Explanatory Statement
Issued by the Authority of the Minister for Foreign Affairs
International Organisations (Privileges and Immunities) Act 1963
International Organisations (Privileges and Immunities) (Declaration of Organisation for Joint Armament Co-operation) Regulations 2024
The International Organisations (Privileges and Immunities) Act 1963 (the Act) makes provisions relating to the privileges and immunities of certain international organisations and of persons connected therewith.
Section 13 of the Act provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Paragraph 5(1)(c) of the Act provides that regulations may declare an organisation of which Australia is not a member to be an international organisation to which the Act applies.
Subsection 6 of the Act provides that the regulations may confer upon an international organisation juridical personality and may confer privileges and on specified categories of persons.
The International Organisations (Privileges and Immunities) (Declaration of Organisation for Joint Armament Co-operation) Regulations 2024 (the proposed Regulations) would be made pursuant to subsection 6 of the Act for the purpose of conferring privileges and immunities on the Organisation for Joint Armament Co-operation (OCCAR) and certain participants attending international conferences convened by OCCAR.
OCCAR is a European inter-governmental organisation that manages cooperative arms procurement and support. Its Member States are Belgium, France, Germany, Italy, Spain, and the United Kingdom. Australia is a non-Member State participating in selected OCCAR programmes.
Under the Framework Agreement between OCCAR and the Government of Australia for the participation of Australia in OCCAR-managed Programmes [2022] ATS 3, Australia is obliged to extend privileges and immunities to OCCAR and its staff, as well as to certain participants in OCCAR-related meetings held in Australia. The key privileges and immunities include personal inviolability; immunity from Australian jurisdiction; inviolability of papers, correspondence and property; and tax exemptions.
Extending these privileges and immunities will allow Australia to receive the full range of programme benefits and to host OCCAR-related meetings. Benefits of formal participation in OCCAR-managed programmes include cost-efficiencies, programme risk reduction, prioritised scheduling, promotion of global competition among suppliers; inclusion in European supply chains and opportunities for Australian defence industries under global balance workshare arrangements.
Details of the proposed Regulations are set out in the Attachment. The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.
The International Organisations (Privileges and Immunities) (Declaration of Organisation for Joint Armament Co-operation Related Meetings) Regulations 2022 were previously made as an interim measure to declare OCCAR to be an ‘overseas organisation’ and confer a limited range of privileges and immunities to participants attending OCCAR-related meetings held in Australia under sections 5A and 7(1) of the Act. The proposed Regulations are intended to replace and would, therefore, also repeal the previous regulations.
Relevant Commonwealth Government agencies – Department of Foreign Affairs and Trade, Department of Defence, Attorney-General’s Department, Australian Taxation Office, and Treasury – were consulted and were supportive of the proposed Regulations. As the proposed Regulations are routine with minor impact on the public, no public consultation was undertaken.
The Regulations are exempt from sunsetting by virtue of section 11 table item 1 of the Legislation Exemption and Other Matters Regulation 2015, which exempts “An instrument the sole purpose of which, or primary purpose of which, is to give effect to an international obligation of Australia”. The giving of effect to international obligations has long been recognised as justification for exemption from sunsetting. This instrument implements an agreement between the Australian Government and OCCAR.
The Office of Best Practice Regulation advised (reference number OIA23-05440) that a Regulatory Impact Statement is not required as the Regulations are unlikely to have a more than minor regulatory impact.
The Regulations have been assessed to be compatible with human rights for the purposes of the Human Rights (Parliamentary Scrutiny) Act 2011. A Statement of Compatibility is set out below.
The Regulations commenced on the day after registration and is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
ATTACHMENT
Details of the proposed International Organisations (Privileges and Immunities) (Declaration of Organisation for Joint Armament Co-operation) Regulations 2024
Section 1 - Name of Regulations
This section would provide that the title of the Regulations is the International Organisations (Privileges and Immunities) (Declaration of Organisation for Joint Armament Co-operation) Regulations 2024 (the proposed Regulations).
Section 2 - Commencement
This section would provide for the Regulations to commence the day after the instrument is registered.
Section 3 - Authority
This section would provide that the instrument is made under the International Organisations (Privileges and Immunities) Act 1963.
Section 4 – Schedules
This section would provide that each instrument specified in a Schedule to this instrument is amended or repealed as set out in applicable items in the Schedule, and any other item in a Schedule to this instrument has effect according to its terms.
