Operators must also provide cargo reports to Customs before they reach their first port of call in Australia, rather than the port at which the cargo is to be unloaded.
The amendments relating to detention powers commenced on 14 July 2004, while the remaining amendments commenced at various times.
This Act amended the Fisheries Management Act 1991 and the Fisheries Administration Act 1991.
Amongst other matters, the amendments were designed to combat illegal foreign fishing in Australia’s Fishing Zone. Measures implemented include increasing the maximum penalty for fishing offences and including pursuit costs in the security bond for apprehended vessels.
Other amendments were designed to improve the effectiveness of the Australian Fisheries Management Authority (AFMA) in managing Commonwealth fisheries resources. Amendments include allowing AFMA to give directions binding holders of fishing permits and foreign fishing licences relating to fisheries not under a management plan. Directions may include closing or partially closing the fishery. This gives AFMA greater powers to regulate domestic fisheries not covered by a management plan.
The amendments commenced on 6 August 2004.
This Act amended the Fisheries Administration Act 1991 and the Fisheries Management Act 1991 to enable Australia to comply with its obligations under the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (the Compliance Agreement).
The Compliance Agreement was unanimously approved at the Food and Agriculture Organization of the United Nations (FAO) Conference in December 1993 and entered into force on 24 April 2003. It is designed to combat inadequate flag state control of high seas fishing vessels and obliges parties to ensure that fishing vessels flying their flag do not undermine the effectiveness of international conservation and management measures. The Compliance Agreement seeks to combat the practice of vessels ‘reflagging’ to flag states unable or unwilling to apply effectively conservation and management measures.
The amendments gave additional statutory functions and objectives to the Australian Fisheries Management Authority (AFMA) so that AFMA may ensure that fishing by Australian-flagged vessels on the high seas and/or beyond Australia’s fishing zones conforms to the Compliance Agreement. The amendments are also designed to enable AFMA to record certain information about high seas vessels in order to comply with the Compliance Agreement’s information exchange obligations.
The Compliance Agreement entered into force for Australia on 19 August 2004, while the amendments commenced on 20 August 2004.
These Acts are intended to give effect to the Agreement relating to the Unitisation of the Sunrise and Troubadour Fields (the Greater Sunrise Unitisation Agreement) between Australia and East Timor, which was signed on 6 March 2003.
The Greater Sunrise Unitisation Agreement allows for joint development by Australia and East Timor of the ‘unitisation area’, an area of petroleum resources straddling the Joint Petroleum Development Area (JPDA) and an area in which Australia has exclusive seabed jurisdiction. Australia and East Timor established the JPDA, and agreed to share jurisdiction over seabed resources in the area, in the Timor Sea Treaty between Australia and East Timor which was signed on 20 May 2002.
The Greater Sunrise Unitisation Agreement Implementation Act 2004 amended the Petroleum (Submerged Lands Act) 1967, the Petroleum Resource Rent Tax Assessment Tax 1987 and the Radiocommunications Act 1992 to ensure that a consistent legislative regime applies to petroleum operations throughout the unitisation area. One effect of the amendments is that the Commonwealth Minister is given sole responsibility for petroleum administration in the Eastern Greater Sunrise area (previously, administration was shared with a counterpart Northern Territory Minister). This was designed to facilitate joint administration of the unitisation area with East Timor. The Customs Tariff Amendment (Greater Sunrise) Act 2004 amended the Customs Act 1955 to provide for duty-free entry of goods and equipment entering the unitisation area for use in petroleum-related activities. The key amendments made by each Act commenced on 21 April 2004.
Under the Greater Sunrise Unitisation Agreement, East Timor would receive 18.1 per cent of the government revenue from the unitisation area, while Australia would receive the remainder. However, in the recent Treaty on Certain Maritime Arrangements in the Timor Sea, signed on 12 January 2006, Australia and East Timor agreed to share equally the government revenue from exploitation of the unitisation area. Neither the Timor Sea Treaty nor the Greater Sunrise Unitisation Agreement established permanent maritime boundaries in the area, and this question is put on hold for a further 50 years by the 2006 Treaty.
This Act amended the Industrial Chemicals (Notification and Assessment) Act 1989 (the Industrial Chemicals Act) to ensure Australia’s compliance with the Rotterdam Convention on the Prior Informed Consent procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 1988 (the Convention).
The Convention’s object is to promote shared responsibility and cooperation among parties in the international trade of certain hazardous chemicals. Trade in chemicals may be restricted where parties have banned or severely restricted their use and the chemical meets the criteria established under the Convention.
The Department of Environment and Heritage is Australia’s designated national authority (DNA) and responsible for liaising with the Convention Secretariat. The National Industrial Chemical Notification and Assessment Scheme (NICNAS) (a Commonwealth government body established to regulate chemicals and chemical safety in Australia) is responsible for implementing Australia’s domestic obligations under the Convention. Under the amendments, the Director of NICNAS must notify the DNA of any decision to ban or severely restrict use of a chemical and must provide information to the DNA about notified industrial chemicals.
The Convention entered into force generally on 24 February 2004 and entered into force for Australia on 18 August 2004 (the same day the amendments commenced).
This Act amended provisions in the Intelligence Services Act 2001 outlining the functions and powers of the Australian Secret Intelligence Service (ASIS).
ASIS is not generally permitted to use force. However, the amendments provide that ASIS may cooperate with both Australian and foreign agencies in planning for and undertaking activities involving the use of force, provided that the other agency is legitimately entitled to do so and ASIS staff members and agents do not themselves use force. The Minister for Foreign Affairs’ approval is required for ASIS to cooperate with a foreign agency in planning or undertaking such activities; before giving approval, the Minister must consult with the Prime Minister and the Attorney-General.
The amendments also provide that the Minister may approve the provision of weapons and self-defence training to ASIS staff members and agents. Apart from training purposes, such weapons and self-defence techniques may only be used outside Australia and only for self-protection or to protect an ASIS staff member or agent or a person cooperating with ASIS. The amendments confirm that weapons provided to ASIS staff members or agents do not need to be licensed or registered under state and territory laws.
The Explanatory Memorandum noted that the legality and propriety of ASIS’s activities will continue to be overseen by the office of the Inspector-General of Intelligence and Security (the Inspector-General). Some additional oversight mechanisms were inserted into the Bill following recommendations made by the Parliamentary Joint Committee on ASIO, ASIS and DSD. Amongst other matters, these include more stringent requirements to report to the Inspector-General.
The amendments commenced on 27 April 2004.
This Act amended the International Transfer of Prisoners Act 1997 to facilitate the transfer back to Australia of any Australian citizens detained at Guantanamo Bay and convicted and sentenced to imprisonment.
The amendments expanded the definition of a ‘transfer country’ to apply to regions that, while not part of the landmass that constitutes the mainland of a declared transfer country under the Act, are nonetheless under the control or jurisdiction of a transfer country. This was intended to apply to regions such as Guantanamo Bay and Hong Kong. The amendments also clarified that a United States military commission that sentences a person to a punishment or measure involving the deprivation of liberty is a court or tribunal of the United States and is exercising criminal jurisdiction.
