Australian Year Book of International Law
Concerning Matters of International Law 2000
Mary Wood, Derran Moss and Barton Hoyle[∗]
The Crimes at Sea Act 2000 (The Commonwealth Act) provides the legislative framework for a new inter-governmental agreement on crimes at sea. It reflects the decision recently made by each Australian state and territory to enact uniform Crimes at Sea Acts in order to achieve a consistent jurisdictional approach to the application of offences at sea. The Commonwealth Act applies to all acts and omissions committed at sea after 31 March 2001 that breach federal criminal laws. Schedule 2 preserves the application of the Crimes at Sea Act 1979 (Cth)to offences contained in the latter Act that are alleged to have occurred before 31 March 2001.
The Crimes at Sea Acts that each Australian legislature has enacted apply local criminal laws to the states’ and territories’ respective offshore adjacent areas, which extend from the coastal baseline to 12 nautical miles (nm) offshore. The Commonwealth Act further extends the application of the criminal laws of each state and territory to the adjacent areas off each shore from 12 to 200 nm (or to the outer limit of the continental shelf, whichever is greater). Laws committed in the latter zone are prosecuted as offences against Commonwealth law. The Commonwealth Act also applies the criminal laws of the Jervis Bay Territory to criminal conduct occurring in geographical areas not otherwise covered by the new scheme. For example, the laws of Jervis Bay Territory apply to relevant acts and omissions on Australian ships, wherever they are; to Australian citizens aboard foreign ships; and to any person aboard a foreign ship whose next port of call is Australia.
The Timor Gap Treaty (Transitional Arrangements) Act (the Act) has three main purposes. First, it makes consequential amendments to various Acts to reflect the fact that, on 26 October 1999, the United Nations Transitional Administration in East Timor (UNTAET) replaced Indonesia as a party to the Timor Gap Treaty. This reflects the outcome of the vote for independence by the East Timorese in August 1999. Second, it inserts the Notes exchanged between Australia and UNTAET on 10 February 2000 (the Notes) into the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990. The Notes are designed to reflect the administrative implications of the vote including, for instance, the substitution of UNTAET’s Transitional Administrator as the competent authority to administer the Taxation Code established by the 1989 Timor Gap Treaty. Finally, the Act inserts into the Crimes at Sea Act 2000 a new Part titled ‘Cooperation between Australia and East Timor in the enforcement of criminal law’, to reflect the two nations’ agreement on the regulation of criminal offences committed in Area A of the Zone of Cooperation, which is defined in the Timor Gap Treaty.
This Act makes two amendments to the Civil Aviation Act 1988, pursuant to Australia’s obligations under the Convention on International Civil Aviation (the Chicago Convention) 1944. The first amendment enables the Civil Aviation Safety Authority (CASA) to enter into certain agreements with national airworthiness authorities of other countries. These agreements allow Australia to transfer its responsibilities for particular safety regulatory functions under the Chicago Convention to another nation. Australia ratified an amendment enabling transfers of this nature to the Chicago Convention in December 1994 after passing implementing legislation, but there had been residual uncertainty about CASA’s power to enter into such delegation agreements on behalf of Australia until this second amendment.
The second amendment effected by this Act that relates to Australia’s international obligations is to the Civil Aviation (Carriers’ Liability) Act 1959 (the Carriers Act). This amendment was also designed to correct an anomaly in the Australian legislation regarding foreign charter operators consistent with Australia’s international obligations under the Convention for the Unification of Certain Rules relating to International Carriage by Air (the Warsaw Convention) 1929.
This Act adds two bilateral treaties on tax that Australia recently ratified to the schedule to the International Tax Agreements Act 1953 (Agreements Act). The schedule contains a comprehensive list of the double taxation agreements to which Australia is a party. The first taxation agreement added to the schedule is the Agreement between Australia and Romania for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income. The second is a protocol amending the Agreement between Australia and Finland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Protocol of 12 September 1984. The taxation agreement between Australia and Romania accords substantially with Australia’s recent broad-ranging Double Taxation Agreements. The taxation agreement with Finland updates Finland’s list of existing taxes to which the main taxation agreement between Australia and Finland applies; provides for a reciprocal dividend withholding tax exemption for fully franked dividends; and includes the latest methods adopted by Finland to eliminate double taxation.