Section 5 - Definitions
This section would provide definitions for certain terms used in the proposed Regulations.
Section 6 – Act applies to OCCAR
This section would provide that the Organisation for Joint Armament Co-operation (OCCAR) is an international organisation to which the Act applies, for the purposes of subsection 5(1) of the Act.
Section 7 – OCCAR to have juridical personality and legal capacities
Section 7 would confer legal personality and capacities on OCCAR. Specifically, it provides that OCCAR is a body corporate with perpetual succession, and is able to enter into contracts; acquire, hold and dispose of assets and property; and institute and be party to legal proceedings.
Section 8 – Privileges and immunities of OCCAR
Section 8 would provide that OCCAR will have the privileges and immunities specified in the First Schedule to the Act, subject to certain limitations.
The privileges and immunities include:
- immunity of OCCAR and its property and assets from suit and from legal processes
- inviolability of OCCAR’s property, assets and premises
- inviolability of OCCAR’s archives
- exemption from duties on the importation or exportation of goods by OCCAR for its official use, and
- exemption from the liability to pay or collect taxes on income, property, assets and transactions of OCCAR.
Section 8 would set out exceptions to certain privileges and immunities set out in the First Schedule of the Act for civil or criminal proceedings relating to:
- an accident or offence involving a motor vehicle owned or operated on behalf of OCCAR
- the enforcement of an arbitration award made under a contract made by OCCAR, or
- the attachment via a court order or any amount payable as salary or emoluments by OCCAR to any staff member.
Section 8 would also provide that the inviolability of OCCAR property, assets and premises in Australia (set out in item 2 of the First Schedule of the Act) is subject to the requirements of any judicial or administrative proceeding relating to the prevention or investigation of an accident involving a motor vehicle owned by, or operated on behalf of, OCCAR.
Section 8 would provide that the exemptions from duties and taxes set out in items 6 and 7 of the First Schedule of the Act do not extend to goods purchased or imported, or services provided, for the personal benefit of a staff member.
Section 8 would also provide that OCCAR’s privileges and immunities in relation to indirect tax are limited in accordance with sections 11B and 11C of the Act.
Section 9 – Privileges and immunities of the Director
Section 9 would provide that the privileges and immunities specified in Part I of the Second Schedule to the Act are conferred on the office of the Director of OCCAR. Part I of the Second Schedule of the Act accords to a High Officer of an international organisation (in this case, the Director of OCCAR) the same privileges and immunities as are accorded to a diplomatic agent, including privileges and immunities in respect of a spouse and children.
Section 9 would also provide that the immunities specified in Part II of the Second Schedule to the Act are conferred on a person who has ceased to be Director. Part II of the Second Schedule of the Act provides an immunity from suit and other legal process in respect of acts and things done in the person’s capacity as Director.
Section 9 would provide that the privileges and immunities conferred on a Director do not apply to a person who, at the time of holding office as the Director, is an Australian citizens or permanent resident.
Section 10 – Privileges and immunities of representatives
Section 10 would provide that privileges and immunities specified in Part I of the Third Schedule to the Act are conferred upon a person who is either accredited to OCCAR or attending an international conference convened by OCCAR in Australia as a representative of a country other than Australia, or a representative of an international organisation or overseas organisation to which the Act applies.
The privileges and immunities include:
- immunity from personal arrest or detention
- immunity from suit and other legal process in respect of acts and things done in the representative’s official capacity, and
- exemption from immigration restrictions.
Section 10 would also provide that the immunities specified in Part II of the Third Schedule to the Act are conferred on a person who is a representative of a country other than Australia and is either accredited to OCCAR or attending an international conference convened by OCCAR in Australia. Part II of the Third Schedule of the Act provides an immunity from suit and other legal process in respect of acts and things done in such a person’s official capacity.
Section 10 would set out an exception to the immunity from civil or criminal process set out in the Third Schedule to the Act in relation to an accident or offence involving a motor vehicle owned or driven by the person.
Section 10 would also provide that the privileges and immunities conferred upon a person to whom section 10 applies do not apply to a person who, at the relevant time, is an Australian citizens or permanent resident.