The amendments came into effect on 23 March 2004 and, on 9 May 2006, the Australian and Unites States’ governments concluded the necessary arrangements to govern transfer to Australia of prisoners sentenced by the United States military commissions. On 29 June 2006, however, the United States Supreme Court found that the military commission operating in Guantanamo Bay was illegal. The United States Government has announced that it intends to establish arrangements to try the prisoners detained at Guantanamo Bay. New legal mechanisms may be required to facilitate the transfer to Australia of any Australian prisoners sentenced pursuant to such arrangements.
This Act amended the Marriage Act 1961 to define marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. The amendments also provide that unions solemnised overseas between same-sex couples will not be recognised as marriages in Australia and prevent adoptions by same-sex couples under multilateral or bilateral agreements or arrangements.
These amendments commenced on 16 August 2004.
This Act clarified and expanded existing powers in the Migration Act 1958 concerning the collection of personal identifiers from non-citizens or persons known or reasonably suspected to be non-citizens.
The amendments require non-citizens to provide personal identifiers at various stages of immigration processing and on entry to and departure from Australia. Persons in Australia known or reasonably suspected to be non-citizens may also be required to provide personal identifiers. The amendments set out general rules that authorised officers must follow in carrying out an identification test on persons known or reasonably suspected not to be Australian citizens. Special conditions are outlined for the collection of personal identifiers from persons under 18 years old or who are incapable of understanding the requirement to provide a personal identifier.
Personal identifiers include means of identification such as photographs and audio and visual recordings, hand and finger prints, height and weight measurements, signatures and iris scans. Regulations may prescribe other personal identifiers which do not involve carrying out an ‘intimate forensic procedure’; this was intended to exclude procedures such as blood tests and saliva samples.
The amendments outline conditions on the use, access to, retention and destruction of personal identifiers and other identifying information.
The amendments commenced on 27 August 2004.
These Acts are part of a package of government reforms to international taxation. Further reforms were also enacted in 2005.
The New International Tax Arrangements Act 2004 amended the Income Tax Assessment Act 1936 to, in summary:
• alter taxation arrangements applying to foreign investment funds;
• extend to foreign eligible unit trusts doing business in Australia the exemption from the requirement to withhold tax on interest payments to non-residents in relation to certain debentures (reducing the cost of obtaining offshore finance for certain unit trusts operating in Australia);
• exclude certain foreign source amounts from a controlled foreign company’s notional assessable income; and
• ensure that double taxation does not occur where deductions for royalty payments have been denied as a result of the operation of the transfer pricing provisions.
The New International Tax Arrangements (Participation Exemption and Other Measures) Act 2004 also amended the Income Tax Assessment 1997. Amongst other things, the amendments:
• provide exemptions from capital gains tax for the disposal of non-portfolio interests in a foreign company carrying on an active business—according to this Explanatory Memorandum, this will give Australian companies (such as Australian multinational companies) and foreign companies controlled by them greater flexibility in corporate restructuring decisions; and
• extend exemptions for non-portfolio dividends and foreign branch profits so that they operate in relation to such dividends and profits earned in all countries, rather than only certain listed countries.
These amendments were designed in part to help Australian multinational companies repatriate to Australia the profits of their foreign businesses, without incurring Australian tax.
The Act also made various amendments designed to reduce the scope of rules applying to tainted sources income, to allow for greater flexibility in dealing with offshore associates.
The amendments made by both Acts apply from 1 July 2004.
These enactments amended various Acts to give effect to the Australia-United States Free Trade Agreement (AUSFTA).
In summary, the United States Free Trade Agreement Implementation Act 2004 made amendments in the areas of customs, agriculture and veterinary chemicals, geographic indications for wine, life insurance, foreign acquisitions and takeovers, Commonwealth authorities and companies, therapeutic goods, patents and copyright.
The United States Free Trade Agreement Implementation (Customs Tariff) Act 2004 amended the Customs Tariff Act 1995 to provide for duty-free access for certain goods and preferential rates of customs duty for other goods that originate in the United States. Preferential rates of customs duty are to phase out by 2015.
The AUSFTA was signed on 18 May 2004. Following an exchange of diplomatic notes certifying that each country had completed its necessary internal requirements for its entry into force, the AUSFTA entered into force on 1 January 2005.
The Stockholm Convention on Persistent Organic Pollutants (the Stockholm Convention) and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam Convention) both entered into force for Australia on 18 August 2004.
The purpose of the Regulations is to provide a generic framework to implement controls on information requirements, importation, manufacture, use, exportation and other dealings involving chemicals subject to international agreements. The Regulations implement the necessary controls as they relate to specified active constituents, or chemical products containing the active constituents, to enable Australia to meet its obligations as a Party to the two Conventions.
For the Stockholm Convention, the Regulations implement obligations by way of information provisions and controls on importation, manufacture, use and exportation. For the Rotterdam Convention, the Regulations implement exportation obligations on relevant chemicals.
Each Convention requires specific, but differing controls, which are identified for each active constituent listed in Schedule 1 to the Regulations. The information provisions and the control of activities provisions allow Australia to comply with the objectives of the Conventions by enabling the Department of Agriculture, Fisheries and Forestry to understand how the relevant chemicals are used within Australia, by whom, and their trade into and out of Australia.
The Agricultural and Veterinary Chemicals Code (the Agvet Code) is enacted under the Agricultural and Veterinary Code Act 1994 (the Agvet Code Act). Under the Agvet Code Act, an applicant may be required to furnish the Australian Pesticides and Veterinary Medicines Authority (the APVMA) with certain information in order for the APVMA to grant an approval to conduct certain activities involving chemicals covered by that Act. Schedule 2 to the US Free Trade Agreement Implementation Act 2004 amends the Agvet Code Act by inserting a new Division 4A. Subsection 34F(1) in this Division sets out, in relation to various types of information so furnished, periods of time following the date of an approval during which time the APVMA is prohibited from using that information. Subsections 34F(2) to 34F(6) then set out situations in which the time periods in 34F(1) can be extended. One of the requirements of such an extension is that the use to which the information is to be put is covered by the regulations.
The purpose of the Regulations is to prescribe the uses of information that will allow for an extension of the prohibition period for the purposes of section 34F of the Agvet Code Act.
Schedule 2 of the US Free Trade Agreement Implementation Act 2004 amends the Agvet Code to require the APVMA to publish certain information, which includes information to be prescribed by regulations. In particular the APVMA is required to publish summaries of:
• applications made under section 10 of the Agvet Code;
• applications for variation of relevant particulars, or of conditions of registration;
• advice relied upon by the APVMA in reaching a decision to grant a particular application under the Agvet Code.
The purpose of the Regulations is to prescribe the information that must be included in these summaries.
Schedule 1 to the Australian Sports Drug Agency Amendment Act 2004 (the Amendment Act) amended the Australian Sports Drug Agency Act 1990 (the Act) to enable the Australian Sports Drug Agency (ASDA) and the Australian Sports Drug Medical Advisory Committee (ASDMAC) to align their policies and procedures to meet their obligations under the World Anti-Doping Code (the Code) by the commencement of the Athens Olympic Games in August 2004.
The Code requires compliance with relevant international standards, for example the standard for therapeutic use exemptions. Such exemptions are issued by ASDMAC. The amendments to the Regulations ensure that ASDMAC’s functions and procedures in this respect are consistent with the relevant international standard as it exists from time to time.
The amendments to the Act implement those parts of the Code dealing with, amongst other things, the reporting and sharing of information.
