Australian Year Book of International Law
Philip Kimpton, Jonathan Kneebone and John Reid[∗]
This Act includes amendments to the Export Control Act 1982, which deal with allowing orders made under the Act to apply, adopt or incorporate any matter contained in the Australia New Zealand Food Standards Code (within the meaning of the Food Standards Australia New Zealand Act 1991) or the Codex Alimentarius (published by the Codex Alimentarius Commission of the Food and Agriculture Organization of the United Nations and the World Health Organization). Previously, where orders applied these standards, the references to the standards in the orders were interpreted as references to the standards in force at the time the orders were made. These amendments ensure that such references can be read as references to the current versions of the standards and avoids the necessity of amending the orders whenever the standards change.
This Act ensures that the Australian Protective Service has adequate powers and capabilities to support its functions of providing protective security services.
Australia has an obligation under international law to take all appropriate steps to protect the premises of foreign diplomatic and consular missions against any intrusion or damage, to prevent any disturbance of the peace of foreign missions or the impairment of dignity, and to prevent any attack on the person, freedom or dignity of a diplomatic of consular official.
The new powers provide protective service officers with greater flexibility in suspicious circumstances where the exercise of the arrest power is not immediately necessary, but where it is necessary to act quickly to ensure the security of a person or place that is being protected is not compromised.
This Act amends the Civil Aviation Act 1988 (the CAA) to facilitate ongoing review of civil aviation regulations and to provide for the simplification and international harmonisation of Australia’s civil aviation regulatory regime.
Among other things, the Act amends certain provisions of the CAA in order to:
• enable the alignment of Australian aircraft maintenance philosophies with those of other national airworthiness authorities and international (ICAO) standards;
• enable the regulation of not only the technical aspects of aircraft maintenance, but also the control and management of aircraft maintenance; and
• define certain terms for use in the Act and regulations.
This Act amends the Copyright Act 1968 to enable the legal parallel importation and subsequent commercial distribution of computer software products, including interactive computer games, books, periodical publications (such as journals and magazines) and sheet music. It applies to imported articles.
The provisions of the Copyright Act previously allowed a copyright owner to take action for infringement of copyright where a person imported or subsequently commercially dealt with imported copyright material of that copyright owner. Studies over the last decade, in relation to books, sound recordings and computer software, have demonstrated that the power to control the distribution of imported copyright subject matter enabled copyright owners to exercise market control. It resulted, over time, in higher prices being charged to Australian consumers.
This Act amends the Crimes (Overseas) Act 1964 by extending the criminal law of the Jervis Bay Territory to:
• Australians working in a foreign country who are granted diplomatic and consular immunities, or who are granted immunity due to their relationship with an international organisation (to the extent of that immunity);
• Australians working in a foreign country under an agreement or arrangement between the Commonwealth and the United Nations (or an organ of the UN), or the Commonwealth and a foreign country, and who are granted immunity by the foreign country (to the extent of that immunity);
• Australians working in a foreign country under a prescribed agreement or arrangement between the Commonwealth and the UN (or an organ of the UN), or the Commonwealth and a foreign country; and
• Australians working in a foreign country or a part of a foreign country, where that foreign country, or that part of the foreign country has been declared by regulation to be a ‘declared foreign country’ for the purposes of the Act.
The Act also amends the way the criminal law of the Jervis Bay Territory applies to persons covered by the Act, by removing the creation of an offence against the Act and replacing it with the extraterritorial application of the criminal law of the Jervis Bay Territory to persons covered by the Act.
This Act amends the Criminal Code Act 1995 to enhance the Commonwealth’s ability to combat terrorism.
The Act creates a basis for the identification and listing of Hamas’ military wing (Izz al-Din al Qassam Brigades) and Lashkar-e-Tayyiba as terrorist organisations under Australian law, if the Minister is satisfied that either or both Hamas’ Izz al-Din al Qassam Brigades and Lashkar-e-Tayyiba are engaged in terrorist activities. The effect of this is to avoid the requirement that an organisation be first identified in, or pursuant to, a decision of the United Nations Security Council relating wholly or partly to terrorism, or using a mechanism established under the decision, as a condition precedent to specifying the organisation in regulations as a terrorist organisation. At the time, neither Hamas’ Izz al-Din al Qassam Brigades or Lashkar-e-Tayyiba had been identified in a relevant decision.
This Act creates a basis for the identification and listing of the Hizballah External Security Organisation as a terrorist organisation under Australian law, if the Minister is satisfied that the Organisation is engaged in terrorist activity. The effect of this is to avoid the requirement that an organisation be first identified in, or pursuant to, a decision of the United Nations Security Council relating wholly or partly to terrorism, or using a mechanism established under the decision, as a condition precedent to specifying the organisation in regulations as a terrorist organisation.
This Act amends the Customs Act 1901 to:
• introduce rules of origin for goods that are the produce or manufacture of a Least Developed Country, which will enable such goods to have duty-free access to Australia; and
• introduce new rules of origin for goods that are the produce or manufacture of Singapore, to give effect to the Singapore-Australia Free Trade Agreement. These amendments enable such goods to also have duty-free access to Australia.
This Act amends the Customs Act 1901 and the Passenger Movement Charge Collection Act 1978 to:
• introduce new provisions for determining the normal value of goods in countries with an economy in transition;
• amend the anti-dumping provisions in the Customs Act to ensure that the legislation is consistent with the World Trade Organization (WTO) Agreement on the Implementation of article VI of the General Agreement on Tariffs and Trade (GATT) and to make minor technical amendments and corrections to the anti-dumping provisions;
• exempt air security officers (who provide security for civilian aircraft) from the passenger movement charge; and
• make minor amendments to the Customs Act as a result of the commencement of certain provisions of the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001.
