Defence (Visiting Forces) Regulations (Amendment) 1994 No. 407
EXPLANATORY STATEMENT
Statutory Rules 1994 No. 407
Issued by the Authority of the Attorney-General
Defence (Visiting Forces) Act 1963
Defence (Visiting Forces) Regulations (Amendment)
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 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 Principal Regulations), is the enabling mechanism for the domestic implementation of Status of Forces Agreements ('SOFAs') between Australia and various countries.
Prior to the commencement of the Defence (Visiting Forces) Regulations (Amendment), (the amending Regulations) the Act, under paragraph 6(1)(a), applied to Canada, Fiji, Malaysia, New Zealand, Papua New Guinea, the Republic of Singapore, Tonga and the United Kingdom while under paragraph 6(1)(b), the: Act applied to the United States of America.
In view of Australia's present defence relationships, the Principal Regulations were amended to apply the Act, in addition to the countries listed above, to Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Republic of the Philippines, and the Kingdom of Thailand. Accordingly, the amending Regulations applied the Act under paragraph 6(1)(a) to Brunei Darussalarn, the only additional Commonwealth country, while the Act was applied to the Kingdom of Cambodia, the Republic of Indonesia, the Republic of the Philippines, and the Kingdom of Thailand by virtue of paragraph 6(1)(b).
As Fiji is no longer in the Commonwealth, Fiji has be moved from the Commonwealth Countries regulations to the non-Commonwealth regulations and has been referred to as the 'Republic of Fiji'.
Details of the Regulations are as follows:
Regulation 1 provides that the Principal Regulations are amended as set out in the amending Regulations.
Regulation 2 amends Regulation 4 of the Principal Regulations by including Brunei Darussalam. and omitting Fiji.
Regulation 3 omits and substitutes a new Regulation 5 in the Principal Regulations. New Regulation 5 provides that the Act applies to each of the following non-Commonwealth countries: Kingdom of Cambodia, Republic of Fiji, Republic of Indonesia, Republic of the Philippines, Kingdom of Thailand, and United States of America.
Overview
The Defence (Visiting Forces) Regulations (Amendment) 1994 No. 407 was enacted to update the Defence (Visiting Forces) Regulations 1963 to reflect Australia's evolving defence relationships. The Defence (Visiting Forces) Act 1963, enacted by the Australian Parliament, governs the legal status of foreign military forces within Australia and facilitates the implementation of Status of Forces Agreements between Australia and various countries. The Act allows military authorities of visiting foreign forces to apply their military law to their personnel in Australia, with a corresponding suspension of Australian jurisdiction over such personnel in certain circumstances. The 1994 Regulations amended the Principal Regulations to apply the Act to Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Republic of the Philippines, and the Kingdom of Thailand, reflecting Australia's current defence relationships. Furthermore, Fiji was moved from the Commonwealth countries list to the non-Commonwealth countries list and is now referred to as the 'Republic of Fiji'. This amendment ensures that the regulations continue to serve their purpose of providing a legal framework for the presence of foreign military forces in Australia.
Scope and Application
The Defence (Visiting Forces) Regulations (Amendment) 1994 No. 407 amends the Defence (Visiting Forces) Regulations to expand the application of the Defence (Visiting Forces) Act 1963. This Act governs the legal status of foreign military forces while in Australia, allowing visiting military personnel to be subject to their own country's military law rather than Australian jurisdiction in certain circumstances. The Act applies to both Commonwealth and non-Commonwealth countries, as specified through the regulations. Initially, the Act applied to Canada, Fiji, Malaysia, New Zealand, Papua New Guinea, Singapore, Tonga, the United Kingdom, and the United States of America. The amending Regulations now apply the Act to Brunei Darussalam, Cambodia, Indonesia, the Philippines, and Thailand, reflecting Australia's evolving defence relationships. Fiji, previously a Commonwealth country, is now classified as a non-Commonwealth country and is referred to as the 'Republic of Fiji'. These changes ensure the Act continues to facilitate the implementation of Status of Forces Agreements between Australia and its defence partners.
Key Provisions
The Defence (Visiting Forces) Regulations (Amendment) 1994 No. 407 amends the Defence (Visiting Forces) Regulations, updating the countries to which the Defence (Visiting Forces) Act 1963 applies. Regulation 1 confirms that the Principal Regulations are amended as outlined in the amending Regulations. Regulation 2 modifies Regulation 4 of the Principal Regulations by adding Brunei Darussalam to the list of Commonwealth countries and removing Fiji from it. Regulation 3 removes and replaces Regulation 5 of the Principal Regulations, specifying that the Act now applies to the Kingdom of Cambodia, Republic of Fiji, Republic of Indonesia, Republic of the Philippines, Kingdom of Thailand, and the United States of America as non-Commonwealth countries.
These amendments impose obligations on the military authorities of the visiting forces from the listed countries to apply their military law to their personnel while in Australia, and require a corresponding suspension of Australian jurisdiction over such personnel in certain circumstances. This is in accordance with the Status of Forces Agreements ('SOFAs') between Australia and the specified countries, which are enabled through the Defence (Visiting Forces) Act. The amendment also formally recognises the change in Fiji’s status from a Commonwealth country to a non-Commonwealth country by referring to it as the 'Republic of Fiji' in the regulations.
Failure to comply with the provisions of the Defence (Visiting Forces) Act or the Defence (Visiting Forces) Regulations could result in breaches of the agreements outlined in the SOFAs. While the Act itself does not prescribe specific offences or penalties, breaches of SOFAs can lead to diplomatic tensions and potential legal repercussions under international law. The Australian government is expected to uphold its commitments under these agreements to maintain harmonious defence relations with the visiting forces' home countries.