Australian Year Book of International Law
Marc Hess, Fiona David and Derran Moss[∗]
The purpose of the International Monetary Agreements Amendment Act (No 1) 2001 (the Act) is to enable Schedule 1 of the International Monetary Agreements Act 1947 (the 1947 Act) to be amended to reflect a change in the International Monetary Fund’s (IMF) articles of agreement. Schedule 1 of the 1947 Act reproduces the IMF’s articles of agreement.
The amendment to the IMF’s articles of agreement provides for a special, one-time allocation of Special Drawing Rights (SDR) 21.43 billion. SDRs are interest-bearing reserve assets, created by the IMF to supplement members’ existing reserve assets. They also serve as the IMF’s unit of account for its transactions and operations. The one-time allocation is designed to ensure greater equity between IMF members in terms of their cumulative SDR allocations relative to their quotas in the IMF, at a benchmark level of 29.32 per cent. As a result of this process Australia received SDR213.5 million or about $A500 million of additional reserves.
The Australia New Zealand Food Authority Amendment Act 2001 (the Act) amends the Australia New Zealand Food Authority Act 1991 to implement aspects of the new food regulatory system agreed to by all Australian jurisdictions. The amendments reflect many of the arrangements for the new system set out in the inter-governmental Food Regulation Agreement agreed to by members of the Council of Australian Governments on 3 November 2000.
The Environment Protection and Biodiversity Convention Amendment (Wildlife Protection) Act 2001 (the Act) seeks to ensure that Australia complies with its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Convention on Biological Diversity.
The Act repeals the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Wildlife Protection Act), and inserts a new Part 13A, ‘International movement of wildlife specimens’, into the Environment Protection and Biodiversity Conservation Act 1999.
The new Part 13A sets up a system for regulating the international movement of wildlife species. As part of this system, the Minister for the Environment is to establish a list of CITES species, which will be updated as necessary, to ensure that it reflects current CITES lists. The list is to include all the information that exporters, importers, the community and decision-makers will need to determine the status of a particular species, populations and products.
The amendments create various offences relating to the import, export or possession of CITES specimens, unless in accordance with a permit or exemption.
The Space Activities Amendment (Bilateral Agreement) Act 2001 (the Act) amends the Space Activities Act 1998 to provide for the making of Regulations that will give effect to one or more of the provisions of the ‘Agreement between the Government of Australia and the Government of the Russian Federation on Cooperation in the Field of Exploration and Use of Outer Space for Peaceful Purposes’ (the Agreement), done at Canberra on 23 May 2001. The Agreement provides a legal and organisational framework for the transfer of space technologies, equipment and expertise to the Australian commercial space launch industry. Key provisions include protection of intellectual and physical property, the exchange of information and the settlement of disputes.
The amendments include: the creation of a new Part 5A in the Space Activities Act 1998 which provides a framework for the implementation of specified space cooperation agreements; the inclusion of a power for the Governor-General to make Regulations for the purpose of giving effect to the provisions of the Agreement; and the Scheduling of the Agreement to the Space Activities Act 1998.
Although it does not directly deal with Australia’s international obligations, the Migration Amendment (Excision from Migration Zone) Act 2001 (the Act) has implications for Australia’s international refugee obligations. The Act excises several territories from the Australian migration zone, including Christmas Island, Ashmore and Cartier Islands and the Cocos (Keeling) Islands. Any person who enters Australia at an excised territory is considered to be an ‘offshore entry person’. Applications for visas from offshore entry persons who are in Australia are not valid applications under the Migration Act 1958. The Minister for Immigration may, however, exempt particular offshore entry persons from this rule, where he or she considers it is in the public interest to do so. In such cases, the Minister is required to provide the Parliament with a statement of reasons. The Minister does not have a duty to exercise this power.
The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (the Act) has implications for Australia’s international refugee obligations. The Act allows offshore entry persons (see entry on Migration Amendment (Excision from Migration Zone) Act 2001) to be taken to a country which has been declared to be a country that: provides access to effective procedures for assessing the protection needs of asylum seekers; provides protection for persons seeking asylum, pending determination of their refugee status; provides protection to persons who are given refugee status; and meets relevant human rights standards in providing that protection. In addition, the Act bars proceedings before any court, save the High Court, that relate to an offshore entry person.
