|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Year Book of International Law |
Sanjiva de Silva, Ciara Henshaw, Sarah McCosker,
Roxane Nolan and Kelisiana Thynn[∗]
This Act amends the Criminal Code Act 1995 (Criminal Code). It expands on the existing regime of offences and powers targeting terrorists. According to the Second Reading Speech, the government introduced this legislation urgently in response to the assessment that a terrorist attack in Australia is feasible and could well occur.
Subsections 101.2(3), 101.4(3), 101.5(3), 101.6(2), and 103.1(2) of the Criminal Code were amended so that the phrase ‘the terrorist attack’ is changed to ‘a terrorist attack’. The effect of these changes is that it is not necessary for the prosecution to identify a specific terrorist act. It will be sufficient for the prosecution to prove that the particular conduct was related to ‘a’ terrorist act, the exact nature of which may remain unknown. The Act provides that the amendments in Schedule 1 will be reviewed by the Council of Australian Governments after five years of operation and this review will be made public.
The amendments commenced on 4 November 2005.
2. Anti-Terrorism Act (No 2) 2005
This Act amends the Criminal Code Act 1995 (the Criminal Code), the Crimes (Foreign Incursions and Recruitment) Act 1978, the Financial Transactions Reports Act 1988 (the FTR Act), the Australian Security Intelligence Organisation Act 1979 (the ASIO Act), the Surveillance Devices Act 2004, the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act), the Crimes Act 1914 (the Crimes Act), the Migration Act 1958, the Aviation Transport Security Act 2004, the Proceeds of Crime Act 2002, the Customs Act 1901, and the Customs Administration Act 1985.
The main features of the Act are the following:
• extending the definition of a terrorist organisation so that organisations that advocate terrorism (directly or indirectly counselling or urging) can be listed;
• strengthened offences of financing of terrorism by expanding the definition of the ways that funds can be collected for terrorist activities;
• a ‘control order’ regime to enable the police to monitor a person reasonably suspected of being involved in activities related to a terrorist activity for twelve months;
• a ‘preventative detention’ regime that will allow detention of a person without charge for up to 48 hours where it is reasonably necessary to prevent a terrorist act or to preserve evidence of such an act (see below for more detail);
• a regime of stop, question, search and seize powers for police exercisable at airports and other Commonwealth places to prevent or respond to terrorism;
• a new ‘notice to produce’ regime to ensure the AFP is able to enforce compliance with lawful requests for information that will facilitate the investigation of a terrorism or other serious offence;
• updated sedition offences to cover those who urge violence or assistance to Australia’s enemies;
• amendments to authorise access to airline passenger information for law enforcement and intelligence agencies;
• the creation of a legal basis for the use of video surveillance at Australia’s major airports and on aircraft;
• amendments to ASIO’s special powers warrant regime; and
• amendments to the offence of providing false or misleading information under an ASIO questioning warrant.
The Bill was assented to on 14 December 2005. When introducing this legislation, the Attorney-General gave a guarantee that he would seek a review of Schedule 7 (sedition) to determine whether the offence of sedition was necessary and whether any amendments were needed.
Sections 1-4 of the Act commenced on 14 December 2005. There are various commencement dates for the Schedules. Schedule 9 (Financial transaction reporting) (except Items 3-4, 7) did not commence.
3. Australian Passports Act 2005
This Act replaces the Australian passports provisions in the Passports Act 1938 (1938 Act). The principal object of the Act is to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally. The Act is part of a package of Australian passports legislation, including the Australian Passports (Application Fees) Act 2005 and Australian Passports (Transitional and Consequentials) Act 2005. The purpose of the passports legislation package was to ‘introduce a modern legal structure to: maintain access by Australian citizens to passports of the highest integrity, which establish the bearer’s identity and citizenship; ensure the passports system complements national security, border protection, law enforcement measures and international law enforcement co-operation; and ensure consistency with family law, privacy and administrative law and principles’ (see Explanatory Memorandum).
The new elements of passports law and policy introduced with the Act are:
• a clear statement of the entitlement of an Australian citizen to a passport;
• increased penalties for passport fraud to 10 years’ imprisonment, or $110,000 (increased from $5000 or two years’ jail in the 1938 Act);
• a framework for the use of emerging technologies such as facial biometrics and e-passports, to combat identity fraud;
• an improved mechanism for the refusal or cancellation of an Australian passport on law enforcement grounds or if a person is likely to engage in harmful conduct overseas, for example in cases involving specified serious crimes (including child sex tourism, child abduction, child pornography, sexual slavery, drug trafficking, people smuggling and terrorism) or is likely to engage in conduct interfering with rights and freedoms of others under the International Covenant on Civil and Political Rights;
• a package of measures aimed at minimising the problems caused by lost and stolen passports;
• exceptions to the requirement for either both parents’ consent or a court order for a child to travel internationally, which make clear that disputes between parents should be dealt with by the courts; and
• privacy-related measures, including a transparent mechanism for obtaining information to verify identity and citizenship and to regulate the disclosure of passport information for other limited purposes.
The Act extends to the external territories and to things outside Australia.
Sections 1 and 2 of the Act, and anything in the Act not covered by sections 3 to 58 of the Act, commenced on 18 February 2005. Sections 3 to 58 commenced on 1 July 2005.
4. Australian Passports (Transitionals and Consequentials) Act 2005
This Act sets out transitional and consequential matters relating to the enactment of the Australian Passports Act 2005, and for related purposes, including:
• ensuring the continuing validity of travel documents; continued application of the Passports Act 1938 (1938 Act) to pending proceedings and reviews; and pending applications to be treated under the Australian Passports Act 2005.
• amendment of other legislation that refers to the 1938 Act to change the reference to the Australian Passports Act 2005;
• consequential amendments to the 1938 Act to establish the Foreign Passports (Law Enforcement and Security) Act 2005 complementing relevant provisions in the Anti-Terrorism Bill (No 2) 2004; and
• repeal of all provisions relating to Australian passports or travel-related documents.
Part 1 of the Act sets out preliminary matters, while Part 2 comprises transitional provisions, including:
• a provision that states that passports issued under the 1938 Act are taken to have been issued under the new Act, and will remain valid for the unexpired part of the term it would have had if the old regulations (Passports Regulations 1939) had not been repealed;
• a provision that states that travel-related documents issued under the old regulations are taken to have been issued under the new Act; and
• a provision stating that the 1938 Act would continue to apply in relation to pending proceedings and other matters.
Schedule 1 sets out consequential amendments to the following Acts: Administrative Appeals Tribunal Act 1975; Australian Security Intelligence Organisation Act 1979; Crimes Act 1914; Criminal Code Act 1995; Migration Act 1958 and Passports Act 1938.
Sections 1 to 3 of the Act commenced on 18 February 2005. The remainder of the Act (Part 2 and Schedule 1) commenced on 1 July 2005 (at the same time as sections 3 to 58 of the Australian Passports Act 2005 commenced).
5. Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005
This Act amended the Fisheries Management Act 1991, the Torres Strait Fisheries Act 1984 and the Migration Act 1958 to provide consistency between the Torres Strait Fisheries Act 1984 and the Fisheries Management Act 1991 in relation to illegal foreign fishing arrangements; strengthen the operating proficiency of the partnership between the Australian Fisheries Management Authority (AFMA) and the (then) Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) in the management of detained illegal foreign fishers; to provide for a seamless transition between fisheries detention and immigration detention for non-citizens suspected of committing illegal foreign fishing offences; and facilitate the rapid repatriation of detainees to their home countries.
The Act provides for consistency, for example, in powers of detention of people suspected of committing an illegal foreign fishing offence, searching and screening of detainees, carrying out of identification tests, searching of suspects on boats, forfeiture of boats, protection of officers carrying out their duties, and the consistent application of the enforcement visa regime under the Migration Act 1958 to illegal foreign fishing offences under both the Fisheries Management Act 1991 and the Torres Strait Fisheries Act 1984.
A range of commencement dates applied to the various schedules to this Act, ranging from 23 August to 30 November 2005.
6. Civil Aviation Amendment Act 2005
The Act amends the Civil Aviation Act 1988 to:
• empower the Governor-General to make regulations that may be inconsistent with the Disability Discrimination Act 1992 and the Sex Discrimination Act 1984 and to put beyond doubt the validity of existing regulations and past actions based on those regulations;
• bring into the Act, where it should appropriately be, the requirement that Air Operator’s Certificate (AOC) holders continue to satisfy the Civil Aviation Safety Authority (CASA) and that they meet the conditions of issue of an AOC, as set out in s 28 of the Act; and
• standardise references in the Act to aircraft which are registered in countries other than Australia, that is, change all incorrect references to such aircraft to the defined term ‘foreign registered aircraft’.
The amendments allow Australia to harmonise its aviation safety regulations with international standards and meet its international obligations as a member state of the International Civil Aviation Organization (ICAO).
The Act commenced on 6 July 2005.
7. Commonwealth Radioactive Waste Management Act 2005
This Act gives the Commonwealth express power to do all things necessary for or incidental to the selection of specified Commonwealth land as a site for, and the establishment and operation of, a radioactive waste management facility. The Act specifies three Commonwealth sites in the Northern Territory, which are to undergo further investigations as possibilities for such a purpose, and that the Minister can declare one, or part of one, of the sites as the place where a facility may be established and operated. The Minister may also declare land to provide for suitable road access to the declared site.