This Act amends the Customs Tariff Act 1995 to:
• add East Timor to the list of Developing Countries;
• define Least Developed Countries (LDCs) and provide for the duty-free entry of goods originating in LDCs and East Timor;
• provide for the duty-free entry of goods originating in Singapore in accordance with the Singapore-Australia Free Trade Agreement; and
• implement related amendments to the Tariff.
This Act amends the International Tax Agreements Act 1953 to give the force of law in Australia to the following tax treaties:
• a Convention between the Government of Australia and the Government of United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital Gains and the associated Exchange of Notes; and
• an Agreement between the Government of Australia and the Government of the United Mexican States for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, and the Protocol thereto.
This Act amends existing legislation, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 and the Navigation Act 1912, giving effect to the Regulations for the Prevention of Pollution by Sewage from Ships set out in Annex IV of the International Convention for the Prevention of Pollution from Ships, 1973/78.
Beyond certain minor and technical amendments, the Act includes:
• provision of a new power for survey authorities to issue International Sewage Pollution Prevention Certificates;
• amendments reflecting additional requirements set out in the revised Annex IV including the condition in which a ship shall be maintained in order to conform with the provisions of Annex IV, and to ensure that it remains fit to proceed to sea without presenting an unreasonable threat of harm to the environment;
• amendments that reflect regulatory practice to remove purely technical and routine operational matters from primary legislation and include these in subordinate legislation;
• amendments to the operation of regulations contained in Annex IV, including the operation of a provision prohibiting the discharge of mixed sewage into the sea, and amending a condition specifying the distance from the nearest land that treated sewage can be released; and
• amendments providing that express powers have been given to the Australian Maritime Safety Authority in an effort to improve administrative efficiencies by removing operational matters from the requirements of Ministerial approval.
This Act enhances maritime transport security by:
• establishing a maritime transport security regulatory framework, and providing for adequate flexibility within this framework to reflect a changing threat environment;
• implementing the mandatory requirements in Chapter XI-2 and the International Ship and Port Facility Code of the Safety of Life at Sea Convention, 1974, to ensure that Australia is aligned with the international maritime transport security regime;
• ensuring that identified Australian ports, port facilities, and other maritime industry participants operate with approved maritime security plans;
• ensuring that certain types of Australian ships operate with approved ship security plans;
• issuing International Ship Security Certificates to Australian ships which have been security verified so that these ships will be able to enter ports in other SOLAS Contracting Countries; and
• undertaking control mechanisms to impose control directions on foreign ships that are not compliant with the relevant maritime security requirements in this Act.
This Act strengthens Australia’s arrangements for the protection of, and application of non-proliferation safeguards to nuclear material, facilities and associated information. It will enable Australia to bring into force legislation banning nuclear weapon tests ahead of entry into force of the Comprehensive Nuclear Test Ban Treaty. It provides also for machinery changes to improve the application of non-proliferation measures.
This Act introduces new controls on substances that have detrimental environmental impacts upon the global atmosphere – ozone-depleting substances and synthetic greenhouse gases used as alternatives to ozone depleting substances. These controls were introduced for the purposes of and incidental to, the implementation of Australia’s obligations to minimise the consumption and emission of these substances under the Vienna Convention for the Protection of the Ozone Layer, the Montreal Protocol on Substances that Deplete the Ozone Layer, and the United Nations Framework Convention on Climate Change.
This Act enables the creation of regulations that set the amount of levy payable by manufacturers of substances that require a Controlled Substances Licence under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (OPSGGM Act). The levy is collected to recover the Commonwealth’s costs associated with assisting industry phase out its consumption and possible production of the ozone depleting substances (ODS), hydrochlorofluorocarbons (HCFCs) and methyl bromide, as well as minimise their emissions of these ODS and specific synthetic greenhouse gases used as replacements to ODS.
The Act facilitates Australia’s compliance with the Montreal Protocol on Substances that Deplete the Ozone Layer and the United Nations Framework Convention on Climate Change. The Protocol requires, inter alia, control of the import, export and manufacture of HCFC and methyl bromide, while the Convention requires measures be taken to minimise greenhouse gas emissions.
This Act gives effect to the Timor Sea Treaty between Australia and East Timor. The Treaty provides a framework for the exploration, development and exploitation of the petroleum resources in the Joint Petroleum Development Area (JPDA) created by the Treaty.
Upon East Timor’s separation from Indonesia, Australia entered into an agreement with the United Nations Transitional Administration in East Timor that allowed Australia and East Timor to benefit from the continuation of exploration and production activities in an area of overlapping territorial claims in the Timor Sea. East Timor became independent on 20 May 2002, and on that date Australia and East Timor signed the Timor Sea Treaty.
The Treaty is a provisional arrangement pending permanent delimitation of maritime boundaries between Australia and East Timor. Main aspects of the Treaty include:
• sharing of petroleum production and revenue by Australia and East Timor split 90/10 in East Timor’s favour; and
• a joint three-tiered administrative structure involving both Australia and East Timor to govern the day-to-day running and broader policy issues in the JPDA.
This Act gives effect to provisions contained in certain Articles of the Timor Sea Treaty relating to criminal jurisdiction, customs, employment regulation, migration, quarantine, income tax and fringe benefits tax. The Act also repeals the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990.
This Act amends the Sex Discrimination Act 1984 to clarify certain provisions regarding discrimination on the grounds of pregnancy, potential pregnancy and breastfeeding.
The amendments address concerns raised in the Human Rights and Equal Opportunity Commission Report, Pregnant and Productive: It’s a Right not a Privilege to Work While Pregnant (1999) that some areas of the Act’s coverage are not well understood.
The amendments contained in the Act clarify that:
• discrimination against women who are breastfeeding is prohibited by the Act;
• questions regarding pregnancy or potential pregnancy may not be asked during recruitment processes; and
• that medical information collected from pregnant women may only be used for appropriate purposes, such as for genuine occupational health and safety reasons and not in a discriminatory manner.