The Act also amends the migration regulation to implement a visa regime aimed at deterring persons from leaving, or bypassing, other safe countries. It does this by inserting a new requirement that visa applicants must not have resided, for a continuous period of seven or more days, in a country where they could have sought the protection of that country or from the offices of the United Nations High Commissioner for Refugees.
The Migration Legislation Amendment Act (No 6) 2001 (the amending Act) amends the Migration Act 1958. The amending Act contains provisions which place limits on the interpretation of key terms and concepts found within the 1951 Convention Relating to the Status of Refugees (Refugee Convention) for the purposes of Australian law. For example, the amending Act re-defines the 1951 Refugee Convention terms and concepts of: persecution, non-political crime, particularly serious crime, and membership of a particular social group.
Persecution is re-defined so that the reasons for persecution listed in article 1A(2) of the Refugee Convention are the essential and significant reason for the persecution; and the persecution involves serious harm to the person (serious harm being defined by s 91R(2) of the Amending Act); and the persecution involves systematic and discriminatory conduct. The amending Act directs decision-makers, when determining if a person has a well-founded fear of being persecuted, to disregard any conduct engaged in by the person in Australia. In addition, it prevents a family from being defined as a particular social group where persecution is feared by that family for reasons not listed in article 1A(2) of the Refugee Convention. The meaning of political offence is amended so that so that reference to non-political crime in article 1F of the Refugee Convention is read as including a reference to an offence that, under s 5 of the Extradition Act 1988, is not a political offence in relation to a country. The definition of particularly serious crime which appears in article 33(2) of the Refugee Convention is amended so that it includes reference to a crime that constitutes either a serious Australian offence (as defined by s 91U(2)) or a serious foreign offence (as defined by s 91U(3)).
The International Maritime Conventions Legislation Amendment Act 2001 (the Act) amends various Acts relating to international maritime conventions.
Schedule 1 of the Act, titled ‘Limitation of liability for maritime claims’, amends the Admiralty Act 1988, the Limitation of Liability for Maritime Claims Act 1989, and the Navigation Act 1912. All of these Acts are amended so as to give effect within Australia to the 1996 Protocol to amend the Convention on Limitation of Liability for Maritime Claims of 19 November 1976. This Protocol limits shipowners’ liability.
Schedule 2 of the Act, titled ‘Taking of measures to protect the sea from pollution by substances discharged from ships’, amends the Protection of the Sea (Powers of Intervention) Act 1981 so as to give effect within Australia to the Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil of 1973 as affected by Resolution MEPC.72(38) of the Marine Environment Protection Committee. The changes to the Act revise the list of chemicals in respect of which the Australian Maritime Safety Authority
may take intervention action on the high seas, in the exclusive economic zone, or in the territorial sea.
Schedule 3 of the Act, titled ‘Prevention of pollution from ships’, amends the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 which gives effect to the International Convention for the Prevention of Pollution from Ships (MARPOL). Among other things, the amendments: remove the requirement to include the text of conventions in Schedules to the Act and insert requirements relating to the disposal of garbage found in Annex V of MARPOL.
Schedule 4 of the Act, titled ‘Protection of submarine cables and pipelines’, implements in Australia obligations arising under the United Nations Convention on the Law of the Sea. The amendments make it an offence if a submarine cable or pipeline is damaged by an Australian-flagged ship in the exclusive economic zone or the high seas.
The primary purpose of these amendments to the Regulations is to provide consistency in the conduct of investigations by the Australian Transport Safety Bureau (ATSB) and to adopt, where appropriate, the International Maritime Organisation (IMO) ‘Code for the Investigation of Marine Casualties and Incidents’ (IMO Resolution A.849(20)). The insertion of Part 4A into the Regulations gives affect to the IMO Code which is annexed to the Regulations in Schedule 1. The Regulations apply the IMO Code only to those incidents involving at least one other foreign state, and require, amongst other obligations, liaison with substantially interested states.