After the selection of a site, Commonwealth regulatory processes under the Environment Protection and Biodiversity Conservation Act 1999, Australian Radiation Protection and Nuclear Safety Act 1998 and the Nuclear Non-Proliferation (Safeguards) Act 1987 must be complied with. The Act effects the acquisition or extinguishment of all interests in the site, or part of the site, or land chosen for a facility or as the route to the site, that the Commonwealth has not already acquired or extinguished (if any), and provides for any affected parties to be compensated.
The Act commenced on 15 December 2005.
8. Consular Privileges and Immunities Amendment Act 2005
This Act amended the Consular Privileges and Immunities Act 1972 to allow for privileges and/or immunities to be granted to consular officers in Australia, which supplement, extend or amplify the privileges and/or immunities currently available under the Vienna Convention on Consular Relations. The Consular Privileges and Immunities Act 1972 incorporates specific articles of the Convention into Australian law. The Convention governs the conduct of consular relations between nation states and establishes the privileges and immunities of consular posts and associated persons. This amendment Act allows Australia to negotiate an agreement, arrangement or understanding with another country for more favourable treatment than the Convention provides for Australian consular officers in that country, on the basis that Australia would offer reciprocal treatment to consular officers of that country in Australia.
This Act commenced on 15 November 2005.
9. Copyright Amendment (Film Directors’ Rights) Act 2005
This Act provides for film directors to be joint copyright owners of their films, along with producers, for the purposes of the retransmission statutory licence in Part VC of the Copyright Act 1968. The retransmission statutory licence allows free-to-air broadcasts to be retransmitted without permission from copyright owners provided the retransmitter pays fair remuneration for the owners of copyright in the underlying materials in broadcasts, including films and pre-recorded programs. Under the amendments, the directors and producers would share a right to part of this remuneration, as joint owners of the copyright in their films for this purpose.
The Act commenced on 8 November 2005. Schedule 1 of the Act commenced on 19 December 2005.
10. Criminal Code Amendment (Trafficking in Persons Offences) Act 2005
This Act amends the Criminal Code Act 1995 (Criminal Code) to provide for offences relating to trafficking in persons, and for related purposes. It also amends the Crimes Act 1914 and the Telecommunications (Interception) Act 1979. The Act is intended to improve the existing federal regime of offences targeting trafficking in persons, criminalise comprehensively every aspect of trafficking in persons, and fulfil Australia’s legislative obligations under the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. The government explained that passage of this Act, combined with other measures already in place, would permit Australian ratification of this Protocol. The principal features of the Act are:
• a significant extension to the existing deceptive recruiting for sexual services offence in section 270.7 of the Criminal Code;
• an amendment to the penalty for the aggravated sexual servitude offence in section 270.6 of the Criminal Code (raising the penalty from 19 years to 20 years imprisonment);
• new offences targeting the trafficking of persons into and from Australia;
• new offences of trafficking children into and from Australia;
• a new offence of debt bondage;
• new domestic trafficking in persons offences where trafficking in persons activity takes place wholly within Australia;
• the application of Part 1AD of the Crimes Act 1914 to the trafficking offences, which provides a protective regime for children appearing as witnesses in proceedings for sexual offences; and
• amendments to make telephone interception warrants available for the investigation of the new trafficking offences.
Schedules 1 and 2 of the Act insert new offences into the Criminal Code, amend the Crimes Act 1914 and provide that warrants under the Telecommunications (Interception) Act 1979 are available for the investigation of the new people trafficking offences. Schedule 2 sets out consequential amendments to the Crimes Act 1914 and the Telecommunications (Interception) Act 1979.
Sections 1 to 3 commenced on 6 July 2005. Schedules 1 and 2 commenced on 3 August 2005.
11. Customs Tariff Amendment Act (No 1) 2005
This Act contains amendments to certain tariffs under the Customs Tariff Act 1995 and received royal assent on 6 July 2005.
Part 3 of the amending Act extends the life of the South Pacific Regional Trade and Economic Co-operation Agreement (Textile Clothing and Footwear Provisions) Scheme. The scheme provides for the duty-free entry of certain textiles, clothing and footwear from island countries covered by the South Pacific Regional Trade and Economic Co-operation Agreement. Under current legislation the scheme would have ended on 31 December 2004, the amendments extend it a further seven years.
Parts 5 and 6 of the Act amend the rates of customs duty payable on certain alcohol and tobacco products in accordance with the consumer price index (CPI) adjustments in February and August of each year. The US Free Trade Agreement Implementation (Customs Tariff) Act 2004 that implemented the Australia-US Free Trade Agreement was introduced into parliament prior to the announcement of the August 2004 CPI figures. Consequently, amendments were required for the Act to be in accordance with the CPI.
The amendments in part 5 are effective from 1 January 2005, when the Australia-US Free Trade Agreement came into effect, and those in part 6 are effective from 1 February 2005, when a further CPI increase occurred. These amendments ensure that rates of duty on United States originating alcohol and tobacco products are consistent with duty rates for the same non-US originating goods, in accordance with the terms of the Australia-US Free Trade Agreement.
12. Defence Legislation Amendment Act (No 2) 2005
This Act amends the Defence Act 1903 and Defence Force Discipline Act 1982, to give effect to certain recommendations made by Brigadier the Honourable Mr Justice Abadee in his 1997 ‘Study into the Judicial System under the Defence Force Discipline Act’ and by Mr James Burchett QC in his 2001 ‘Report of an Inquiry into Military Justice in the Australian Defence Force’. Additionally, a number of the amendments constituted an initial step towards giving effect to the government response to the Senate Foreign Affairs, Defence and Trade References Committee inquiry into the effectiveness of Australia’s military justice system (which reported on 16 June 2005).
In broad terms, the amendments:
• create the statutory appointment of the Director of Military Prosecutions;
• create the statutory appointment of the Registrar of Military Justice;
• create the statutory appointment of the Inspector General of the Australian Defence Force;
• provide for the remuneration arrangements of the Chief Judge Advocate to be set by the Remuneration Tribunal as will those for the Director of Military Prosecutions and the Registrar of Military Justice; and
• remove the roles and functions currently given to ‘Convening Authorities’ in favour of the Director of Military Prosecutions, Registrar of Military Justice and Superior Authorities.
Certain parts of the Act commenced on 12 December 2005 while others commenced on 12 June 2006.
13. Disability Discrimination Amendment (Education Standards) Act 2005
The Disability Discrimination Amendment (Education Standards) Act 2005 (amending Act) amends the Disability Discrimination Act 1992 (the Act) by inserting provisions into the Act in relation to education providers, who are defined in the amending Act as educational authorities or institutions, or organisations who develop training programs or curricula for those authorities or institutions. The amending Act inserts subsection 22(2A) into the Act to make it unlawful for education providers to discriminate against a person on the basis of disability in the provision of training programs or the development of curricula that will exclude the person from participating or subject that person to any detriment. An education service provider will not be acting unlawfully by discriminating against a person with disabilities if not to do so would impose an unjustifiable hardship on the education service provider. Disability Standards developed under the Act may require education providers to make reasonable adjustments to prevent discrimination and to develop strategies to prevent harassment or victimisation of persons with disabilities.
The Productivity Commission’s Review into the Disability Discrimination Act found that one of the areas in which there were the most serious forms of disability discrimination was education. One of the purposes of the amending Act was to make it clear that education providers could not discriminate against people on the basis of disability. In enacting the legislation the government noted that draft Disability Education Standards had been circulated for public comment, and in that process, it was perceived that the Standards would require more legislative support than the Act currently provided. The amending Act was to provide that necessary support.
The Act commenced on 10 August 2005.
14. Environment and Heritage Legislation Amendment Act 2005
This Act amends the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989.
The Act makes two changes to the Ozone Protection Act. First, it will confirm that importers or exporters of recycled or used methyl bromide or hydrochlorofluorocarbons are only required to hold a used substances licence. This approach is consistent with that taken for other ozone depleting substances currently controlled under the Ozone Protection Act.
Secondly, the amending Act will ensure that reporting obligations for synthetic greenhouse gases manufactured in Australia are the same as those for synthetic greenhouse gases imported into, or exported, from Australia.
The amendments entered into force on 3 August 2005.
15. Fisheries Legislation Amendment (International Obligations and Other Matters) Act 2005
This Act implements Australia’s obligations under the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC). The WCPFC is between South Pacific Coastal states and the distant water fishing nations that fish in the western and central Pacific Ocean. The WCPFC establishes a Commission to manage and conserve highly migratory fish stocks such as tuna and billfish in the region, and to develop regional conservation and management measures to control the sustainable utilisation of these fish stocks. Australia ratified the WCPFC on 22 September 2003.
The Act amends the Fisheries Management Act 1991 to:
• introduce the concept of WCPFC management and conservation measures;
• extend the application of surveillance and enforcement provisions to apply to the WCPFC area and boats registered to countries that are party to the WCPFC, and to allow for the investigation of unauthorised fishing outside the Australian Fishing Zone (AFZ);
• allow the suspension of fishing concessions after serious violations of the WCPFC;
• allow the reporting of the position of boats through vessel monitoring systems when on the high seas; and
• apply the WCPFC definition of ‘highly migratory fish stocks’ to exclude sauries for the purpose of implementing the WCPFC.
The Act also amends the Fisheries Management Act 1991 and Fisheries Administration Act 1991 to increase the capacity to exchange information about illegal foreign fishers with foreign governments and international organisations, a measure that enhances Australia’s capacity to comply with international agreements such as the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and the United Nations Food and Agriculture Organization’s Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas.