Regulations 118 and 120 of the Principal Regulations operated to prevent Australian registered aircraft being flown to or from the Republic of Angola and the Libyan Arab Jamahiriya, without the express approval of the Secretary to the Department of Transport and Regional Services. These Regulations also prevented any aircraft being flown between Australia and either Angola or Libya, without the express approval of the Secretary.
The Minister for Foreign Affairs has advised that the sanctions against Angola have been terminated and those against Libya have been suspended. The Regulations repeal the embargoes against Angola and Libya.
The purpose of the Regulations is to implement certain elements of the European Commission (EC) Regulation No 753/2002 (the Labelling Regulation) that lays down rules for applying European Council Regulation No 1493/1999 regarding the description and presentation of wine.
This amendment meets the EC requirement that regulations governing ‘conditions of use’ be specific to wine labelling. The only new requirement for exporters would be the need to sign a declaration stating that the information on the label is accurate. The export of a grape product to an EC country would be prohibited unless the exporter had signed such a declaration.
On 9 December 2002 the United Nations Security Council adopted Resolution 1448 (2002) terminating sanctions against Angola imposed by its Resolutions 864 (1993), 1127 (1997) and 1173 (1998). Resolutions 864, 1127 and 1173 had imposed a range of measures against the Angolan rebel group Uniao Nacional Para a Independencia Total de Angola (UNITA) and other measures to reduce the humanitarian consequences of the civil conflict. The Security Council terminated these sanctions in recognition of steps taken by the government of Angola and UNITA towards the full implementation of Security Council resolutions and various peace initiatives.
The purpose of the Regulations is to remove the measures currently in place, which had been necessary to implement those Resolutions listed above now that they are no longer in force.
The purpose of the Regulations was to amend the Charter of the United Nations (Sanctions – Liberia) Regulations 2002 to include a prohibition on conduct that assists, or results in, round logs or timber products being imported into Australia from Liberia, thereby implementing the obligation in paragraph 17(a) of Security Council Resolution 1478 (2003). The Principal Regulations implemented Australia’s obligations to prohibit the supply of arms or related materiel to Liberia (other than as authorised by the Security Council), the provision of military technical training or assistance to Liberian nationals and the import of rough diamonds from Liberia into Australia. The prohibition relating to round logs or timber products would be repealed on or around 7 May 2004 (that is, ten months after 7 July 2003) unless the Security Council in the meantime had determined a shortening or lengthening of the prohibition.
The Regulations also repeal various clauses in the Principal Regulations. These Regulations inappropriately apply specific measures relating to aircraft and flag vessels to prohibitions on the provision to Liberia of technical training or assistance related to arms and related materiel of all types, and on the importation of rough diamonds from Liberia. Specific measures relating to aircraft and flag vessels required by Resolution 1343 (2001) applied only to prohibitions on the sale or supply to Liberia of arms and related materiel of all types. The other prohibitions that member states are obliged to impose under Resolution 1343 are not specifically related to aircraft or flag vessels. Repealing these Regulations bring the Principal Regulations into line with Australia’s ongoing obligations under Resolution 1343.
Pursuant to paragraph 4(b) of Security Council Resolution 1267 (1999), paragraph 8(c) of Resolution 1333 (2000) and paragraph 2 of 1390 (2002), Australia has an international obligation to impose financial sanctions against persons and entities associated with the Taliban and Al Qaida as listed by the United Nations Committee established by Security Council Resolution 1267. This obligation had been implemented domestically by Part 4 of the Charter of the United Nations (Sanctions Afghanistan) Regulations 2001 (Afghanistan Regulations). The UN 1267 List was effectively incorporated into Part 4 of the Afghanistan Regulations as an obligation to freeze the assets of these persons and entities and was automatically activated once they are named on the UN 1267 List.
The purpose of the Regulations is to transfer the implementation of the financial sanctions against persons and entities named on the UN 1267 list from the Afghanistan Regulations to Part 4 of the Act. Part 4 of the Act, read together with regulation 6(1) of the Charter of the UN (Terrorism and Dealing with Assets) Regulations 2002, implements financial sanctions against a person or entity if the Minister for Foreign Affairs is satisfied that the person or entity is mentioned in paragraph 1(c) of United Nations Security Resolution 1373 (2001). Maintaining separate measures under both the Afghanistan Regulations and Part 4 of the Act was therefore duplicative. The Regulations remove this duplication by making persons and entities on the UN 1267 List subject to the financial sanctions under Part 4 of the Act and by repealing Part 4 of the Afghanistan Regulations. A new Regulation 6A to the Terrorism and Dealings with Assets Regulations provides that persons and entities named on the UN 1267 List are proscribed by regulation under subsection 18(1) of the Act.
Security Council Resolution 1483 (2003) terminated all prohibitions related to trade with Iraq and the provision of financial or economic resources to Iraq established by resolution 661 (1990) and subsequent relevant resolutions, including resolution 778 (1992), with the exception of prohibitions related to the sale or supply to Iraq of arms and related materiel other than those arms and related materiel required by Coalition Forces to serve the purposes of this and other related resolutions.
Resolution 1483 (2003) also imposed new obligations on United Nations member states to:
(a) establish a prohibition on trade in or transfer of Iraqi cultural property illegally removed (or reasonably suspected of having been illegally removed) from Iraq since 2 August 1990, and to facilitate the return to Iraqi institutions of such property;
(b) provide for the immunity of petroleum, petroleum products and natural gas originating in Iraq, until title passes to the initial purchaser, from legal proceedings against them and from any form of attachment, garnishment or execution;
(c) freeze without delay, and immediately transfer to the Development Fund of Iraq, any funds or other financial assets or economic resources (i) of the previous Government of Iraq or its state bodies, corporations or agencies located outside of Iraq as of 22 May 2003 or (ii) that have been removed from Iraq, or acquired, by Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members and entities owned or controlled directly or indirectly by them or by persons acting on their behalf or at their direction;
(d) provide for (i) the proceeds and obligations arising from sales of petroleum, petroleum products and natural gas originating in Iraq; (ii) the Development Fund of Iraq; and (iii) the funds or other financial assets or economic resources referred to in paragraph (c) above, to enjoy privileges and immunities equivalent to those enjoyed by the UN (such privileges and immunities not to apply with respect to any legal proceeding in which recourse to such proceeds or obligations is necessary to satisfy liability for damages assessed in connection with an ecological accident that occurs after 22 May 2003).
