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Regulations as made
This instrument gives legal effect to Australia’s obligations in providing privileges and immunities to the Square Kilometre Array Observatory and relevant categories of persons, pursuant to the Convention Establishing the Square Kilometre Array Observatory.
Administered by: Foreign Affairs and Trade
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s11 item 01
Registered 27 Jul 2020

Commonwealth Coat of Arms of Australia

 

International Organisations (Privileges and Immunities—Square Kilometre Array Observatory) Regulations 2020

I, General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.

Dated 23 July 2020

David Hurley

Governor‑General

By His Excellency’s Command

Marise Payne

Minister for Foreign Affairs

 

  

  

  


Contents

Part 1—Preliminary                                                                                                                                        1

1............ Name............................................................................................................................. 1

2............ Commencement............................................................................................................. 1

3............ Authority....................................................................................................................... 1

4............ Definitions..................................................................................................................... 1

Part 2—Privileges and Immunities of the Square Kilometre Array Observatory and other persons   3

5............ Act applies to the SKAO............................................................................................... 3

6............ SKAO to have juridical personality and legal capacities................................................ 3

7............ Privileges and Immunities of the SKAO....................................................................... 3

8............ Privileges and Immunities of Member State representatives and former Member State representatives   4

9............ Privileges and Immunities of SKAO officials and former SKAO officials................... 4

10.......... Privileges and Immunities of SKAO experts, SKAO representatives and former SKAO representatives                4

Part 3—Indirect tax concession scheme                                                                                              6

11.......... Indirect tax concession scheme—acquisitions............................................................... 6

12.......... Indirect tax concession scheme—conditions................................................................. 6

13.......... Indirect tax concession scheme—claims for payment.................................................... 8

14.......... Indirect tax concession scheme—manner of payment................................................... 8

Part 4—Exceptions and other matters                                                                                                9

15.......... General exceptions etc. to privileges and immunities..................................................... 9

16.......... Waiver of privileges and immunities............................................................................. 9

17.......... Delegation by Minister................................................................................................ 10

 


Part 1Preliminary

  

1  Name

                   This instrument is the International Organisations (Privileges and Immunities—Square Kilometre Array Observatory) Regulations 2020.

2  Commencement

             (1)  Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this instrument

The day after this instrument is registered.

28 July 2020

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

             (2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

                   This instrument is made under the International Organisations (Privileges and Immunities) Act 1963.

4  Definitions

                   In this instrument:

Act means the International Organisations (Privileges and Immunities) Act 1963.

competent authority for a privilege or immunity means:

                     (a)  for a privilege or immunity conferred on a person who is accredited to the SKAO as a representative of a Member State other than Australia—that Member State; or

                     (b)  for a privilege or immunity conferred on the Director‑General—the governing body of the SKAO; or

                     (c)  for a privilege or immunity conferred on any other person (other than the SKAO)—the Director‑General.

Director‑General means the Director‑General of the SKAO.

Member State means a party to the SKAO Convention.

Member State representative means a person who is accredited to the SKAO as a representative of a Member State other than Australia.

official activities has the same meaning as in the SKAO Convention.

SKAO means the Square Kilometre Array Observatory.

SKAO Convention means the Convention Establishing the Square Kilometre Array Observatory done at Rome on 12 March 2019.

Note:          The SKAO Convention could in 2020 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

SKAO expert means a person who is performing, whether alone or jointly with other persons, a mission on behalf of the SKAO for a defined period of time.

SKAO official means a person who holds an office in the SKAO and includes the Director‑General.

SKAO representative means a person who is:

                     (a)  participating in the work of the SKAO; or

                     (b)  serving on a committee of the SKAO.

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.

Part 2Privileges and Immunities of the Square Kilometre Array Observatory and other persons

  

5  Act applies to the SKAO

                   For the purposes of subsection 5(1) of the Act, the SKAO is an international organisation to which the Act applies.

6  SKAO to have juridical personality and legal capacities

                   For the purposes of subparagraph 6(1)(a)(i) of the Act, the SKAO:

                     (a)  is a body corporate with perpetual succession; and

                     (b)  is capable, in its corporate name, of:

                              (i)  entering into contracts; and

                             (ii)  acquiring, holding and disposing of real and personal property; and

                            (iii)  instituting, and being a party to, legal proceedings.

7  Privileges and Immunities of the SKAO

             (1)  This section is made for the purposes of subparagraph 6(1)(a)(ii) of the Act.

             (2)  Subject to subsections (3) to (7) of this section, the SKAO has the privileges and immunities specified in items 1, 2, 4, 6 and 7 of the First Schedule to the Act.

