Foreign States Immunities Regulations (Amendment) 1996 No. 222
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 222
Issued by the authority of the Attorney-General and Minister for Justice
Foreign States Immunities Act 1985
Foreign States Immunities Regulations (Amendment)
Paragraph 43(b) of the Foreign States Immunities Act 1985 (the Act) empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 9 of the Act provides that, except as provided by or under the Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.
Section 20 of the Act further provides that a foreign State is not immune in a proceeding in so far as the proceeding concerns an obligation imposed on it by or under provision of a law of Australia with respect to taxation, being a provision that is prescribed, or is included in the class of provisions that is prescribed, for the purposes of section 20 of the Act.
The prescribing of legislation for the purposes of section 20 of the Act does not affect the substantive liability of a foreign State to pay particular taxes. It merely enables a foreign State to be sued in an Australian court in order to recover a tax for which it is liable.
The Schedule to the Foreign States Immunities Regulations currently prescribes, for the purposes of section 20 of the Act, various laws with regard to taxation. These laws are listed under different Parts according to whether the laws are Commonwealth laws, State or Territory laws, or Laws of Norfolk Island.
The Regulations effect changes to the citations of the Acts listed at Item 4 of Part 1 (Laws of the Commonwealth); Items 1 and 2 of Part II (Laws of New South Wales); Items 1, 2, 3 of Part IV (Laws of Queensland); Items 1-8 of Part IX (Laws of the A.C.T); and Item 1 of Part X (Laws of Norfolk Island). These changes were designed to reflect the current citation of the laws so listed.
In addition, the Regulations add two new Acts to the Schedule. These are the (NSW) Debits Tax Act 1990 and the (NI) Land Administration Fees Act 1996. Both of these Acts were added at the specific request of the New South Wales Government and the Norfolk Island Government, respectively.
While the (NSW) Debits Tax Act 1990 and the (NI) Land Administration Fees Act 1996 will enable proceedings to be instituted against a foreign State for the recovery of taxes on a basis not hitherto available, the other amendments to the Regulations do not effect any substantive changes but were intended only to correct the citations of the Act so prescribed.
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 were made in consultation with the relevant Departments of the Commonwealth Government and State and Territory Governments.
Overview
The Foreign States Immunities Regulations (Amendment) 1996 No. 222 was enacted to update the Foreign States Immunities Regulations to reflect current citations of relevant taxation laws and to add new legislation that enables proceedings to be instituted against a foreign State for the recovery of certain taxes. This amendment was made pursuant to paragraph 43(b) of the Foreign States Immunities Act 1985, empowering the Governor-General to make regulations necessary or convenient to implement the Act. The policy objective is to ensure that the regulations remain current and effective in addressing the jurisdictional immunity of foreign States, while also accommodating specific requests from the New South Wales Government and the Norfolk Island Government to include their respective taxation laws. This amendment does not alter the substantive immunity of foreign States but ensures that the regulations accurately reflect the current legislative landscape concerning tax obligations.
Scope and Application
The Foreign States Immunities Regulations (Amendment) 1996 No. 222 applies to foreign states and their assets and transactions within Australia, as defined under the Foreign States Immunities Act 1985. This Act provides immunity to foreign states from the jurisdiction of Australian courts, except in certain circumstances, such as when a proceeding concerns obligations imposed by Australian tax laws. The Regulations amend the citations of various tax-related laws in the Schedule to the Act, ensuring they reflect the current legislative titles, and add two new Acts to the list, the New South Wales Debits Tax Act 1990 and the Norfolk Island Land Administration Fees Act 1996, in response to specific government requests. These changes aim to facilitate proceedings against foreign states for tax recovery while maintaining the existing framework for other prescribed tax laws. The amendments do not alter the substantive immunity provisions of the Act but serve to update the legal references for improved accuracy and clarity.
Key Provisions
The Foreign States Immunities Regulations (Amendment) 1996 No. 222 amends the existing Foreign States Immunities Regulations to reflect changes in the citations of various taxation laws and to add two new Acts to the Schedule. The main operative sections involved are section 43(b) of the Foreign States Immunities Act 1985 (the Act), which allows for the making of regulations to implement the Act, and section 20, which specifies circumstances under which a foreign State is not immune from the jurisdiction of Australian courts in tax-related proceedings. The amendments to the Regulations, particularly those updating the citations of existing laws and adding new Acts, are intended to ensure that the Regulations accurately reflect the current legislative landscape (Regulation 1).
The Foreign States Immunities Act 1985 provides that a foreign State is generally immune from the jurisdiction of Australian courts, except in cases where the proceeding concerns an obligation imposed by Australian taxation laws. The Foreign States Immunities Regulations further detail which specific taxation laws fall under this exception. The Regulations impose obligations on the parties involved to ensure that the correct citations of relevant taxation laws are used and that any updates to these laws are reflected in the Regulations. Additionally, the inclusion of new Acts like the (NSW) Debits Tax Act 1990 and the (NI) Land Administration Fees Act 1996, as requested by the New South Wales and Norfolk Island Governments respectively, extends the scope of the Act to include new taxation obligations that may be pursued against foreign States in Australian courts (Regulation 1).
The Foreign States Immunities Regulations (Amendment) 1996 No. 222 does not introduce new offences or penalties but ensures compliance with the existing legal framework by updating and correcting the citations of relevant taxation laws. The primary consequence of non-compliance would be the potential inability to institute proceedings against a foreign State for tax-related obligations as specified in the Regulations. This could result in a loss of the ability to recover taxes owed by foreign States under Australian law, although it does not affect the substantive liability of a foreign State to pay taxes. The Regulations aim to maintain the integrity and effectiveness of the legal provisions that allow for such proceedings (Regulation 1).
In summary, the Foreign States Immunities Regulations (Amendment) 1996 No. 222 updates the citations of existing taxation laws and adds new Acts to the Schedule to ensure that the Regulations accurately reflect the current legal environment. This amendment ensures that the provisions of the Foreign States Immunities Act 1985 can be effectively implemented, allowing for proceedings to be instituted against foreign States for tax-related obligations in Australian courts. The changes do not introduce new penalties but are crucial for maintaining the legal framework that governs immunity and jurisdiction in tax matters involving foreign States.