The purpose of the Regulations is to remove the measures currently in place in Australia, which had been necessary to implement trade and economic sanctions against Iraq and to implement the new obligations on UN member states to assist post-war recovery in Iraq, imposed by Resolution 1483.
The purpose of the Regulations is to update the provisions of the Copyright (International Protection) Regulations 1969. The Regulations extend copyright protection in Australia to foreign works and subject matter to comply with the obligations of relevant multilateral conventions, by providing an automatic update procedure that extends protection to future adherents to any of those international conventions. Previously it was necessary to amend the Principal Regulations every time another country acceded to or denounced one of the listed conventions.
The purpose of the Regulations is to declare Iraq and the Solomon Islands to be ‘declared foreign countries’ for the purposes of the Crimes (Overseas) Act 1964 on and from 1 July 2003 and ceasing on 1 July 2005.
Paragraph 3C(1)(a) of the Act states that the Regulations may provide that a foreign country is a declared foreign country for the purposes of the Act. The Act extends the criminal law of the Jervis Bay Territory extraterritorially over various categories of Australians working in foreign countries. One of these categories is Australians working in a foreign country where that foreign country has been declared by regulation to be a ‘declared foreign country’ for the purposes of the Act. Subsection 3C(5) was intended to allow the retrospective application of Australian criminal law to Australians deployed on Commonwealth operations to Iraq and the Solomon Islands.
The Regulations apply the Act to a person in relation to an act or omission if the person is an Australian undertaking a task or project or performing a function on behalf of the Commonwealth, or pursuant to commitments or directions given by or on terms determined by the Commonwealth, in the Solomon Islands or Iraq. The Regulations commenced on gazettal, but provide that Iraq and the Solomon Islands are declared foreign countries on and from 1 July 2003.
The purpose of the Regulations is to insert into Schedule 1 of Part 2 of the Principal Regulations the organisation Ansar al-Islam and its aliases ‘Devotees of Islam; Jund al-Islam; Soldiers of Islam; Kurdistan Supporters of Islam; Supporters of Islam in Kurdistan; Followers of Islam in Kurdistan; Kurdistan Taliban; Soldiers of God’, in order to apply the offence provisions in Division 102 to persons with links to Ansar al-Islam.
Subsection 102.1(3) of the Code provides that before the Governor-General makes regulations specifying an organisation for the purposes of paragraph 102.1(1)(c) of the Code, the Minister must be satisfied on reasonable grounds that the Security Council has identified the organisation in a decision relating wholly or partly to terrorism, or in a mechanism under such a decision (paragraphs 102.1(3)(a)&(b)), and the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (paragraph 102.1(3)(c)). The Attorney-General is satisfied on reasonable grounds of these matters in relation to Ansar al-Islam.
The purpose of the Regulations is to insert into Schedule 1 of Part 2 of the Principal Regulations the organisation Al-Jihad/Egyptian Islamic Movement and its aliases ‘Egyptian Al-Jihad; Egyptian Islamic Jihad; Jihad Group; New Jihad’, in order to apply the offence provisions in Division 102 to persons with links to AI-Jihad/ Egyptian Islamic Movement.
The purpose of the Regulations is to insert into Schedule 1 of Part 2 of the Principal Regulations the organisation Asbat Al-Ansar in order to apply the offence provisions in Division 102 to persons with links to Asbat Al-Ansar.
The purpose of the Regulations is to insert into Schedule 1 of Part 2 of the Principal Regulations the organisation Islamic Army of Aden in order to apply the offence provisions in Division 102 to persons with links to the Islamic Army of Aden.
The purpose of the Regulations is to insert into Schedule 1 of Part 2 of the Principal Regulations the organisation Islamic Movement of Uzbekistan and its alias ‘IMU’ in order to apply the offence provisions in Division 102 to persons with links to the Islamic Movement of Uzbekistan.
The purpose of the Regulations is to insert into Schedule 1 of Part 2 of the Principal Regulations the organisation Jaish-I-Mohammed and its alias ‘Army of Mohammed’ in order to apply the offence provisions in Division 102 to persons with links to Jaish-I-Mohammed.
The purpose of the Regulations is to insert into Schedule 1 of Part 2 of the Principal Regulations the organisation Lashkar i Jhangvi in order to apply the offence provisions in Division 102 to persons with links to Lashkar i Jhangvi.
The purpose of the Regulations is to insert into Schedule 1A of Part 2 of the Principal Regulations the name of the Hizballah External Security Organisation and its aliases ‘Islamic Jihad; Hizballah External Security Apparatus’, in order to apply the offence provisions in Division 102 to persons with links to the Hizballah External Security Organisation.