The Environment and Heritage Legislation Amendment Act (the Environment Act) amends the Environment Protection (Sea Dumping) Act 1981 (the Sea Dumping Act) to implement the 1996 Protocol (the Protocol) to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (the London Convention). The Environment Act also replaces the reference to ‘Australian fishing zone’ in the Sea Dumping Act with ‘exclusive economic zone’. This will alter the geographical application of the Act. Until the amendments introduced by the Environment Act, certain harmful sea dumping practices were not prohibited under the Sea Dumping Act, and did not reflect the new obligations undertaken by Australia in the Protocol. The Protocol limits the types of materials that may be considered for dumping at sea, and seeks to reduce the amount of material dumped at sea, along with the level of contamination in that material. It also amends the Sea Installations Act 1987 to remove prohibitions on issuing and varying a permit that would otherwise authorise a sea installation to be located partly within and partly outside an adjacent area in the affected state or territory.
There were new international standards to improve copyright protection in the online environment adopted in the 1996 World Intellectual Property Organisation (WIPO) Copyright Treaty, and in the WIPO Performances and Phonograms Treaty. The Copyright Amendment (Digital Amendment) Act (the Digital Copyright Act) implements the main obligations contained in the new WIPO treaties. Prominent among them is granting a new technology-neutral right of communication to the public. The new right replaces and extends the existing technology-specific broadcasting right, which currently only applies to ‘wireless’ broadcasts. However, there are exceptions to it. These include extending the statutory licence scheme for educational institutions to permit them to make electronic copies of works and broadcasts, if payment is made to the copyright owners. The Digital Copyright Act also creates remedies for the abuse of technological copyright protection measures, deliberate interference with rights management information, and unauthorised access to encoded broadcasts.
The Madrid Protocol Act amends the Trade Marks Act 1995 to give effect to the provisions of the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol). The Madrid Protocol is a multilateral treaty developed under the auspices of the World Intellectual Property Organisation (WIPO), and allows trade mark owners seeking protection for their marks in convention countries to do so by filing a single application and paying one set of fees. The Madrid Protocol Act also enables the Governor-General to make such regulations as are necessary to give effect to the provisions of the Madrid Protocol. These might include specifying the procedure for dealing with applications for international registration of trade marks to the International Bureau of WIPO; the circumstances in which protection of an international registration ceases; and for cancellation of an international registration at Australia’s request.
The Protection of the Sea (Civil Liability) Amendment Act 2000 (the Sea Protection Act) implements the International Convention on Civil Liability for Oil Pollution Damage (the Civil Liability Treaty), and makes other improvements to the Australian sea pollution regime. The amendments to the Sea Protection Act require all ships over 400 gross tons that enter or leave Australia to maintain insurance to cover the cost of a clean up resulting from the spillage of bunker fuel or oil. This goes further than Australia’s obligations under the Civil Liability Treaty, as the latter only requires that ships of a certain weight that are registered in a convention country have pollution insurance. For instance, the Sea Protection Act imposes the requirement upon all ships, whether or not they are from a Civil Liability Treaty country, if they are carrying more than 2000 tons of oil as cargo. However, the change was seen as necessary given the increasing number of bunker fuel incidents and the difficulty in disposing of bunker fuel oils.
This Act inserts a new Division into the Criminal Code Act 1995 to allow for the prosecution of offences committed against the United Nations and associated personnel under Commonwealth law. It implements the obligations under the Convention on the Safety of United Nations and Associated Personnel in Australia (the UN Convention), which obliges parties to prosecute persons who commit violent actions against the UN and associated workers in certain circumstances. Pursuant to the UN Convention, jurisdiction is established over alleged offences occurring in Australia or on board Australian ships and aircraft. Jurisdiction is also established over offences by and against Australian citizens outside Australia (including by Australian companies); and, where the offence occurs wholly outside Australia, the alleged offender is a stateless person whose habitual residence is in Australia. Certain other links with Australia establish jurisdiction over alleged offences against UN staff. However, a person cannot be convicted for an offence created by the Act if there is a state or territory law that applies to and provides a criminal penalty for the conduct.
The Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act (the Act) enacts a scheme for the consistent application of certain categories of Commonwealth criminal offences outside Australia. All Commonwealth offences that parliament intends will apply to conduct or persons outside Australia will be given a jurisdictional category that parliament regards as the most appropriate scope for the particular offence. The existence of the jurisdictional categories will also ensure that the description of federal offences with the same scope is identical across different statutes. Thus, each time a new Commonwealth offence is developed, the appropriate jurisdictional application is selected from the Act. For instance, the provisions of the Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 draw on a jurisdictional option contained in the Criminal Code Act.
Although the Act does not introduce any provisions pursuant to a particular international obligation, it improves Australia’s ability to enact extra-territorial offences rapidly and consistently, to meet developments in international law.
These Regulations enable jet aircraft that comply with certain International Civil Aviation Organisation (ICAO) Chapter 2 noise standards to fly into and out of Australia solely for the purpose of maintenance. The Regulations also provide that certain subsonic jet aircraft, not otherwise permitted to operate in Australia, may be permitted for certain public interest purposes.
Regulation 65 prescribes that each international agreement set out in Schedule 5 of the Regulations is a relevant international agreement pursuant to Subsection 84(1) of the Australian Radiation Protection and Nuclear Safety Act 1998
(the Act). Subsection 84(1) of the Act limits the exercise of a power, discretion, duty or function under the Act to the extent that its exercise or performance is not inconsistent with Australia’s obligations under relevant international agreements.
These Regulations assist in giving effect to United Nations Security Council Resolution 1298 (2000) by restricting the supply of arms and related material to Eritrea and Ethiopia. The Regulations prohibit the supply or provision of technical assistance in relation to the provision, manufacture, maintenance or use of arms and related material in Eritea or Ethiopia. The Regulations also prohibit the owner, or operator, of an aircraft or ship registered in Australia to be used in the above-mentioned prohibited conduct.
These Regulations extend the range of countries with which Australia has arrangements for the enforcement of maintenance liabilities. The Regulations give effect to the:
• Agreement between the Government of Australia and the Government of New Zealand on Child Support and Spousal Maintenance; and
• Hague Convention on the Recognition and Enforcement of Decisions relating to maintenance obligations.
Additionally, the Regulations prescribe a number of matters relevant to the recognition and enforcement of child support and spousal maintenance liabilities in relation to countries with which Australia has maintenance enforcement arrangements.
The International Civil Aviation Organisation requires that aircraft and operators have both a Reduced Vertical Separation Minimum (RVSM) airworthiness approval and an RVSM operational approval before conducting operations in RVSM airspace. RVSM airspace is ‘special qualification’ airspace designated by a competent authority. It is airspace between 29,000 feet and 41,000 where a 1000 feet vertical separation minimum applies between approved aircraft. These Regulations give effect to Australia’s obligations with respect to operating in RVSM airspace, through empowering the Civil Aviation Safety Authority to approve particular aircraft and Australian operators. The Regulations also provide for administrative control of such approvals and enable the authority to suspend or cancel an approval in certain circumstances.
These Regulations amend the Customs (Prohibited Exports) Regulations and the Customs (Prohibited Imports) Regulations to prohibit the exportation and importation of toothfish. The amendments implement the resolution of the Commission for the Conservation of Antarctic Marine Living Resources
as the resolution applies to these toothfish in sub-Antarctic waters.
