Commonwealth Numbered Regulations - Explanatory Statements
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INTERNATIONAL ORGANISATIONS (PRIVILEGES AND IMMUNITIES--ASIAN INFRASTRUCTURE INVESTMENT BANK) AMENDMENT REGULATION 2016 (NO. 1) (F2016L00753)
Explanatory Statement
Issued by the Authority of the Minister for Foreign Affairs
International Organisations (Privileges and Immunities) Act 1963
International Organisations (Privileges and Immunities-Asian Infrastructure
Investment Bank) Amendment Regulation 2016 (No. 1)
The International Organisations (Privileges and Immunities-Asian Infrastructure Investment Bank) Regulation 2015 (the Regulation) provides the required privileges and immunities to the Asian Infrastructure Investment Bank (the Bank), thereby giving effect to Australia's obligations as a prospective member of the Bank and facilitating Australia's ratification of the Asian Infrastructure Investment Bank Articles of Agreement.
Section 13 of the International Organisations (Privileges and Immunities) Act 1963 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
In summary, the Regulation provides that the Bank: is an international organisation to which the Act applies; has juridical personality and legal capacities; and specifies the privileges and immunities under the Act which apply to the Bank. Section 8 of the Regulation also provides, for the purposes of section 11C of the Act regarding the application of the indirect tax concession scheme, that acquisitions by the Bank intended for the official use of the Bank are covered by the Regulation.
The Standing Committee on Regulations and Ordinances (the Committee) when considering the Regulation, expressed the view that Section 13 of the Regulation was too broad in its application. Section 13 of the Regulation provides that the Minister may, by writing, delegate his or her powers under paragraphs 9(1)(b) and (5)(b) of the instrument to 'a person'.
The Committee noted that the Minister's intention appears to be for the Chief of Protocol in the Department of Foreign Affairs and Trade to exercise the powers delegated by the instrument. However, it was unclear to the Committee why this had not been provided for in the instrument itself.
The Committee also noted the amendment appeared to be inconsistent with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that allows delegations to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. According to this approach, a limit should generally be set on either the sorts of powers that might be delegated or on the categories of people to whom powers might be delegated; and delegates should be confined to the holders of nominated offices or to members of the senior executive service.
The Committee considered that there was no justification for the broad delegation of the Minister's powers under paragraphs 9(1)(b) and (5)(b) of the regulation to 'a person'. The Committee requested amendment to the Regulation to state the specific category of persons to whom the Minister can delegate their powers under these regulations.
The Minister for Foreign Affairs (the Minister) noted the Committee's concerns and advised the Committee that she would take steps as soon as possible to amend the Regulation to state the specific category of persons to whom she could delegate her powers under these regulations.
The proposed amendment is similar to the delegation power provided for in other regulations created under the Act - (see section 22 of the Secretariat to the Meeting of the Parties on the Conservation of Albatrosses and Petrels (Privileges and Immunities) Regulations 2008 and section 30 of the International Tribunal for the Law of the Sea Regulations 2000). It would also reflect existing practice for delegated authority for regulations created under the Act.
Further details of the Amendment to the Regulation are set out in Attachment A.
Australia completed the necessary ratification processes and became a member of the Bank on 10 November 2015.
States and Territories were consulted during preparation of the National Interest Analysis and the development of the original legislation. As the amendment is minor no further consultation will be undertaken. All relevant Ministers and Commonwealth Government Departments were consulted during the drafting of this Regulation. The Office of Best Practice Regulation was consulted and confirmed that a Regulation Impact Statement is not required as the amendment is relatively straightforward and the impact on business and the community is minimal (OBPR ID 205333). No public consultation was undertaken during the development of the original legislation, however the Joint Standing Committee on Treaties (JSCOT) and the Senate Economic Legislation Committee (SELC) held public hearings and called for public submissions during the introduction of the Asian Infrastructure Investment Bill 2015. As the amendment is minor no further consultation will be undertaken.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
International Organisations (Privileges and Immunities-Asian Infrastructure
Investment Bank) Amendment Regulation 2016 (No. 1)
Overview
The amendment will not affect compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The International Organisations (Privileges and Immunities-Asian Infrastructure Investment Bank) Regulation 2015 (the Regulation) is an instrument made under the International Organisations (Privileges and Immunities) Act 1963 (Cth) (the Act). The Regulation confers such privileges and immunities to the Asian Infrastructure Investment Bank (the Bank) as are required to give effect to the Bank's Articles of Agreement and confers upon the Bank in Australia legal status and such legal capacities as are necessary for the exercise of its powers and the performance of its functions. Provision of privileges and immunities is standard practice when Australia becomes a member of an international organisation and is required by the terms of the relevant international agreement.