The purpose of the Regulations is to amend the Migration Regulations 1994 in respect of New Zealand citizens and their family members, and restricts those New Zealand citizens able to sponsor family members for permanent visas to a more limited number of groups. These groups include various descriptions of special category visa holders, and those who have had a certificate issued under the Social Security Act 1991 stating that they are residing in Australia on a particular date. These changes reflect the government’s decision that only Australian citizens and permanent residents should be able to sponsor family members for migration purposes. The Regulations also create a new class of permanent visa for which New Zealand citizens can apply.
The Regulations under the Act are made to extend copyright protection in Australia to foreign works and subject matter either to comply with the obligations of a multilateral convention or on the basis of substantive reciprocity. A series of amendments are made to update Schedule 1 in order to reflect the current membership of various treaties and bodies. For example, the amendments update Schedule 1 Part 1 which lists countries party to the Berne Convention for the Protection of Literary and Artistic Works, and which had not been updated since 1998. Schedule 1 Part 2 lists states party to the Universal Copyright Convention, but not party to the Berne Convention or members of the World Trade Organization, and is updated to exclude Kazakhstan and Tajikistan which have become parties to the Berne Convention. Schedule 3 of the Act is also amended to reflect those states whose laws provide substantially equivalent protection of Australian sound recordings as apply under the Australian Copyright Act, and involves the inclusion of Canada, Mexico, the Netherlands and Venezuela.
The Regulations give effect in Australia’s domestic law to the Treaty of Extradition between Australia and the Republic of South Africa (1998). The Treaty came into force pursuant to the Regulations on 1 August 2001, and declares that South Africa is an extradition country and that as such the Extradition Act 1988 applies to South Africa subject to the Treaty. The Treaty contains all the internationally accepted human rights safeguards, according to which extradition will not be permitted where the fugitive is being sought for or in connection with his or her race, religion, nationality or political opinions, or where the death penalty is to be applied.
The Act gives effect to mutual recognition principles relating to the sale of goods and the registration of occupations between Australia and New Zealand. It specifies a list of goods in Schedule 3 that are exempt from its operation. The Regulations update the list of goods in Schedule 3 and extend the special exemption status for such goods for a further 12 months, the purpose of which is to allow Australian and New Zealand regulators to develop complementary regulatory regimes.
The Regulations under the Act were not amended originally due to a belief that the negotiations concerning the Australia/European Union Wine Agreement may have necessitated further changes. However, due to delays in the negotiations and in the interests of ensuring that the reputation of Australian wine is preserved, these amendments were made, which state that the description and presentation of wine is misleading if it is not in accordance with the Regulations.
The Act enables Australia to grant or request international mutual assistance in criminal matters, including the taking of evidence, search and seizure, arrangements for witnesses to give evidence or assist in investigations and the location, restraint and forfeiture of proceeds of crime. The Regulations give effect in Australian domestic law to the Treaty between the Government of Australia and the Government of Sweden on Mutual Assistance in Criminal Matters, signed at Stockholm on 18 December 1998. Once in force, the Treaty will bind Australia and Sweden under international law to provide each other with the kinds of assistance noted previously. The Treaty entered into force on 1 November 2001 which is therefore the commencement date for the Regulations.
The Regulations give effect in domestic law to the Treaty between Australia and the Government of His Serene Highness the Prince of Monaco on Mutual Assistance in Criminal Matters (the Treaty), signed at Paris on 13 September 1999. The Treaty provides that Australia and Monaco will assist one another in relation to documentation, locating and identifying persons, serving documents, and other similar assistance consistent with the objects of the Treaty and not inconsistent with the domestic law of the requested state.
The Customs (Prohibited Exports) Regulations 1958 (the Regulations) control the exportation of the goods specified in various Regulations or Schedules, by prohibiting export absolutely, or making export subject to the permission of the Minister or relevant person.
