Defence (Visiting Forces) Amendment Regulations 1999 (No. 1) 1999 No. 218
EXPLANATORY STATEMENT
STATUTORY RULES 1999 No. 218
Issued by the Authority of the Attorney-General
Defence (Visiting Forces) Act 1963
Defence (Visiting Forces) Amendment Regulations 1999 (No. 1)
Section 30 of the Defence (Visiting Forces) Act 1963 (the Act) provides that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 6(1)(a) of the Act provides that regulations may declare that the Act applies to a Commonwealth country. Paragraph 6(1)(b) of the Act provides that non-Commonwealth countries may be declared a country to which the Act applies.
The Act governs the legal status of foreign military forces whilst in Australia. The Act allows the military authorities of visiting foreign forces to apply their military law to their personnel whilst they are in Australia, and provides for a corresponding suspension of Australian jurisdiction over such personnel in certain circumstances. The Act, applied to foreign countries by way of the Defence (Visiting Forces) Regulations (the Regulations), is the enabling mechanism for the domestic implementation of Status of Forces Agreements (SOFAs) between Australia and various countries.
Currently there are eight Commonwealth countries listed in the Regulations: Brunei Darussalam, Canada, Malaysia, New Zealand, Papua New Guinea, Singapore, Tonga and the United Kingdom of Great Britain and Northern Ireland. There are six other countries listed: Cambodia, Fiji, Indonesia, the Philippines, Thailand and the United States of America.
The United Nations Security Council has passed a resolution under which Australia is to lead a multinational peacekeeping force to East Timor. For that purpose, the personnel of the participating nations are gathering in Darwin. However a number of these participating nations are not yet included in the Regulations.
It is therefore necessary to amend the Regulations to include the personnel of those nations which will be located in, or passing through, Australia and which are not already listed. The Department of Defence has advised that the following nations which are not currently listed have made a firm commitment to contribute to the peacekeeping force: Italy, France, Ireland, Brazil and Portugal. The following countries have indicated a willingness in principle to contribute: Pakistan, Zimbabwe, Egypt, Mozambique and Spain. The following countries are considering their position: Chile, Sweden, Norway, Sri Lanka, South Korea and Nepal. The listing of all of these nations in the Regulations will ensure that their personnel are covered by the arrangements.
Details of the Regulations are as follows:
Regulation 1 names the amending Regulations.
Regulation 2 provides that the amending Regulations commence on gazettal.
Regulation 3 provides that Schedule 1 amends the Defence (Visiting Forces) Regulations.
In Schedule 1, Item 1 provides that the Regulations shall be named the Defence (Visiting Forces) Regulations 1963. This accords with the current drafting practice of italicising the name and including the year of making in the name of the principal regulations.
Item 2 of Schedule 1 omits the Commonwealth countries which are listed after Malaysia, and inserts in alphabetical order those Commonwealth countries which have indicated that they may contribute to the peacekeeping force. The legal effect is that the amended list now includes all of the Commonwealth countries as originally listed, plus those which may or will be participating in East Timor.
Item 3 of Schedule 1 changes the full stop after the word "America" to become a semi colon, to enable the list of non-Commonwealth countries to be expanded.
Item 4 of Schedule 1 inserts the names of those non-Commonwealth countries which have indicated that they may contribute to the peacekeeping force. The legal effect is that the amended list now includes all of the non-Commonwealth countries as originally listed, plus those which may or will be participating in East Timor.
Overview
The Defence (Visiting Forces) Amendment Regulations 1999 (No. 1) were enacted to address the need for updated regulations to accommodate the participation of additional countries in a multinational peacekeeping force for East Timor. The primary legislation underpinning these regulations is the Defence (Visiting Forces) Act 1963, which was enacted to govern the legal status of foreign military forces in Australia and facilitate the implementation of Status of Forces Agreements (SOFAs). This legislation allows for the application of military law by visiting foreign forces while in Australia, with a corresponding suspension of Australian jurisdiction over such personnel under certain circumstances. The regulations were issued by the authority of the Attorney-General and were necessary to include the personnel of nations participating in the peacekeeping force, ensuring they are covered by the arrangements set out in the Act. This amendment reflects the policy objective of maintaining legal clarity and facilitating the smooth operation of international military cooperation in peacekeeping efforts.
Scope and Application
The Defence (Visiting Forces) Amendment Regulations 1999 (No. 1) amends the Defence (Visiting Forces) Regulations 1963 to extend the application of the Defence (Visiting Forces) Act 1963 to include personnel from additional countries participating in a multinational peacekeeping force to East Timor. The Act applies to foreign military forces and their personnel when they are in Australia, allowing these forces to apply their military law while in the country and suspending Australian jurisdiction over such personnel under certain conditions. This legislative framework facilitates the implementation of Status of Forces Agreements between Australia and various nations. The Regulations are amended to incorporate new Commonwealth and non-Commonwealth countries that have committed or indicated a willingness to contribute to the peacekeeping force in East Timor, thereby ensuring these personnel are covered under the Act. The changes are made through specific amendments to the Defence (Visiting Forces) Regulations, including the addition of new countries to the list of those to which the Act applies.
Key Provisions
The main operative sections of the Defence (Visiting Forces) Amendment Regulations 1999 (No. 1) (the Regulations) involve amendments to the Defence (Visiting Forces) Regulations 1963. Regulation 3 of the Regulations provides that Schedule 1 amends the principal Regulations. The key changes are found in Schedule 1, Item 2, which updates the list of Commonwealth countries to include all those which may contribute to the peacekeeping force in East Timor. Similarly, Schedule 1, Item 4 updates the list of non-Commonwealth countries to include those nations which have indicated they may contribute to the peacekeeping force. These amendments are designed to ensure that the legal status of military personnel from these nations is properly regulated when they are in Australia.
The Regulations impose specific obligations and requirements on the parties they govern. These include the military authorities of the visiting forces, who must apply their military law to their personnel whilst in Australia, and the Australian authorities, who must suspend their jurisdiction over such personnel in certain circumstances as agreed in the Status of Forces Agreements (SOFAs). The obligations extend to ensuring that all personnel from participating nations are included in the Regulations, which facilitates the smooth operation of SOFAs and the enforcement of military law during their stay in Australia.
Failure to comply with the provisions of the Act and the Regulations can lead to serious consequences. Although the specific offences and penalties are not detailed in the explanatory statement, breaches of the Act can generally result in legal action being taken against the offending party. This can include both criminal and civil penalties, depending on the nature and severity of the breach. The maximum penalties for breaches of defence-related legislation can vary, but they often include substantial fines and potential imprisonment. The exact penalties would be determined by the courts based on the specific circumstances of each case and the relevant laws in force at the time of the offence.
The Regulations also provide for the listing of countries in a manner that ensures their personnel are covered by the arrangements. This includes Commonwealth and non-Commonwealth countries that have committed or are considering contributing to the peacekeeping force in East Timor. By amending the Defence (Visiting Forces) Regulations to include these countries, the Regulations help to maintain the integrity and effectiveness of the legal framework governing the presence of foreign military forces in Australia. This ensures that all participating nations are subject to the same legal obligations and protections, facilitating cooperation and coordination during the peacekeeping mission.