Joint Accreditation System of Australia and New Zealand (Privileges and Immunities) Regulations 1996 No. 35
EXPLANATORY STATEMENT
Statutory Rules 1996 No. 35
Issued by the Authority of the Minister for Foreign Affairs
International Organizations (Privileges and Immunities) Act 1963
Joint Accreditation System of Australia and New Zealand (Privileges and Immunities) Regulations
Section 13 of the International Organizations (Privileges and Immunities) Act 1963 ("the Act") provides that "the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act". Section 5 of the Act provides that the regulations may declare an organization to be an organization to which the Act applies. Section 6 provides that the regulations may, amongst other things, confer upon an international organization 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 organization.
The Joint Accreditation System of Australia and New Zealand (JAS-ANZ) was established pursuant to a treaty between Australia and New Zealand of 30 October 1991. The objective of the Agreement was to strengthen the trade relationship between the countries and to improve trade relationships of both with third countries by establishing a joint mechanism for accrediting bodies which provide conformity assessment services, obtaining recognition by national and international bodies for Australian and New Zealand producers, goods and services, establishing links with national and international standards authorities and obtaining mutual acceptance of conformity assessment with international bodies.
In the 1991 Agreement, the question of the precise legal status of the body was left open. Article 3(2) provided only that "the Council shall have such capacity under the law of both Australia and New Zealand as is necessary to the exercise of its powers and the performance of its functions under this Agreement". JAS-ANZ has been functioning on an interim basis under the auspices of the former Department of Industry Science and Technology (now the Department of Industry, Science and Tourism). In 1995 the independent Committee of Inquiry into Australia's Standards and Conformance Infrastructure (the Kean Committee) recommended that JAS-ANZ be given an independent legal personality to enable it operate autonomously . The governments of both Australia and New Zealand have agreed that in all the circumstances, particularly having regard to the bi-national nature of the body, the most appropriate means of taking that step would be for each government to designate the body as an international organization under its relevant legislation. An important consideration in giving international status was that JAS-ANZ would be negotiating and developing conformity standards with similar organisations, such as the EU standards authorities.
The regulations will have the effect of providing the body with juridical personality and legal capacity, entitling it to conduct its affairs under its own name. In particular, they will enable the body to sue and be sued, to contract and to acquire, hold and dispose of real and personal property in its corporate name. They will not, however, provide either the body or any of its officers with any privileges or immunities.
The proposed Regulations would commence on Gazettal.
Overview
The Joint Accreditation System of Australia and New Zealand (Privileges and Immunities) Regulations 1996, issued under the authority of the Minister for Foreign Affairs, were enacted to address the legal status of the Joint Accreditation System of Australia and New Zealand (JAS-ANZ). These regulations were introduced to provide the JAS-ANZ with juridical personality and legal capacity necessary for it to operate effectively and autonomously. This was in response to the recommendation of the independent Committee of Inquiry into Australia's Standards and Conformance Infrastructure, which emphasised the need for JAS-ANZ to have an independent legal status. The regulations were made pursuant to the International Organizations (Privileges and Immunities) Act 1963, allowing the body to conduct its affairs under its own name, including the ability to sue, be sued, contract, and manage property. The intent of these regulations was to facilitate JAS-ANZ's role in accrediting conformity assessment bodies and developing conformity standards with international organisations, thereby strengthening trade relationships between Australia, New Zealand, and third countries.
Scope and Application
The Joint Accreditation System of Australia and New Zealand (Privileges and Immunities) Regulations 1996 applies to the Joint Accreditation System of Australia and New Zealand (JAS-ANZ), a body established under a treaty between Australia and New Zealand to accredit conformity assessment bodies, thereby facilitating trade between the two countries and with third countries. The regulations grant JAS-ANZ juridical personality and legal capacity necessary for it to conduct its affairs, including the ability to sue and be sued, contract, and hold property. These regulations operate within the framework of the International Organizations (Privileges and Immunities) Act 1963, which allows the Governor-General to make regulations that are necessary or convenient to carry out the Act. The regulations do not, however, confer any privileges or immunities upon JAS-ANZ or its officers. The Act applies to the Commonwealth of Australia, and the regulations are issued under the authority of the Minister for Foreign Affairs, thereby extending the jurisdictional reach to the international sphere. The regulations commence upon gazette publication, and there are no specified exclusions, exemptions, or thresholds within the text.
Key Provisions
The Joint Accreditation System of Australia and New Zealand (Privileges and Immunities) Regulations 1996 (the Regulations) are established under Section 13 of the International Organizations (Privileges and Immunities) Act 1963, which allows the Governor-General to make regulations necessary or convenient to carry out the Act. Section 5 of the Act enables the regulations to declare an organization to which the Act applies, and Section 6 allows the regulations to confer upon an international organization juridical personality and necessary legal capacities for its functions. The Regulations aim to provide the Joint Accreditation System of Australia and New Zealand (JAS-ANZ) with a legal framework to operate effectively.
The obligations and requirements imposed by the Regulations on JAS-ANZ include granting it juridical personality, which means it can conduct its affairs under its own name and be treated as a legal entity. This includes the ability to sue and be sued, enter into contracts, and acquire, hold, and dispose of property in its corporate name. Importantly, the Regulations do not extend to granting JAS-ANZ or its officers any privileges or immunities, ensuring that it operates within the legal framework of both Australia and New Zealand.
In terms of potential consequences for breach, while the Regulations themselves do not outline specific offences, penalties, or consequences for non-compliance, breaches of the broader obligations under the International Organizations (Privileges and Immunities) Act 1963 could lead to legal actions. Such actions might involve the enforcement of contractual obligations, civil penalties, or other legal remedies depending on the nature and extent of the breach. The maximum penalties for breaches of the Act could vary, but typically would be aligned with the legal standards and precedents set by Australian law for similar violations.