The purpose of the Regulations is to complement amendments to the Act to ensure that the full reporting and sharing of information can occur as envisioned by the Code. In particular, the Regulations enable ASDA to disclose specified information to any of the sporting administration bodies set out in the Australian Sports Drug Agency Testing (Scheme A) Orders 1999 and the Australian Sports Drug Agency Testing (Scheme B) Orders 2000.
The Act authorises the Australian Wine and Brandy Corporation (AWBC) to, amongst other things, determine the boundaries of the various regions and localities in Australia in which wine is produced and to give identifying names known as geographical indications (GIs) to those regions and localities. The Act provides for the establishment of a Geographical Indications Committee (GIC) and for the GIC to make determinations of GIs for wine in relation to regions and localities in Australia.
The purpose of the Regulations is to introduce new arrangements in relation to the determination of GIs consequential to the Australia-United States Free Trade Agreement.
The US Free Trade Agreement Implementation Act 2004 (USFTA Act) amended the Act to provide specific procedures for the owner of a trademark to object to the determination of an Australian geographical indication (GI) on the basis of pre-existing trademark rights and procedures for the cancellation of an Australian GI. The Australian Wine and Brandy Corporation Regulations 1981 (the Principal Regulations) prescribe the criteria for determining GIs and provide for certain exemptions from the offence provisions.
The Regulations introduce a new Part 6 to the Principal Regulations that establishes a process by which the Registrar of Trade Marks may hear objections to the determination of a GI and make a recommendation to the GIC.
The Regulations amend the Civil Aviation Safety Regulations 1998 (CASR) by inserting a new Part 47, entitled ‘Registration of aircraft and related matters’, into those regulations. Amongst other things, CASR Part 47 ensures that Australia continues to comply with its international obligations under:
• relevant articles of the International Civil Aviation Organization (ICAO) Convention on International Civil Aviation in respect of registration of aircraft; and
• ICAO Annex 7 – Aircraft Nationality and Registration Marks – in respect of the recommended procedures and standards for registration of aircraft.
The Commonwealth Authorities and Companies Act 1997 (the Act) provides reporting, accountability and other rules for Commonwealth authorities and companies.
The Regulations amend the Commonwealth Authorities and Companies Regulations 1997 by, inter alia, prescribing a list of Commonwealth authorities and wholly-owned Commonwealth companies that are subject to government procurement requirements as a consequence of the Australia-United States Free Trade Agreement (AUSFTA).
Under section 3 of Annex 15-A of the AUSFTA, 33 Commonwealth authorities and Commonwealth companies are specified as procuring entities for the purposes of the AUSFTA. The Regulations prescribe these 33 bodies for the purposes of section 47A of the Act, requiring them to comply with the government’s procurement policy framework.
The Copyright Regulations 1969 (the Principal Regulations) prescribe matters relating to, amongst other things, remedies for copyright infringement and notices required to be given under the Copyright Act 1968 (the Act).
Schedule 9 to the US Free Trade Agreement Implementation Act 2004 (USFTA Act) amends the Act to fulfil obligations under Chapter 17 of the AUSFTA, which deals with Intellectual Property Rights.
The procedures set out in the Regulations are intended to provide incentives for carriage service providers to assist copyright owners to protect and enforce their copyrights in an online environment. The amending Regulations:
• prescribe that an industry code that relates to accommodating and not interfering with standard technical measures used to protect and identify copyright material must be developed;
• require carriage service providers to designate representatives authorised to receive notices and counter-notices under the Regulations; and
• provide civil remedies against carriage service providers in certain circumstances and against persons who knowingly make misrepresentations in notifications, notices or counter-notices under the Regulations.
The Copyright Act 1968 (the Act) grants and determines the scope of copyright in Australia.
Schedule 9 to the US Free Trade Agreement Implementation Act 2004 amends the Act to fulfil obligations under Chapter 17 of the Australia-United States Free Trade Agreement (AUSFTA), which deals with Intellectual Property Rights. Article 17.1.4 of the AUSFTA requires Australia to accede to the World Intellectual Property Organisation (WIPO) Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
The Regulations amend the provisions of the Copyright (International Protection) Regulations 1969 to extend copyright protection in Australia to foreign works and subject matter to comply with the obligations of the WCT and WPPT, in fulfilment of Australia’s obligations under the AUSFTA.
In accordance with Article 17.1.6 of the AUSFTA, Australia is obliged to accord to ‘nationals’ of the United States of America (US) national treatment with respect to the protection and enjoyment of copyright covered by Chapter 17 of the AUSFTA. ‘National treatment’ requires that US owners of copyright enjoy the same rights under the Act as do Australians.
The purpose of the proposed Regulations is to amend the provisions of the Copyright (International Protection) Regulations 1969 to extend copyright protection in Australia to United States broadcasts to comply with the obligations of Article 17A.10(b) and 17.7.2 of the AUSFTA.
The Intellectual Property Chapter of the Australia-United States Free Trade Agreement (AUSFTA) requires, inter alia, that Australia accede to the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT). Article 9 of the WCT requires contracting parties to align the term of protection of photographs with that of other artistic works.
The purpose of the Regulations is to prescribe the contents of applications to the Copyright Tribunal for determination of reasonable compensation payable with respect to the exercise of copyright in works, including photographs, films and sound recordings that are the subject of agreements made before the USFTA Act received Royal Assent. In this manner, the Regulations help to bring Australia’s copyright regime into line with the WCT and therefore to give effect to Australia’s commitments under the AUSFTA.
The Crimes (Overseas) Act 1964 (the Act) extends the criminal law of the Jervis Bay Territory extraterritorially over various groups of Australians working in foreign countries, including Australians working in a foreign country where that foreign country is a declared foreign country for the purposes of the Act.
At the 15th Australia-Papua New Guinea Ministerial Forum, held on 11 December 2003, the Governments of Australia and Papua New Guinea agreed to a package of enhanced cooperation for the provision of police and other assistance by Australia to Papua New Guinea.
The amending Regulations render Papua New Guinea a declared foreign country for the purposes of the Act from the date of gazettal and ceasing at the end of 30 June 2008. In doing so, the Regulations apply the criminal law of the Jervis Bay Territory to Australians undertaking a task or performing a function on behalf of the Commonwealth in Papua New Guinea as part of this enhanced cooperation package.
The Australian Federal Police deployed two officers to Jordan in 2004 to provide police training to Iraqi personnel. To ensure Australia was able to exercise jurisdiction over its officers, it was necessary to make Jordan a declared foreign country for the purposes of the Act. The Regulations achieve this, rendering Jordan a declared foreign country for the purposes of the Act from 30 June 2004 until 30 June 2006.
The Act gives effect to Australia’s obligations under the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the Convention) which came into force in Australia on 14 February 1993.
Under the Convention, Australia’s obligations include criminalising a comprehensive list of activities related to trafficking in drugs. Certain gaps in state and territory legislation concerning provisions making it an offence to launder property or money derived from drug offences led to the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Amendment Act 1992 (Amending Act). The Amending Act created three Commonwealth offences relating to laundering money or other property derived from serious drug trafficking offences, to have effect in states or territories that do not have adequate money laundering offence provisions. The effect of the Regulations is to apply the Commonwealth money laundering offences to the Northern Territory.
Division 102 of the Criminal Code sets out the offences in relation to terrorist organisations, which are: directing the activities of a terrorist organisation; being a member of a terrorist organisation; recruiting persons to a terrorist organisation; receiving training from or providing training to a terrorist organisation; or receiving funds from or making available funds, support or resources to a terrorist organisation. The Criminal Code Regulations 2002 (the Principal Regulations) specify organisations for the purposes of Division 102 of the Criminal Code.