Immunity from suit and from other legal process

             (3)  The immunity specified in item 1 of the First Schedule to the Act does not extend to immunity from a suit or other legal process relating to:

                     (a)  an arbitration under Article 14 of the SKAO Convention; or

                     (b)  the attachment, in accordance with a final order of a court, of any amount payable as salary, wages or other remuneration by the SKAO to any person employed, or formerly employed, by the SKAO; or

                     (c)  a counter‑claim made against the SKAO by a party to proceedings instituted by the SKAO; or

                     (d)  a matter that is outside the scope of the SKAO’s official activities.

Note:          The governing body of the SKAO may also waive this immunity (see paragraph 16(b)).

Inviolability of premises

             (4)  A person may enter premises of the SKAO, for the purpose of protecting them, in the event of a fire or other emergency.

             (5)  A person who enters premises of the SKAO in accordance with subsection (4) must immediately leave them if requested to do so by:

                     (a)  the Director‑General; or

                     (b)  a person who has been designated as the head of those premises by the Director‑General.

             (6)  Premises of the SKAO are inviolable subject to the condition that they are not used:

                     (a)  for unlawful purposes; or

                     (b)  as a refuge for any person from judicial or administrative proceedings.

Indirect tax

             (7)  The SKAO’s privileges in relation to indirect tax are limited to:

                     (a)  the exemption conferred by section 11B of the Act; and

                     (b)  concessions under section 11C of the Act in relation to acquisitions mentioned in subsection 11(1) of this instrument.

8  Privileges and Immunities of Member State representatives and former Member State representatives

             (1)  For the purposes of subparagraph 6(1)(c)(i) of the Act, a Member State representative has the privileges and immunities specified in items 2 and 3 of Part I of the Third Schedule to the Act.

             (2)  For the purposes of subparagraph 6(1)(c)(ii) of the Act, a person who has ceased to be a Member State representative has the immunity specified in Part II of the Third Schedule to the Act.

9  Privileges and Immunities of SKAO officials and former SKAO officials

             (1)  For the purposes of subparagraph 6(1)(d)(i) of the Act, an SKAO official has the privileges and immunities specified in items 1, 2, 3, 4 and 7 of Part I of the Fourth Schedule to the Act.

             (2)  However:

                     (a)  an SKAO official who is an Australian citizen or a permanent resident (within the meaning of the Australian Citizenship Act 2007) does not have the privileges and immunities specified in items 2, 3 and 7 of Part I of the Fourth Schedule to the Act; and

                     (b)  the immunity specified in item 2 of Part I of the Fourth Schedule to the Act does not extend to a pension or annuity paid by the SKAO to an SKAO official.

             (3)  For the purposes of subparagraph 6(1)(d)(ii) of the Act, a person who has ceased to be an SKAO official has the immunity specified in Part II of the Fourth Schedule to the Act.

10  Privileges and Immunities of SKAO experts, SKAO representatives and former SKAO representatives

             (1)  For the purposes of subparagraph 6(1)(e)(i) of the Act:

                     (a)  an SKAO expert has the privilege specified in item 3 of Part I of the Fifth Schedule to the Act; and

                     (b)  an SKAO representative has the privileges and immunities specified in items 2 and 3 of Part I of the Fifth Schedule to the Act.

             (2)  For the purposes of subparagraph 6(1)(e)(ii) of the Act, a person who has ceased to be an SKAO representative has the immunity specified in Part II of the Fifth Schedule to the Act.

Part 3Indirect tax concession scheme

  

11  Indirect tax concession scheme—acquisitions

             (1)  For the purposes of paragraph 11C(1)(a) of the Act, the following acquisitions made by or on behalf of the SKAO are covered by this instrument:

                     (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;

                            (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 section 7 of this instrument;

                     (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 this instrument;

                     (d)  an acquisition of any of the following, if the acquisition is subject to an arrangement between the SKAO and the Commonwealth for reimbursement of indirect tax:

                              (i)  construction or renovation services;

                             (ii)  real property;

                            (iii)  any other thing.

             (2)  However, an acquisition made by or on behalf of the SKAO is covered by this instrument only if, at the time of the acquisition, it was intended for official activities of the SKAO.