These Regulations amend the Customs (Prohibited Exports) Regulations to permit the exportation of certain prohibited goods that have been lawfully imported by sky marshals. Additionally, the Regulations amend the Customs (Prohibited Imports) Regulations to permit the importation of certain prohibited goods into Australia by sky marshals provided that certain requirements are met. These requirements include the immediate surrender of the goods to an authorised customs officer. A ‘sky marshal’ is a person who provides protection to passengers and crew of an aircraft generally or to particular passengers such as heads of state or other dignitaries against a variety of threats including terrorism. These amendments are made in light of the fact that the duties of the sky marshal may require that they be armed with a variety of weapons.
These Regulations amend the Customs (Prohibited Imports) Regulations to permit the conditional importation of non-refillable containers containing hydroflurocarbons (HCFCs) designed for use in the maintenance of refrigerative units, including air conditioning units. The importation is conditional on obtaining written consent from the Minister for the Environment and Heritage, or an authorised officer of the Department of the Environment and Heritage.
These Regulations amend the Customs (Prohibited Imports) Regulations to prohibit the direct or indirect importation of rough diamonds from Sierra Leone, unless the Minister for Foreign Affairs or an authorised person grants permission in writing. These amendments implement the decision of the United Nations Security Council under Resolution 1306 (2000) on Sierra Leone. The Resolution and amendments are aimed at stopping the illicit trade in diamonds from Sierra Leone which may be a source of funding for the conflict in that country.
These Regulations provide certain excise concessions to diplomatic missions, consular posts, foreign governments and Status of Forces Agreement (SOFA) personnel. Section 9 of the Diplomatic Privileges and Immunities Act 1967 and section 7 of the Consular Privileges and Immunities Act 1972 respectively, provide authority for certain diplomatic missions and personnel to be exempt from excise duty in accordance with the provisions of the Vienna Convention on Diplomatic and Consular Relations. These Regulations provide clear authority for remissions and refunds of excise to diplomatic and consular personnel in accordance with the above-mentioned Acts. The Regulations also correct a technical deficiency in the existing refund arrangements and allow SOFA personnel to claim the refund of excise paid on certain goods.
These Regulations allow refunds under the Excise regulations for goods on which excise duty has been paid for the official use of an international organisation or for the personal use of a prescribed officer of such a declared organisation.
These Regulations prescribe a number of statutory instruments/forms for use in extradition procedures. The forms prescribed by the Regulations replace the existing forms that were long and complex.
These Regulations amend the Extradition (Commonwealth Countries) Regulations so that fewer documents are required where the person sought is a convicted person.
These Regulations enable Australia to deal with any extradition request received from the Republic of Latvia (Latvia) before the entry into force of the extradition treaty between Australia and Latvia. Latvia is not, however, able to grant extradition to Australia until the entry into force of the treaty, although reciprocal assistance will be available under the treaty thereafter.
These Regulations give effect in Australian domestic law to the extradition provisions of the Convention on the Safety of United Nations and Associated Personnel. Under the Regulations, Convention offences are deemed to be extradition offences under the Extradition Act 1988 in relation to other parties to the Convention.
These Regulations provide that a court exercising jurisdiction under the Family Law Act 1975 may vary a registered maintenance order made in a reciprocating country. The Regulations revise the list in the Family Law Regulations of the reciprocating countries that have laws providing for the confirmation of variations to overseas maintenance orders by adding some countries and deleting others.
These Regulations add to the list of convention countries in Schedule 2 of the Family Law (Child Abduction Convention) Regulations. The amendments to the Regulations enable Australia to perform its obligations under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The objects of the Convention are to secure the prompt return of children wrongly removed to, or retained in, any Convention country and to ensure that the rights of custody and access to children under the laws of a Convention country are effectively respected in the other Convention Countries.
These Regulations give effect to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Convention) by adding Nova Scotia, Ontario, and North West Territories (Canada), Monaco, Italy, Panama, the Czech Republic, Iceland and Mongolia to the list in Schedule 2 of the Regulations.