It also, amongst other changes, extends the current domestic infringement notice scheme to incorporate foreign fishing offences, provides contingent amendments to address the interaction between this Act and the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005, and includes a minor amendment to the Migration Act 1958, to ensure that WCPFC offences are considered ‘fisheries detention offences’ for the purposes of immigration detention.
A range of commencement dates applied to this Act.
16. Intelligence Services Legislation Amendment Act 2005
In the Second Reading Speech in the House of Representatives, the Member introducing the Bill said ‘The Intelligence Services Legislation Amendment Bill 2005 will assist in strengthening the contribution of sound intelligence to government decision making and operations.’ The Act implements legislative recommendations made in the 2004 Flood Report on the Inquiry into Australian Intelligence Agencies. It also implements a number of amendments to intelligence-related legislation, which were identified as a result of the government’s review of the operation of the Intelligence Services Act 2001.
The Act:
• provides for the functions and Ministerial accountabilities of the Defence Imagery and Geo-spatial Organisation (DIGO) to have a legislative basis;
• extends the mandate of the Parliamentary Joint Committee on the Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS) and Defence Signals Directorate (DSD) (PJCAAD) to include DIGO, Defence Intelligence Organisation (DIO) and Office of National Assessments (ONA) on the same basis as that committee’s current mandate. PJCAAD is therefore now known as the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and the Act amends the Australian Security Intelligence Organisation Act 1979 to effect that change;
• increases accountability for the activities of the agencies;
• changes the ministerial authorisation regime to allow the Prime Minister, the Minister for Defence, the Minister for Foreign Affairs and the Attorney-General to authorise intelligence collection activities in circumstances where there is a need for emergency collection and the responsible Minister is not readily contactable or available; and
• amends the Telecommunications (Interception) Act 1979 (the TI Act) to enhance accountability arrangements for any use by the Director-General of Security of his power under section 9 of the TI Act to authorise intelligence collection for up to 48 hours in advance of ministerial authorisation.
The Act also amends the Privacy Act 1988, Archives Act 1983, the Australian Security Intelligence Organisation Act 1979, the Crimes Act 1914, the Crimes (Overseas) Act 1964, the Criminal Code Act 1995, the Human Rights and Equal Opportunity Commission Act 1986, and the Freedom of Information Act 1982, to provide DIGO with a similar standing under those pieces of legislation to the other intelligence collection agencies.
The Act commenced on 4 November 2005 and Schedules 1-8 commenced on 2 December 2005.
17. Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005
This Act amends various Acts relating to law and justice, namely: the Australian Federal Police Act 1979; Crimes Act 1914; Criminal Code Act 1995; Customs Act 1901; Financial Transactions Reports Act 1988; Freedom of Information Act 1982; Mutual Assistance in Business Regulation Act 1992; Proceeds of Crime Act 2002; Surveillance Devices Act 2004; and the Telecommunications (Interception) Act 1979. The Act repeals the Defence (Transitional Provisions) Act 1950.
The Act inserts new serious drug offences into Chapter 9 of the Criminal Code Act 1995, in a new Part 9.1, entitled ‘Serious drug offences’. The stated purpose of this Part is to create offences relating to drug trafficking and to give effect to the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The government indicated in the Explanatory Memorandum that the amendments will assemble these very serious offences in the central statute rather than the Customs Act 1901 (Customs Act). The inclusion of these offences would substantially complete Australian government implementation of the Model Criminal Code, developed in 1998 to achieve greater national consistency in the criminal law.
The Act also makes a number of minor amendments to some existing offences in the Criminal Code relating to children in armed conflict, and makes some amendments to other legislation. For example, Schedule 2 gives effect to an obligation under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. The Optional Protocol requires states parties to it to take all measures necessary to criminalise the recruitment or use in hostilities by armed groups not part of the state of persons under the age of 18 years. The Act therefore amends the Criminal Code to provide that these activities constitute federal offences, punishable by imprisonment for up to 17 years. Schedule 4 amends the Australian Federal Police Act 1979 (AFP Act) to clarify that the functions of the AFP extend to providing assistance to, and cooperating with, Australian and foreign law enforcement agencies, intelligence or security agencies and government regulatory agencies, and establishing, developing and monitoring peace, stability and security in other countries. Schedule 4 also creates an exception to the secrecy provision in the AFP Act, clarifying that the AFP can disclose personal information about a person with that person’s consent.
Sections 1 to 3, Schedules 3 to 8, and Schedule 9, Part 1 commenced on the date of Royal Assent, 8 November 2005. Schedule 9, Part 2 commenced on 9 November 2005. Schedule 1 commenced on 6 December 2005. Schedule 2 commenced on 26 October 2006.
18. Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Act 2005
The purpose of this Act was to create new video link evidence provisions that apply to proceedings for terrorism and other related offences and proceeds of crime proceedings relating to those offences to facilitate the prosecution of terrorism offences by ensuring that, in the absence of compelling reasons to the contrary, important evidence from overseas witnesses that are unable to travel to Australia can be put before the court using video link technology.
The Act, in part:
• limits the court’s discretion to refuse to accept video link witnesses in terrorism-related proceedings. These video link provisions are applicable to witnesses in Australia as well as overseas; and
• amends the Foreign Evidence Act 1994 to facilitate the use of foreign material as evidence in proceedings for terrorism-related offences.
This Act commenced on 16 November 2005.
19. Maritime Transport Security Amendment Act 2005
The Act extends the coverage of the Maritime Transport Security Act 2003 to offshore oil and gas facilities located within the territorial sea, in Australia’s exclusive economic zone and on the continental shelf. The Act also ensures that all regulated offshore oil and gas facility operators and other prescribed offshore industry participants develop, and comply with, an offshore security plan based on a security assessment of each regulated facility.
The Act also allows for the introduction of the Maritime Security Identification Card (MSIC). The MSIC will be introduced to cover unmonitored personnel who are required to be in Maritime Security Zones and offshore security zones.
The Act commenced on 26 June 2005. Schedule 1, amendment items 1-2 and 15-21, commenced on 27 June 2005. Schedule 1, amendment items 3-14, commenced on 30 September 2005.
20. Migration Amendment (Detention Arrangements) Act 2005
This Act amends provisions in the Migration Act 1958 (1958 Act) to provide greater flexibility and transparency in the administration of the detention of persons known or reasonably suspected to be unlawful non-citizens. The Act amends the 1958 Act to:
• state that the Parliament affirms as a principle that a minor shall only be detained as a measure of last resort (this reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination);
• provide a non-compellable power for the Minister to specify alternative arrangements for a person’s detention and to impose conditions to apply to the detention of that person. According to the Explanatory Memorandum, this power will enable the Minister to allow families with children to reside in the community at a specified place (instead of at a detention centre or residential housing project) in accordance with conditions that address their individual circumstances. These conditions are expected to be such as to require the person to be present at the specified residence during specified hours, and to report to immigration officials at specified times. Under these arrangements, detainees would be free to move about in the community without being accompanied or restrained by an officer under the Act, as long as they comply with the conditions specified;
• provide a non-compellable power for the Minister to grant a visa to a person who is in immigration detention where the Minister is satisfied that it is in the public interest to do so. In the exercise of this power the Minister will not be bound by the provisions of the 1958 Act or regulations governing application and grant requirements. The Minister will have the flexibility to grant any visa that is appropriate to that individual’s circumstances; and
• give the Commonwealth Ombudsman a specific role reviewing the cases of persons who have been in immigration detention for more than two years. The Act also requires the Secretary to provide to the Ombudsman a report on the detainee’s circumstances when the person has been detained for two years or more, and then every six months thereafter if the person is in detention at those times. The Ombudsman must provide assessments and recommendations relating to those persons to the Minister, including statements to be tabled. According to the Explanatory Memorandum, these amendments aim to introduce greater transparency in the management of long-term detainees.
Sections 1 to 3 of the Act; Schedule 1, items 1 to 16 and items 18-21 commenced on 29 June 2005. Schedule 1, item 17 commenced on 1 December 2005.
21. National Security Information Legislation Amendment Act 2005
This Act (the amending Act) amends the National Security Information (Criminal Proceedings) Act 2004 (the Act) by extending its reach and changing its name to National Security Information (Criminal and Civil Proceedings) Act 2004. The purpose behind the Act was to facilitate the prosecution of an offence without prejudicing either national security or the rights of a defendant to a fair trial. The amending Act extends the Act to civil proceedings (these are defined in section 15A as any proceeding other than a criminal proceeding) as well as criminal proceedings. It was recognised that information relating to national security could arise in civil proceedings as well as criminal proceedings, and the government wanted to ensure that such information could be used in court proceedings without being made known to the general public and thus prejudicing national security.
Under the Act:
• notice must be given to all parties if national security information is to be an issue in the proceeding;
• if the Attorney-General is not a party to civil proceedings, he or she can give a notice in writing to the effect that this Act applies to those proceedings;
• if the Attorney-General is a party to the proceedings, he or she must designate a Minister to act on his or her behalf where there may be a conflict of interest;
• once a notice has been given that the Act applies, national security information may be given in a summarised form in court. The information could also be given in closed courts with only parties or representatives of the parties with appropriate security clearances able to attend the closed hearings; and
• while the hearings are closed, the court must make a record of the proceedings and provide this to security cleared parties. The court must also make clear reasons for decisions and orders to exclude part of either side’s evidence.