In summary, the Regulation provides that the Bank:
× is an international organisation to which the Act applies;
× has juridical personality and legal capacities; and
× has conferred upon it specific the privileges and immunities under the Act, being those in items 6, 7 and 8 of the First Schedule to the Act (section 7 of the Regulation). These items provide for exemptions from: duties on the importation or exportation of goods for official use and publications; the liability to pay or collect taxes other than duties for the importation or exportation of goods and of the income, property, assets and transactions of the organisation from such taxes; and from taxes of obligations and securities issued or guaranteed by the organisation and of interest and dividends on such obligations and securities. Section 8 of the Regulation also provides (for the purposes of section 11C of the Act), regarding the application of the indirect tax concession scheme, that acquisitions by the Bank intended for the official use of the Bank are covered by the Regulation.
The amendment to the Regulation will not alter the impact of the Regulation in respect of the elements set out in the preceding paragraph.
Importantly, the privileges and immunities that are provided for in this Regulation primarily relate to exemptions on duties and the payment and collection of taxes and do not have any human rights implications.
A separate regulation (the Asian Infrastructure Investment Bank Regulation 2015) was made under the Asian Infrastructure Investment Bank Act 2015 to confer additional privileges and immunities on the Bank and to extend certain privileges and immunities to persons connected to the Bank.
Human rights implications
Australia's membership of the Bank is consistent with Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights (the ICESCR). In particular Article 2(1) requires that States Parties take steps, including through international assistance and co-operation, to assist in the progressive realisation of the economic, social and cultural rights recognised by ICESCR. Included among main purposes of the Bank is fostering sustainable economic development and promoting regional cooperation and partnership in addressing development challenges. As the Regulation assists the Bank to fulfil its mandate, it can be said to be promoting the obligations under Article 2(1) of ICESCR.
The purpose of conferring privileges and immunities on an organisation such as the Bank is to assist it to fulfil its mandate. Conferring legal personality on the Bank and exemption from certain duties and taxes will enable the Bank to perform its functions. The Regulation makes clear that the privileges and immunities conferred are for the benefit of the Bank, therefore, and not the personal benefit of individuals (section 8). Importantly, the Bank may also choose to waive any privileges or immunities to which it is entitled (section 12).
Conclusion
This amendment to the Legislative Instrument is compatible with human rights as it does not raise human rights issues, has no adverse implications for Australia's compliance with its human rights obligations and does not adversely affect the human rights of individuals. The main purposes of the Bank include fostering sustainable economic development and promote regional cooperation and partnership in addressing development challenges. To this extent, the amendment to the Legislative Instrument should contribute to the advancement of human rights.
ATTACHMENT A
Details of the amendment to the International Organisations (Privileges and Immunities-Asian Infrastructure Investment Bank) Regulation 2105
Original text of Regulation:
Part 4 - Other matters
Section 13 - Delegation by the Minister
Original text of Regulation:
The Minister may, by writing, delegate to a person the Minister's powers under paragraphs 9(1)(b) and (5)(b).
Amendment:
Part 4 - Other matters
Section 13 - Delegation by the Minister
(1) The Minister may, by writing, delegate the Minister's powers under paragraphs 9(1)(b) and (5)(b) to:
(a) the Secretary; or
(b) an SES employee, or acting SES employee, in the Department.
Note 1: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901. That Act applies to legislative instruments by virtue of section 13 of the Legislation Act 2003.
Note 2: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
(2) In exercising powers under a delegation, the delegate must comply with any directions of the Minister.