EXPLANATORY STATEMENT
Subject- Defence (VISITING FORCES) Act 1963
Defence (Visiting Forces) Regulations (Amendment)
1989 No 213
Section 30 of the Defence (Visiting Forces) Act 1963 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 16(2)(b) of the Act provides that the regulations may confer on a visiting force (defined in subsection 5(1) of the Act to mean any body, contingent or detachment of the forces of a country that is for the time being present in Australia), its members, its service tribunals, persons in any way connected with a visiting force or property used or to be used for the purposes of a visiting force any privilege or immunity specified in the regulations, being a privilege or immunity that would be enjoyed by, or would be capable of being conferred on, the force, its members, its service tribunals, such persons or such property if the force were part of the Defence Force. (Defence Force is defined in subsection 5(1) of the Act to have the same meaning as in the Defence Act 1903) .
Regulation 201 of the Australian Military Regulations exempted members of the Army and members of Rifle Clubs from the operation of State and Territory laws in certain cases. By subregulation 6(2) of the Regulations, those exemptions were extended in respect of a visiting force sent to Australia by a country to which section 16 of the Act applies.
Regulation 201 of the Australian Military Regulations has been repealed. However, certain of the immunities provided by regulation 201 are now contained in subsection 123(1) of the Defence Act 1903.
Subsection 123 of the Defence Act 1903 exempts a member of the Defence Force from any law of a State or Territory that would require the member to have permission to use, have in his or her possession or register any vehicle, vessel, animal, firearm or other thing belonging to the Commonwealth or to have permission to do anything in the course of his or her duties as a member of the Defence Force.
The Defence (Visiting Forces) Regulations (Amendment) omits subregulation 6(2) of the Regulations, as a consequence of the repeal of regulation 201 of the Australian Military Regulations, and inserts a provision which extends to members of a visiting force sent to Australia by a country in relation to which section 16 of the Act applies the immunities from certain State and Territory laws conferred on members of the Defence Force by subsection 123(1) of the Defence Act 1903.
The Defence (Visiting Forces) Regulations (Amendment) will commence on the date of gazettal.
Authority: Section 30 and paragraph 16(2)(b) of the Defence (Visiting Forces) Act 1963.
Overview
The Defence (Visiting Forces) Regulations (Amendment) 1989 No 213 was introduced to address the gap in the Defence (Visiting Forces) Act 1963, which was to ensure that visiting forces sent to Australia by countries to which section 16 of the Act applies are granted certain immunities from State and Territory laws, similar to those enjoyed by members of the Defence Force. This was enacted by the Parliament of Australia to facilitate the smooth operation and interaction of visiting forces with Australian authorities. The objective of this amendment is to maintain consistency and fairness in the treatment of visiting forces by aligning their legal status with that of Australian Defence Force members, thereby ensuring that visiting forces can carry out their duties without unnecessary legal impediments. The regulations provide that the immunities conferred by subsection 123(1) of the Defence Act 1903 on members of the Defence Force are extended to members of visiting forces, ensuring they are not subject to certain State and Territory laws.
Scope and Application
The Defence (Visiting Forces) Act 1963 pertains to any visiting force, which includes any body, contingent, or detachment of forces from another country present in Australia. This legislation governs the privileges and immunities afforded to such visiting forces, their members, and associated entities, ensuring they enjoy similar rights and protections as members of Australia's Defence Force. The Act applies to all visiting forces sent to Australia by countries covered under section 16 of the Act. The regulations, which extend and provide further detail to the Act, apply nationally and cover matters such as immunities from state and territory laws, ensuring that visiting force members are not subject to certain local regulations in the same manner as Australian Defence Force members. Notably, the Act allows for the extension of certain Defence Act immunities to visiting forces, thereby providing a comprehensive framework for the operation of foreign military entities within Australia.
Key Provisions
The main operative sections of the Defence (Visiting Forces) Regulations (Amendment) 1989 No 213 concern the regulation of privileges and immunities conferred upon visiting forces in Australia. Section 30 of the Defence (Visiting Forces) Act 1963 allows the Governor-General to make regulations that prescribe matters required or permitted by the Act, or that are necessary or convenient to carry out the Act. Specifically, paragraph 16(2)(b) allows the regulations to confer on visiting forces, their members, and related personnel privileges and immunities similar to those enjoyed by the Defence Force under the Defence Act 1903. Regulation 201 of the Australian Military Regulations previously exempted members of the Army and Rifle Clubs from certain State and Territory laws, but has since been repealed. The amendment now includes provisions that extend certain immunities from State and Territory laws to members of visiting forces, aligning them with the exemptions provided to Defence Force members under subsection 123(1) of the Defence Act 1903.
The Defence (Visiting Forces) Regulations (Amendment) impose obligations on visiting forces and their members, ensuring that they benefit from specific immunities from State and Territory laws, similar to those enjoyed by the Defence Force. These immunities include exemptions from laws requiring permission to use, possess, or register certain items such as vehicles, vessels, animals, firearms, and other Commonwealth property, as well as permissions required in the course of their duties. By extending these immunities, the regulations ensure that visiting forces operate with the same legal protections as Australian Defence Force members, facilitating smoother operations and interactions during their presence in Australia.
Failure to comply with the provisions of the Defence (Visiting Forces) Regulations (Amendment) could result in breaches of the regulations, though specific offences, penalties, or consequences are not detailed in the explanatory statement. Generally, breaches of defence regulations can lead to legal actions, including fines or other civil penalties. The Defence (Visiting Forces) Act 1963 and related defence legislation outline the consequences for non-compliance, which could include administrative actions or legal proceedings against the individuals or entities involved. The exact penalties would depend on the nature and severity of the breach, as well as the applicable laws governing the Defence Force and visiting forces.