The purpose of the Regulations is to insert into Schedule 1A of Part 2 of the Principal Regulations the following names in order to apply the offence provisions in Division 102 to persons with links to HAMAS’ Izz al-Din al-Qassam Brigades or Lashkar-e-Tayyiba:
• HAMAS’ Izz al-Din al-Qassam Brigades and its aliases ‘Harakat al-Muqawama al-Islamiya – Izz al-Din al-Qassam Brigades’; ‘Harakat al Muqawama al-Islamiya’s Izz al-Din al-Qassam Brigades’; ‘Harakat al Muqawama al-Islamiya – Izz al-Din al-Qassam Brigades’; ‘Hamas-Izz al Din al-Qassem’; ‘Hamas Izz al-Din al-Qassem Brigades’ and ‘Mahas Izz al-Din al-Qassam Brigades’; and
• Lashkar-e-Tayyiba and its aliases ‘Paasban-e-Kashmir’; ‘Paasban-i-Ahle-Hadith’; ‘Paasban-e-Ahle Hadis’; ‘Lashkar-e-Toiba’; ‘Lashkar-i-Toiba (LiT)’; ‘Lashkar-i-Tayyiba’; ‘Lashkar-i-Taiba’; ‘Lashkar-I-Taiba’; ‘Lashkar-e-Taibyya’; ‘Lashkar-e-Taiba’; ‘Lashkar-Taiba’; ‘Lashkar e Toiba’; ‘Lashkar e Taiba’; ‘Lashker-e-Taiba’; ‘Lash e-Tayyiba’; ‘Lashkar-E-Tayyaba’; ‘Lashkar e Tayyiba’ and ‘Lashkar e Tayyaba (LT)’.
Under sections 184A, 185B and 186A, and subsections 185(2) and (3) of the Customs Act, officers of Customs are given various powers to deal with persons or ships reasonably suspected of being involved in a contravention of a prescribed Act or an Act prescribed consistently with the United Nations Convention on the Law of the Sea (UNCLOS). Regulation 167 of the Customs Regulations 1926 prescribes certain Acts for the purposes of the abovementioned provisions of the Customs Act.
The Torres Strait Fisheries Act 1984 (the TSF Act) regulates local and commercial fishing activities in the Torres Strait Protected Zone. The purpose of the amending Regulations is to allow officers of Customs to use the powers set out in the Customs Act to deal with persons or ships reasonably suspected of being involved in a contravention of a prescribed Act or an Act prescribed consistently with UNCLOS, to enforce the provisions of the TSF Act.
The purpose of the Regulations is to prescribe the requirements and obligations on producers, manufacturers and exporters of goods exported to Singapore from Australia to comply with the Singapore-Australia Free Trade Agreement (SAFTA).
SAFTA is a wide-ranging agreement that provides Singapore and Australia with more liberal access to each other’s goods, services and investment markets. SAFTA was signed on 17 February 2003 and entered into force on 28 July 2003.
New section 126AA of the Act provides that the Regulations may prescribe the requirements on exporters relating to the making of declarations concerning, the export of goods to Singapore for which a preferential tariff is to be claimed. These requirements are prescribed in new regulation 105A of the Regulations, and include an obligation on an exporter to make a declaration prior to the export of goods to Singapore that the goods are the produce or manufacture of Australia, in accordance with SAFTA.
In addition, new section 126AB of the Act provides that the Regulations may prescribe record-keeping obligations that apply in relation to goods that are exported to Singapore and are claimed to be the produce or manufacture of Australia for the purpose of obtaining preferential treatment in Singapore. These obligations may be imposed on the producer, manufacturer or exporter of such goods. The Regulations specify the types of records that must be kept, the time for which the records must be kept and the manner in which the records must be kept. These obligations are consistent with record keeping obligations under the Act that currently apply to the owner of goods exported from Australia.
The purpose of the Regulations is to prescribe matters to which the Minister must have regard in determining whether market conditions do not prevail in a particular country in respect of the selling price of goods, for the purposes of Australia’s anti-dumping regime.
Regulations 13CE and 13CF and Schedule 14AA to the Prohibited Exports Regulations restricted the exportation of certain goods to Angola. These Regulations and Schedule were enacted to implement Australia’s obligations to impose trade sanctions against Angola under United Nations Security Council Resolutions 864 (1993), 1127 (1997) and 1173 (1998).
Resolution 1448 (2002) terminated the sanctions imposed against Angola. The purpose of the amending Regulations is to give effect to the termination of the trade sanctions under the Resolution.
Sub-paragraphs 13E(2)(c) and (d) of the Prohibited Exports Regulations provide an exemption from seeking export permission for firearms, ammunition and other related defence goods owned by the defence and police forces of countries specifically listed. Regulations 3A and 3B of the Prohibited Imports Regulations provide a similar exemption from the requirement to obtain an import permit for these items by defence or police forces of certain listed countries.
The purpose of the Regulations is to facilitate the exportation and importation of certain goods owned by a defence force or a police force of a country contributing to the new multinational force aiding East Timor established under United Nations Security Council Resolution 1410 (2002), and to facilitate future changes in forces aiding East Timor as they occur.
PE Regulation 13E, and PI Regulations 3A and 3B, referred to the multinational force established under Security Council Resolutions 1264 (1999) and 1272 (1999). This multinational force was named the UN Transitional Administration in East Timor (UNTAET). In 2002, this force was superseded by the UN Mission of Support in East Timor (UNMISET) under Security Council Resolution 1410.
Amendment to Regulations 13E (PE Regulations), and 3A and 3B (PI Regulations) are necessary to reflect this change, thereby allowing countries contributing to UNMISET to avoid delays in moving their firearms, ammunition and other defence-related goods through Australia to East Timor or the contributing country. Currently, forces of these countries must apply for export and import permits, an arrangement that can result in forces arriving in East Timor without their necessary equipment.
To obtain an exemption from import permit requirements, these goods must be intended to be exported to East Timor and must be intended for use for the purposes of the multinational force. Similarly, upon a defence or police force’s return from East Timor, goods that have been used, or were intended to be used for the purposes of the multinational force, must be intended to be exported to the country that is contributing to the force.
The purpose of the amending Regulations is to provide an exemption for goods imported by foreign air security officers (ASOs) from the export restrictions on firearms, and certain other weapons and defence goods that these ASOs may require for their duties.
