Bills Digest No. 11   1997-98 Foreign Affairs and Trade Legislation Amendment Bill 1997


Numerical Index | Alphabetical Index

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

Passage History

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.

Purpose

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.

Background

As there is no central theme to this Bill, the background to each amendment will be outlined below.

Main Provisions

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.

Endnotes

  1. 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.
  2. Second Reading Speech, Foreign Affairs and Trade Legislation Amendment Bill 1997, House of Representatives, Hansard , 25 June 1997: 6207.
  3. Explanatory memorandum, Foreign Affairs and Trade Legislation Amendment Bill 1997: 1.
  4. 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.
  5. Ian Brownlie, Principles of public international law , 4th ed, Clarendon Press, Oxford, 1990: 685.
  6. Second Reading Speech, Foreign Affairs and Trade Legislation Amendment Bill 1997, House of Representatives, Hansard , 25 June 1997: 6207.
  7. Explanatory memorandum, Foreign Affairs and Trade Legislation Amendment Bill 1997: 5.
  8. 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.
  9. Explanatory memorandum, Foreign Affairs and Trade Legislation Amendment Bill 1997: 2.
  10. Explanatory memorandum, Foreign Affairs and Trade Legislation Amendment Bill 1997: 7.
  11. Australian Safeguards Office, Annual report of the Director of Safeguards 1995 96, AGPS, Canberra, 1996: 14 15.
  12. Explanatory memorandum, Foreign Affairs and Trade Legislation Amendment Bill 1997: 8.
  13. Second Reading Speech, Foreign Affairs and Trade Legislation Amendment Bill 1997, House of Representatives, Hansard , 25 June 1997: 6208.
  14. Explanatory memorandum, Foreign Affairs and Trade Legislation Amendment Bill 1997: 9.
  15. Explanatory memorandum, Foreign Affairs and Trade Legislation Amendment Bill 1997: 12.
  16. Halsbury's laws of Australia , Butterworths, Sydney, 1995: [130 85].

Contact Officer and Copyright Details

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


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