The purpose of the Regulations is to insert into Schedule 1 to the Principal Regulations the name of the Palestinian Islamic Jihad (PIJ) and its aliases: ‘Islamic Jihad Palestine (IJP)’; ‘Islamic Jihad – Palestine Faction’; Palestinian Islamic Jihad – Shaqaqi’; and ‘Islamic Holy War’ in order to apply the offence provisions in Division 102 of the Code to persons with links to the Palestinian Islamic Jihad.
The purpose of the Regulations is to omit item 1 of Schedule 1 to the Principal Regulations and to create a new Regulation 4A to the Principal Regulations specifying the name of Al Qa’ida/Islamic Army and its aliases: ‘The Base’; ‘Al Qaida’; ‘Al Qaeda’; ‘International Front for Fighting Jews and Crusaders’; ‘Islamic Army for the Liberation of Holy Sites’; ‘Islamic Salvation Foundation’; ‘The Group for the Preservation of the Holy Sites’; ‘The Islamic Army for the Liberation of the Holy Places’; ‘The World Islamic front for Jihad against Jews and Crusaders’; ‘Usama Bin Laden Network’; ‘Usama Bin Laden Organization’; International Islamic Front Against Jews and Christians’; and ‘Qa’idat Al-Jihad’ for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in Division 102, and in order to apply the offence provisions in Division 102 of the Code to persons with links to Al Qa’ida.
The purpose of the Regulations is to omit item 2 of Schedule 1 to the Principal Regulations and to create a new Regulation 4B to the Principal Regulations specifying the name of 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’; and ‘Jama’ah Islamiyah’ for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in Division 102, and in order to apply the offence provisions in Division 102 of the Code to persons with links to Jemaah Islamiyah.
The purpose of the Regulations is to omit item 3 of Schedule 1 to the Principal Regulations and to create a new Regulation 4C to the Principal Regulations specifying the name of Abu Sayyaf Group and its aliases: ‘Abu Sayyaf Group (ASG)’; ‘Al Harakat Al Islamiyya (AHAI)’; ‘Al Harakat-ul Al Islamiyya’; ‘Al-Harakatul-Islamia’; ‘Al Harakat Al Aslamiya’; ‘Abou Sayaf Armed Band (ASAB)’; ‘Abou Sayyef Group and Mujahideen Commando Freedom Fighters (MCFF)’, for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in Division 102, and in order to apply the offence provisions in Division 102 of the Code to persons with links to Abu Sayyaf Group.
The purpose of the Regulations is to omit item 4 of Schedule 1 to the Principal Regulations and to create a new Regulation 4D to the Principal Regulations specifying the name of Jamiat ul-Ansar and its aliases: ‘Harakat ul-Mujahideen’; ‘HuM; ‘Al-Faran’; ‘Al-Hadid’; ‘Al-Hadith’; ‘Harakat ul-Ansar’; ‘HuA’; and ‘Harakat ul-Mujahidin/HuM’ for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in Division 102, and in order to apply the offence provisions in Division 102 of the Code to persons with links to Jamiat ul-Ansar.
The purpose of the Regulations is to omit item 5 of Schedule 1 to the Principal Regulations and to create a new Regulation 4E to the Principal Regulations specifying the name of Armed Islamic Group and its aliases: ‘Al-Jamm’ah Al-Islamiah Al-Musallah’; ‘GIA’; ‘Groupement Islamique Armé’ and ‘Groupe Islamique Armé’ for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in Division 102, and in order to apply the offence provisions in Division 102 of the Code to persons with links to Armed Islamic Group.
The purpose of the proposed Regulations is to omit item 6 of Schedule 1 to the Principal Regulations and to create a new Regulation 4F to the Principal Regulations specifying the name of Salafist Group for Call and Combat/GSPC and its alias: ‘Le Groupe Salafiste Pour La Prediction et le Combat’ for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in Division 102, and in order to apply the offence provisions in Division 102 of the Code to persons with links to Salafist Group for Call and Combat/GSPC.
The Regulations amend the Customs Regulations 1926 to better reflect Australia’s obligations under Article 2 of the World Trade Organisation Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the WTO Agreement).
Under Part XVB of the Act, antidumping measures may be taken in respect of goods whose exportation to Australia involve a dumping of those goods that injures, or threatens to injure, Australian industry. Goods are taken to have been dumped if the export price of those goods is less than the normal value of those goods.
The purpose of the Regulations is to ensure that the provisions relating to the determination of the normal value of goods are consistent with Article 2 of the WTO Agreement and are set out in a format that is clearer and more effective.
Under the Thailand-Australia Free Trade Agreement (TAFTA), special rules apply to the treatment of goods imported from, and exported to, Thailand. The purpose of the Regulations is to prescribe record-keeping obligations to which producers and exporters of goods to Thailand must adhere. The Regulations also prescribe new circumstances in which an importer of Thai goods into Australia may be refunded in respect of customs duty for which they are exempt by virtue of TAFTA.
Part 1 of Schedule 1 to the US Free Trade Agreement Implementation Act 2004 (the USFTA Act) amends the Customs Act 1901 (the Act) to fulfil Australia’s obligations under Chapters 4 and 5 of the Australia-United States Free Trade Agreement, which deal with rules of origin. These rules determine whether goods imported into Australia are United States originating goods and are thereby eligible for preferential rates of customs duty.
The purpose of the Regulations is to prescribe matters relating to the rules of origin that are required to be prescribed under new Division 1C of the Act (US originating goods). The Regulations, amongst other things:
• detail the product-specific requirements relevant to each tariff classification for goods;
• explain the methods used to determine the regional value content of goods; and
• specify the valuation rules for different classes of goods.
Australia has ratified the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam Convention) and the Stockholm Convention on Persistent Organic Pollutants (the Stockholm Convention). Both Conventions entered into force for Australia on 18 August 2004.
The purpose of the Regulations is to amend the Customs (Prohibited Exports) Regulations 1958 to put in place export controls on the Stockholm and Rotterdam chemicals, whether or not the chemicals are agricultural or veterinary in nature. The Customs (Prohibited Imports) Regulations 1956 have been amended to put in place associated import controls on the Stockholm chemicals. Specifically, the Regulations prohibit the exportation of listed Stockholm and Rotterdam chemicals unless the Minister or an authorised officer has given written permission to export those chemicals.
The Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) control the importation of specified goods for the purposes of the Act.
Australia has ratified the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam Convention) and the Stockholm Convention on Persistent Organic Pollutants (the Stockholm Convention).
The purpose of the Regulations is to amend the Customs (Prohibited Imports) Regulations 1956 to put in place import controls on the Stockholm chemicals regardless of whether the chemicals are agricultural or veterinary in nature. The Customs (Prohibited Exports) Regulations 1958 have been amended to put in place associated export controls on the Rotterdam and Stockholm chemicals. Specifically, the Regulations amend the prohibition on the importation of organochlorine chemicals in keeping with Australia’s international obligations.
The US Free Trade Agreement Implementation Act 2004 (the USFTA Act) amends the Customs Act 1901 (the Customs Act) to fulfil obligations under the Australia-United States Free Trade Agreement (AUSFTA), in respect of Rules of Origin.