The amending Act is different from the original Act in that parties to the civil proceedings (if they have appropriate security clearances) can also attend the closed court. The Act also designates further persons who are permitted to disclose national security information in court proceedings other than those already listed in the original Act. Parties to proceedings where a notice has been issued who are self-represented litigants are able to apply for financial aid to enable them to appoint security-cleared representation for the closed hearings.
The amendments commenced on 21 March 2005.
22. Navigation Amendment Act 2005
The Navigation Act 1912 is the principal Commonwealth Act relating to the safety of ships. The Navigation Amendment Act, in part, revises penalties in the Navigation Act, which relate to careless navigation near ice and the rendering of assistance following an accident at sea or where persons are in distress at sea.
The Act commenced on 18 April 2005.
23. New International Tax Arrangements (Foreign-owned Branches and Other Measures) Act 2005
This Act was a further instalment of a package of reforms to laws on international taxation that included a new tax treaty with the United Kingdom in 2003, the New International Tax Arrangements Act 2004 and the New International Tax Arrangements (Participation Exemption and Other Measures) Act 2004. The Act amended legislation including the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, the Income Tax (Transitional Provisions) Act 1997, and the Fringe Benefits Tax Assessment Act 1986, to:
• change the taxation treatment of certain non-residents in respect of Australian branches by taxing dividends paid to the branches on a net assessment basis and providing tax offsets in relation to franked distributions received;
• prevent inappropriate taxation as a result of the definition of ‘commencing day’ in the controlled foreign companies rules when Australian residents gain a direct or indirect interest in a controlled foreign company;
• remove inappropriate taxation where an ‘unlisted country’ controlled foreign company becomes a ‘listed country’ controlled foreign company due to its country of residence being listed;
• correct a deficiency in the law relating to ‘adjusted distributable profits’ when a controlled foreign company changes residence from an unlisted country to a listed country or Australia;
• extend the existing separate entity treatment currently provided to Australian branches of foreign banks, to include Australian branches of foreign financial institutions.
• more closely align the taxation of shares or rights acquired under an employee share scheme with international norms developed by the Organisation for Economic Cooperation and Development (relevant for individuals who work in more than one country or change their country of residence); and
• clarify capital gains tax (CGT) interactions, and make other minor improvements.
The relevant schedules of the Act commenced on 26 and 27 June 2005.
24. New International Tax Arrangements (Managed Funds and Other Measures) Act 2005
This Act was another instalment implementing the package of reforms mentioned under the previous entry. The Act amended the Income Tax Assessment Act 1997, the International Tax Agreements Act 1953, Income Tax Assessment Act 1936, and the Financial Corporations (Transfer of Assets and Liabilities) Act 1993 to:
• provide comparable tax outcomes for foreign residents who make capital gains or losses in respect of interests in Australian-managed fixed trust funds;
• align the tax treatment of foreign residents investing through managed funds that derive some or all of their income from sources outside Australia with the tax treatment that would apply if those foreign residents made such investments directly;
• broaden the range of financial instruments eligible for interest withholding tax (IWT) exemption by adding ‘debt interests’ as debt for tax purposes;
• treat payments of a non-capital nature made on certain ‘upper-tier 2 hybrid capital instruments’ as interest for IWT purposes; and
• allow assets and debts to be transferred from Australian subsidiaries of foreign banks to their Australian branches without losing IWT exemptions.
This Act commenced on 21 March 2005.
25. Protection of the Sea (Shipping Levy) Amendment Act 2005
The Protection of the Sea (Shipping Levy) Amendment Act 2005 amended the Protection of the Sea (Shipping Levy) Act 1981. The Protection of the Sea (Shipping Levy) Act enables the Australian government to impose a quarterly levy on ships of 24 metres or more in length and having on board a quantity of ten tonnes or more of oil in bulk.
The Protection of the Sea (Shipping Levy) Act prescribes a maximum rate (the cap) of the levy for any quarter, which was set at six cents per ton, where ton is a unit of the net tonnage of the ship. The Amendment Act removed that cap in order to enable access to levy revenue required to fund a national approach to maritime emergency towage while maintaining the scope for funding of the National Plan to Combat Pollution of the Sea by Oil and other Noxious and Hazardous Substances.
The Act commenced on 5 October 2005.
26. Telecommunications and Other Legislation Amendment (Protection of Submarine Cables and Other Measures) Act 2005
The Act establishes a scheme for creating protection zones over submarine cables of national significance and prohibits or restricts activities within protection zones likely to damage cables.
The Act amends the Telecommunications Act 1997 by adding a Schedule dealing with the protection of submarine telecommunications cables, and amends the Submarine Cables and Pipelines Protection Act 1963 so that penalties under that Act cease to apply for damaging submarine telecommunications cables in protection zones. This means that the only penalties for damaging submarine cables in protection zones will be those under the Telecommunications Act 1997.
The Act amends the Telecommunications Act 1997 to provide that, if anything done by a carrier under that Act, as amended, results in an acquisition of property, then compensation will be payable by the carrier, not the Commonwealth.
The Act commenced on 23 August 2005. Schedule 1 commenced on 24 August 2005 and Schedule 2 commenced on 20 September 2005.
27. Regulations made under the Australian Citizenship Act 1948
Schedules 1 and 2 of these Regulations amend the Australian Citizenship Regulations 1960. The Regulations provide for the electronic registration of persons who acquire Australian citizenship by descent. They extend the class of persons who are eligible for a citizenship fee concession. They also enable Maltese former unaccompanied child migrants who entered Australia from the United Kingdom or Malta between 22 September 1947 and 31 December 1967 (inclusive) to be eligible for a citizenship fee exemption to ensure that they are treated the same as British former unaccompanied child migrants.
Regulations 1-3 and Schedule 1 (electronic registration) commenced on 2 April 2005 and Schedule 2 (Maltese children) commenced on 1 July 2005.
28. Regulations made under the Australian Wine and Brandy Corporation Act 1980
The purpose of these Regulations is to clarify the circumstances in which the Australian Wine and Brandy Corporation may approve the export of grape product that does not comply with the Australia New Zealand Food Standards Code, and to provide a mechanism for interested parties to appeal any such decision. The Regulations commenced on 16 November 2005.
29. Regulations made under the Aviation Transport Security Act 2004
The Regulations clarify two omissions in the Principal Regulations:
• to allow for the authorised consignment of explosives or explosive devices in line with the requirements in the Civil Aviation Act 1988; and
• to clarify that the rules on screening international transit passengers only apply to inbound flights.
The Regulations commenced on 11 October 2005.
These Regulations:
• exempt supervised passengers from the requirements to display an Aviation Security Identity Card (ASIC) or a Visitor Identity Card (VIC) for the purpose of identifying their baggage as part of the baggage screening or baggage reconciliation process in the secure area of an airport;
• provide that an exemption given by the Secretary of the Department of Transport and Regional Services from displaying an ASIC in a secure area of a security-controlled airport, with regular public transport services, is also an exemption from holding an ASIC;
• make a minor clarification to correct the reference to the date on which the Hague Convention abolishing the Requirement of Legislation for Foreign Public Documents was made; and
• allow ASIC issuing bodies to apply to the Secretary of the Department of Transport and Regional Services to vary their ASIC program to vary the format of VICs that they or their agents issue.
The Regulations commenced on 3 December 2005.
30. Regulations made under the Charter of the United Nations Act 1945
These Regulations implement certain of Australia’s obligations under United Nations (UN) Security Council Resolution 1572 of 15 December 2004 on Côte d’Ivoire. The Regulations prohibit Australian nationals from providing arms and related matériel, or military training or assistance, in violation of the UN sanctions and prohibit the use of Australian aircraft or Australian ships in supplying arms or related matériel to Côte d’Ivoire in violation of the sanctions. The Regulations implement the exceptions to these prohibitions outlined in the Security Council resolution, including the specific exception in relation to the supply of arms or related matériel to the UN Operations in Côte d’Ivoire or for humanitarian purposes. The Regulations have an extraterritorial application.
These Regulations commenced on 28 May 2005.
These Regulations implement certain of Australia’s obligations under UN Security Council Resolution 1596 (2005) on the Democratic Republic of the Congo (DRC). The Regulations prohibit Australian nationals from providing arms and related matériel, or military training or assistance, to armed groups in the DRC in violation of the sanctions. The Regulations also prohibit the use of Australian ships or aircraft for the provision of arms or related matériel to relevant groups in the DRC, which would violate the sanctions. The Regulations implement the exceptions to these prohibitions outlined in the Security Council resolution, including the specific exception in relation to the supply of arms or related matériel to the Government of the Democratic Republic of the Congo for the use of the integrated Congolese national army and police forces or United Nations Organization Mission in the DRC or the Interim Emergency Multinational Force deployed in Bunia, or for humanitarian purposes. The Regulations have an extraterritorial application.
The Regulations commenced on 28 May 2005.
These Regulations implement certain of Australia’s obligations under UN Security Council Resolution 1521 (2003) of 22 December 2003 on Liberia. Resolution 1521 revised the legal basis for sanctions against Liberia, which had been imposed under Resolutions 1343 (2001) and 1478 (2003). These sanctions include prohibiting traffic in arms, diamonds, timber and prohibiting the travel of designated individuals. Australia had implemented the obligations from Resolutions 1343 and 1478 under the Charter of the United Nations (Sanctions – Liberia) Regulations 2002. These Regulations amend those initial Regulations in line with Resolution 1521. Resolution 1532 requires states in which there are funds, other financial assets and economic resources owned or controlled by members of the former Charles Taylor regime to freeze such funds, assets and resources and to ensure that they are not made available to those former regime members. The 1521 Committee issued a list of individuals on whom this sanction applied. The Regulations implement this obligation by making it an offence to deal in a particular asset of one of those individuals.
