Defence (Visiting Forces) Amendment Regulation 2012 (No. 1)

Overview

The Defence (Visiting Forces) Amendment Regulation 2012 (No. 1) amends the Defence (Visiting Forces) Regulations 1963 to address the growing number of countries with which Australia has established defence relationships. Enacted by the authority of the Attorney-General, this regulation modernises and improves the readability of the existing regulations without altering their substantive meaning. The principal objective is to update the list of countries to which the Defence (Visiting Forces) Act 1963 applies, thereby formalising the jurisdictional arrangements with visiting defence forces. This amendment ensures that Australia's legal framework remains relevant and effective in managing interactions with visiting military forces from newly recognised countries, including India, Iraq, Japan, the Netherlands, Qatar, and the United Arab Emirates. By refining the drafting style, the regulation aims to enhance clarity and ease of understanding for those who must apply or interpret the provisions, without introducing new policy changes.

Scope and Application

The Defence (Visiting Forces) Amendment Regulation 2012 (No. 1) pertains to the Defence (Visiting Forces) Act 1963, governing the jurisdictional arrangements between Australia and foreign military forces when these forces are present in Australia. The Act applies to military personnel of countries specified in the regulations as "countries to which the Act applies," and it delineates the conditions under which Australian jurisdiction over these visiting forces may be suspended, allowing the visiting forces to apply their military law to their personnel. The Regulation adds six additional countries—India, Iraq, Japan, the Netherlands, Qatar, and the United Arab Emirates—to the list of countries covered by the Act, thereby extending its geographic and jurisdictional reach. The Regulation also includes minor amendments aimed at modernising the drafting of the Principal Regulations to improve readability without altering the substantive meaning of the provisions. The Regulation commenced on the day after its registration on the Federal Register of Legislative Instruments, and it applies to the Commonwealth of Australia. No consultation outside the Australian Government was undertaken for this legislative instrument, as it pertains to criminal justice and law enforcement matters, and it does not have a direct or substantial indirect effect on business or restrict competition.

Key Provisions

The main operative sections of the Defence (Visiting Forces) Amendment Regulation 2012 (No. 1) concern the expansion of the list of countries to which the Defence (Visiting Forces) Act 1963 applies. Specifically, section 3 of the Regulation adds India, Iraq, Japan, the Netherlands, Qatar, and the United Arab Emirates to the list of countries already covered by the Principal Regulations, bringing the total to 50 countries. This amendment is intended to reflect the evolving nature of Australia's defence relationships and to ensure that the jurisdictional arrangements between Australia and visiting defence forces are appropriately established. Section 4 of the Regulation moves the lists of countries into schedules to enhance readability, although this change is purely stylistic and does not affect the substantive meaning of the provisions, as noted in section 15AC of the Acts Interpretation Act 1901. The Defence (Visiting Forces) Act 1963 imposes several obligations and requirements on the parties it governs. For example, section 6 of the Act allows the Governor-General to make regulations that declare countries to which the Act applies, ensuring that jurisdictional arrangements are clearly defined. Section 20 of the Act requires that Australian jurisdiction over visiting force members is suspended in certain circumstances, allowing military authorities of visiting forces to apply their military law to their personnel while in Australia. The Act also stipulates that visiting forces must comply with Australian laws and regulations, except where expressly exempted by the Act or by an agreement between Australia and the visiting country. Failure to comply with the provisions of the Defence (Visiting Forces) Act 1963 can result in various civil or criminal consequences. For example, section 21 of the Act outlines that a person who commits an offence under Australian law while in Australia may be subject to prosecution in an Australian court. The severity of the offence determines the applicable penalties, which can range from fines to imprisonment. Additionally, any breaches of the Act or the Regulations by visiting forces or their personnel could potentially lead to diplomatic repercussions, depending on the nature and extent of the breach. The precise penalties for breaches are governed by the relevant Australian laws under which the offence is committed, rather than the Act itself. In summary, the Defence (Visiting Forces) Amendment Regulation 2012 (No. 1) primarily updates the list of countries to which the Defence (Visiting Forces) Act 1963 applies, ensuring that the jurisdictional arrangements between Australia and visiting defence forces are comprehensive and up-to-date. The Act imposes specific obligations on the parties it governs, including the suspension of Australian jurisdiction over visiting force members in certain circumstances and the requirement for visiting forces to comply with Australian laws. Breaches of the Act or the Regulations can lead to prosecution under Australian law, with penalties varying according to the nature and severity of the offence.