The associated US Free Trade Agreement Implementation (Customs Tariff) Act 2004 (the FTA Tariff Act) contains amendments to the Customs Tariff Act 1995 (the Act) to implement Australia’s obligations under AUSFTA by lowering rates of customs duty for imported goods that are United States originating goods.
However, in a small number of cases, the United States tariff classification is narrower than the Australian equivalent. This means that, in the absence of any measure to address this slight incongruence, the US would benefit from lower rates on products for which Australia would not receive reciprocal treatment. Thus, in order to achieve reciprocity, not all of the goods that are classified under the particular tariff classifications mentioned in the Act are to be subject to the preferential rates of duty. Accordingly, these duty rates are expressed to apply to prescribed goods only.
The purpose of the Regulations is to prescribe goods for this purpose.
The Customs Amendment (Thailand-Australia Free Trade Agreement Implementation) Act 2004 amends the Customs Act 1901 (the Act) to fulfil Australia’s obligations under Chapter 4 of the Thailand-Australia Free Trade Agreement, which deals with rules of origin. These rules determine whether goods imported into Australia are Thai originating goods and are thereby eligible for preferential rates of customs duty.
The purpose of the amending Regulations is to prescribe matters relating to the rules of origin, including:
• the product-specific requirements relevant to each tariff classification for goods;
• the method used to determine the regional value content of goods for the purposes of some of the product-specific requirements set out in the Act; and
• the valuation rules for different classes of goods.
The United States has imposed quotas under the Australia-United States Free Trade Agreement (AUSFTA) to control the access of certain dairy produce imported from Australia free of tariffs. This regulation will ensure, as far as possible, that a common, transparent and equitable process is in place for each of the applicable dairy quotas introduced under AUSFTA.
The purpose of these regulations is to prescribe that certain dairy products are regulated dairy produce for the purposes of exportation under the terms of AUSFTA, and to make provisions in relation to the granting of approvals to export that regulated dairy produce to the United States.
The Paris Convention for the Protection of Industrial Property provides a right of priority for nationals or residents of member states to claim the date they first filed an application for registration of a design in a Convention country as the date of filing in other Convention countries. To obtain priority in another Convention country, an application for registration of that design must be filed in that country within six months of the filing date in the first country.
The Regulations operate to include Saudi Arabia in the list of Convention countries to which the right of priority applies. This reflects the fact that Saudi Arabia acceded to the Paris Convention, with effect from 11 March 2004.
The Evidence and Procedure (New Zealand) Act 1994 (the Act) establishes a regime to facilitate the production of evidence across the two jurisdictions, including arrangements for requiring a witness to attend court and the giving evidence by video link or telephone.
The purpose of the Regulations is to enable specified Northern Territory courts to participate in the legislative regime that facilitates the production of evidence between Australian and New Zealand courts.
The Extradition Act 1988 (the Act) makes provision for the extradition of persons from Australia to certain prescribed countries, and facilitates the making of requests for extradition by Australia to other countries. The Act also enables Australia to carry out its obligations under extradition treaties.
The Act applies the modern 'no evidence' extradition standard. Under this standard, countries are not required to present evidence establishing a prima facie case against the person sought.
Extradition under the Act is subject to various safeguards. For example, extradition will not be permitted where a fugitive is sought for or in connection with her or his race, religion, nationality or political opinions or would be tried, sentenced or detained for a political or military offence. In addition, the Commonwealth Attorney-General retains a broad discretion to refuse an extradition request in any particular case.
The purpose of the Regulations is to remove Canada from the Schedule to the Extradition (Commonwealth Countries) Regulations 1998 and re-establish extradition arrangements with Canada under regulations for that specific purpose, enabling Australia to consider extradition requests received from Canada under a new extradition arrangement with Canada.
The previous arrangements required Canada to present evidence sufficient to establish a prima facie case for extradition in each extradition request.
By removing Canada from the Schedule to the Extradition (Commonwealth Countries) Regulations 1998 and re-establishing extradition arrangements with Canada under regulations for that specific purpose, the Regulations remove the evidentiary requirement for extradition requests from Canada while retaining the various safeguards set out in the Act. The Regulations thus bring the evidentiary requirements in relation to Canadian extradition requests in line with the evidentiary standard set by the Act.
Extradition to Canada under the Regulations operates in accordance with the Act, subject to a number of modifications effected by the Regulations.
Firstly, the Regulations impose a requirement that additional documentation must be provided for the purpose of a magistrate's determination under the Act of whether a person is eligible for extradition to Canada. In such cases, an extradition request needs to be accompanied by a statement of the identity, nationality and physical description of the person whose extradition is sought by Canada.
Secondly, the operation of paragraph 17(2)(a) of the Act is also modified by the Regulations whereby a person arrested may apply to a magistrate for release after 60 days if a request for his or her extradition has not been received. The standard period under the Act is 45 days. Modification to apply a 60 day period is common and has been included, for example, in extradition agreements with Brazil, Chile, Hungary, Mexico, Paraguay, South Korea, the United States and Venezuela. Such a modification is to allow the requesting country sufficient time to prepare and lodge the extradition request.
The Regulations maintain the modification of "political offence" in relation to Canada, which previously applied to Canada by operation of regulation 4 of the Extradition (Commonwealth Countries) Regulations 1998. The modification states that an offence constituted by the actual or attempted taking or endangering of the life of a person shall not be a political offence where it is committed in circumstances that create a direct or indirect collective danger to the lives of other persons. The effect is that the extradition of a person who is accused of a crime of this nature is not barred on the basis that it is a political offence.
Extradition under the Regulations is subject to the various safeguards set out in the Act.
The purpose of the Regulations is to remove the United Kingdom from the Schedule to the Extradition (Commonwealth Countries) Regulations 1998 and re-establish extradition arrangements with the United Kingdom under regulations for that specific purpose, enabling Australia to consider extradition requests received from the United Kingdom under a new extradition arrangement with the United Kingdom.
The new arrangements made in relation to the United Kingdom are the same as those made in relation to Canada, as described above.
The purpose of the Regulations is to terminate the application of the Act to Croatia and to re-establish extradition arrangements with Croatia under regulations for that specific purpose. This enables Australia to consider extradition requests received from Croatia under a new extradition arrangement with Croatia, as well as permitting Australia to consider extradition requests received from Croatia under the ‘no evidence’ extradition procedure set out in the Act.
Extradition to Croatia under the Regulations 2004 operates in accordance with the Act, subject to a modification, namely that an arrested person may apply to a magistrate for release after 60 days if a request for his or her extradition has not been received (the standard period under the Act is 45 days). This is to allow Croatia sufficient time to prepare and lodge an extradition request.
Extradition under the Regulations is subject to the various safeguards set out in the Act.
The purpose of the Regulations is to extend the operation of the Extradition (Kingdom of Cambodia) Regulations 2003 (the Principal Regulations), under which Australia is enabled to deal with any extradition request received from Cambodia. The Principal Regulations commenced on 13 March 2003, and would therefore have ceased to have effect at the end of 13 March 2004. The Regulations allow the government to consider extradition requests from Cambodia after 13 March 2004.
The purpose of the Regulations is to establish extradition arrangements with Kyrgyzstan under regulations for that specific purpose, enabling Australia to consider extradition requests received from Kyrgyzstan. Australia did not have a prior extradition relationship with Kyrgyzstan.
