Foreign States Immunities Amendment Regulations (No. 1) 2000 No. 256
EXPLANATORY STATEMENT
STATUTORY RULES 2000 No. 256
Issued by the authority of the Attorney-General
Foreign States Immunities Act 1985
Foreign States Immunities Amendment Regulations (No. 1)
Section 43(b) of the Foreign States Immunities Act empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing matters necessary or convenient for the purposes of the Act.
At international law foreign States have a general immunity from the jurisdiction of domestic courts. Within Australia this position is reflected in section 9 of the Foreign States Immunities Act 1985.
There are a number of exceptions to this rule, one of which is reflected in section 20 of the Foreign States Immunities Act. This section provides that a foreign State is not immune from proceedings in so far as the proceedings concern an obligation imposed on the foreign State by an Australian law with respect to taxation, being a provision that is prescribed for the purposes of section 20. Prescribed provisions are set out in the Foreign States Immunities Regulations. The amendments update references to relevant Commonwealth and State legislation.
Prescribing legislation, for the purposes of section 20 of the Foreign States Immunities Act, does not affect the substantive liability of a foreign State to pay particular taxes. However, it does enable a foreign State to be sued in an Australian court to recover a prescribed tax for which it is liable.
Foreign States are not presently immune from proceedings arising out of obligations imposed by or under the Sales Tax Assessment Act 1992. In accordance with the Government's A New Tax System reforms the following legislation is added to Part I of the Regulations: A New Tax System (Goods and Services Tax) Act 1999; A New Tax System (Luxury Car Tax) Act 1999; A New Tax System (Wine Equalisation Tax Act 1999; and Taxation Administration Act 1953. A reference to the Income Tax Assessment Act 1997 is also included.
In Part 2 of the Regulations (Laws of the State of New South Wales), references to the Business Franchise Licences (Petroleum Products) Act 1987 and the Business Franchise Licences (Tobacco) Act 1987 are deleted as this legislation has been repealed. At the request of the New South Wales Office of State Revenue the Taxation Administration Act 1996 and the Premium Property Tax Act 1998 are added.
In Part 3 of the Regulations (Laws of the State of Victoria), a reference to the Energy Consumption Levy Act 1982 is deleted as this legislation has been repealed and an amendment is made to the citation of the Stamps Act 1958.
Apart from the above additions and changes of citations, the legislation previously prescribed for the benefit of the Commonwealth, the States and the Territories, as reflected in the Schedule, remains unaltered.
The changes to the Regulations have been made in consultation with the relevant Departments of the Commonwealth and State and Territory Governments.
The Regulations commenced on Gazettal.
Overview
The Foreign States Immunities Amendment Regulations (No. 1) 2000 No. 256 were enacted to address the need for updating the references to relevant Commonwealth and State legislation within the Foreign States Immunities Regulations. This was done to ensure that the exceptions to the general immunity of foreign States from jurisdiction in Australian courts were accurately reflecting the current legislative landscape, particularly in the context of taxation obligations. The amendments were made under the authority of the Attorney-General and pursuant to section 43(b) of the Foreign States Immunities Act 1985, which empowers the Governor-General to make regulations necessary or convenient for the purposes of the Act. The policy objective of these amendments was to facilitate legal proceedings against foreign States for tax obligations under the new tax system and other specified Australian laws, while ensuring the existing framework of immunity was preserved where not overridden by these exceptions.
Scope and Application
The Foreign States Immunities Amendment Regulations (No. 1) 2000 (No. 256) apply to foreign States in relation to their immunity from the jurisdiction of Australian courts, particularly concerning tax obligations under Australian law. The regulations are made pursuant to section 43(b) of the Foreign States Immunities Act 1985 and aim to update references to relevant Commonwealth and State legislation, ensuring the Act's provisions remain current and effective. These amendments facilitate the ability to sue a foreign State in Australian courts for prescribed taxes, although they do not alter the foreign State's substantive liability to pay these taxes. The scope of the regulations extends to the Commonwealth and the states of New South Wales and Victoria, incorporating various tax-related statutes and removing references to repealed legislation, thereby maintaining the integrity and applicability of the prescribed laws.
Key Provisions
The Foreign States Immunities Amendment Regulations (No. 1) 2000 No. 256 are amendments to the Foreign States Immunities Regulations, which in turn are made under section 43(b) of the Foreign States Immunities Act 1985. These Regulations (paragraphs 3 to 6) update the references to Commonwealth and State legislation to reflect recent legislative changes. For instance, the Sales Tax Assessment Act 1992 is replaced with the A New Tax System (Goods and Services Tax) Act 1999, the A New Tax System (Luxury Car Tax) Act 1999, and the A New Tax System (Wine Equalisation Tax) Act 1999, among others. Similarly, outdated State legislation such as the Energy Consumption Levy Act 1982 has been removed, and new or updated references have been incorporated.
The Regulations impose specific obligations on various entities. For instance, the Commonwealth and State governments are required to ensure that the prescribed tax laws are updated to reflect current legislative changes. These updates ensure that foreign States can be sued in Australian courts to recover prescribed taxes for which they are liable. Additionally, the New South Wales Office of State Revenue requested the inclusion of the Taxation Administration Act 1996 and the Premium Property Tax Act 1998 in the Regulations, highlighting the need for State-specific tax laws to be included in the prescribed legislation.
Breaches of the provisions outlined in the Foreign States Immunities Amendment Regulations (No. 1) 2000 No. 256 can have various consequences. While the Regulations do not explicitly outline offences or penalties, failure to comply with the prescribed tax laws could result in legal actions against foreign States in Australian courts. Non-compliance with the updated references may also lead to administrative or procedural challenges when seeking to recover prescribed taxes. It is important to note that the Regulations themselves do not prescribe penalties but rather provide the legal framework for such actions.
In summary, the Foreign States Immunities Amendment Regulations (No. 1) 2000 No. 256 serve to update the prescribed tax laws in line with recent legislative changes. These Regulations impose obligations on the Commonwealth and State governments to ensure that the prescribed tax laws are up-to-date and reflective of current legislation. While the Regulations do not outline specific offences or penalties, non-compliance with the prescribed tax laws may result in legal actions against foreign States in Australian courts.