At international law foreign states have a general immunity from the jurisdiction of domestic courts. There are a number of exceptions to this rule, one of which is reflected in section 20 of the Foreign States Immunities Act 1985 (the Act). Section 20 of the Act provides that a foreign state is not immune from proceedings in so far as the proceedings concern an obligation imposed on the foreign state by Australian law with respect to taxation, being a provision that is prescribed for the purposes of section 20. Prescribed provisions are set out in the Foreign States Immunities Regulations. These Regulations amend the Foreign States Immunities Regulations to update references to relevant Commonwealth and state legislation.
These Regulations regulate the discharge of waste from aquaculture operations that may effect animal and plant life in the Great Barrier Reef by establishing a scheme of insurance permits. The Regulations assist in giving effect to Australia’s obligations under the Convention for the Protection of the World Cultural and Natural Heritage (Paris 1972), under which Australia agreed to protect the Great Barrier Reef World Heritage Area and its values.
These Regulations change the status of the European Space Agency from a foreign entity to an Australian Body Corporate to facilitate its purchasing and registering title to land in Western Australia for the purposes of building a new facility. Australia’s relationship with the European Space Agency and the conduct of the agency in Australia remains subject to the Agreement between the Government of Australia and the European Space Agency for a cooperative space-tracking program.
These Regulations apply the Indirect Tax Concession Scheme for international organisations in Australia in accordance with the International Organisations (Privileges and Immunities) Act 1963.
These Regulations give effect to many of the provisions of the Agreement on the Principles and Immunities of the International Tribunal for the Law of the Sea (the Agreement). 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. The Parties to UNCLOS negotiated the Agreement to provide a more solid underpinning to the work of the Tribunal.
The Regulations declare the Preparatory Commission for the Comprehensive Nuclear Test-Ban Treaty Organisation (the PrepCom) as an organisation to which the International Organisations Act applies and confer on the Prepcom juridical personality and legal capacity. The Regulations also confer the privileges and immunities needed for the effective conduct of activities in Australia by the PrepCom. The PrepCom was established by a resolution of the United Nations General Assembly in 1996 to prepare for the operation of the Comprehensive Test-Ban Treaty and associated verification regime.
These Regulations amend the Migration Regulations in relation to Kosovar Safe Haven (Temporary) visas pursuant to The Migration Act 1958 which allows regulations to be made to prescribe criteria for visas of a specified class. The Regulations remove a criterion which prevents a former Kosovar Safe Haven visa holder from being granted a further Safe Haven visa whilst they are in Australia.
These Regulations make a number of amendments to the Migration Regulations. These amendments include:
• creating a new sponsored visitor class, as recommended by the External Reference Group guiding the Review of Illegal Workers;
• introducing new criteria for Temporary Business Entry (Class UC) visas; and
• confirming that the People’s Republic of China (PRC) is a safe Third Country with respect to Vietnamese refugees who have settled there but who have subsequently entered Australia without lawful authority.
These Regulations amend the Migration Regulations pursuant to the Migration Act 1958 (the Act) to clarify when an applicant will be eligible for a Subclass 866 (Protection) visa. The amendments provide that an applicant will be eligible for a Protection Visa where the applicant satisfies the other relevant criteria for the grant of the visa and:
• the applicant or a family member has not been offered a temporary safe-haven visa; or
• the Minister has made a determination that section 91K, which provides that non-citizens are unable to make valid applications for certain visas, does not apply to their application pursuant to section 91L of the Act.
The Regulations also change the date for the deemed receipt of documents. Under the Regulations a document must be sent or is deemed to be sent within three days of the date of the document, not seven days as previously required. The purpose of this amendment is to increase the period of time between the actual notification of a decision and the expiry period for lodging a review application.
These Regulations make a number of amendments to the Migration Regulations (the Regulations) and the Migration Reform (Transitional Provisions) Regulations. These amendments include:
• deleting certain Special Assistance Category visa classes;
• amending the definition of the Asia Pacific Economic Cooperation (APEC) economy to include Peru, Russia and Vietnam; and
• providing that a person who enters Australia on false documents may not be immediately eligible for the grant of a permanent protection visa.
