These Regulations are the Hong Kong Economic and Trade Office (Privileges and Immunities) Regulations 1996.

(1)

In these Regulations:

Act means the Overseas Missions (Privileges and Immunities) Act 1995.
authorised person means:

(a)

the Minister responsible for Customs; or

(b)

a person authorised in writing by the Minister responsible for Customs for the purposes of these Regulations.

employee of the Mission means a person employed in the administrative or technical service of the Mission.
Head of Mission means the person in charge of the functions of the Mission.
member of the family or family member, in relation to a person (the first person), means a person who is:

(a)

a part of the first person's household; and

(b)

any of the following members of the first person's family:

(i)

the first person's spouse;

(ii)

an unmarried child who is under the age of 21 years;

(iii)

an unmarried child who is under the age of 25 years and is undertaking full-time studies at an Australian educational institution;

(iv)

an unmarried child who is incapable of self-support because of a physical or mental disability.

member of the Mission means:

(a)

an officer of the Mission; or

(b)

an employee of the Mission.

Mission means the Hong Kong Economic and Trade Office.
officer of the Mission means a person, including the Head of Mission, entrusted in that capacity with the exercise of the functions of the Mission.
taxable supply has the meaning given by section 195-1 of the GST Act.
tax invoice has the meaning given by section 29-70 of the GST Act.

(2)

Unless the contrary intention appears, a reference to a person in relation to whom privileges and immunities are conferred by these Regulations is taken to be a reference to a person who:

(a)

has been sent by the government of Hong Kong and is not engaged in employment other than by the Mission, or is a member of the family of such a person; and

(b)

is not a permanent resident of Australia; and

(c)

is not an Australian citizen.

The Mission is declared to be a designated overseas mission.

(1)

Subject to this regulation, the Mission has the privileges and immunities set out in items 1, 2, 4, 5, 6, 7, 8, 9, 10 and 12 in Schedule 1 to the Act.

(2)

A privilege or immunity set out in Column 2 of an item in Schedule 1 to these Regulations is subject to the limitation or condition set out in Column 3 of that item.

(3)

The Mission is not exempt under subregulation (1) from any dues and taxes that constitute payment for specific services in respect of:

(a)

premises owned, leased or occupied by the Mission; or

(b)

the residence of the Head of Mission.

(1)

Subject to this regulation, a member of the Mission has the privileges and immunities set out in items 1, 2, 7 and 8 in Schedule 2 to the Act.

(2)

A privilege or immunity set out in Column 2 of an item in Schedule 2 to these Regulations is subject to the limitation or condition set out in Column 3 of that item.

(3)

A member of the Mission is not entitled to immunity from criminal jurisdiction.

(1)

Subject to this regulation and regulation 8, the Mission and officers and employees of the Mission are exempt from duties of customs and excise on goods that are purchased for the official use of the Mission or for personal use by them or by members of their families.

(2)

In the case of employees, the exemption applies only to goods imported or purchased by them within 6 months after their first arrival in Australia.

(3)

The exemption does not apply unless:

(a)

in the case of goods for official use — the Head of Mission; or

(b)

in the case of goods for personal use — the person who had the benefit of the exemption;

enters an agreement with an authorised person:

(c)

to notify an authorised person if the exemption is lost under subregulation 8 (2); and

(d)

to pay an amount that an authorised person may determine and notify under that subregulation.

(1)

Subject to this regulation and regulation 8, the Mission and officers and employees of the Mission are exempt from the obligation to pay sales tax on goods that are exempt from duties of customs or excise under regulation 6.

(2)

The exemption does not apply unless:

(a)

in the case of goods for official use — the Head of Mission; or

(b)

in the case of goods for personal use — the person who had the benefit of the exemption;

enters an agreement with an authorised person:

(c)

to notify an authorised person if the exemption is lost under subregulation 8 (2); and

(d)

to pay an amount that the authorised person may determine and notify under that subregulation.