The purpose of the Customs (Prohibited Exports) Amendment Regulations 2001 is to amend the Regulations to impose sanctions against the Taliban, in accordance with United Nations Security Council Resolution 1333 (2000) by prohibiting the exportation of arms and related material, and the chemical, acetic anhydride, to Afghanistan.
The Regulations implement Australia’s obligations under Security Council Resolution 1333 (2000). The Resolution imposes an arms embargo, a ban on the provision of military assistance, advice and training, a requirement to reduce staff at diplomatic missions, further flight restrictions, a freeze on the assets of Osama Bin Ladin and his associates, and a ban on the supply of a chemical used in processing opium.
Accordingly, the Regulations prohibit persons in Australia or Australian citizens abroad, from undertaking conduct that assists, or results in, the sale, supply or transfer:
• of arms to a place in Taliban territory;
• to armed personnel under the control of the Taliban of technical advice, training or other assistance in relation to military activities;
• of the chemical, acetic anhydride, to a person for the purpose of an activity carried on in, or operated from, Taliban territory.
The Regulations also prohibit the use to Australian aircraft or ships in a manner that contravenes the Regulations regarding the sale or arms or technical advice.
The Regulations repeal the International Organisations (Privileges and Immunities of Certain Missions) Regulations, which declare the Taipei Economic and Cultural Office (TECO) to be a mission, pursuant to the to be a International Organisations (Privileges and Immunities) Act 1963. Regulations passed in 1998 declare the TECO designated overseas mission pursuant to the Overseas Missions (Privileges and Immunities) Act 1995.
Australia is a party to five conventions on space activities, which impose a number of obligations on the Commonwealth. These are:
• the Convention on International Liability for Damage Caused by Space Objects;
• the Convention on Registration of Objects Launched into Outer Space;
• the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies;
• the Agreement Governing the Activities of States on the Moon and other Celestial Bodies; and
• the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space.
The Space Activities Act 1998 establishes a legal basis for licensing commercial space facilities in Australia, and licensing overseas launch activities undertaken by Australian nationals. The Act also provides for recovery operations, investigation procedures in the event of an accident, and the payment of fees in respect of licenses and permits. Further, the Act ensures that the Commonwealth meets its obligations under United Nations conventions on space matters, particularly those relating to liability and registration of space objects, by passing its obligations onto the commercial parties or by requiring the provision of appropriate information.
The Regulations bring the space licensing and safety regime outlined in the Act into full and effective operation. The Regulations address information and documentation requirements required for applications for authorisations under the Act; the insurance or financial obligations on licensees regarding liability for damage in the event of an accident; the functions of the Launch Safety Officer; licensing fees; the powers which the Minister may delegate and the decisions or directions that may be reviewable under the Administrative Appeals Tribunal.
The Extradition (Bribery of Foreign Public Officials) Regulations 1999 (the Regulations) give effect in domestic law to the extradition provisions of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Convention). Schedule 2 to the Regulations specifies the parties to the Convention to which the Extradition Act 1988 applies.
The Regulations insert the names of a number of countries that have recently become a party to the Convention, into Schedule 2: Argentina, Brazil, Czech Republic, Denmark, France, Italy, Netherlands, Poland, Portugal, Spain, Switzerland and Turkey.
The Mutual Assistance in Criminal Matters (Money Laundering Convention) Regulations 1997 (the Regulations), amongst other things, specifies which countries are a party to Convention on Laundering, Seizure and Confiscation of the Proceeds of Crime (the Convention). The Regulations provide that where a country is a party to the Convention, the Mutual Assistance in Criminal Matters Act 1987 (the Act) applies.
The amending Regulations insert the names of a number of countries into the Regulations, that have recently ratified the Convention: Poland, San Marino, the Former Yugoslav Republic of Macedonia, and Slovakia.
The Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the Act) implements Australia’s obligations under the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal (the Convention). Under the Convention, household wastes are controlled unless they are expressly listed as non-hazardous wastes. Under the Act, non-hazardous wastes are specified in the Regulations to make it clear they are excluded from control. The present set of Regulations seek to update the list of wastes in the Regulations, to bring them into line with the Convention.