These Regulations amend the Migration Regulations to:
• provide a mechanism for refusing to grant or for cancelling a visa where the Minister for Foreign Affairs determines that the presence of the applicant in Australia may be directly or indirectly associated with a risk of proliferation of weapons of mass destruction; and
• make technical amendments to ensure that the amendments made by the Migration Amendment Regulations 2000 (No 5) which relate to student visas apply to applications made on or after 1 November 2000 and applications made, but not finally determined, before 1 November 2000.
The Nuclear Non-Proliferation (Safeguards) Act 1987 gives effect to certain of Australia’s obligations under international agreements including the Safeguards Agreement between Australia and the International Atomic Energy Agency pursuant to the Treaty on the Non-Proliferation of Nuclear Weapons. These Regulations amend Schedule 1 of the Nuclear Non-Proliferation (Safeguards) Regulations to include the Agreement between Australia and New Zealand concerning the transfer of uranium as a prescribed international agreement. The Regulations also amend Schedule 1 to include the Agreement for Cooperation between Australia and the United States of America concerning Technology for the Separation of Isotopes of Uranium by Laser Excitation, Agreed Minute, and Exchange of Notes as a prescribed international agreement.
These Regulations apply the Indirect Tax Concession Scheme to the Hong Kong Economic and Trade Office in accordance with the Overseas Missions (Privileges and Immunities) Act 1995.
These Regulations apply the Indirect Tax Concession Scheme to the Taipei Economic and Cultural Office in accordance with the Overseas Missions (Privileges and Immunities) Act 1995.
These Regulations amend the Patents Regulations to implement decisions made by the Patent Cooperation Treaty (PCT) Union Assembly (the Assembly) at its 27th, 28th, and 29th sessions. The Assembly agreed that any country which is a member of the World Trade Organisation is to be treated as a Convention country, regardless of whether the country is a party to the Paris Convention for the Protection of Industrial Property. The Assembly also adopted several amendments relating to the identity of the patent applicant or inventor, and agreed to reduce the fees payable by applicants in certain situations.
These Regulations amend the Radiocommunications Regulations to update the reference to the name of the Act that includes the definition of the Timor Gap Treaty. The updated name of the Act is the Timor Gap Treaty (Transitional Arrangements) Act 2000.
These Regulations add references to the International Agreement between Australia and the Kingdom of Denmark on Social Security. Additionally, the Regulations add references to the Agreement on Social Security between Australia and the Republic of Italy as amended by the Exchange of Notes. The two Agreements coordinate the social security schemes of the countries to give better welfare protection to people who move between Australia and Denmark or Italy.
These Regulations amend the Taxation Administration Regulations to enable the payment of refunds of the goods and services tax (GST), wine equalisation tax (WET), and luxury car tax (LCT) to the extent required under international agreements to which Australia is a party. These concessions are granted by way of an exemption for goods imported by the eligible body or person and by way of a refund by the Commissioner for eligible acquisitions in Australia. The types of international obligations under which indirect tax concessions may be required include:
• international instruments of less than treaty status, which implement general obligations under a treaty; and
• international instruments which stand alone but which document Australia’s international political and moral obligations.
These Regulations update references to the Treaty on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia (Timor Gap Treaty) as listed at item 22 of Schedule 1 to the Telecommunications (Compliance with International Agreements) Regulations. The name change has arisen as a consequence of the assumption of rights and obligations under the Treaty by the United Nations Transitional Administration in East Timor (UNTAET).
The Trans-Tasman Mutual Recognition Arrangement is a non-treaty arrangement which relates to the sale of goods and recognition of occupations. Under the arrangement temporary exemptions may be made for the status of certain goods. These Regulations extend the temporary exemption period for sections of the South Australian Summary Offences Act 1953 which prohibit the sale and possession of offensive weapons and body armour. The purpose of this extension is to allow legislative action to be taken to exempt permanently this legislation from the operation of the Act. Additionally, the Regulations extend the exemptions to the mutual recognition principles to include the sections of the relevant Trade Practices or Fair Trading Acts, or their state equivalents, that deal with children’s products.
[∗] Office of International Law, Attorney-General’s Department, Canberra.