Extradition to Kyrgyzstan under the Regulations operates in accordance with the Act, subject to a modification, namely that an arrested person may apply to a magistrate for release after 90 days if a request for his or her extradition has not been received. The standard period under the Act is 45 days. It is considered that a 90-day period in this instance is necessary in order to provide Kyrgyzstan with a sufficient period in which to prepare and lodge an extradition request, as Kyrgyzstan has no experience in making extradition requests to Australia and has very limited bureaucratic and judicial resources. Otherwise extradition under the Regulations is subject to the various safeguards set out in the Act.
The Regulations give effect in Australian domestic law to the Treaty on Extradition between Australia and the Republic of Latvia, signed at Riga on 14 July 2000 (the Treaty) which entered into force on 16 January 2005.
Any requests for extradition made after the entry into force of the Treaty may be granted irrespective of whether the offence in relation to which extradition is sought was committed before or after the entry into force of this Treaty.
As with all of Australia’s extradition treaties, the extradition treaty with Latvia contains all the internationally accepted human rights safeguards which are now a part of modern extradition arrangements.
The purpose of the Regulations is to establish extradition arrangements with Slovenia under regulations for that specific purpose, enabling Australia to consider extradition requests received from Slovenia.
Extradition to Slovenia under the Regulations operates in accordance with the Act, subject to a modification, namely that an arrested person may apply to a magistrate for release after 60 days if a request for his or her extradition has not been received. The standard period under the Act is 45 days. The extended period is to allow Croatia sufficient time to prepare and lodge an extradition request. Extradition under the Regulations is subject to the various safeguards set out in the Act.
Australia is moving towards ratification of the United Nations Convention Against Transnational Organised Crime (the Convention) and the Protocol against the Smuggling of Migrants by Land, Air and Sea (the Protocol).
In order to meet the extradition obligations in the Convention and the Protocol, the Regulations declare that current states parties to the Convention are extradition countries for the purpose of the Act (all countries that are states parties to the Protocol are also states parties to the Convention).
This enables Australia to make and receive extradition requests to and from a state party to the Convention or the Protocol for an offence set out in the Convention or the Protocol respectively.
The Hague Convention on the Civil Aspects of International Child Abduction (the Convention) came into force in Australia on 1 January 1987. This Convention deals with the civil aspects of international child abduction and aims 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 the other Convention countries.
The Regulations amend the Family Law Regulations 1984 and the Family Law (Child Abduction Convention) Regulations 1986 to, inter alia:
• enable the court to have a discretion concerning the country or person to which or to whom a child is to be returned;
• provide that the discretion to refuse to return a child because of the child’s wishes must not be exercised unless the child’s objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
• enable a party to apply for the discharge, suspension, revival or variation of a return order in appropriate circumstances;
• remove any doubt that the evidence provisions of the Child Abduction Regulations have effect despite any inconsistency with the Commonwealth Evidence Act 1995 or with any other law about evidence; and
• to make other technical amendments to the Child Abduction Regulations.
The Act gives the Treasurer discretionary powers in relation to acquisitions by foreign interests of substantial interests in Australian businesses or corporations where such acquisitions are deemed not to be in the national interest. Foreign interests must notify the government of certain classes of investments in certain circumstances.
The US Free Trade Agreement Implementation Act 2004 (the USFTA Act) amends the Act to fulfil obligations under Annex 1 (Schedule of Australia) and Chapter 11 (Investment) of the Australia-United States Free Trade Agreement, according to which Australia agreed to relax the notification requirements for certain United States sourced investments in Australia.
The purpose of the Regulations is to enable:
• exemption from the Act for those acquisitions of interests in Australian financial sector companies, as defined by the Financial Sector (Shareholdings) Act 1998 (FSSA);
• introduction of a minimum screening threshold of $800 million, indexed annually, for acquisitions of interests in Australian corporations and businesses in non-sensitive sectors (see below);
• introduction of a minimum screening threshold of $50 million, indexed annually, for acquisitions of interests in Australian corporations and businesses in defined ‘sensitive sectors’; and
• introduction of a minimum screening threshold of $50 million, indexed annually, for acquisitions by entities in which a United States government has the prescribed interest.
The object of the Act is to regulate specified evidentiary matters involving overseas jurisdictions. Those matters include the examination of witnesses abroad, and the taking and use of evidence. Subsection 20(2) of the Act provides that foreign material may be used in any court of a state or territory specified in the regulations and, specifically, a criminal proceeding for an offence against the law of that State or Territory, or a civil proceeding of a kind specified in the regulations in respect of that State or Territory.
Proceedings brought pursuant to the Crimes (Confiscation of Profits) Act 1988 (WA) (the CCPA) had previously been prescribed for the purposes of the Act. The CCPA was superseded on 1 January 2001 by the Criminal Property Confiscation Act 2000 (WA) (CPCA). The Regulations reflect this change, allowing foreign evidence to be used in civil proceedings under the CPCA.
Division 2 of Part IIIB of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 commenced on 27 May 2004. That Division gives effect to Australia’s obligations regarding the discharge of sewage into the sea under Annex IV of the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78).
The purpose of the Regulations is to regulate the discharge of sewage in the Marine Park, and make provision for when a vessel can discharge sewage in the Marine Park. These Regulations will ensure a consistent approach with regard to the discharge of sewage in waters of the Marine Park, Queensland coastal waters, and the discharge of sewage from foreign and domestic ships on international voyages, and ensure Australia’s continued compliance with MARPOL 73/78.
The purpose of the Regulations is to update Australia’s regulatory scheme for the control of transboundary movements of hazardous wastes in order to give effect to OECD Council Decision C(2001)107/FINAL (the Decision).
The Decision, which came into effect for Australia on 14 June 2001, was declared to be an arrangement for the purposes of Article 11 of the Basel Convention (the Convention), Article 11.2 of which exempts certain control systems from the provisions of the Convention provided they are compatible with the Convention.
The Decision improves the existing control system for movements of hazardous wastes from one OECD country for recycling operations in another OECD country. The Decision harmonises the OECD lists of wastes with Annexes VIII and IX to the Convention.
The Regulations reflect changes that were made to the Act by the Industrial Chemicals (Notification and Assessment) Amendment (Rotterdam Convention) Act 2004 (the Amendment Act). The Amendment Act made a number of changes to the Act to give effect to Australia’s obligations under the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Convention).
Subsection 106(1) of the Act provides that if an industrial chemical is the subject of a prescribed international agreement to which Australia is a party, the regulations may prohibit or limit the introduction or export of the industrial chemical.
The Regulations prescribe the Convention for the purposes of the Act. The Regulations also provide that specific chemicals may not be imported or exported without prior authorisation from the relevant Australian Authority, allowing Australia to comply with its obligations under the Convention in relation to controlling or preventing the export of specific chemicals to certain countries.
The World Tourism Statutes require that member states provide the World Tourism Organisation privileges and immunities that are required for the World Tourism Organisation to perform its functions.
Accordingly, the Regulations, inter alia:
• confer upon the World Tourism Organisation juridical personality and legal capacity to enable it to perform its functions in Australia;
• confer various privileges and immunities on the World Tourism Organisation;
• provide that the official premises, property, and documents of the World Tourism Organisation are inviolable; and
• provide certain privileges and immunities to the Secretary-General and Deputy Secretary-General of the World Tourism Organisation, and to the officers and employees of the World Tourism Organisation.
