Commonwealth Numbered Regulations - Explanatory Statements

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INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (PRIVILEGES AND IMMUNITIES) REGULATIONS 2000 2000 NO. 283

Statutory Rules 2000 No. 283

Issued by the Authority of the Minister for Foreign Affairs

International Organisations (Privileges and Immunities) Act 1963

International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 2000

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 this Act to be prescribed, or necessary or convenient to be prescribed for the carrying out or giving effect to the Act.

The International Tribunal for the Law of the Sea ("the Tribunal") was established by Annex VI to the United Nations Convention on the Law of the Sea (UNCLOS), which entered into force generally and for Australia on 16 November 1994. Under Article 10 of Annex VI, parties are obliged to accord to members of the Tribunal, when engaged on Tribunal business, diplomatic privileges and immunities, while Article 18(8) of the same Annex provides for their salaries, allowances and compensation to be free of all taxation. The International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 1998 ("the 1998 Regulations") give effect to these obligations in Australian law.

In the years since UNCLOS was negotiated, however, it has become apparent that the privileges and immunities of the Tribunal and its members, officials, counsel and witnesses appearing before it are inadequately dealt with by comparison with the statutes of other international tribunals of like standing and importance (such as those of the International Court of Justice, the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the proposed International Criminal Court). The States Parties to UNCLOS therefore negotiated a separate Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea (the Agreement), which was adopted on 23 May 1997 and opened for signature on 1 July 1997. This Treaty fills the gaps left by UNCLOS so as to provide more solid underpinning to the work of the Tribunal.

Australia signed the Agreement on 26 May 1999. By Article 28 of the Agreement, signature is automatically subject to ratification. The Agreement will enter into force 30 days after the tenth ratification or accession. As at 22 September 2000 four States had ratified it.

For Australia's ratification of the Agreement, these further regulations under the Act give effect to many of the Agreement's provisions in Australian law. Under section 9B of the Act, regulations may be made conferring on members of international tribunals established by an agreement to which Australia and one or more other countries are parties such privileges and immunities as are required to give effect to that agreement. The purpose of the Regulations is to discharge this obligation.

Details of the Regulations are as follows:

Regulation 1 is a citation clause.

Regulation 2 provides for the Regulations to commence on a day to be determined by the Minister. This is intended to be the day on which the Agreement enters into force for Australia.

Regulation 3 is an interpretation provision.

Regulation 4 provides that the privileges and immunities given by these Regulations are subject to Australian quarantine, import and export laws except to the extent that this would affect immunity from civil and criminal process.

Regulation 5 excepts motor traffic accidents and offences from the scope of the immunities given in these Regulations from civil and criminal process.

Regulation 6 provides that Australian citizens and permanent residents who are otherwise covered by the Agreement enjoy no privileges or immunities under it except limited tax exemptions and immunity from suit for acts done in discharge of their duties.

Regulation 7 confers on the Tribunal the privileges and immunities set out in Regulations 8 to 16.

Regulation 8 recognises the Tribunal's legal personality and capacity to contract, own property and sue or be sued.

Regulation 9 provides for the premises of the Tribunal to be inviolable.

Regulation 10 confers on the Tribunal immunity from suit and other legal process, which it may waive.

Regulation 11 makes the property of the Tribunal immune from suit and other legal or administrative process.

Regulation 12 provides for the Tribunal's archives to be inviolable.

Regulation 13 provides for the official communications and correspondence to be inviolable and to this end allows the Tribunal to communicate in code and use diplomatic bags and couriers.

Regulation 14 exempts the assets and income of the Tribunal from liability to direct texts, other than charges for public utilities.

Regulation 15 exempts the Tribunal from customs duties and restrictions and prohibitions on goods imported or exported by the Tribunal for its official use, provided in the case of imported goods that they are not alienated within two years of importation.

Regulation 16 exempts the Tribunal from financial controls and currency restrictions.

Regulation 17 confers on members of the Tribunal engaged on business of the Tribunal the like privileges and immunities (including privileges and immunities in respect of a spouse or child under the age of twentyone years) as are enjoyed by a diplomatic agent, and provides that time spent in Australia on Tribunal business does not render the member a resident of Australia for taxation purposes.

Regulation 18 extends the privileges and immunities set out in Regulation 17 to members of the Tribunal on official journeys.

Regulation 19 further extends the privileges and immunities set out in Regulation 17 to members of the Tribunal residing in Australia for the purpose of holding themselves at the Tribunal's disposal.

Regulation 20 grants members of the Tribunal in Australia but not on official business repatriation facilities in time of international crisis equivalent to those of diplomats not accredited to Australia.