The Regulations commenced on 23 July 2005.
These Regulations implement certain of Australia’s obligations under UN Security Council Resolution 1591 (2005) of 29 March 2005 on Sudan. The Regulations prohibit Australian nationals from providing arms and related matériel, or military training or assistance, to non-governmental entities and individuals in North Darfur, South Darfur and West Darfur which would violate the sanctions. The Regulations implement the exceptions to these prohibitions outlined in the Security Council resolution, including the specific exception in relation to the supply of arms or related matériel to peace support operations and supplies of non-lethal equipment for humanitarian or protective use. The Regulations also prohibit the use of Australian ships or aircraft for the provision of arms or related matériel to relevant groups in Sudan, which would violate the sanctions.
The Regulations have both territorial and extra-territorial effect. They commenced on 28 May 2005.
31. Regulations made under the Civil Aviation Act 1988
These Regulations introduce a new standard system of pilot operating procedures on, and in the vicinity of, non-controlled aerodromes to more closely align with the procedures that are in use in the United States of America (US).
The revised procedures will retain the basic US system, as well as maintaining an acceptable level of safety for the unique Australian airspace environment where there is a different air-traffic mix and usage, a different supporting infrastructure, and a different operating culture of pilots, to that of the US.
The Regulations commenced on 24 November 2005.
The Regulations introduce a new certification category of aircraft called Light Sport Aircraft (LSA) in Part 21 of the Civil Aviation Safety Regulations 1998 (CASR). Part 21 of CASR deals with the certification and airworthiness requirements for aircraft and parts. The Regulations also amend the CASR Dictionary, to define the meaning of LSA.
The Regulations also align the requirements for issuing a Certificate of Airworthiness for LSA and operating LSA with similar practices applied by the United States of America Federal Aviation Administration.
The Regulations commenced on 20 December 2005.
The Regulations permit CASA, if necessary for the safety of air navigation, to disclose specified personal information (within the meaning given by the Privacy Act 1988), which is in CASA’s possession or under its control to air traffic control service providers and persons carrying out search and rescue operations in Australian territory.
The Regulations commenced on 16 November 2005.
The Regulations amend the Civil Aviation Safety Regulations 1998 (CASR) to introduce new Part 91 – General Operating and Flight Rules, and specifically to introduce new Subparts within Part 91 in order to provide a comprehensive and structured regulatory system for all Australian issued navigation authorisations.
The Regulations provide a regulatory basis for issuing authorisations for Required Navigation Performance (RNP) operations. RNP is an International Civil Aviation Organization (ICAO) concept that is being used by states to implement uniform navigation standards throughout the world, thereby increasing airspace safety and efficiency. For the concept to be successfully implemented worldwide, states need to adopt the requirements of ICAO Annex 6 – Operation of Aircraft, and the relevant ICAO standards for navigation authorisations in their legislation. Australia has chosen to do this.
The Regulations commenced on 20 December 2005.
32. Regulations made under the Crimes Act 1914
These Regulations amend the Crimes Regulations 1990 (the Principal Regulations), which set out various matters necessary to give effect to the Crimes Act 1914 (the Act). Subsection 22(1)(b) of the Act provides that a court may order a person charged with, or convicted of, a serious narcotics offence or a prescribed offence to remain in Australia, refrain from applying for or obtaining an Australian passport, and/or surrender any Australian passport in the person’s possession. However, no offences had previously been prescribed for the purposes of paragraph 22(1)(b) of the Act. The purpose of the regulations is therefore to amend the Principal Regulations by prescribing indictable offences set out in the Australian Passports Act 2005 and the Foreign Passports (Law Enforcement and Security) Act 2005 for the purposes of paragraph 22(1)(b) of the Act. The government explained in the Explanatory Statement that by prescribing these offences, the Regulations provide an important added protection against misuse of Australian travel documents. The misuse of Australian travel documents can be associated with identity fraud and other criminal activity, including terrorism. The Regulations complement a range of national security, border protection and law enforcement measures being introduced with the Australian Passports Act 2005.
The Regulations commenced on 3 September 2005.
These Regulations amend Schedule 4 of the Crimes Regulations 1990 (the Principal Regulations) to add a new exception to the federal spent convictions scheme for the purposes of maritime security. The new exception allows a body that issues a maritime security identification card (MSIC) to access relevant spent convictions when assessing whether to issue a MSIC to an applicant. The purpose of a MSIC is to identify the card holder as having met the minimum security requirements to work in a Maritime Security Zone. The Regulations provide that an issuing body, for the purpose of assessing whether to issue a MSIC, may access spent convictions for offences in the following areas: security of the Commonwealth, weapons of mass destruction, offences against the government, serious crimes involving aviation or maritime transport, identity crimes, money laundering, people smuggling and offences relating to explosive, firearms, narcotics and hazardous materials. The Regulations also make minor technical amendments to provide the correct cross-reference to a provision and the correct reference to the regulations mentioned in subregulation 8(2) of the Principal Regulations.
The Regulations commenced on 1 October 2005.
33. Regulations made under the Crimes (Overseas) Act 1964
These Regulations amend the Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 (the Principal Regulations) to roll over the period for which Iraq and the Solomon Islands are ‘declared foreign countries’ under the Crimes (Overseas) Act 1964, for a further two years from 1 July 2005 to 1 July 2007. The Crimes (Overseas) Act 1964 (the Act) extends the criminal law of the Jervis Bay Territory extraterritorially over various groups of Australians working in foreign countries. Under subsection 3A(5) of the Act, one of the situations in which the Act applies to a person who does an act in a foreign country is if: the person is an Australian; the person is undertaking a task or project or performing a function on behalf of the Commonwealth; and that foreign country has been declared by regulation to be a declared foreign country for the purposes of the Act.
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. Subsection 3C(3) provides that the regulations must specify the day on which the foreign country is to start being a declared foreign country, and the day on which the foreign country is to cease being a declared foreign country for the purposes of the Act. The Principal Regulations prescribe countries for the purposes of section 3C of the Act. Iraq, the Solomon Islands, Papua New Guinea and Jordan are ‘declared foreign countries’ under the Act. The Principal Regulations stated that Iraq and the Solomon Islands will cease to be ‘declared foreign countries’ on 1 July 2005. These Regulations provide that Iraq and the Solomon Islands continue to be ‘declared foreign countries’ for a further two years, until 1 July 2007.
The Regulations commenced on 1 July 2005.
34. Regulations made under the Criminal Code Act 1995
The Regulations amend the Criminal Code Regulations 2002 and specify that Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn is specified as a terrorist organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.
The Regulations commenced on 2 March 2005.
These Regulations clarify the organisation Ansar al-Islam and its aliases (including Partisans of Islam, Supporters of Islam, Devotees of Islam, Ansar al Sunna, Jaish Ansar al-Sunna, Ansar al-Sunna Army, Army of Ansar al-Sunn) for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.
The Regulations commenced on 27 March 2005.
The Regulations amend the Criminal Code Regulations 2002 and specify that Jaish-e-Mohammad is specified as a terrorist organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.
The Regulations commenced on 11 April 2005.
These Regulations amend the Criminal Code Regulations 2002 and specify that Islamic Movement of Uzbekistan is specified as a terrorist organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.
The Regulations commenced on 11 April 2005.
The Regulations amend the Criminal Code Regulations 2002 and specify that Egyptian Islamic Jihad is specified as a terrorist organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.
The Regulations commenced on 11 April 2005.
The Regulations amend the Criminal Code Regulations 2002 and specify that Asbat al-Ansar is specified as a terrorist organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.
The Regulations commenced on 11 April 2005.
These Regulations amend the Criminal Code Regulations 2002 and specify that Lashkar-e Jhangvi (LeJ) is specified as a terrorist organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.
The Regulations commenced on 11 April 2005.
The Regulations amend the Criminal Code Regulations 2002 and specify that Islamic Army of Aden (IAA) is specified as a terrorist organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.
The Regulations commenced on 11 April 2005.
The Regulations amend the Criminal Code Regulations 2002 and specify that Hizballah’s External Security Organisation (ESO) or Islamic Jihad Organisation is specified as a terrorist organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.
The Regulations commenced on 5 June 2005.
These Regulations repeal Criminal Code Amendment Regulations 2005 (No 10), Criminal Code Amendment Regulations 2005 (No 11), Criminal Code Amendment Regulations 2005 (No 12) and amends the Criminal Code Regulations 2002. The Regulations specify the following organisations for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code:
• HAMAS’ Izz al-Din al-Qassam Brigades;
• Palestinian Islamic Jihad (PIJ) and its aliases Islamic Jihad Palestine (IJP), Islamic Jihad – Palestine Faction and Islamic Holy War; and
• Lashkar-e-Tayyiba (LeT) and its aliases Lashkar-e-Toiba; Lashkar-e-Taiba; Army of the Pure and Righteous; Paasban-e-Kashmir; Paasban-i-Ahle-Hadith; Jamaat-ud-Dawa.
The Regulations commenced on 7 October 2005.