Section 11 – Privileges and immunities of staff members other than the Director
Section 11 would provide that the privileges and immunities specified in Part I of the Fourth Schedule to the Act are conferred on a person who is a staff member of OCCAR (as defined in section 5 of the proposed Regulations). These privileges and immunities include:
- immunity from suit and other legal process in respect of acts and things done in the person’s official capacity
- an exemption from taxation on salaries and emoluments received from OCCAR, and
- an exemption from immigration restrictions (this exemption applies only to the OCCAR staff member).
Section 11 would also provide that the immunities specified in Part II of the Fourth Schedule to the Act are conferred on a person who has ceased to be a staff member of OCCAR. Part II of the Fourth Schedule to the Act provides an immunity from suit and other legal process in respect of acts and things done in the staff member’s official capacity.
Section 11 would set out an exception to the immunity from civil or criminal process set out in the Fourth Schedule to the Act in relation to an accident or offence involving a motor vehicle owned or driven by the person.
Section 11 would also provide that the privileges and immunities conferred upon a staff member under items 4 and 5 of Part 1 of the Fourth Schedule of the Act do not apply to a person who, at the time of holding office as a staff member, is an Australian citizens or permanent resident. Item 4 is an exemption from the obligation to perform national service. Item 5 is a limited exemption from currency or exchange restrictions.
Section 12 – Privileges and immunities of experts
Section 12 would provide that certain privileges and immunities specified in Part I of the Fifth Schedule to the Act are conferred upon person who is an expert as defined in section 5 of the Regulations. The privileges and immunities include:
- immunity from suit and other legal process in respect of acts and things done in participating in work on behalf of OCCAR, and
- inviolability of papers and documents.
Section 12 would also provide that the immunities specified in Part II of the Fifth Schedule to the Act are conferred upon a person who has ceased to be an expert. Part II of the Fifth Schedule to the Act provides an immunity from suit and other legal process in respect of acts and things done by the expert in participating in work on behalf of OCCAR.
Section 12 would set out an exception to the immunity from civil or criminal process set out in the Fifth Schedule to the Act in relation to an accident or offence involving a motor vehicle owned or driven by the person.
Section 12 would also provide that the privileges and immunities conferred upon an expert by items 5 and 6 of Part 1 of the Fifth Schedule of the Act do not apply to a person who, at the time of performing tasks on behalf of OCCAR, is an Australian citizens or permanent resident. Item 5 is a limited exemption from currency or exchange restrictions. Item 6 is privileges and immunities in respect of personal baggage of the kind accorded to a diplomatic agent.
Section 13 – Indirect tax concession scheme – acquisitions
Section 13 would provide for the application of the indirect tax concession scheme for the acquisition of goods and services intended for the official use by, or on behalf, of OCCAR. Section 13 would set out the types of acquisitions that are covered by the instrument.
Section 14 – Indirect tax concession scheme – conditions
Section 14 would provide the conditions that must be met in order for OCCAR to receive an indirect tax concession for motor vehicles and other goods and services intended for the official use of OCCAR.
Tax concessions are not available if OCCAR disposes of motor vehicles within three years and other goods within two years after they were acquired (except where OCCAR disposes of the motor vehicle/goods to a person entitled to an indirect tax concession). Tax concessions are not available on services assigned to a person who is not entitled to an indirect tax concession. The sale of goods as part of a sale and lease-back arrangement is not a disposal of the goods.
If OCCAR disposes of goods within the period specified (three years for motor vehicles and two years for other goods) to a person who is not entitled to a tax concession, there will be an amount to be repaid to the Commonwealth. This amount is specified in section 14 of the proposed Regulations.
Section 15 - Indirect tax concession scheme – claims for payment
Section 15 would outline the procedure for claiming a payment under section 14 of the proposed Regulations (dealing with indirect tax concessions). Section 15 would provide that a claim for payment must be signed by, or on behalf of, the Director of OCCAR and must be sent with the tax invoice for the acquisition. Section 15 would also specify where claims must be sent for processing, and timeframes for making a claim.
Section 16 - Indirect tax concession scheme – manner of payment
Section 16 would provide that a payment to OCCAR under the indirect tax concession scheme is to be paid to a single recipient, or an account nominated by, or on behalf of the Director of OCCAR.
Section 17 - Waiver of privileges and immunities
Section 17 would provide that the competent authority may waive a privilege and immunity conferred by the Act or the Regulations if the competent authority considers that retaining the privileges or immunity would impede the course of justice and waiting it would not prejudice the interest of OCCAR.