The Regulations also seek to clarify which plastic wastes are controlled and which are not, by inserting a detailed definition of solid plastic or mixed plastic materials (terms which are used in the Convention).
The Regulations give effect to new bilateral agreements regarding reciprocity in social security matters, signed between Australia and Canada and Australia and the Kingdom of the Netherlands. The Regulations also give effect to a Protocol that amends the existing agreement regarding social security between Australia and the Republic of Austria.
The Regulations repeal Regulations, which imposed travel restrictions on certain Iraqi officials and military personnel who did not cooperate with the United Nations Special Commissions (UNSCOM). The repealed Regulations were based on the United Nations Security Council Resolution 1137 (1997), preventing entry into Member States by certain Iraqi officials and military personnel who did not cooperate with the UNSCOM. However, as Iraq has subsequently cooperated with UNSCOM, the repealed Regulations were considered to be no longer necessary.
The Regulations seek to implement the objectives of the United Nations Security Council Resolution 1343 of 2001 (the Resolution). The Resolution seeks to impose sanctions against designated persons. Australia is obliged under the Charter of the United Nations to comply with decisions of the Security Council.
The Regulations seek to prevent the grant of a visa, or allow for the cancellation of a visa under the Migration Act 1958 where the applicant or holder is a senior member of the Government of Liberia or their spouse, a senior member of the Liberian armed forces or their spouse, or any individual providing financial or military support to armed rebel groups in countries neighbouring Liberia, in particular the Revolutionary United Front in Sierra Leone.
These Regulations give effect to a new agreement regarding reciprocity in social security matters, signed between Australia and the Republic of Portugal.
The Regulations provide that a person who has been convicted of a criminal offence in Australia carrying a maximum penalty of imprisonment of 12 months or more, should not be granted a permanent protection visa for four years from the date of any conviction. A person found to be owed protection obligations under the Convention Relating to the Status of Refugees (as amended by the 1967 Protocol Relating to the Status of Refugees), but who has been convicted of such a criminal offence in Australia, may still be eligible for a Temporary Protection Visa, provided that they meet the other criteria for grant of that visa, including existing character provisions.
The Regulations apply to both unauthorised arrivals and asylum seekers in the community. The Regulations ensure that applicants who commit less serious offences will receive protection where required under the Refugees Convention, but will need to demonstrate a period of good behaviour before becoming eligible to receive the added benefits of permanent residence and family sponsorship rights. The provisions recognise, pursuant to article 2 of the Refugees Convention, that a refugee has duties to a country of refuge, which require in particular that he or she conforms to its laws and Regulations as well as to measures taken for the maintenance of public order.
The Regulations provide search powers that may be exercised at sea, including on the high seas, in relation to persons found on ships attempting to enter Australian waters without lawful authority. The Regulations also allow for the detention, search and movement of the ship involved. The Regulations provide that the powers may only be exercised where the ship is one that is entitled to fly the flag of a state with which Australia has an arrangement or agreement which enables the exercise of Australian jurisdiction over the ship.
The Regulations concern search powers that may be exercised at sea in relation to ships that are carrying persons who are attempting to gain entry to Australian waters without lawful authority. The Regulations also allow for the detention, search and movement of ships carrying such persons. The power provided in the Regulations may be exercised where Australia has an agreement or arrangement with a state which enables Australia to exercise jurisdiction over any ships entitled to fly the flag of that state.
The Regulations implement Australia’s obligations under Security Council Resolution 1373 (2001), which requires states, among other things, to freeze without delay funds and other financial assets of persons and entities owned or controlled by persons, who commit, attempt to commit, participate in or facilities the commission of terrorist acts. The Regulations prohibit any person in Australia, including a body corporate, or an Australian citizen outside of Australia, from using or dealing in assets, or facilitating the use of assets, owned or controlled by a person or entity described in Resolution 1373 (2001). They also prohibit a person from making assets available to a person or entity described in Resolution 1373 (2001).