(1)

Regulations 6 and 7 do not apply in relation to goods if an authorised person, by instrument in writing, declares that, in his or her opinion, the reasonable requirements of the Mission or the person purchasing the goods have adequately been met by goods for which the Mission or the person has already had the benefit of an exemption claimed under those regulations.

(2)

If goods for which an exemption has been claimed under regulation 6 or 7 are sold or disposed of within the period specified in subregulation (3):

(a)

in the case of goods for official use — the Head of Mission; or

(b)

in the case of goods for personal use — the person who had the benefit of the exemption;

must pay the Commonwealth an amount for duties or tax, as the case may be, that would have been payable, apart from the period of exemption before the sale or disposal, as determined and notified by an authorised person.

(3)

The period referred to in subregulation (2) is:

(a)

in the case of a motor vehicle — 3 years from:

(i)

the date of entry of the motor vehicle into Australia (if imported); or

(ii)

the date of purchase of the motor vehicle (if produced in Australia); and

(b)

in any other case — 2 years from:

(i)

the date of entry of the goods into Australia (if imported); or

(ii)

the date of purchase of the goods (if produced in Australia).

(4)

If a person fails to comply with the requirements of subregulation (2) or an agreement under subregulation 6 (3) or 7 (2), an authorised person may, by instrument in writing, determine that the person cannot claim any further exemption under regulation 6 or regulation 7 unless the person enters a similar agreement, for any other goods, that may include a condition that the person give security, satisfactory to an authorised person, that he or she will comply with the agreement.

(1)

An entitlement to a privilege or immunity under these Regulations in respect of a matter that is not of an official nature commences on the date:

(a)

in the case of a member of the Mission — the member first arrived in Australia for service with the Mission; or

(b)

in the case of a member of the family of a member of the Mission:

(i)

the member of the Mission first arrived in Australia for service with the Mission; or

(ii)

the member of the family first arrived in Australia; or

(iii)

the person became a member of the family;

whichever occurs last.

(2)

An entitlement to a privilege or immunity under these Regulations in respect of a matter that is not of an official nature ceases on the date the member of the Mission:

(a)

ceases to perform his or her official functions; or

(b)

leaves Australia;whichever occurs first.

(1)

For paragraph 12A (1) (a) of the Act, the following acquisitions by a person mentioned in section 7 of the Act are covered by these Regulations:

(a)

an acquisition of any of the following, on a single tax invoice for a taxable supply of at least $200 (including indirect tax):

(i)

goods (by purchase or lease);

(ii)

mail services for the Mission;

(iii)

telecommunications services;

(iv)

electricity or gas services;

(v)

protection of premises services;

(vi)

removal of goods services;

(vii)

freight and cartage other than removal of goods;

(b)

an acquisition of goods that are freed from duties of excise by regulation 6;

(c)

an acquisition of warehoused goods (within the meaning of the Customs Act 1901), the importation of which is covered by an immunity from taxation (including customs duties) conferred by these Regulations;

(d)

an acquisition of any of the following, if the acquisition is subject to an arrangement between the Head of Mission and the Commonwealth for reimbursement of indirect tax:

(i)

construction or renovation services;

(ii)

real property;

(iii)

any other thing.

(2)

However, subject to subregulations (3) and (5), an acquisition is covered by these Regulations only if, at the time of the acquisition, it was intended for the official use of the Mission.

(3)

For paragraph 12A (1) (a) of the Act, the following acquisitions by an officer of the Mission (including the Head of the Mission) or a member of an officer's family are covered by these Regulations:

(a)

an acquisition of any of the following, on a single tax invoice for a taxable supply of at least $200 (including indirect tax):

(i)

goods (by purchase or lease);

(ii)

removal of goods services;

(b)

an acquisition of goods that are freed from duties of excise by regulation 6;

(c)

an acquisition of warehoused goods (within the meaning of the Customs Act 1901), the importation of which is covered by an immunity from taxation (including customs duties) conferred by these Regulations.

