Defence (Visiting Forces) Amendment Regulations 2003 (No. 1) 2003 No. 117
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 117
Issued by the authority of the Attorney-General
Defence (Visiting Forces) Act 1963
Defence (Visiting Forces) Amendment Regulations 2003 (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 the regulations may declare that the Act applies to a Commonwealth country. Paragraph 6(1)(a) and subsection 6(2) of the Act provide that the regulations may declare a non-Commonwealth country to be a country to which the Act applies.
The Act governs the legal status of foreign military forces while in Australia. The Act regulates the jurisdiction of the military authorities of visiting forces to apply their military law to their personnel while they are in Australia. The Act also provides for the corresponding suspension of Australian jurisdiction over the personnel of visiting forces in certain circumstances. The Act, applied to foreign countries by way of the Defence (Visiting Forces) Regulations 1963 (the Regulations), is also the enabling mechanism for the domestic implementation of Status of Forces Agreements (SOFAS) between Australia and foreign countries. SOFAs are agreements that regulate the legal status of visiting forces.
Prior to the commencement of the Defence (Visiting Forces) Amendment Regulations 2003 (the amendment Regulations), regulation 4 listed fifteen Commonwealth countries pursuant to paragraph 6(1)(a) of the Act: Bangladesh, Brunei Darussalam, Canada, Kenya, Malaysia, Mozambique, New Zealand, Pakistan, Papua New Guinea, Singapore, South Africa, Sri Lanka, Tonga, United Kingdom of Great Britain and Northern Ireland and Zimbabwe. Regulation 5 listed twenty-seven other countries pursuant to paragraph 6(1)(b) and subsection 6(2) of the Act: Cambodia, Fiji, Indonesia, the Philippines, Thailand, the United States of America, Brazil, Chile, Egypt, France, Ireland, Italy, Nepal, Norway, Portugal, Korea, Spain, Sweden, Argentina, China, Czech Republic, Denmark, Germany, Hungary, Jordan, Poland, and Uruguay.
The Regulations added East Timor and Turkey to the list of non-Commonwealth countries under Regulation 5, in view of Australia's present defence relationships with those countries.
The amendment Regulations commenced on gazettal.
Details of the Regulations are as follows:
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on gazettal.
Regulation 3 provides that Schedule 1 of the Regulations amends the Defence (Visiting Forces) Regulations 1963.
Schedule 1 adds Turkey and the Democratic Republic of Timor-Leste (East Timor) to Regulation 5 of the Defence (Visiting Forces) Regulations 1963.
Overview
The Defence (Visiting Forces) Amendment Regulations 2003 (No. 1), enacted in 2003, were made under the authority of the Australian Government and serve to update the Defence (Visiting Forces) Regulations 1963. This amendment was necessary to address the evolving defence relationships between Australia and other countries by updating the list of nations whose military forces are subject to the Act's provisions. The Defence (Visiting Forces) Act 1963, which governs the legal status of foreign military forces in Australia, was intended to regulate the jurisdiction of military authorities of visiting forces over their personnel while in Australia and to manage the suspension of Australian jurisdiction over these personnel in specific circumstances. The policy objective of these regulations is to facilitate the domestic implementation of Status of Forces Agreements (SOFAs) between Australia and other nations, ensuring that the legal framework remains current with Australia's defence partnerships.
Scope and Application
The Defence (Visiting Forces) Amendment Regulations 2003 (No. 1) applies to the legal status and jurisdiction of foreign military forces while they are in Australia. The Act governs the extent to which military authorities of visiting forces can apply their own military law to their personnel within Australia, and it also provides for the corresponding suspension of Australian jurisdiction over the personnel of visiting forces under certain circumstances. The Regulations, which implement the Act, initially listed fifteen Commonwealth countries and twenty-seven other countries to which the Act applies. The amendment Regulations specifically add East Timor and Turkey to the list of non-Commonwealth countries, reflecting current defence relationships. The Regulations commenced on gazettal and amended the Defence (Visiting Forces) Regulations 1963 to include these additional countries. The geographic and jurisdictional reach of the Act extends to all foreign military forces in Australia, with the Act being applied to both Commonwealth and non-Commonwealth countries through the Regulations.
Key Provisions
The Defence (Visiting Forces) Amendment Regulations 2003 (No. 1) amend the Defence (Visiting Forces) Regulations 1963 by adding Turkey and East Timor to the list of countries to which the Defence (Visiting Forces) Act 1963 applies. Regulation 3 specifies that these amendments are made via Schedule 1, which modifies Regulation 5 of the 1963 Regulations. This inclusion of additional countries aims to reflect Australia's evolving defence relationships and obligations under various Status of Forces Agreements (SOFAs).
These Regulations impose obligations on the parties involved, particularly focusing on the legal status of foreign military forces while in Australia. By applying the Act to these additional countries, the Regulations ensure that the jurisdictional framework governing visiting forces is updated to include Turkey and East Timor. This means that military law applicable to personnel from these countries will be consistent with the provisions of the Act, including the suspension of Australian jurisdiction in certain circumstances as agreed upon in relevant SOFAs.
Breaches of the provisions set out in the Defence (Visiting Forces) Act 1963 can lead to various consequences. While the specific offences and penalties are detailed within the Act itself, violations generally include actions that contravene the jurisdictional and legal frameworks established by the Act and the Regulations. For instance, if a member of a visiting force commits an offence in Australia, the Act dictates that they would be subject to the military law of their own country, rather than Australian law, unless otherwise specified in a SOFA. Failure to adhere to these provisions can result in diplomatic tensions and legal complications between Australia and the respective countries of the visiting forces.