In November 2001, in response to worldwide concerns in relation to air terrorism, the Minister for Justice and Customs announced that the government would introduce armed security officers on selected flights provided by Australian carriers. Since then, Australia has been negotiating with several countries to develop bilateral arrangements in relation to an air security officer program.
Regulation 4M of the Regulations restricted the importation of unset diamonds from Angola. This regulation was enacted to implement Australia’s obligations to impose trade sanctions against Angola under United Nations Security Council Resolution 1173 (1998).
Resolution 1448 (2002) terminated the trade sanctions imposed against Angola under Resolution 1173 (1998). The purpose of the amending Regulations was to repeal regulation 4M of the Prohibited Imports Regulations, consistent with the termination of the trade sanctions against Angola.
United Nations Security Council Resolution 1478 (2003) in part provides that all states shall take the necessary measures to prevent, for a period of ten months starting from 7 July 2003, the import into their territories of all round logs and timber products originating from Liberia.
The Resolution further provides that the Council will decide at the end of the ten-month period whether to extend these measures for a further period under the same conditions. It also provides that the Council will consider by 7 September 2003 how best to minimise any humanitarian or socio-economic impact of these measures, including the possibility of allowing timber exports to resume in order to fund humanitarian programs.
The purpose of the amending Regulations is to amend the Prohibited Imports Regulations to implement the sanctions against Liberia imposed by the Resolution.
The amending Regulations inserted new regulation 4Q to prohibit the importation of round logs and timber products originating from Liberia unless the written permission of the Foreign Minister or an authorised person is produced to Customs at or before the time of importation. Under regulation 4Q, the Foreign Minister or an authorised person who is an officer of the Department of Foreign Affairs and Trade, in deciding whether to grant a permission to import, must consider Australia’s relations with other countries and Australia’s obligations under international law.
The Regulations would allow a foreign defence force invited to participate in a defence-sanctioned activity to import articles for the purpose of that activity provided that the articles are owned by that defence force and are imported by either that defence force or a member of that defence force to whom the articles have been issued.
To ensure that the articles imported will be exported after the defence-sanctioned activity, the Regulations also operate to ensure that the foreign defence force seek, from the Minister for Defence (or other person authorised), a statement that an export licence or permission will be granted under regulation 13E of the Prohibited Exports Regulations, if an export permission has not already been obtained at the time of seeking import permission.
The purpose of the amending Regulations is to provide an exemption for goods imported by foreign air security officers (ASOs) from the import restrictions on firearms, and certain other weapons and defence goods that these ASOs may require for their duties.
The amending Regulations substituted the previous exemptions in the Prohibited Imports Regulations relating to sky marshals with the current exemptions relating to foreign ASOs. They also specified different weapons and defence goods listed in Schedules 2 and 3 to the PI Regulations as subject to the new exemptions for foreign ASOs.
The Act governs the legal status of foreign military forces while in Australia. The Act regulates the jurisdiction of the military authorities of visiting forces to apply their military law to their personnel while they are in Australia. The Act also provides for the corresponding suspension of Australian jurisdiction over the personnel of visiting forces in certain circumstances. The Act, applied to foreign countries by way of the Principal Regulations, is also the enabling mechanism for the domestic implementation of Status of Forces Agreements between Australia and foreign countries.
The Regulations add East Timor and Turkey to the list of non-Commonwealth countries under regulation 5, in view of Australia’s present defence relationships with those countries.
The definition of ‘extradition country’ in paragraph 5(a) of the Extradition Act 1988 provides that a country may be declared by the Regulations to be an extradition country. Paragraph 11(1)(b) provides that the Regulations may make provision for application of the Act subject to limitations, conditions, exceptions or qualifications.
The Regulations provide that the Kingdom of Cambodia is an extradition country, enabling Australia to consider an extradition request received from Cambodia.
The meaning of ‘extradition offence’ has been modified so that under the Regulations, Australia only has an extradition relationship with Cambodia in relation to an offence that is a child sex offence. A ‘child sex offence’ is also defined in the Regulations.
The Regulations qualify paragraph 19(3)(a) of the Act by providing that where a fugitive has been convicted in Cambodia of an extradition offence in his or her absence, a request for extradition must be accompanied by a judicial document, or other document attaching a judgment or copy of a judgment authorising apprehension of the person.
For paragraph 19(2)(b) of the Act, a condition operates providing that additional documentation must be provided where a person has been convicted of an extradition offence in his or her absence. In such cases, an extradition request must be accompanied by documents containing evidence that establishes that it was reasonable for the person to know about the criminal proceedings brought against the person and the person chose not to attend, or that the person has the right to appeal against the conviction in the extradition country.
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.
The Regulations provide that Lebanon is an extradition country. The Regulations will enable Australia to deal with any extradition request received from Lebanon. Lebanon will not be able to grant extradition to Australia until further arrangements, such as an extradition treaty, have been concluded.
Extradition under the Regulations operates in accordance with the Act, subject to the modification of paragraph 17(2)(a) 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 Regulations give effect in Australian domestic law to the Treaty between the United Kingdom and Servia for the Mutual Extradition of Fugitive Criminals done at Belgrade on 6 December 1900. Australia and the Republic of Croatia recognised continuing obligations under this treaty by an exchange of notes in September 1996.
The Regulations declare that Croatia is an extradition country, and set out a copy of the 1900 Treaty. Paragraph (c) of the definition of ‘extradition country’ in the Act is designed to give effect to inherited treaties such as the 1900 Treaty. However, the legal position of successor states such as Croatia under the Act is not clear. The Regulations clarify the status of Croatia as an extradition country and ensure that Australia can comply with its existing international obligations.
The Regulations give effect in Australian domestic law to the Treaty on Extradition between Australia and the Republic of Turkey 1994, and to a supplementary Exchange of Notes, done at Ankara on 27 and 28 March 1995. The Treaty and Exchange of Notes entered into force on 16 November 2003. As with all of Australia’s extradition treaties, the Treaty with Turkey contains all of the internationally accepted human rights safeguards that are now a part of modern extradition.