(4)

However:

(a)

an acquisition by an officer of the Mission or a member of an officer's family is covered by these Regulations (under subregulation (3)) only if, at the time of the acquisition, it was intended for the personal use of the person, or of a member of the family of the person; and

(b)

an acquisition of a motor vehicle for the personal use of an officer of the Mission is covered by these Regulations only if:

(i)

the vehicle was acquired in exceptional circumstances to replace a motor vehicle for which the officer received:

(A)

a concession under section 12A of the Act; or

(B)

an exemption from indirect tax under subsection 9 (2) of the Act; or

(ii)

within the previous 3 years, the officer has not received:

(A)

a concession under section 12A of the Act for the acquisition of another motor vehicle; or

(B)

an exemption from indirect tax under subsection 9 (2) of the Act on the importation of another motor vehicle; and

(c)

an acquisition of a motor vehicle for the personal use of a member of the family of an officer of the Mission is covered by these Regulations only if:

(i)

the vehicle is acquired in exceptional circumstances to replace a motor vehicle for which a family member (except the officer) received:

(A)

a concession under section 12A of the Act; or

(B)

an exemption under subsection 9 (2) of the Act; or

(ii)

the family member is eligible to hold a driver's licence that is valid in Australia and, within the previous 3 years, no family member (except the officer) has received:

(A)

a concession under section 12A of the Act for the acquisition of another motor vehicle; or

(B)

an exemption from indirect tax under subsection 9 (2) of the Act on the importation of another motor vehicle.

(5)

For paragraph 12A (1) (a) of the Act, the acquisition of a locally-manufactured motor vehicle by an employee of the Mission for the personal use of the employee is covered by these Regulations if:

(a)

the vehicle is acquired within the first 6 months of the employee's installation in Australia and the employee has not previously received:

(i)

a concession under section 12A of the Act for the acquisition of another motor vehicle; or

(ii)

an exemption from indirect tax under subsection 9 (2) of the Act on the importation of another motor vehicle; or

(b)

the vehicle is acquired in exceptional circumstances to replace a motor vehicle for which the employee has received:

(i)

a concession under section 12A of the Act; or

(ii)

an exemption from indirect tax under subsection 9 (2) of the Act.

(6)

In subparagraphs (4) (b) (i) and (c) (i), and paragraph (5) (b):

exceptional circumstances, in relation to the replacement of a motor vehicle, includes the original vehicle being stolen or damaged beyond repair.

Note   Section 12A of the Act establishes an indirect tax concession scheme that provides for reimbursement by the Commissioner of Taxation of indirect tax payable for acquisitions covered by these Regulations.

(1)

For paragraph 12A (3) (a) of the Act, the amount mentioned in subsection 12A (1) of the Act is payable only if the following conditions are satisfied:

(a)

the person who made the acquisition is subject to an agreement in writing between the Head of Mission and the Commonwealth to repay to the Commonwealth the amount worked out under subregulation (2) if:

(i)

for a payment in relation to an acquisition of a motor vehicle — the person disposes of the motor vehicle (except to another person entitled to an indirect tax concession under these Regulations or another law of the Commonwealth in relation to similar acquisitions) in Australia or an external Territory within 3 years after it was acquired; or

(ii)

for a payment in relation to an acquisition of goods other than a motor vehicle — the person disposes of the goods (except to another person entitled to an indirect tax concession under these Regulations or another law of the Commonwealth in relation to similar acquisitions) in Australia or an external Territory within 2 years after they were acquired; or

(iii)

for a payment in relation to an acquisition of services or any other acquisition (except for an acquisition covered by paragraph 9A (1) (d)) — the person assigns the services to another person (except to another person entitled to an indirect tax concession under these Regulations or another law of the Commonwealth in relation to similar acquisitions) in Australia or an external Territory;

(b)

if the person has breached a previous agreement under paragraph (a) — the person complies with any written requirements, including a requirement to give security, that the Minister considers necessary to ensure that the person complies with the agreement.