The International Transfer of Prisoners Act 1997 (the Act), along with Australia’s multilateral and bilateral transfer agreements, forms the basis of the International Transfer of Prisoners scheme (the scheme) in Australia, and, inter alia, gives effect to the Convention on the Transfer of Sentenced Persons (the Convention). The scheme allows Australians imprisoned overseas to apply to return to Australia to serve the remainder of their sentences in an Australian prison, and allows the complementary process for foreign nationals who are imprisoned in Australia.
The purpose of the Regulations is to prescribe Bolivia and Venezuela as declared transfer countries for the purposes of the Act, reflecting the recent accession of those countries to the Convention.
The US Free Trade Agreement Implementation Act 2004 (the USFTA Act) amends the Act in accordance with Chapter 13 of the Australia-United States Free Trade Agreement (AUSFTA), which allows foreign life insurers to establish branches in Australia in order to conduct life insurance business. Previously, only insurers incorporated in Australia could conduct life insurance business in Australia.
The purpose of the Regulations is to amend the provisions of the Life Insurance Regulations 1995 to:
• specify the countries that foreign life insurers must be incorporated and regulated in to be eligible to establish a branch in Australia; and
• make other structural changes to accommodate branches of foreign life insurance companies in the regulatory regime.
The Maritime Transport and Offshore Facilities Security Act 2003 (the Act) gives effect in Australian law to a new international maritime security regime, which came into force on 1 July 2004. The new regime is set out in the new Chapter XI-2 of the International Convention for the Safety of Life at Sea (SOLAS) and the International Ship and Port Facility Security (ISPS) Code.
The purpose of the Regulations is to establish additional key requirements for Australian maritime industry participants (MIPs) and operators of foreign regulated ships, as well as to correct some minor errors and clarify some provisions in the Maritime Transport Security Regulations 2003 (the Principal Regulations).
In summary, the amendments to the Principal Regulations specify, inter alia:
• pre-arrival information for regulated foreign ships and pre-entry information for regulated Australian ships;
• the matters to be covered by ship security records for regulated Australian and foreign ships;
• training and qualification for maritime security guards and screening officers;
• time limits for keeping information current, and penalties for breaches;
• notices to be displayed at screening points; and
• exemptions for certain types of ships.
The purpose of the Regulations is to clarify provisions in the Maritime Transport Security Regulations 2003 (the Principal Regulations) and to correct inconsistencies identified since notification of the Principal Regulations.
In summary, the Regulations, inter alia:
• enable port operators to request the establishment of a land-side restricted zone;
• specify requirements for the establishment of on-board security zones which operate under prescribed circumstances; and
• clarify that members of the Australian Defence Force on duty and their vessels, vehicles or goods are not to be denied entry into a maritime security zone.
Under the SOLAS Convention, Australia is required to communicate the appropriate facts to the next ports of call and other coastal states if a ship has been expelled from Australian waters or denied entry into an Australian port.
The purpose of the Regulations is to insert provisions to enable the Secretary of the Department of Transport and Regional Services to obtain information from security-regulated ships concerning their next four ports of call.
The purpose of the Regulations is to give effect to United Nations Security Council Resolution No 1478 (2003) (Resolution 1478), further refining travel restrictions on specified persons connected to the Liberian government. (Travel restrictions were imposed initially by resolution 1343.)
United Nations Security Council Resolution No 1478 (2003) denounced the continued support by the Liberian government of armed rebel groups in neighbouring countries and imposed various sanctions. Resolution 1478 included the requirement that member states prevent entry into, or transit through, their territories by additional designated persons including members of Liberians United for Reconciliation and Democracy or any member of an armed rebel group designated by a committee of the Security Council to be in violation of Resolution 1343.
The Regulations amend the Principal Regulations to include these additional persons designated in Resolution 1478, and to make various technical amendments to the Principal Regulations.
The purpose of these Regulations is to give effect to United Nations Security Council Resolution No 1521 (2003) (Resolution 1521), which provides for the establishment of a new list of persons to whom travel restrictions apply.
Resolution 1521 concerning Liberia effectively dissolved Resolutions 1343 and 1478 that previously created travel restrictions in relation to listed persons, and created a new United Nations Committee to compile a new list of persons subject to travel restrictions which will be regularly updated. The new Regulations amend the Principal Regulations to incorporate Resolution 1521 and refer to a Gazette Notice which will list the names of persons to whom travel restrictions apply as a result of the Resolution. The Gazette Notice will be regularly updated to reflect amendments to the travel-ban list made by the Committee.
The Mutual Assistance in Criminal Matters Act 1987 (the Act) allows Australia to provide assistance in criminal matters in response to requests from foreign countries.
Section 15 of the Act provides that the Attorney-General may authorise a police officer to apply to a Magistrate for a search warrant to obtain material sought in a mutual assistance request from a foreign country.
Section 15 of the Act was amended by the Crimes Legislation Amendment (Telecommunications Offences and other Measures) Act (No 2) 2004 to remove a requirement that a foreign country must expressly request the Attorney-General ‘to arrange for the issue of a search warrant’, such that the foreign country now need only request the Attorney-General ‘to arrange for the evidential material to be obtained’ without specifying the use of a search warrant.
The Regulations amend the Mutual Assistance in Criminal Matters Regulations 1988 to reflect this change.
The Regulations give effect in Australian domestic law to the Treaty between Australia and the Hellenic Republic on Mutual Assistance in Criminal Matters, signed at Athens on 4 July 2002 (the Treaty). Under the Treaty, Australia and Greece have agreed to provide each other with mutual assistance in criminal matters, including search and seizure, service of documents, taking of evidence, arranging for witnesses to give evidence or to assist in investigations, and the restraint, forfeiture and confiscation of proceeds of crime.
Australia’s requirement for the Treaty’s entry into force was the making of the Regulations.
Australia is moving toward ratification of the United Nations Convention Against Transnational Organised Crime (the Convention) and the Protocol against the Smuggling of Migrants by Land, Air and Sea (the Protocol).
The Convention and the Protocol contain obligations for mutual assistance in criminal matters. All these obligations apply only to other states parties to the Convention and the Protocol respectively.
The Regulations apply the Act to foreign countries that are currently state parties to the Convention, and those which are party to both the Convention and the Protocol.
The Regulations enable Australia to make and receive requests to and from a state party to the Convention for mutual assistance relating to an offence in the Convention. They also allow Australia to make and receive requests to and from a state party to the Protocol for mutual assistance relating to an offence in the Protocol.
The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 provides that a person who imports or exports a synthetic greenhouse gas, or imports refrigeration and air-conditioning equipment containing hydrochlorofluorocarbons (HCFCs) or hydrofluorocarbons (HFCs) must give a report in accordance with the regulations to the Minister within 15 days after the end of the quarter in which the import or export occurred.
The purpose of the Regulations is to, amongst other things, prescribe the information that should be included in a report on import or export of synthetic greenhouse gases; and prescribe the information that should be included in a report on import of refrigeration and air-conditioning equipment that contains HCFCs or HFCs.
The information gathered from these reports will enable the Australian government and industry to be better informed in developing further policy and to meet international obligations to report on the use and emissions of synthetic greenhouse gases under the United Nations Framework Convention on Climate Change.
The Paris Convention for the Protection of Industrial Property provides a right of priority for nationals or residents of member countries to claim the date they first filed an application for a patent for an invention in a Convention country, as the date of filing of applications for a patent for the invention in other Convention countries.