These Regulations specify that for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Criminal Code, the Kurdistan Workers Party (PKK) is specified as a listed terrorist organisation.
The Regulations commenced on 17 December 2005.
35. Regulations under the Customs Act 1901
These regulations amend the Customs Act 1901 (the Act) primarily to add China to the list of countries that are not subject to the additional anti-dumping provisions that apply to economies in transition. This amendment gives effect to Australia’s decision to recognise China as a full market economy. The reason for the amendment is that on 24 October 2003, Australia and China signed the Trade and Economic Framework between Australia and China (the Framework). The Framework provides that a joint decision by the two Parties to negotiate a Free Trade Agreement will only follow Australia’s formal recognition of China as a market economy.
Schedule 1B to the Customs Regulations 1926 lists those countries that are recognised as full market economies. The present Regulations add China to this schedule to ensure that the provisions relating to transition economies do not apply to it.
The Regulations commenced on 13 May 2005.
The purpose of these Regulations is two-fold:
• first, to amend the prescribed information that the Minister for Justice and Customs must take into account under the Customs Regulations 1926 when determining the costs of production of certain goods under the Customs Act; and
• secondly, to add to the list of countries that are not treated as having economies in transition and amend the names of some of the countries already listed.
Under Part XVB of the Customs Act, anti-dumping measures may be taken in respect of dumping of goods whose exportation to Australia injures, or threatens to injure, Australian industry. Goods are taken to have been dumped if the export price of those goods is less than their normal value. The value of goods is determined by adding the cost of production in the country of export and the administrative, selling and general costs associated with the goods. Both these amounts are determined by the Minister. Regulation 180 of the Customs Regulations 1926 specifies how the Minister will determine the cost of production of like goods in the country of manufacture. Prior to the current amendments these provisions required the Minister to use the records of exporters if they were in accordance with accepted accounting principles and reflected the cost associated with the production of those like goods. The amending Regulations prescribe that the Minister only has to use an exporter’s records if they reasonably reflect competitive market costs associated with the production of like goods. This ensures that the relevant records are only taken into account if they reasonably reflect competitive market costs and not just actual costs.
The Customs Act provides a methodology for calculating the normal value of goods exported to Australia. Where the country of export has an economy in transition a different basis for determining the normal value of goods is prescribed. Schedule 1B to the Customs Regulations lists those countries that are recognised as full market economies and which are therefore not subject to the alternate calculation of ordinary value. The amending Regulations add to Schedule 1B those countries that have become World Trade Organization (WTO) members since 1999 (when the Schedule was introduced) and those countries that became EU members in May 2004. The amending Regulations also change the names of six countries and two regions to reflect the names by which they are known in the WTO.
The Regulations commenced on 26 November 2006.
36. Regulations made under the Defence Act 1903
These Regulations amend the Australian Military Regulations 1927 to ensure that certain military judicial officers are not subject to command and control in respect of the exercise of their judicial functions. The Australian Military Regulations 1927 provide for, among other things, particulars of service in certain corps and departments. The purpose of the Regulations was to address concerns that the Australian Defence Force military discipline system satisfied contemporary standards of judicial independence and impartiality. One matter of concern was control and authority over legal officers or reporting officers appointed by a service chief under section 154 of the Defence Force Discipline Act 1982. The amendments ensure that a Defence Force magistrate, a judge advocate or a section 154 reporting officer are not subject to such command and control in respect of the exercise of their ‘judicial functions’, rather only in relation to matters of an administrative nature.
The Regulations commenced on 30 March 2005.
37. Regulations under the Designs Act 2003
These regulations make amendments to the Designs Regulations 2004 required to meet Australia’s international obligations under the Paris Convention for the Protection of Industrial Property to which Australia is a party. The Paris Convention is an international agreement that facilitates the simultaneous protection of industrial property in member counties. Schedule 1 of the Design Regulations list all members of the Paris Convention by name and the schedule must be updated each time another country accedes to it. On 3 January 2005 Comoros deposited its instrument of accession to the Paris Convention, and became bound by the Convention on 3 April 2005. The Regulations amend the list of Convention countries in Schedule 1 to the Design Regulations to insert ‘Comoros’.
These Regulations commenced on 3 April 2005.
38. Regulations under the Environment Protection and Biodiversity Conservation Act 1999
These Regulations proscribe various matters in relation to management plans, which are designed to protect areas of national environmental significance. Part 3 of the Environment Protection and Biodiversity Conservation Act 1999, provides protection for matters of national environmental significance, including World Heritage properties, National Heritage places, wetlands of international importance, nationally threatened species, migratory species and the Commonwealth marine area.
Under the Act the Minister is able to enter bilateral agreements with any state or self-governing territory to protect areas of national environmental significance. The Minister may accredit a management plan for the purposes of such a bilateral agreement if satisfied that the plan meets the criteria prescribed by regulations.
These Regulations prescribe that the development of a management plan for a World Heritage property or a National Heritage place must have included public consultation. The Regulations also prescribe criteria relating to the content of a management plan, in particular that the management plan must:
• state what must be done to ensure that the relevant World Heritage or National Heritage values are protected and conserved;
• provide that adequate environmental assessment of the impacts on the relevant values of any proposed actions approved in accordance with the plan has been or will be undertaken;
• state that actions that will have unacceptable or unsustainable impacts are inconsistent with the plan and cannot be approved;
• set out the means that enable the setting of enforceable conditions on approval, and provide for any subsequent monitoring, auditing and enforcement of approvals and approval conditions; and
• set out the means by which the plan is to be enforced.
These Regulations commenced on 22 July 2005.
39. Regulations made under the Extradition Act 1988
The Regulations establish extradition arrangements with Lithuania, enabling Australia to consider extradition requests received from Lithuania. Australia did not have an extradition relationship with Lithuania prior to the Regulations being made.
The Regulations commenced on 15 February 2005.
These Regulations enable Australia to make and receive extradition requests to and from states parties to the United Nations Convention against Corruption in respect of the offences covered by the Convention.
The Regulations commenced on 6 January 2006.
The Regulations enable Australia to make and receive extradition requests from states parties to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children for the offences in the Protocol.
The Regulations commenced on 14 October 2005.
40. Regulations made under the Federal Court of Australia Act 1976
The Judges of the Federal Court of Australia, acting under section 59 of the Federal Court of Australia Act 1976, and in consultation with the Law Council of Australia, made these amendments to the Federal Court Rules. The Amendment Rules include:
• exemption of proceedings under the Admiralty Act 1988 from the Rule that limits costs to be paid; and
• provisions for consistency with the legislative regime for the conduct of Trans-Tasman proceedings under Part IIIA of the Federal Court of Australia Act 1976 (Cth) and the Evidence and Procedure (New Zealand) Act 1994 (Cth).
These Amendment Rules commenced on 9 August 2005.
41. Regulations made under the Fisheries Management Act 1991
These Regulations amend the Fisheries Management Regulations 1992 (the Principal Regulations), in part to improve enforcement relating to seabird bycatch mitigation. There was a spate of catches of endangered albatrosses off the east coast of Australia at the end of 2004, some north of the parallel of 30 degrees south. The bycatch mitigation practice, which most effectively addressed catches of endangered albatrosses, had been prescribed and enforceable only in waters south of latitude 30 degrees south. It could only be recommended for use in waters north of that latitude. In order for the Australian Fisheries Management Authority (AFMA) to manage the issue of seabird bycatch more flexibly and responsively, it was intended that the relevant measures prescribed by the Principal Regulations be incorporated, as required, as conditions to fishing permits granted under the Act. This allows AFMA the flexibility to implement immediate mitigation measures when necessary and not just in southern waters.
The Regulations commenced on 1 March 2005.
These Regulations amend the Fisheries Management Regulations 1992, following the enactment of the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005 (the Amendment Act).
One purpose of the Regulations is to ensure that the same powers and rules apply whether a detainee is detained under the Act, or the Torres Strait Fisheries Act 1984, or as an unlawful non-citizen under the Migration Act 1958. Inter alia, the Regulations provide for:
• the personal identifiers that may be obtained from non-citizens for the purposes of Part 5 of Schedule 1A in addition to those listed in Schedule 1A itself;
• the types of personal identifiers that can be obtained from non-citizens in detention in addition to those listed in Schedule 1A itself;
• the information that must be provided to non-citizens before an identification test is carried out for the purpose of obtaining a personal identifier;
• the provision of video recordings to the Human Rights and Equal Opportunity Commission to enable that body to inquire into the operation of provisions of the Act relating to the carrying out of identification tests;
• the Australian government bodies that may be authorised by AFMA to disclose identifying information to certain foreign countries, certain bodies of those countries and certain international organisations;
• bodies of foreign countries, of the Commonwealth and of the states and territories and international organisations to which disclosures of identifying information may be authorised; and
• the Commonwealth agencies that may disclose information relating to illegal fishing activities on the Minister’s behalf.
The Regulations commenced on 17 December 2005.
42. Fisheries Management (Heard Island and McDonald Islands Fishery) Amendment Regulations 2005 (No 1)
These Regulations amend the Fisheries Management (Heard Island and McDonald Islands Fishery) Regulations 2002 (the Principal Regulations) to prescribe additional measures as conditions on Statutory Fishing Rights (SFRs). The Heard Island and McDonald Islands Fishery Management Plan 2002 (the Plan) came into existence on 8 May 2002. The Plan provides for the management of the Heard Island and McDonald Islands (HIMI) Fishery (the fishery) under a scheme of SFRs. The Regulations prescribe additional measures as conditions on SFRs. These measures were a result of extensive consultation with relevant bodies including the Sub-Antarctic Fisheries Management Advisory Committee, and meet Australia’s international obligations under the Convention for the Conservation of Antarctic Marine Living Resources. The new requirements, covered by regulations 7 to 34 and Schedule 1, include requirements for eligible boats, gear and fish measurements, requirements for observers and contingency arrangements.