Subsection 111B (1) of the Family Law Act 1975 provides that the Regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Hague Convention on the Civil Aspects of International Child Abduction, which entered into force for Australia on 1 January 1987.
The purpose of the Regulations is to add El Salvador, Estonia, Latvia, Peru and Sri Lanka, which have recently acceded to the Convention, to the list of convention countries in Schedule 2 to the Abduction Regulations.
Subsection 111C (1) of the Act provides that the Regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, which entered into force for Australia on 1 December 1998.
The purpose of the Regulations is to add Albania, Bolivia Bulgaria, Estonia, Germany, Latvia, Luxembourg, the Slovak Republic, Slovenia, Switzerland, the United Kingdom, the Isle of Man and the Canadian province of Nunavut to the list of Convention countries in Schedule 2 to the Adoption Regulations.
The purpose of the Regulations is to increase the levy for licences granted or renewed in respect of the Torres Strait Prawn Fishery (the Fishery). Subsection 19(2) of the Torres Strait Fisheries Act 1984 (TSF Act) provides that the Minister may, at his discretion, grant to a person a licence authorising the use of a specified boat for taking fish in the course of commercial fishing and for carrying, or processing and carrying, fish taken with the use of the licensed boat in areas of Australian jurisdiction. ‘Area of Australia jurisdiction’ is defined in section 3 of the TSF Act and includes areas of waters within the Torres Strait Protected Zone, as defined in the Torres Strait Treaty.
The levy is calculated to cover the budgeted costs for managing the fishery during 2002-03. The budget covers the anticipated recurrent costs of managing the fishery including logbook collection; data entry; surveillance; licensing; and increased staff time required by extensive consultation over the proposed reduction in effort including a review of the stock assessment and a strategic assessment of the fishery, as required under Part 10 of the Environment Protection and Biodiversity Conservation Act 1999.
The purpose of the Regulations is to postpone the implementation of amended defences to a prosecution for the intentional or negligent discharge of sewage in the Marine Park.
Regulation 45A of the Principal Regulations provides that it is an offence for a person to intentionally or negligently discharge sewage in the Marine Park. Paragraph 45A(2)(a) provides defences to a prosecution where the discharge is from a vessel or aircraft:
• that does not contain a storage tank designed for storing sewage; or
• that contains a storage tank designed for storing sewage, if the vessel or aircraft is more than 500 metres seawards from the seaward edge of the nearest reef; or
• if the discharge was for the purpose of saving life at sea or securing the safety of the vessel or aircraft.
This postponement is intended to facilitate the establishment of a complementary regime between the Great Barrier Reef Marine Park Authority and Queensland for the management of sewage in the Marine Park.
Subsection 18A(2) of the Act states that the Minister may grant a Basel Export Permit authorising the export of hazardous waste destined for final disposal if, at the time of the decision to grant the permit, particulars of the export are specified in the Regulations.
The purpose of the Regulations is to specify the particulars of a proposed export of hazardous waste to Belgium for final disposal so that the proposed export can proceed. The hazardous waste consists of a solution containing potentially explosive compounds that cannot be disposed of in an environmentally sound manner within Australia. The total weight of the waste is 15 tonnes.
The Hazardous Waste (Regulation of Exports and Imports) Act 1989 implements Australia’s obligations under the Basel Convention.
The purpose of the Regulations is to give effect to a bilateral arrangement between Australia and East Timor on the import of hazardous wastes into Australia. The Minister has declared the bilateral arrangement to be an article 11 arrangement under section 4C of the Act.
The Regulations provide that those provisions of the Act that relate to the control of hazardous waste will also apply to imports of hazardous waste from East Timor with the exception of subsections 17(8) (which prohibits the import of waste from a country that is not a party to the Basel Convention) and 18B(1) (which prohibits the grant of a Basel permit unless the corresponding requirements of any relevant article 11 regulations are met).
The Regulations confer upon the Inter-American Development Bank (IDB) juridical personality and legal capacity to enable it to exercise its powers and perform its functions in Australia.
The IDB is an international development organisation, established by agreement amongst its founding member countries in December 1959. The purpose of the IDB is to further the economic and social development of its borrowing member countries in Latin America and the Caribbean. The IDB participates in Australian domestic capital markets.
Australia is not a member country of the IDB; however, section 12A of the Act provides that juridical personality and legal capacity may be conferred on an organisation where the organisation is established by an instrument to which two or more countries are parties.
The purpose of the Regulations is to give effect to Australia’s obligations under the Timor Sea Treaty in respect of the privileges and immunities of the Designated Authority, a body created by article 6 of the Treaty to administer on behalf of Australia and East Timor the exploration for and exploitation of petroleum resources of a defined area in the Timor Sea.
The Regulations also repeal regulations conferring privileges and immunities on the Joint Authority established under the Timor Gap Treaty with Indonesia and subsequently kept in being as a transitional measure pending the entry into force of the Timor Sea Treaty, first by agreement with the United Nations Transitional Administration in East Timor and later with the newly independent East Timor.
The Treaty provides that, for three years after its entry into force, or for such different periods as Australia and East Timor may agree, the Designated Authority has juridical personality and such legal capacities under the law of both Australia and East Timor as are necessary for the exercise of its powers and the performance of its functions. The Designated Authority is also exempt from income tax imposed under the law of East Timor or the federal law of Australia. In addition, staff of the Designated Authority are exempt from taxation of salaries, allowances and other emoluments paid to them by the Designated Authority in connection with their employment, other than taxation under the law of whichever of Australia or East Timor they are deemed to reside in for taxation purposes.
The Act, along with multilateral and bilateral transfer agreements, forms the basis of the International Transfer of Prisoners scheme in Australia. The scheme allows Australians imprisoned overseas to apply to return to Australia to serve the remainder of their sentences in an Australian prison. The scheme also allows foreign nationals who are imprisoned in Australia to apply to serve the balance of their sentences in their home country.