Regulation 21 provides officials of the Tribunal with the standard range of diplomatic privileges and immunities, other than the Registrar, who has the same privileges and immunities as a

member of the Tribunal (including those under the Indirect Taxation Concession Scheme in Regulation 25).

Regulation 22 confers on Agents, counsel and advocates appearing before the Tribunal more limited privileges and immunities for the duration of their functions.

Regulation 23 confers on experts appointed by the Tribunal under article 289 of UNCLOS a subset of the limited privileges and immunities listed in Regulation 22 for the duration of their functions.

Regulation 24 confers on other experts, witnesses and persons performing missions by order of the Tribunal the same privileges and immunities for the duration of their functions as are enjoyed by article 289 experts under Regulation 23.

Regulation 25 implements for the Tribunal the Indirect Taxation Concession Scheme applying under section 11C of the Act to organisations for which regulations have been made under the Act. It provides that the Commissioner of Taxation must refund to the Tribunal and to its members any indirect tax paid on specified acquisitions they may make for their official or personal use.

*       Refunds apply to any indirect tax paid by, or on behalf of, the Tribunal or by a member of the Tribunal in relation to acquisitions of any goods or of services consisting in the removal of goods. These acquisitions must be on a single tax invoice for a taxable supply (including indirect tax) of at least $200. This invoice value threshold does not apply to acquisitions of goods that are freed from excise under the Act (section 6 and schedule 1, Item 7), nor to acquisitions of warehoused goods within the meaning of the Customs Act 1901 where the acquisition is covered by an immunity from taxation conferred by the Regulations.

*       The Scheme covers the acquisition or importation of one motor vehicle by the Tribunal, or by a member of the Tribunal for personal use of that member or of a member of his or her family, if within the previous three years the Tribunal or member has not received a similar concession on another vehicle. In exceptional circumstances, indirect tax concessions on the acquisition of a second vehicle are permitted, including where the original vehicle is stolen or damaged beyond repair.

Regulation 26 establishes a series of conditions requiring repayment of the tax refunded if there is a disposal of goods before a specified time has elapsed, so as to ensure that these goods do not enter the general market at a price which does not reflect the impact of indirect taxes. The sale of goods to a finance company as part of a sale and lease-back arrangement is not however a disposal of goods for this purpose.

*       A pro rata amount must be refunded if the disposal is not to a person entitled to the same concession under the Scheme. In this regard, a buyer may be entitled to the same concessions as the seller albeit under a different instrument (for example, the Diplomatic Privileges and Immunities (Indirect Tax Concession Scheme) Determination 2000), but the concessions of the buyer must match or exceed those of the seller at the time of sale.

*       The specified time for a vehicle is three years from its date of entry to Australia (where the vehicle is directly imported into Australia) or three years after the date of purchase (in the case of a locally purchased vehicle). The specified time for other goods is two years. There is no minimum time condition specified for most other acquisitions. Services and most other acquisitions may only be assigned to a person entitled to the same concession, under this or any other law of the Commonwealth, without any requirement to make a full refund of the indirect tax repayment.

*       Repayment of tax refunded is required from the Tribunal or its member if any disposal of goods is made within the specified times to a person not entitled to the same concession, even if the disposal is not made by the person in relation to whom the concession was made. It is assumed that the second or subsequent person will incorporate the pro-rata amount to be refunded in the sale price to the person not entitled to the concession. Where indirect tax payments are made on goods over the life of a lease which is terminated before the specified period, there is no requirement that a person repay such indirect tax refunds made on periodic lease payments up to the time of termination.

*       Repayment of indirect tax for any acquisition cannot be made if in the Minister's opinion the reasonable needs of the international organisation or person for official or personal use, respectively, were met by previous acquisitions. The Minister may also impose further conditions to ensure repayment of indirect tax refunded in circumstances where the entitlement may no longer apply.

Regulation 27 specifies the documents that must accompany claims for repayment of tax under the Indirect Tax Concession Scheme and to whom claims must be sent.

Regulation 28 requires amounts repayable under the Indirect Taxation Concession Scheme to be paid to a single recipient or nominated account.

Regulation 29 allows the Tribunal to waive the privileges or immunities of its members and other persons connected with the Tribunal given by these Regulations.

Regulation 30 allows for the Minister to delegate the powers given him or her by Regulation 22.

Regulation 31 repeals the 1998 Regulations.

Regulation 32 contains transitional provisions dealing with waivers effected and acquisitions made under the Indirect Taxation Concession Scheme as it applied under the 1998 Regulations.