EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Foreign Affairs
International Organisations (Privileges and Immunities) Act 1963
International Organisations (Privileges and Immunities – Nauru Trust Fund No. 2) Regulations 2025
The International Organisations (Privileges and Immunities) Act 1963 (the Act) provides a framework for the granting of privileges and immunities to certain international organisations, and to persons connected to those organisations, in Australia.
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.
Subsection 5(1) of the Act relevantly provides that regulations may declare an organisation of which Australia and a country or countries other than Australia are members, or that is constituted by a person or persons representing Australia and a country or countries other than Australia, to be an international organisation to which the Act applies.
The International Organisations (Privileges and Immunities – Nauru Trust Fund No. 2) Regulations 2025 (the Regulations) declare the Intergenerational Trust Fund No. 2 for the People of the Republic of Nauru (the Fund) as an international organisation to which the Act applies and confer exemptions from currency and exchange restrictions and exemptions from income tax on the Fund.
The Fund was established in accordance with the Memorandum of Understanding Regarding Intergenerational Trust Fund No. 2 for the People of Nauru (Fund MoU) between the Governments of Australia and the Republic of Nauru. The Fund MoU is a less-than-treaty status instrument that does not give rise to binding international obligations. Under the Fund MoU, the Government of the Republic of Nauru will establish the Fund in consultation with Australia. The Fund will be governed by a Committee comprising one member representing Australia and Nauru respectively.
The purpose of the Fund is to provide Nauru with an ongoing source of revenue to fund its participation in third country reception arrangements it has entered into with Australia. Under the terms of the Fund MoU, the Fund is to be provided with juridical personality in both Australia and Nauru, as well as exemptions from currency and exchange restrictions and income taxation exemptions for the Fund, its property and assets. The Regulations give effect to this commitment and confer the agreed status and privileges on the Fund in Australia. This status and related privileges enable to Fund to achieve its purpose.
In accordance with section 17 of the Legislation Act 2003, all relevant Australian Government departments were consulted in the preparation of the Regulations. The department did not undertake public consultation as the Regulations are technical in nature and provide limited taxation and financial privileges to a body corporate. These privileges have a minor regulatory impact and ensure that Australia gives effect to its commitments under the Fund MoU.
The Regulations commence on the day after registration and are a legislative instrument for the purposes of the Legislation Act 2003.
Details of the Regulations are set out in the Attachment A.
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 with Human Rights is set out below at Attachment B.
ATTACHMENT A
Details of the International Organisations (Privileges and Immunities – Nauru Trust Fund No. 2) Regulations 2025
Section 1 – Name
This section provides that the title of the instrument is the International Organisations (Privileges and Immunities – Nauru Trust Fund No. 2) Regulations 2025 (the Regulations).
Section 2 – Commencement
This section provides for the commencement of the Regulations, as set out in the table in subsection 2(1).
Column 2 of the Table in subsection 2(1) provides that the whole of the Regulations commence on the day after registration.
Subsection 2(2) provides that any information in column 3 of the table is not part of the Regulations. Information may be inserted in this column, or information in it may be edited, in any published version of the Regulations.
Section 3 – Authority
This section provides that the Regulations are made under the International Organisations (Privileges and Immunities) Act 1963 (the Act).
Section 4 – Definitions
This section defines the terms ‘Act’ and Fund’ for the purposes of the Regulations.
Namely, ‘Act’ means the International Organisations (Privileges and Immunities) Act 1963. ‘Fund’ means the Intergenerational Trust Fund No. 2 for the People of the Republic of Nauru.
The Intergenerational Trust Fund No. 2 for the People of the Republic of Nauru (the Fund) was established under the Memorandum of Understanding Regarding Intergenerational Trust Fund No. 2 for the People of Nauru (Fund MoU) between the Governments of Australia and the Republic of Nauru.
Section 5 – Act applies to Fund
This section provides that the Fund is declared to be an international organisation to which the Act applies. This declaration is made pursuant to subsection 5(1) of the Act, which relevantly provides that regulations may declare an organisation of which Australia and a country or countries other than Australia are members, or that is constituted by a person or persons representing Australia and a country or countries other than Australia, to be an international organisation to which the Act applies.
