WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Foreign Affairs and Trade Legislation Amendment Bill
1997
Date Introduced: 25 June 1997
House: House of Representatives
Portfolio: Foreign Affairs and Trade
Commencement: Varies according to the legislation
which is being amended. Details of commencement are included in the
Main Provisions section below.
This is an omnibus Bill that contains amendments to four Acts
administered by the Foreign Affairs and Trade portfolio.The major
amendments:
- extend to observers the same standard diplomatic privileges and
immunities provided to inspectors carrying out challenge
inspections under the Chemical Weapons Convention;
- allow regulations relating to an international organisation to
come into force at the same time as the treaty establishing the
organisation comes into force for Australia;
- tighten the eligibility criteria for international
organisations and people connected with those organisations to
which Australia accords privileges and immunities;
- enable specific privileges and immunities to be extended to
international tribunals in accordance with Australia's treaty
obligations;
- implement the provisions of a Protocol between the
International Atomic Energy Agency and Australia to provide for
expanded declarations of nuclear items and access to additional
locations where nuclear material is customarily used; and
- add the concept of 'recklessness' in the offence of making a
false statement in a passport application or in support of an
application.
As there is no central theme to this Bill, the background to
each amendment will be outlined below.
Amendment to the Chemical Weapons (Prohibition) Act
1994
Australia signed the Chemical Weapons Convention (CWC)(1) on 13
January 1993, ratified it on 6 May 1994, and implementedit by
passing the Chemical Weapons (Prohibition) Act 1994.The
Convention requires signatories to make annual declarations on the
production and use of certain chemicals and to provide access to
their facilities for routine inspections by the Organisation for
the Prohibition of Chemical Weapons, the CWC's permanent body in
the Hague.The facilities which may be inspected are those which
produce certain chemicals above specified threshold amounts.Any
signatory has the right to request the Organisation to conduct a
'challenge inspection' of any place within the territory of another
signatory if it has reason to suspect that the other country may
not be complying with the convention.A signatory has no right to
refuse such an inspection.
The Chemical Weapons (Prohibition) Act 1994 provided
diplomatic privileges and immunities to Organisation inspectors and
foreign country inspectors carrying out challenge inspections in
Australia.The effect of Item 1 of Schedule 1 of
this Bill is to extend those privileges and immunities to observers
of challenge inspections under the CWC.In his Second Reading
speech, the Minister for Foreign Affairs explained this amendment
in the following terms:
It is highly unlikely than an inspection team will ever have to
come to Australia to investigate another country's allegation that
Australia is in breach of the Convention. Nevertheless, should this
occur, representatives of the country making an allegation will now
be extended standard diplomatic privileges and immunities, along
with other members of the inspection team.(2)
The amendment rectifies an oversight in the drafting of the
original Act.(3) It will commence on the day on which the Bill
receives the Royal Assent.
Amendments to the International Organizations (Privileges
and Immunities) Act 1963
Amendments to the International Organisations Act (the
Principal Act) make up the largest part of this Bill.
By analogy with the privileges and immunities granted to
diplomats, it is international practice to accord certain
privileges and immunities to international organisations,
representatives of countries which are members of those
organisations accredited to, or attending conferences convened by
those organisations, officers of the organisations, and people
carrying out missions on behalf of those organisations.The main
applications of privileges and immunities to an international
organisation are
- firstly, in respect of the headquarters and staff of the
organisation;
- secondly, in respect of representatives of member countries of
the organisation attending conferences of the organisation;
and
- thirdly, in respect of staff and experts of the organisation
when performing missions in a member country on behalf of the
organisation.(4)
The extent of privileges and immunities for international
organisations varies.The minimum principle appears to be that
officials of international organisations are immune from legal
process in respect of all acts performed in their official
capacity.(5) Bilateral and multilateral agreements frequently spell
out the privileges and immunities necessary for the effective
functioning of the agreement, but if these are only a general
stipulation, then further arrangements are necessary.
Item 3 amends the definition of an
'international organisation' to which the Principal Act applies.Its
effect will be to tighten the eligibility criteria for
organisations and persons connected with international
organisations to which Australia accords privileges and
immunities.In his second reading speech, the Minister for Foreign
Affairs Hon Alexander Downer MP, stated the following
principles:
Australia only grants privileges and immunities which are
required by international law.When negotiating privileges and
immunities as part of international agreements, this Government
takes the line that specific items should be included only where
there is a demonstrated functional need.We have to be satisfied
that the specific privilege or immunity is necessary for the
effective operation of the organisation.(6)
Subsection 5 of Item 3 allows regulations to be
made which provide that different privileges and immunities may
apply to different parts of the same organisation. 'This allows
Australia to give full effect to treaties establishing
international organisations in those cases where different organs
of the same organisation are required to have different privileges
and immunities conferred upon them'.(7)
From time to time international organisations split and one part
becomes a new organisation in its own right.Subsection 6 of
Item 3 provides for the privileges and immunities of the
parent organisation to continue to apply to the new organisation
for up to 12 months, provided that Australia, or a person
representing Australia, is a member of the new organisation.