Schedule 1 to the Patents Act 1990 (the Act) defines a Convention country as a foreign country declared by the regulations to be a Convention country for the purposes of the Act.
The Regulations amend Schedule 4 to the Patents Regulations 1991 to include Saudi Arabia in the list of Convention countries to which the right of priority applies. This reflects the fact that Saudi Arabia has acceded to the Paris Convention, with effect from 11 March 2004.
The Patent Cooperation Treaty (PCT) is an international agreement that allows applicants to file their patent application in as many member countries as they choose by filing an international application and selecting the countries in which protection is required. The international application is governed by the PCT until it ‘enters the national phase’, which is when the applicant requests that the application proceed under the domestic law of each member country selected by the applicant.
The purpose of the Regulations is to simplify the publication arrangements for PCT applications in Australia by:
• modifying the relevant parts of the Act to remove the requirement for a PCT application to be published under both the Act and the PCT. Instead, an application will now be taken to have been published for the purposes of the Act when it is published under the PCT; and
• amending the Principal Regulations to remove the requirement to publish the lapsing of a PCT application that does not enter the national phase in Australia.
The Regulations also amend the list of Convention countries in Schedule 4 to the Principal Regulations to reflect further accessions to the Paris Convention for the Protection of Industrial Property and accurately present the names of the Convention countries listed in the Schedule.
Schedule 8 to the US Free Trade Agreement Implementation Act 2004 (the USFTA Act) made several amendments to the Act to provide a new ground of opposition to the grant of a standard patent: namely, that the claimed invention is not useful or has been secretly used. Under the USFTA Act the new ground of opposition applies to patent applications made before the commencement of Schedule 8 to the USFTA Act, including, by necessary implication, patent applications which are the subject of an opposition proceeding under the Act initiated before the commencement of that Schedule.
The Regulations provide the procedural framework by which a person opposing the grant of a standard patent may rely on the new ground of opposition introduced under the USFTA Act.
The Patent Cooperation Treaty (PCT) is an international agreement that allows applicants to file patent applications in several member countries by filing a single international application and designating the countries in which protection is required. PCT applications are processed in two stages. The first is the ‘international phase’, in which the application proceeds before various international authorities under the PCT. The second is the ‘national phase’, in which the application proceeds before the Patent Office under the Act. Once the application has entered the national phase in a particular country, it is not affected by any further processing that may happen to the international application in the international phase.
During the international phase, an international preliminary examining authority will, if the applicant demands, carry out an international preliminary examination, and establish an international preliminary examination report (an IPER).
The applicant must enter the ‘national phase’ in Australia in order for an Australian patent to be granted on the application. To process an application in the national phase, it is often necessary to have a copy of any IPER that may have been established prior to national phase entry to ascertain whether and how the application was amended during the international phase.
There can be significant delays between the establishment of an IPER and its receipt in Australia by the Patent Office. This can result in lengthy delays in processing PCT applications in the national phase.
The main purpose of these Regulations is to address these delays by establishing a procedure by means of which the affected patent applications can be processed even if the IPER has not been provided to the Patent Office, and to prevent this problem from occurring in the future.
The purpose of the Regulations is to extend arrangements for the repayment of indirect tax to the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (the PrepCom) so that purchases made between 17 August 2000 and 27 March 2002 are covered also.
The PrepCom was established in 1996 to prepare for the operation of the Comprehensive Nuclear-Test-Ban Treaty (CTBT), and of its verification regime, when the Treaty enters into force. A particular task of the PrepCom is to manage the establishment and provisional operation of the International Monitoring System (IMS) which will comprise 337 facilities worldwide for seismic, radionuclide, infrasound and Hydroacoustic monitoring.
To facilitate the hosting of 21 IMS facilities in Australia, Australia and the PrepCom signed a bilateral arrangement in March 2000. This came into effect on 17 August 2000. The provisions of the arrangement require, inter alia, that Australia will make arrangements for repayment of indirect tax on significant purchases for official use. The Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (Privileges and Immunities) Amendment Regulations 2002 were made to address this obligation, but commenced only on 28 March 2002. The Regulations make it possible to deal with claims made by the PrepCom for refund of indirect tax on activities between 17 August 2000 and 27 March 2002.
Subsection 8(1) of the Social Security (International Agreements) Act 1999 (the Act) provides that a Schedule setting out the terms of an agreement between Australia and another country may be added to the Act by regulations, if the agreement relates to reciprocity in social security matters.
The purpose of the Regulations is to insert the Agreement on Social Security between Australia and the Republic of Croatia (the Agreement with Croatia), as new Schedule 16 to the Act, effective as of 1 July 2004. The purpose of this type of Agreement is to enable the parties to share the responsibility for providing adequate social security coverage for those people whose residency has, over the course of their life, been spread across the two countries.
The purpose of the Regulations is to insert the Agreement on Social Security between Australia and the Kingdom of Belgium (the Agreement), as new Schedule 18 to the Social Security (International Agreements) Act 1999, to have effect from 1 July 2005.
The purpose of this type of Agreement is to enable the parties to share the responsibility for providing adequate social security coverage for those people whose residency has, over the course of their life, been spread across the two countries.
The Paris Convention for the Protection of Industrial Property provides a right of priority for nationals or residents of member countries to claim the date they first filed an application for registration of a trade mark in a Convention country as the date of filing applications for registration of that trade mark in other Convention countries.
The Regulations amend the Trade Marks Regulations 1995 to include Saudi Arabia in the list of Convention countries to which the right of priority applies. This reflects the fact that Saudi Arabia has acceded to the Paris Convention, with effect from 11 March 2004.
In the main, the Regulations amend the list of Convention countries in Schedule 10 to the Trade Marks Regulations 1995 to:
• insert Andorra and Bhutan into the list of Convention countries to reflect the accession of these countries to the Paris Convention for the Protection of Industrial Property;
• replace Yugoslavia with Serbia and Montenegro in the list of Convention countries as a result of the change of name from the Federal Republic of Yugoslavia to Serbia and Montenegro in February 2003; and
• make some minor changes to the entries in Schedule 4 for Cambodia, Macau, Sao Tome and Principe and Suriname so the entries for these Convention countries accord with the naming formats used by the United Nations and the World Trade Organization.
The effect of these changes is to allow applicants who have filed trade mark applications in the above countries on a particular date to claim that date when they subsequently file an application for their trade mark in Australia.
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.
The Schedules to the Trans-Tasman Mutual Recognition Act 1997 (the Act) set out the exclusions and exemptions to the TTMRA. In particular, Schedule 3 provides for special exemptions for laws relating to certain goods (including therapeutic goods, hazardous substances, industrial chemicals, dangerous goods, road vehicles, gas appliances, radio communications devices and consumer product safety standards). The expiry date for regulations covered under Schedule 3 (Special Exemptions) is April 30 each year.
The purpose of the Regulations is to extend the special exemption status for laws relating to goods, covered by Schedule 3 of the Act, for a further 12-month period expiring on 30 April 2005. The extension is to allow Australian and New Zealand regulators to continue to develop complementary regulatory arrangements for those matters which are the subject of the current exemptions.
[∗] Office of International Law, Attorney-General’s Department, Canberra.
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URL: http://www.austlii.edu.au/au/journals/AUYrBkIntLaw/2006/14.html