Section 6 – Legal personality and capacities of Fund
Subparagraph 6(1)(a)(i) of the Act relevantly provides that regulations may confer upon an international organisation to which the Act applies juridical personality and such legal capacities as are necessary for the exercise of the powers and performance of the functions of the organisation.
Section 6 of the Regulations, for the purposes of subparagraph 6(1)(a)(i) of the Act, provides the Fund with legal personality and capacities necessary for the Fund to exercise its powers and perform its functions (as set out under the Fund MoU). In particular, section 6 confers the Fund with body corporate status under Australian law, as well as the following legal capacities in its corporate name: to enter into contracts, acquire and dispose of property, institute legal proceedings (which includes being a party to legal proceedings) and to take any other action to protect the Fund’s assets.
This section gives effect to Australia’s commitments under the Fund MoU.
Section 7 – Privileges and immunities of Fund
Subparagraph 6(1)(a)(ii) of the Act relevantly provides that regulations may confer upon an international organisation to which the Act applies all or any of the privileges in the First Schedule of the Act. These privileges may be conferred without restriction or to the extent or subject to the conditions prescribed in the regulations.
Section 7 of the Regulations, for the purposes of subparagraph 6(1)(a)(ii) of the Act, provides the Fund with:
- an exemption from currency and exchange restrictions, and
- an exemption of the Fund, its property and its assets from income tax.
Item 5 of the First Schedule of the Act permits an exemption from currency and exchange restrictions to be conferred on an international organisation to which the Act applies. Section 7 confers this privilege on the Fund without any limitations.
Item 7 of the First Schedule of the Act permits an exemption of the organisation from the liability to pay or collect taxes and other duties on the importation and exportation of goods and of the income, property, assets and transactions of the organisation from such taxes. Section 7 confers this privilege on the Fund, but is limited to an exemption of the Fund, its property and its assets from income tax only.
This section gives effect to Australia’s commitments under the Fund MoU.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
International Organisations (Privileges and Immunities – Nauru Trust Fund No. 2) Regulations 2025
This Disallowable 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.
Overview
The International Organisations (Privileges and Immunities) Act 1963 (the Act) provides a framework for the granting of privileges and immunities to certain international organisations, and to persons connected to those organisations, in Australia.
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.
Subsection 5(1) of the Act relevantly provides that regulations may declare an organisation of which Australia and a country or countries other than Australia are members, or that is constituted by a person or persons representing Australia and a country or countries other than Australia, to be an international organisation to which the Act applies.
The International Organisations (Privileges and Immunities – Nauru Trust Fund No. 2) Regulations 2025 (the Regulations) declare the Intergenerational Trust Fund No. 2 for the People of the Republic of Nauru (the Fund) as an international organisation to which the Act applies and confer exemptions from currency and exchange restrictions and exemptions from income tax on the Fund.
The Fund was established in accordance with the Memorandum of Understanding Regarding Intergenerational Trust Fund No. 2 for the People of Nauru (Fund MoU) between the Governments of Australia and the Republic of Nauru. The Fund MoU is a less-than-treaty status instrument that does not give rise to binding international obligations. Under the Fund MoU, the Government of the Republic of Nauru will establish the Fund in consultation with Australia. The Fund will be governed by a Committee comprising one member representing Australia and Nauru respectively.
The purpose of the Fund is to provide Nauru with an ongoing source of revenue to fund its participation in third country reception arrangements it has entered into with Australia. Under the terms of the Fund MoU, the Fund is to be provided with juridical personality in both Australia and Nauru, as well as exemptions from currency and exchange restrictions and income taxation exemptions for the Fund, its property and assets. The Regulations give effect to this commitment and confer the agreed status and privileges on the Fund in Australia. This status and related privileges enable to Fund to achieve its purpose.
Human rights implications
The Regulations do not engage any of the applicable rights or freedoms. The Regulations are technical in nature and provide the Fund with body corporate status as well as relevant tax and financial related privileges. The Regulations do not confer any immunities on the Fund. The Regulations therefore do not have any human rights implications.
Conclusion
The Regulations are compatible with human rights as they do not raise any human rights issues.