The effect of Item 4 is to introduce a sunset
provision of 12 months to any regulation providing privileges and
immunities to representatives attending certain international
conferences or engaged on missions in Australia or a Territory.
Section 9 of the Principal Act enables regulations to be made
conferring privileges and immunities to judges and officials of the
International Court of Justice and to people appearing before that
Court.Section 9A of the Principal Act extends these privileges and
immunities to cover certain proceedings under the Investment
Convention.(8) The effect of Item 5 will be to
allow regulations to be made extending privileges and immunities to
people associated with other international tribunals to which
Australia is a party.The level of privileges and immunities
accorded to members of these international tribunals will be that
required by the statute establishing the particular tribunal.
Item 6 allows regulations to be made providing
sales tax exemptions for international organisations which have
their headquarters in Australia.At present there are only two, the
Commission for the Conservation of Antarctic Marine Living
Resources (CCAMLR) which was established in Hobart in 1982, and the
Commission for the Conservation of Southern Bluefin Tuna (CCSBT)
whose headquarters opened in Canberra in September 1996.This
amendment will operate from the day it receives Royal
Assent.Item 10is related.It provides for the
refunding of amounts of sales tax paid before the commencement of
Item 6.
Item 7 is related to the change in the
definition of an international organisation in Item 3.Its effect is
to allow a much wider range of international organisations and
people representing those organisations to function in Australia as
ordinary non-privileged entities and persons under domestic law.As
such they could enter into contracts and buy, own or sell property,
and could be subject to civil and criminal jurisdiction in
Australia.
Item 8 is designed to overcome a specific legal
difficulty created by the interaction of the Principal Act with the
Acts Interpretation Act 1901.Section 48(1) of the Acts
Interpretation Act provides that 'unless the contrary
intention appears' regulations take effect from a specified date,
or time, or at date of notification.The explanatory memorandum
explains the specific difficulty in the following terms:
Frequently the precise date of entry into force of a treaty
establishing an international organisation cannot be predicted in
advance.In such situations the regulations relating to the new
organisation generally cannot validly be made until the treaty is
already in force for Australia.This may put Australia in technical
breach of its international obligations until the regulations are
in force.(9)
The effect of Item 8 will be to allow regulations to be made as
soon as Australia's obligations are known, but only to come into
force when the treaty establishing the international organisation
itself comes into force.So it will be possible for regulations
granting privileges and immunities to an international organisation
to be expressed to enter into force on a day fixed by Ministerial
determination.This day will generally be the date on which the
relevant treaty comes into force for Australia.(10) It may not be
an earlier date.
The effect of Item 9 is to change the spelling
of 'Organisation(s)' throughout the International Organizations
Act to conform with Government legislative drafting
practice.This change involves consequential amendments in
Item 2 and in Schedule 2 to other
Acts where the name of the Act is cited or the concept of
international organisation is defined.
The commencement day for amendments to the International
Organisations Act is the day of Royal Assent.
Amendments to the Nuclear Non-Proliferation (Safeguards)
Act 1987
Australia signed the Treaty on the Non-Proliferation of Nuclear
Weapons (NPT) on 5 March 1970.The Treaty was ratified and entered
into force for Australia on 23 January 1973.The Nuclear
Non-Proliferation (Safeguards) Act 1987 (the Principal Act)
gave effect to Australia's safeguards obligations under the NPT.It
also gave effect to Australia's obligations under the safeguards
Agreement with the International Atomic Energy Agency (IAEA),
agreements between Australia and various countries concerning
transfers of nuclear items, and the Convention on the Physical
Protection of Nuclear Material.In addition, the Nuclear
Non-Proliferation (Safeguards) Act established a system of
permits for the possession and transport of nuclear material, and
established the Australian Safeguards Office (ASO) which oversees
the permit system and ensures compliance with the Principal
Act.
The uncovering of Iraq's clandestine nuclear weapons program by
United Nations and IAEA inspectors in the aftermath of the Gulf War
in 1991, prompted a re-appraisal of IAEA safeguards.Before about
1990, it was widely accepted that the role of IAEA safeguards in
NPT states was to provide assurance that nuclear material in civil
use and declared to the IAEA, was not diverted for nuclear
explosive or unknown purposes, and, that the IAEA's role was not to
seek to detect undeclared nuclear activities or material (except in
declared facilities). That approach did not work in the case of
Iraq, and since 1992 there has been an exhaustive re-assessment of
established safeguards procedures which has resulted in a Protocol
to the Agency Agreement.A particular focus of the Protocol is the
capability of the IAEA to detect undeclared nuclear activities.Key
elements for that capability include:
- submission by states to the Agency of 'expanded declarations'
which would describe in much greater detail than previously their
nuclear and nuclear-related activities and plans;
- extended access by IAEA inspectors around nuclear facilities
and to locations identified in expanded declarations;
- systematic evaluation by the Agency of all the information
available to it about states' nuclear and nuclear-related
activities and comparison of that information with the expanded
declarations; and
- use of new technology, particularly environmental sampling and
analysis.