12  Indirect tax concession scheme—conditions

             (1)  For the purposes of paragraph 11C(3)(a) of the Act, the amount mentioned in subsection 11C(1) of the Act is payable only if the following conditions are satisfied:

                     (a)  the SKAO has entered into a written agreement with the Commonwealth to repay to the Commonwealth the amount worked out under subsection (3) of this section if:

                              (i)  for a payment in relation to an acquisition of a motor vehicle—the SKAO disposes of the motor vehicle (except to a person entitled to an indirect tax concession under this instrument 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 SKAO disposes of the goods (except to a person entitled to an indirect tax concession under this instrument 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—the SKAO assigns the services to another person (except to a person entitled to an indirect tax concession under another law of the Commonwealth in relation to similar acquisitions) in Australia or an external Territory; or

                            (iv)  for a payment in relation to any other acquisition—the SKAO assigns the thing acquired to another person (except to a person entitled to an indirect tax concession under another law of the Commonwealth in relation to similar acquisitions) in Australia or an external Territory;

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

             (2)  For the purposes of 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)  the SKAO is taken to have disposed of goods to which one 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 SKAO disposes of the goods to a person who is entitled to the concession; and

                             (ii)  the 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 the purposes of 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 11C of the Act in relation to the acquisition that is equal to the proportion of the period mentioned in that subparagraph remaining after the SKAO disposes of the goods; and

                     (b)  for an acquisition to which subparagraph (1)(a)(iii) or (iv) applies—the amount paid under section 11C 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 11C of the Act in relation to a lease payment that relates to a period before the SKAO disposes of the goods.

             (5)  The amount mentioned in subsection 11C(1) of the Act is not payable if:

                     (a)  an amount was payable for a similar acquisition; and

                     (b)  the Minister tells the SKAO in writing that, in the Minister’s opinion, the SKAO’s reasonable needs were met by that acquisition.

13  Indirect tax concession scheme—claims for payment

                   A claim for payment in relation to an acquisition covered by this Part:

                     (a)  must be signed by, or for, the Director‑General; and

                     (b)  if so requested by the Commissioner of Taxation—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; or

                             (ii)  in any other case—to the Commissioner of Taxation; 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 11(1)(d), other than an acquisition of real property by lease—may only be sent as specified in the arrangement mentioned in that paragraph or, if the arrangement does not so specify:

                              (i)  with another claim; or

                             (ii)  at least 3 months after another claim from the SKAO is sent; and

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

                              (i)  with another claim; or

                             (ii)  at least 3 months after another claim from the SKAO is sent.

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

14  Indirect tax concession scheme—manner of payment

                   For the purposes of paragraph 11C(3)(b) of the Act, the amount is to be paid to a single recipient, or an account, nominated by, or on behalf of, the Director‑General.

Part 4Exceptions and other matters

  

15  General exceptions etc. to privileges and immunities

             (1)  For the purposes of subsection 6(1) of the Act, this section prescribes:

                     (a)  the extent to which privileges and immunities conferred by this instrument are conferred; and

                     (b)  restrictions and conditions on the conferral of those privileges and immunities.

Privileges and immunities conferred in interest of SKAO

             (2)  The privileges and immunities conferred by this instrument are conferred in the interests of the SKAO, and not for the personal benefit of individuals.

Motor vehicles

             (3)  Nothing in this instrument confers immunity on any person from civil or criminal process:

                     (a)  for the recovery of damages for damage, injury or death resulting from an accident involving a motor vehicle owned or driven by the person; or

                     (b)  relating to the commission of an offence by the person under a law of the Commonwealth, a State or a Territory, relating to motor traffic, motor vehicles or the use of a motor vehicle.

Cooperation to prevent abuses and respect for Australian law

             (4)  The privileges and immunities conferred by this instrument are subject to the following conditions:

                     (a)  the SKAO must cooperate at all times with Commonwealth, State and Territory authorities, and take every measure, to prevent any form of abuse of the privileges and immunities mentioned in this instrument;

                     (b)  SKAO officials, Member State representatives, SKAO representatives and SKAO experts must respect laws of the Commonwealth, States and Territories:

                              (i)  before they enter Australia, so far as such laws are relevant; and

                             (ii)  from the moment they arrive in Australia and may benefit from the protection of such laws.

16  Waiver of privileges and immunities

                   For the purposes of section 10 of the Act:

                     (a)  the competent authority for a privilege or immunity conferred by this instrument must waive the privilege or immunity if the competent authority considers that:

                              (i)  retaining it would impede the course of justice; and

                             (ii)  waiving it would not prejudice the interests of the SKAO; and

                     (b)  the governing body of the SKAO may waive the immunity specified in item 1 of the First Schedule to the Act.

17  Delegation by Minister

             (1)  The Minister may, in writing, delegate the Minister’s powers under paragraph 12(1)(b) or (5)(b) of this instrument to:

                     (a)  the Secretary of the Department; or

                     (b)  an SES employee, or acting SES employee, in the Department.

Note:          Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

             (2)  In exercising a delegated power, the delegate must comply with any written directions of the Minister.