The purpose of the Regulations is to amend the Charter of the United Nations (Sanctions – Afghanistan) Regulations 2001 so as to implement Australia’s obligations under Security Council Resolutions 1267 (1999) and 1333 (2000). Resolution 1267 (1999) requires states, among other things, to freeze funds and other financial resources of the Taliban or any entity owned or controlled by the Taliban. Resolution 1333 (2000) requires states to, among other things, freeze funds and assets of Osama Bin Ladin and his associates, including the Al Qaida organisation. Both Resolutions also require states to prevent persons within their territory from making funds available to the Taliban or Osama Bin Ladin. The Regulations prohibit persons within Australia, and Australian citizens outside of Australia, from dealing in or using assets, or providing funds or assets, to either the Taliban or Osama Bin Ladin.
These Regulations postpone the commencement date of the Mutual Assistance in Criminal Matters (Sweden) Regulations 2001. Those Regulations applied the Mutual Assistance in Criminal Matters Act 1987 to extradition between Australia and Sweden. The delay was made necessary by a postponement of the date of entry into force of the Treaty between the Government of Australia and the Government of Sweden on Mutual Assistance in Criminal Matters, signed on 18 December 1998.
The Regulations amend the Child Support (Assessment) (Overseas-related Maintenance Obligations) Regulations 2000 (the 2000 Regulations) by confirming that child support assessments may not be issued against payers in Israel and by removing unintended consequences of the 2000 Regulations. The Regulations make it clear that assessments can be issued against payers in Australia for the benefit of a child in Israel and that authorities in Israel can apply for assessments against payers in Australia. These Regulations, like the 2000 Regulations, give effect to Australia’s international obligations arising under international agreements relating to maintenance obligations which arise from either a family relationship, parentage or marriage.
The purpose of the Regulations is to amend the International Maritime Satellite Organization (Privileges and Immunities) Regulations 1982 to effect a name change for the organisation. The amendments are a consequence of the entry into force of the 1998 amendments to the Convention on the International Maritime Satellite Organization (Inmarsat). The 1998 amendment provided for the Inmarsat satellite system to be operated through an outside corporate entity. A new organisation, called the International Mobile Satellite Organization, was created to oversee the corporate entity.
These Regulations set the amount of charge payable by a producer of uranium ore concentrates as the lesser of 5.7433 cents per kilogram of uranium in the uranium ore concentrates produced by the producer in the previous financial year or $500,000. The Regulations are made under the Nuclear Non-Proliferation (Safeguards) Act 1987 which gives effect to Australia’s international obligations under various agreements including the Safeguards Agreement between Australia and the International Atomic Energy Agency pursuant to the Treaty on the Non-Proliferation of Nuclear Weapons.
The purpose of the Regulations is to provide additional detail to the wildlife trade provisions in the new Part 13A of the Environment Protection and Biodiversity Conservation Act 1999. Among other things, the Regulations provide for conditions for the import and export of species protected under the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES).
The Regulations, made under the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the Act), give effect to a bilateral arrangement between Australia and the United Nations Transitional Authority in East Timor on the import of hazardous wastes into Australia (the Arrangement). The Arrangement was made under article 11 of the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal. The Regulations provide that those provisions of the Act that relate to control of hazardous waste will also apply to imports of hazardous waste from East Timor with the exception of sub-section 17(8) (which prohibits the import of waste from a country that is not a party to the Basel Convention) and sub-section 18B(1) (which prohibits the grant of a Basel permit unless the corresponding requirements of any relevant article 11 Regulations are met).
These Regulations prescribe organisations and public bodies from which nominations may be sought for Board Membership of Food Standards Australia New Zealand (FSANZ). The Regulations are made under the Australia New Zealand Food Authority Amendment Act 2001 (the Act) which creates a new statutory body to replace the Australia New Zealand Food Authority (ANZFA). Full commencement of the Act will occur after changes to the current 1995 Agreement between the Government of Australia and the Government of New Zealand Establishing a System for the Development of Joint Food Standards.
[∗] Office of International Law, Attorney-General’s Department, Canberra.