The Regulations commenced on 27 May 2005.
43. Regulations made under the Hazardous Waste (Regulation of Exports and Imports) Act 1989
Under the Act, which implements Australia’s obligations under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 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 Regulations. The following such Regulations were made in 2005:
These Regulations specify the particulars of two proposed exports of hazardous waste, one of 15 tonnes to Belgium and the other of 50 tonnes to the Netherlands, for final disposal. The hazardous waste consisted of a solution containing potentially explosive compounds that could not be disposed of in an environmentally sound manner within Australia.
These Regulations commenced on 2 March 2005.
These Regulations specify the particulars of a proposed export of hazardous waste, of 50 tonnes to Germany, for final disposal. The hazardous waste consisted of a solution containing potentially explosive compounds that could not be disposed of in an environmentally sound manner within Australia.
These Regulations commenced on 16 November 2005.
44. Regulations made under the Industrial Chemicals (Notification and Assessment) Act 1989
The purpose of these Regulations is to amend the Industrial Chemicals (Notification and Assessment) Regulations 1990 (the Principal Regulations), to enable Australia to give effect to the obligations of the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Convention). The objective of the Convention is to promote shared responsibility and cooperative efforts among parties in the international trade of certain hazardous pesticide and industrial chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use, by facilitating information exchange about their characteristics. The purpose of the Regulations is to control or prevent the import or export of two additional chemicals, tetraethyl lead and tetramethyl lead, which were listed in Annex III of the Convention and became effective on 1 February 2005. The Regulations also introduce import controls for two other chemicals that were listed in Annex III at the time of ratification on 20 May 2004. These are the polybrominated biphenyls: octabromobiphenyl and decabromobiphenyl.
The Regulations commenced on 17 November 2005.
45. Regulations made under the International Organisations (Privileges and Immunities) Act 1963
Australia is a member country of the Asian Development Bank (ADB) and signed the ADB Agreement in 1966. These Regulations amend the Asian Development Bank (Privileges and Immunities) Regulations 1967 made under the International Organisations (Privileges and Immunities) Act 1963, which implement Australia’s obligations under the Agreement to grant the ADB certain privileges and immunities.
These amendment Regulations give effect to an arrangement between the Australian government and the ADB on the establishment of an office in Australia. This office was opened in August 2005. The arrangement further clarifies and expands the privileges and immunities available to ADB staff under Australian law, adding the right to import furniture and effects free of duty and goods and services tax when first taking up a post in Australia, and income tax exemptions for Australian resident national staff of the office.
These Regulations commenced on 17 September 2005.
46. Regulations made under the International Transfer of Prisoners Act 1997
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002 (the Principal Regulations) provide that each country specified in Schedule 2 to the Principal Regulations is declared to be a transfer country. Regulation 5 of the Principal Regulations provides that the Act applies to each country specified in Schedule 2, subject to the Convention on the Transfer of Sentenced Persons, done at Strasbourg on 21 March 1983 (the Convention), which was proposed within the framework of the Council of Europe. The Convention is open for accession by non-member states of the Council of Europe. Australia acceded to the Convention on 5 September 2002 and it entered into force for Australia on 1 January 2003.
The Regulations update the list of transfer countries in Schedule 2 to the Principal Regulations to prescribe Moldova, Mauritius and San Marino as declared transfer countries for the purposes of the Act.
The Regulations commenced on 25 March 2005.
47. Regulations made under the Maritime Transport and Offshore Facilities Security Act 2003
(previously cited as Maritime Transport Security Act 2003)
The Regulations amend the Maritime Transport Security Regulations 2003 to provide the necessary details regarding the introduction of the maritime security identification card (MSIC) for maritime industry and offshore industry participants. The Regulations provide detail regarding the obligations for maritime industry participants and offshore facility operators, and other offshore industry participants, with regard to the introduction of the MSIC scheme, including content and form of MSIC plans; establishing and managing the MSIC scheme; including the role and responsibility of all persons who require unmonitored access in a maritime security zone.
Regulations 1 to 3 and Schedule 1 commenced on 3 September 2005. Schedule 2 commenced on 26 June 2005.
These Regulations amend the Migration Regulations 1994 to create a new bridging visa to enable the release, pending removal, of persons in immigration detention who have been cooperating fully with efforts to remove them from Australia, but whose removal from Australia is not reasonably practicable at the current time.
The Regulations enable the grant of a bridging visa to non-citizens where:
• the non-citizen is in immigration detention;
• the Minister is satisfied that the non-citizen’s removal from Australia is not reasonably practicable at that time;
• the Minister is satisfied that the non-citizen has done everything possible to facilitate the non-citizen’s removal from Australia;
• the Minister is satisfied that the non-citizen has not attempted to obstruct efforts to arrange and effect the non-citizen’s removal from Australia;
• the non-citizen has undertaken in writing to cooperate fully with all efforts to arrange and effect his or her removal, including making himself or herself available for removal once removal has been arranged and leaving Australia when advised to do so;
• the non-citizen has undertaken in writing to abide by any conditions attached to his or her visa;
• any visa applications made by the non-citizen have been finally determined; and
• there are no current proceedings in a court or tribunal to which the non-citizen is a party, which raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of non-citizens.
These Regulations commenced on 11 May 2005.
These Regulations broaden the range of circumstances in which a person will be eligible for the grant of a Bridging R (Class WR) Bridging (Removal Pending) (Subclass 070) visa. A person will be an eligible non-citizen if:
• the non-citizen is in immigration detention; and
• any visa applications made by the non-citizen, other than an application made following the exercise of the Minister’s power under section 48B of the Act, have been finally determined; and
• the Minister is satisfied that the non-citizen’s removal from Australia is not reasonably practicable at that time, for reasons other than the non-citizen being a party to proceedings in a court or tribunal related to an issue in connection with visas; and
• the Minister is satisfied that the non-citizen will do everything possible to facilitate the non-citizen’s removal from Australia.
These Regulations commenced on 16 June 2005.
These regulations amend the Migration Regulations 1994 to prescribe certain islands that form part of Queensland, Western Australia and the Northern Territory and the Coral Sea Islands Territory as excised offshore places under the Migration Act. Non-citizens who arrive in an ‘excised offshore place’ without authority cannot make a valid application for a visa. The Regulations purportedly address indications that people smugglers are likely to change the focus of their operations to target landing on islands closer to the Australian mainland, following the earlier excision of other islands.
The Explanatory Statement notes that whilst unauthorised arrivals at excised offshore places cannot apply for visas, the Commonwealth will continue to ensure that Australia continues to fulfil its obligations under the United Nations Convention relating to the Status of Refugees
and other relevant international instruments.
These Regulations commenced on 22 July 2005.
These Regulations amend the Principal Regulations to provide that persons (and their immediate family members) seeking a declaration from a court that the Migration Act 1958 does not apply to the person, or seeking a merits or judicial review of a decision made pursuant to the Australian Citizenship Act 1948, are eligible to be granted a Subclass 050 Bridging (General) visa to allow them to remain lawfully in Australia while awaiting the outcome of proceedings. These amendments were introduced in response to a gap in the Bridging visa program under which certain unlawful non-citizens undertaking court proceedings in relation to their citizenship status were not eligible for the grant of a bridging visa and were therefore required to be held in immigration detention.
These Regulations commenced on 26 July 2005.
These Regulations include amendments, amongst others, to enable the grant of a Bridging F visa to certain non-citizens who are of interest in relation to an offence, or alleged offence, involving people trafficking, sexual servitude or deceptive recruiting and members of their immediate family; they also align the meaning of ‘security’, as used in the Principal Regulations in respect of provisions relating to the grant and cancellation of visas, with the definition of ‘security’ in section 4 of the Australian Security Intelligence Organisation Act 1979 (Schedule 3).
These Regulations commenced on 1 December 2005.
These Regulations give effect to United Nations Security Council Resolution No 1572 (2004) (Resolution 1572), which, among other things, requires member states to prevent persons designated as constituting a threat to the peace and national reconciliation process in Côte d’Ivoire from entering into, or transiting through, their territories, except in certain specified limited circumstances. A Committee established by Resolution 1572 publishes a list of designated persons and updates the list from time to time. The travel restrictions were to continue until 14 December 2005, and would then be reviewed by the United Nations Security Council.
The Regulations:
• impose an additional special criterion for the grant of a visa to a designated person, to the effect that the Minister must be satisfied that the Committee has determined that specified grounds exist for the person’s travel to Australia, or that there are compelling reasons for the grant of a visa to the person;
• prescribe that it is a ground on which the Minister may cancel a visa if the holder is or becomes a designated person; and
• prescribe that the Minister must not cancel a visa if the Minister is satisfied that the Committee has determined that specified grounds exist for the person’s travel to, or continued stay in, Australia, or that there are compelling reasons for the person to continue holding the visa.
The Regulations commenced on 1 July 2005.