For a privilege or immunity conferred upon OCCAR or the Director, the competent authority is the Board of Supervisors (as defined in section 5 of the proposed Regulations). For a privilege or immunity conferred upon a representative of a country other than Australia, the competent authority is that country. For a privilege or immunity conferred upon an OCCAR staff member or expert (as defined in section 5 of the proposed Regulations), the competent authority is the Director of OCCAR.
Section 18 - Delegation by Minister
Section 18 would provide that the Minister may, by writing, delegate their power under paragraph 14(1)(b) or 5(b) of the proposed Regulations to the Secretary or another senior official of the Department.
Schedule 1 – Repeals
Section 1 of the proposed Regulations would repeal the International Organisations (Privileges and Immunities) (Declaration of Organisation for Joint Armament Co‑operation Related Meetings) Regulations 2022.
Statement of Compatibility with Human Rights
Prepared in accordance with subsection 9(1) and 9(2) of the Human Rights
(Parliamentary Scrutiny) Act 2011
International Organisations (Privileges and Immunities) (Declaration of Organisation for Joint Armament Co-operation) Regulations 2024
Overview
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The International Organisations (Privileges and Immunities) (Declaration of Organisation for Joint Armament Co-operation) Regulations 2024 (the Regulations) is an instrument made under the International Organisations (Privileges and Immunities) Act 1963 (Cth) (the Act).
The Regulations declare the Organisation for Joint Armament Co-operation (OCCAR) to be an international organisation to which the Act applies under section 5. The Regulations confer privileges and immunities to specified categories of OCCAR personnel and representatives of countries other than Australia in accordance with section 6 of the Act.
The privileges and immunities conferred by the Regulations are necessary to facilitate Australia’s access to the full benefits of formal participation in OCCAR-managed programmes. The privileges and immunities enable the effective conduct of OCCAR meetings in Australia and ensure the independence of OCCAR representatives and other meeting participants. The privileges and immunities are conferred in the interest of OCCAR and not for the personal benefit of individuals.
The privileges and immunities conferred upon the OCCAR officials and meeting participants are subject to a number of limitations. The immunity does not extend to Australian citizens and permanent residents. It also does not extend to motor vehicle offences. OCCAR and sending countries respectively may waive any privileges or immunities to which such persons are entitled.
Human rights implications
This legislative instrument engages the following rights:
- The right to an effective remedy in Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR).
This Article provides that any person “whose rights or freedoms … are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 2(3)(c) requires State Parties to the ICCPR to ensure that the competent authorities enforce such remedies when granted.
The Regulations confer privileges and immunities specified categories of OCCAR personnel and representatives of countries other than Australia. Such immunity from Australia’s jurisdiction could limit the right to an effective remedy for breaches of human rights.
The Regulations are a permissible limitation on the right to an effective remedy because:
- The instances in which the Regulations would have the effect of limiting the right to an effective remedy are anticipated to be few given their application to a limited group of individuals.
- Only the privileges and immunities that are necessary to ensure effective cooperation between OCCAR and Australia are conferred. They are consistent with those provided to ‘international organisations’ and ‘international conferences’ declared under the Act. Under the Act, privileges and immunities are conferred in interest of the organisation and not for the personal benefit of individuals. The privileges and immunities may also be waived by the relevant competent authority.
- These provisions are proportionate to the legislative objective. The need to grant privileges and immunities to the personnel of international and overseas organisations for the performance of the official functions of the organisations in Australia reflects established international practice. Privileges and immunities are conferred to ensure that international representatives are able to: perform their work independently; report freely; and to fulfil their official duties. The privileges and immunities conferred are not only essential in allowing an organisation’s representatives to perform their functions, but also as part of a wider legal framework that protects Australian representatives overseas to perform their duties without fear of local pressures, harassment, intimidation, attack and arbitrary detention.
Conclusion
The Legislative Instrument will facilitate Australia’s access to the full benefits of a non-Member Participating State in OCCAR programmes. This presents an opportunity to deepen Australia’s engagement with OCCAR and encourage export opportunities for Australian defence industry. The Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to what is necessary in order to allow OCCAR personnel and other participants in OCCAR-related meetings to perform their functions in Australia.