International Organizations (Privileges and Immunities of Certain Missions)
Regulations 1992 No. 272
EXPLANATORY STATEMENT
STATUTORY RULES 1992 No. 272
Issued by the authority of the Minister of State for Foreign Affairs and Trade
International Organizations (Privileges and Immunities) Act 1963
International Organizations (Privileges and Immunities of Certain Missions) Regulations
Section 13 of the International Organizations (Privileges and Immunities) Act 1963 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
Subsection 7(1) of the Act provides that where
(a) an international conference is, or is to be, held in Australia or in a Territory of the Commonwealth; or
(b) a mission is, or is to be, sent to Australia or to a Territory of the Commonwealth by a country other than Australia, an international organization to which this Act applies or an overseas organization to which this Act applies
and it appears to the Governor-General that the provisions of the Act other than section 7 do not, or may not, apply in relation to that conference or mission, but that it is desirable that diplomatic privileges and immunities should be applicable in relation to that conference or mission, the regulations may declare the conference or mission, as the case may be, to be a conference or mission to which section 7 applies.
The purpose of these Regulations is to declare the Taipei Economic and Cultural Office Incorporated (TECO) to be a mission - sent by "a country other than Australia" - for the purposes of section 7 of the Act. Taiwan is already considered a country for the purposes of the Wildlife Protection (Regulation of Exports and Imports) Act 1982, the Income Tax Assessment Act 1936, the Customs Tariff Act 1987 and the Sales Tax (Exemptions and Classifications) Act 1982. In an opinion last year on the Wildlife Protection (Regulation of Exports and Imports) Act 1982, the Attorney-General's Department concluded:
"There seems to be no reason why an entity such as Taiwan, which is de facto a separate political, economic and cultural entity, should not be regarded as a country that is not an independant sovereign State".
The Attorney-General's Department based its opinion on the distinction between countries and sovereign States made in paragraph 22(1)f of the Acts Interpretation Act 1901 which defines a "foreign country" as "any country (whether or not an independant sovereign state) outside Australia and the external Territories".
while staff attached to the TECO may be granted various privileges and immunities, the TECO itself would not receive privileges and immunities, which means that TECO as an entity will continue to be fully subject to the jurisdiction of the Australian courts.
Details of the proposed Regulations are as follows:
Regulation 1 is a citation clause.
Regulation 2 is an interpretation clause.
Regulation 3 declares TECO to be a mission for the purposes of section 7 of the Act.
Overview
The International Organizations (Privileges and Immunities of Certain Missions) Regulations 1992 were enacted under the authority of the Minister of State for Foreign Affairs and Trade, pursuant to section 13 of the International Organizations (Privileges and Immunities) Act 1963. These Regulations were introduced to address the need to extend diplomatic privileges and immunities to certain missions in Australia, specifically the Taipei Economic and Cultural Office Incorporated (TECO), which operates in a capacity akin to that of a diplomatic mission despite not being formally recognised as such. The underlying policy objective of these Regulations is to ensure that entities like TECO, which function similarly to diplomatic missions, are granted the necessary diplomatic immunities and privileges, thereby facilitating smoother international relations and operations within Australia, while also maintaining the jurisdictional integrity of Australian courts over the TECO as an entity.
Scope and Application
The International Organizations (Privileges and Immunities of Certain Missions) Regulations 1992 applies to the Taipei Economic and Cultural Office Incorporated (TECO) by declaring it a mission for the purposes of section 7 of the International Organizations (Privileges and Immunities) Act 1963. The Act and subsequent regulations provide that diplomatic privileges and immunities apply to a mission sent to Australia by a country other than Australia, an international organization, or an overseas organization, where it is deemed desirable that such privileges and immunities apply to the mission. The Regulations specifically address the applicability of these privileges and immunities to TECO, which is recognised as a country for various other Australian legislative purposes. However, while the staff attached to TECO may receive certain privileges and immunities, TECO itself, as an entity, will remain fully subject to Australian jurisdiction and will not receive such privileges and immunities. The Regulations are designed to ensure that the necessary diplomatic privileges and immunities are applied to TECO in line with the broader intent of the Act, while maintaining the jurisdictional integrity of Australian courts over TECO as an entity.
Key Provisions
The International Organizations (Privileges and Immunities of Certain Missions) Regulations 1992 (the Regulations) under the International Organizations (Privileges and Immunities) Act 1963 (the Act) aim to extend diplomatic privileges and immunities to certain missions in specific circumstances. Section 7(1) of the Act allows the Governor-General to declare a mission as one to which section 7 applies, when it is deemed desirable that diplomatic privileges and immunities should be applicable. Regulation 3 of the Regulations declares the Taipei Economic and Cultural Office Incorporated (TECO) to be such a mission. This means that while TECO itself does not receive diplomatic privileges and immunities, its staff may be granted certain protections and exemptions.
The Regulations impose certain obligations on the entities they govern, primarily ensuring that the staff of TECO are granted the necessary privileges and immunities for their work. This includes ensuring that the staff are treated as if they are part of a diplomatic mission, in terms of legal protections and exemptions from certain legal processes. However, it is important to note that TECO as an entity remains subject to Australian law and jurisdiction. This means that while its staff may be afforded certain protections, the entity itself cannot claim diplomatic immunity.
There are no explicit offences or penalties outlined in the Regulations for breach. However, any failure to adhere to the provisions regarding the privileges and immunities of TECO staff could result in legal challenges or disputes. Given the nature of diplomatic relations and the protections afforded under international law, any breach could potentially lead to diplomatic incidents. The maximum penalties or consequences would depend on the specific nature of the breach and would likely be determined through the courts or diplomatic channels.