49. Regulations made under the Mutual Assistance in Criminal Matters Act 1987
The Regulations facilitate Australia’s ability to make and receive mutual assistance requests to and from states parties to the United Nations Convention against Corruption in respect of the offences covered by the Convention.
The Regulations commenced on 6 January 2006.
The Regulations facilitate Australia’s ability to make and receive mutual assistance requests to and from states parties to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, for the offences in the Protocol.
The Regulations commenced on 14 October 2005.
50. Nuclear Non-Proliferation (Safeguards) Act 1987
These amendment Regulations prescribe the charge payable by a producer of uranium ore concentrates under the Nuclear Safeguards (Producers of Uranium Ore Concentrates) Charge Act 1993, based on a formula comparing relevant operating costs of the Australian Safeguards and Non-Proliferation Office with the quantity of uranium exports and uranium produced in Australia. The rate payable on 1 December 2005 is prescribed as the lesser of $500,000 (the maximum charge, set in the Act) or 5.1131 cents per kilogram of uranium in the uranium ore concentrates produced in the previous financial year, a reduction from the rate set the year before.
These Regulations commenced on 25 November 2005.
51. Regulations under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989
The purpose of these Regulations is to:
• create a permit system for people who use methyl bromide in feedstock applications.
• minimise avoidable emissions of ozone depleting substances (ODS) and synthetic greenhouse gases (SGG) used as fire extinguishing and explosion suppression agents through implementing a licensing scheme.
• provide for the periodic publication of licences granted or cancelled in the Gazette.
The Regulations are consistent with Australia’s obligations under the Montreal Protocol on Substances that Deplete the Ozone Layer (the Protocol) by ensuring stocks of methyl bromide are only sold and used for authorised purposes. Under the Protocol certain uses of methyl bromide were phased out from 1 January 2005 except where parties to the Protocol granted a critical use exemption. Regulations controlling the sale and use of methyl bromide for critical use exemption and quarantine and pre-shipment uses commenced on 1 January 2005.
These Regulations commence on 1 May 2005.
52. Regulations under the Patents Act 1990
These Regulations update provisions of the Patents Regulations 1991 to reflect changes made to the English text of the Patent Cooperation Treaty (PCT) Rules, and to add an additional Convention country. The PCT is an international agreement that simplifies the procedure for the filing of applications for patents internationally.
At a meeting in 2004, the Assembly of the International Patent Cooperation Union unanimously adopted certain amendments to the English text of the PCT Rules. These amendments simplify the protest procedure that applies when a patent applicant is invited to pay additional fees in order to have additional inventions searched or examined under the PCT, alter the procedure for dealing with international applications that disclose nucleotide or amino acid sequences, and provide some additional minor amendments relating to the PCT Rule changes that came into effect from 1 January 2004.
Schedule 2 of the Regulations amends the Patents Regulations to implement these amendments to the PCT Rules. Schedule 2 of the Regulations commenced on 1 April 2005.
53. Regulations made under the Radiocommunications Act 1992
These Regulations replace the outdated reference to the Timor Gap Treaty in the Radiocommunications Regulations 1993 with a reference to the Timor Sea Treaty, which superseded the Timor Gap Treaty in 2002.
The Regulations commenced on 10 August 2005.
54. Regulations made under the Social Security (International Agreements) Act 1999
The Social Security (International Agreements) Act 1999 (the Act) provides that a Schedule setting out the terms of an agreement between Australia and another country may be added to the Act by regulations, if the agreement relates to reciprocity in social security or superannuation matters. The purpose of the Regulations is to insert the Agreement on Social Security between the Government of Australia and the Government of Malta done at Malta on 16 June 2004 (the new Agreement) as Schedule 6 to the Act, thereby replacing the current Schedule 6 (the Agreement on Social Security between Australia and Malta done at Canberra on 15 August 1990). The Explanatory Statement states that the new Agreement would ‘coordinate the social security schemes of the countries to give better welfare protection for people who move between Australia and Malta’. The new Agreement ‘will enable people with contribution records in Malta, and living in Australia, to claim and qualify for part pensions from the Government of Malta. Similarly, many former Australian residents living in Malta will be able to claim and qualify for a part Australian pension’. The change was in line with the approach taken in all new agreements, and complements similar agreements with Austria, Belgium, Canada, Chile, Croatia, Cyprus, Denmark, Germany, Ireland, Italy, The Netherlands, New Zealand, Portugal, Slovenia, Spain and the United States of America. The new Agreement with Malta entered into force on 1 July 2005.
The Regulations commenced on the 1 July 2005.
These Regulations insert the Agreement on Social Security between the Government of Australia and the Government of Ireland done at Dublin on 9 June 2005 (the new Agreement) as Schedule 8 to the Social Security (International Agreements) Act 1999 (the Act), thereby replacing the current Schedule 8 (the Agreement on Social Security between Australia and Ireland done at Canberra on 8 April 1991). The Explanatory Statement says that the new Agreement would ‘coordinate the social security schemes of the countries to give better welfare protection for people who move between Australia and Ireland’. The new Agreement ‘will enable people with contribution records in Ireland living in Australia, to claim and qualify for part pensions from the Government of Ireland. Similarly, many former Australian residents living in Ireland will be able to claim and qualify for a part Australian pension.’ The new Agreement also includes provisions modifying Australia’s Superannuation Guarantee arrangements to avoid double coverage of Irish employees seconded to work temporarily in Australia. Reciprocal exemptions are provided for Australian workers seconded to work temporarily in Ireland. The Agreement on Social Security with Ireland complements similar agreements with other states mentioned above, and entered into force on 1 January 2006.
The Regulations commenced on 1 January 2006.
55. Regulations made under the Trans-Tasman Mutual Recognition Act 1997
These Regulations extend the Special Exemption status for laws relating to goods covered by Schedule 3 to the Trans-Tasman Mutual Recognition Act 1997 (the Act) for a further twelve months to 30 April 2006. The Act implements the Trans-Tasman Mutual Recognition Arrangement, a non-treaty arrangement between the Commonwealth, state and territory governments of Australia and the Government of New Zealand, which gives effect to mutual recognition principles relating to the sale of goods and the registration of occupations. Schedule 3 provides for special exemptions for laws relating to certain goods including therapeutic goods, radio communications devices, road vehicles, gas appliances, and hazardous substances, industrial chemicals, and dangerous goods (including certain consumer product safety standards).
These Regulations commenced on 25 March 2005.
56. Regulations made under the Torres Strait Fisheries Act 1984
These Regulations amend the Torres Strait Fisheries Regulations 1985 (the Principal Regulations) following the enactment of the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005 (the Amendment Act), which amended the Fisheries Management Act 1991, the Torres Strait Fisheries Act 1984, and the Migration Act 1958. A summary of the Amendment Act is provided above under Commonwealth Statutes.
The purpose of these Regulations is to provide consistency in the management of fisheries offences and ensure that the same powers and rules apply whether a detainee is detained under the Torres Strait Fisheries Act 1984 or the Fisheries Management Act 1991 or as an unlawful non-citizen under the Migration Act 1958. The Regulations provide for:
• minimum training requirements for officers and detention officers who will exercise the new powers conferred by the Amendment Act;
• the personal identifiers that may be obtained from non-citizens for the purposes of Part 5 of Schedule 2 in addition to those listed in Schedule 2 itself;
• the types of personal identifiers that can be obtained from non-citizens in detention in addition to those listed in Schedule 2;
• the information that must be provided to non-citizens before an identification test is carried out for the purpose of obtaining a personal identifier;
• the types of personal identifier that may not be provided by providing a video recording of an identification test;
• the provision of video recordings to the Human Rights and Equal Opportunity Commission to enable that body to inquire into the operation of provisions of the Act relating to the carrying out of identification tests;
• the Australian government bodies that may be authorised by the Australian Fisheries Management Authority to disclose identifying information to certain foreign countries, certain bodies of those countries and certain international organisations; and
• bodies of foreign countries, of the Commonwealth and of the states and territories and international organisations to which disclosures of identifying information may be authorised.
The Regulations commenced on 16 December 2005.
57. Regulations made under the Trade Marks Act 1995
The main purpose of these Regulations is to rectify an omission made at the time the regulations implementing the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (the Protocol) in Australia were prepared. The Protocol, to which Australia acceded on 11 July 2001, enables a trade mark owner to seek protection for their trade mark in several countries at once by filing a single application with their own national or regional trade mark office. Under the Protocol, the protection given to a registered trade mark in each Contracting Party should be the same as if the mark had been deposited directly with the office of that Contracting Party.
To ensure that Australia is fully meeting its obligations under the Protocol, and to provide greater certainty for users of the trade marks system, the Regulations provide mechanisms for:
• opposing the registration of a domestic trade mark on the basis that it conflicts with prior rights held in another trade mark protected pursuant to the Protocol; and
• cancellation or amendment of a registered trade mark on the basis that it conflicts with prior rights held in another trade mark protected pursuant to the Protocol.
The Regulations also contain a provision adding Comoros to Schedule 10 of the Principal Regulations as a Convention country for the Paris Convention for the Protection of Industrial Property, to which Australia is a party, which facilitates simultaneous protection of industrial property in member countries. Comoros deposited its instrument of accession on 3 January 2005, and became bound by the Convention on 3 April 2005.
Regulations 1 to 3 and Schedule 1 of these Regulations commenced on 30 March 2005, with Schedule 2 commencing on 3 April 2005.
[∗] Office of International Law, Attorney-General’s Department, Canberra.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUYrBkIntLaw/2007/11.html