(2)

For subparagraphs (1) (a) (i) and (ii):

(a)

a sale of goods to a finance company as part of a sale and lease-back arrangement is not a disposal of the goods; and

(b)

a person (the first person) is taken to have disposed of goods to which 1 of those subparagraphs applies within the period mentioned in that subparagraph to a person who is not entitled to an indirect tax concession in relation to similar acquisitions if:

(i)

the first person disposes of the goods to a person (the second person) who is entitled to the concession; and

(ii)

the second person disposes of the goods to another person; and

(iii)

the series of disposals of the goods to other persons continues (if necessary) until the goods are eventually acquired, within the period mentioned in that paragraph, by a person who is not entitled to the concession.

(3)

For paragraph (1) (a), the amount to be repaid is:

(a)

for an acquisition to which subparagraph (1) (a) (i) or (ii) applies — the proportion of the amount paid under section 12A of the Act in relation to the acquisition that is equal to the proportion of the period mentioned in that subparagraph remaining after the person disposes of the goods; and

(b)

for an acquisition to which subparagraph (1) (a) (iii) applies — the amount paid under section 12A of the Act in relation to the acquisition.

(4)

However, for an acquisition to which subparagraph (1) (a) (i) or (ii) applies, a person is not required to repay an amount paid under section 12A of the Act in relation to a lease payment that relates to a period before the person disposes of the goods.

(5)

The amount mentioned in section 12A of the Act is not payable if:

(a)

an amount was payable for a similar acquisition; and

(b)

the Minister tells the person in writing that, in his or her opinion, the person's reasonable needs were met by that acquisition.

A claim for payment under regulation 9A:

(a)

must be signed by, or for, the Head of Mission; and

(b)

must be sent with the tax invoice for the acquisition; and

(c)

must be sent:

(i)

for an acquisition of a motor vehicle — to the Protocol Branch of the Department of Foreign Affairs and Trade; or

(ii)

in any other case — to the Australian Taxation Office; and

(d)

for an acquisition of a motor vehicle or an acquisition of real property by lease — may be sent at any time after the acquisition; and

(e)

for an acquisition of a kind mentioned in paragraph 9A (1) (d), except an acquisition of real property by lease — may only be sent:

(i)

in accordance with the arrangement mentioned in that paragraph; or

(ii)

if the arrangement does not specify a time when a claim may be sent:

(A)

with another claim; or

(B)

at least 3 months after another claim from the Mission is sent; and

(f)

for an acquisition that is not mentioned in paragraph (d) or (e) — may only be sent:

(i)

with another claim; or

(ii)

at least 3 months after another claim from the Mission.

Note   Paragraphs 9C (e) and (f) are intended to limit the number of claims from the Mission to one in each quarter, to minimise delays in the processing of claims.

For paragraph 12A (3) (b) of the Act, the amount is to be paid to a single recipient, or an account, nominated by, or for, the Head of Mission.

(1)

Subject to subregulation (2), nothing in these Regulations affects the application of any law of the Commonwealth, a State or a Territory relating to:

(a)

quarantine; or

(b)

the prohibition or restriction of imports into, or exports from, Australia or an External Territory of any animals, plants or goods; or

(c)

public order.

(2)

Subregulation (1) does not prejudice the immunity from suit or from other legal processes conferred by these Regulations.

The government of Hong Kong may waive a privilege or immunity conferred by these Regulations.

To the extent that these Regulations confer an exemption from an obligation to pay taxes to the Commonwealth, these Regulations are taken to have effect on 1 October 1995.

(1)

The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Minister, delegate to a person, the Minister's powers under paragraphs 9B (1) (b) and (5) (b) of these Regulations.

(2)

A power delegated under subregulation (1), when exercised by the delegate, is taken to have been exercised by the Minister.

(3)

A delegation of power under subregulation (1) does not prevent the exercise of the power by the Minister.