Once signed, the Protocol becomes complementary to the relevant
safeguards agreements between the IAEA and member states.(11) The
Protocol between Australia and the IAEA is expected to enter into
force by early 1998.(12)
The effect of the amendments in Items 11 to 25 of
Schedule 1 of this Bill will be to extend the Principal
Act to incorporate references to the Protocol, thereby allowing for
expanded declarations of nuclear and nuclear-related activities and
increased access to locations where nuclear material is customarily
used.In his second reading speech, the Minister for Foreign Affairs
Hon Alexander Downer MP described the practical impact of the new
safeguards system on Australia by saying that:
Lucas Heightswill be subject to increased international
inspection.In addition, it is expected that uranium mines and,
possibly, the area at Maralinga will be subjected to expanded
declarations concerning nuclear and nuclear-related activities,
and, possibly, to international inspections.(13)
Item 16 of Schedule 1 establishes a mechanism
for giving effect both to the recently negotiated Protocol and to
any future agreements which supplement the basic Agency Agreement
between Australia and the IAEA.(14)
The amendments to the Nuclear Non-Proliferation (Safeguards)
Act will commence on either the day on which this Act receives
the Royal Assent, or if the day on which the first supplementary
IAEA agreement is signed on behalf of Australia is a later day,
then on that later day.
Amendment to the Passports Act 1938
The effect of Item 26 in Schedule 1 will be to include the
concept of 'recklessness' as a mental element in the offence of
making a false statement in a passport application or in support of
an application.It is expected that the Criminal Code's
interpretation of reckless would apply to the term in the
Passports Act 1938(15). Halsbury's Laws of
Australia outlines the broad meaning of 'recklessness' in the
following terms:
A person is said to be reckless in respect of a consequence
where that person acts in the knowledge that the consequence is a
probable result of his or her actions ... A person may be said to
be reckless as to facts or circumstances where a person is aware of
the possible existence of those facts or circumstances but
nevertheless acts regardless of their possible existence ... In
general, recklessness is treated as the precise equivalent of
intention in the criminal law.(16)
Subclause 2(3) provides for the amendment to
the Passports Act 1938 to commence 28 days after the day
of Royal Assent, in accordance with the legislative convention for
provisions relating to offences.
- The full title of the CWC is the Convention on the Prohibition
of the Development, Production, Stockpiling and Use of Chemical
Weapons and their Destruction.
- Second Reading Speech, Foreign Affairs and Trade Legislation
Amendment Bill 1997, House of Representatives, Hansard ,
25 June 1997: 6207.
- Explanatory memorandum, Foreign Affairs and Trade Legislation
Amendment Bill 1997: 1.
- W H Bray, 'Diplomatic and consular immunities and privileges in
Australia' in International law in Australia , 2nd ed,
edited by K W Ryan, published for the Australian Institute of
International Affairs by Law Book Company, Sydney, 1984: 359
361.
- Ian Brownlie, Principles of public international law ,
4th ed, Clarendon Press, Oxford, 1990: 685.
- Second Reading Speech, Foreign Affairs and Trade Legislation
Amendment Bill 1997, House of Representatives, Hansard ,
25 June 1997: 6207.
- Explanatory memorandum, Foreign Affairs and Trade Legislation
Amendment Bill 1997: 5.
- Convention on the Settlement of Investment Disputes between
States and Nationals of Other States, signed by Australia on
24 March 1975 and implemented by the ICSID Implementation Act
1990.
- Explanatory memorandum, Foreign Affairs and Trade Legislation
Amendment Bill 1997: 2.
- Explanatory memorandum, Foreign Affairs and Trade Legislation
Amendment Bill 1997: 7.
- Australian Safeguards Office, Annual report of the Director of
Safeguards 1995 96, AGPS, Canberra, 1996: 14 15.
- Explanatory memorandum, Foreign Affairs and Trade Legislation
Amendment Bill 1997: 8.
- Second Reading Speech, Foreign Affairs and Trade Legislation
Amendment Bill 1997, House of Representatives, Hansard ,
25 June 1997: 6208.
- Explanatory memorandum, Foreign Affairs and Trade Legislation
Amendment Bill 1997: 9.
- Explanatory memorandum, Foreign Affairs and Trade Legislation
Amendment Bill 1997: 12.
- Halsbury's laws of Australia , Butterworths, Sydney,
1995: [130 85].
Rosemary Bell
20 August 1997
Bills Digest Service
Information and Research Services
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
amendments.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of
the public.
ISSN 1328-8091
© Commonwealth of Australia 1997
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Department of the Parliamentary Library,
1997.
This page was prepared by the Parliamentary Library,
Commonwealth of Australia
Last updated: 20 August 1997
Back to top