The Regulations, among other things, amended the list of transfer countries in Schedule 2 by replacing the reference to the Federal Republic of Yugoslavia with a reference to Serbia and Montenegro, and by adding Japan.
The Maritime Transport Security Act 2003 gives effect in Australian law to a new international maritime security regime, which comes 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 Facilities (ISPS) Code.
These Regulations are the first tranche of the regulations that must be made to give effect to the Act. The first tranche establishes the key requirements for Australian Maritime Industry Participants (MIPs). This assists Australian MIPs to have maritime security plans written, approved and implemented by 1 July 2004, as required by the SOLAS Convention. The second tranche of the Regulations will be prepared early in 2004.
The Regulations provide detail about the obligations on MIPs with regard to the content and form of their security assessments and plans; the role of security officers; sharing security information; establishing and enforcing security zones; screening and clearing passengers and negotiating declarations of security. Other MIPs who are required to have a maritime security plan are identified.
The Regulations also create an obligation on operators of regulated Australian ships to provide pre-entry information when they return to Australia from an overseas voyage, and to provide a ship security alert system. The Regulations identify what is a weapon and what is a prohibited item and create exemptions from some weapons provisions in the Act. The Regulations also create an obligation on the Secretary of the Department of Transport and Regional Services to consult with certain people when giving a security or control direction under the Act and when it is reasonable and practicable to do so.
The purpose of these Regulations is to amend the Migration Regulations 1994 to, among other things, enable members of the armed forces or civilian component of the armed forces of France and Turkey to be granted special purpose visas once Australia has entered a Status of Forces agreement with those countries, and require members of crew of non-military ships to show an identity document and a passport as evidence of identity upon entering Australia.
The purpose of the Regulations is to amend the Principal Regulations to introduce a new class of Bridging Visa to allow unlawful non-citizens:
• to be released from immigration detention where they may be able to help with investigations into people-trafficking-related, sexual-servitude or deceptive recruiting offences;
• to stay lawfully in Australia while investigations are undertaken and a decision is made whether to grant them a Criminal Justice Stay Visa.
The purpose of the Regulations is to give effect to UNSC Resolution 1448 (2002) by repealing the Migration (Angola – United Nations Security Council Resolutions) Regulations, which prevented entry into Australia of senior UNITA officials and their immediate adult family members and allow for cancellation of their visas under subsection 116(1)(g) of the Act.
The main purpose of the Regulations is to amend the Patent Regulations 1991 to implement the amendments made to the Patent Cooperation Treaty (PCT) Rules by updating the English text of the PCT Rules set out in Schedule 2A to the Principal Regulations, and by making some minor consequential amendments. As a result of changes made to the international search processes under the PCT, the cost to the Patent Office of conducting an international search will increase. Consequently, the Regulations also increase the fees payable to the Patent Office for conducting international searches.
The Act provides the legal framework for the exploration for, and the production of, petroleum for those parts of Australia’s continental shelf and Exclusive Economic Zone, which are under Commonwealth jurisdiction. The Principal Act is administered jointly by the Commonwealth, state and Northern Territory governments and involves a large number of day-to-day administrative decisions relating to petroleum titles.
These Regulations increase the level of prescribed fees to account for rises in the costs of administering petroleum titles since the last fees increase in 1990.
In keeping with the Offshore Constitutional Settlement and section 129 of the Act, the Commonwealth will continue to repay all fees (excluding the goods and services tax component) received for the day-to-day administration of the regime to state and Northern Territory authorities to offset their costs.
The purpose of the Regulations is to specify indictable offences to be considered as ‘serious offences’ for the purposes of the Act. The effect of the Regulations is to add the offences listed below to the class of serious offences whereby a restraining order may be granted by a court to cover all of the property of the person suspected of the serious offence, or specified parts of that person’s property.
The Regulations provide that the following offences under Division 73 of the Criminal Code are serious offences:
• people smuggling;
• aggravated offence of people smuggling, exploitation etc;
• aggravated offence of people smuggling, at least five people;
• making, providing or possessing a false travel or identity document;
• providing or possessing a travel or identity document issued or altered dishonestly or as a result of threats;
• providing or possessing a travel or identity document to be used by a person who is not the rightful user; and
• taking possession of or destroying another person’s travel or identity document.
The Regulations also provide that the following offences under Division 270 of the Criminal Code are serious offences:
• slavery offences;
• sexual servitude offences; and
• deceptive recruiting for sexual services.
The Regulations also provide that the following offences under Part IIIA of the Crimes Act 1914 are serious offences:
• sexual intercourse with child under 16;
• inducing child under 16 to engage in sexual intercourse;
• sexual conduct involving child under 16;
• inducing child under 16 to be involved in sexual conduct;
• benefiting from offence against Part IIIA; and
• encouraging offence against Part IIIA.
The Principal Regulations specify, amongst other things, the information to be submitted with applications for the grant or transfer of space licences, including technical recognition instruments (TRIs). TRIs are instruments that allow Australia to recognise another country’s licensing or certification process for space launch technology. If a TRI is in place, an applicant for a space licence may provide alternative information in substitution for information otherwise required under the Regulations.
The purpose of the amendments is to widen the definition of a TRI, and to establish circumstances in which alternative information may be provided in substitution of information otherwise required to be provided under the Regulations for the purpose of demonstrating that a space launch facility, launch vehicle or kind of launch vehicle can reasonably be expected to be as effective and safe as practicable for its intended purpose having regard to its design and that purpose.
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; in respect of occupations, a person registered to practise an occupation in Australia is entitled to practise the same occupation in New Zealand and vice versa.
[∗] Office of International Law, Attorney-General’s Department, Canberra. We thank Bill Campbell QC for his assistance.