Commonwealth Secretariat (Privileges and Immunities) Regulations 1972
Statutory Rules 1972 No. 175 as amended
made under the
International Organisations (Privileges and Immunities) Act 1963
This compilation was prepared on 10 August 2000
taking into account amendments up to SR 2000 No. 201
Prepared by the Office of Legislative Drafting
Attorney-General’s Department, Canberra
Image unavailable in extracted text
Commonwealth Secretariat (Privileges and Immunities) Regulations 1972
Statutory Rules 1972 No. 175 as amended
made under the
International Organisations (Privileges and Immunities) Act 1963
Contents
Page
1 Name of Regulations [see Note 1]
2 Repeal
3 Interpretation
5 Act to apply to Commonwealth of Nations
6 Commonwealth Secretariat to have juridical personality and legal capacities
7 Privileges and immunities of the Commonwealth Secretariat
8 Privileges and immunities of high officers of the Commonwealth Secretariat
9 Privileges and immunities of representatives to a conference convened by the Commonwealth Secretariat
10 Privileges and immunities of officers other than high officers of the Commonwealth Secretariat
10A Privileges and immunities of persons performing missions for Secretariat
10B Indirect tax concession scheme — acquisitions
10C Indirect tax concession scheme — conditions
10D Indirect tax concession scheme — claim for payment
10E Indirect tax concession scheme — manner of payment
11 Waiver of privileges and immunities
12 Privileges and immunities subject to quarantine laws etc
13 Delegation
Notes
1 Name of Regulations [see Note 1]
These Regulations are the Commonwealth Secretariat (Privileges and Immunities) Regulations 1972.
2 Repeal
The Commonwealth Secretariat (Privileges and Immunities) Regulations (being Statutory Rules 1971, No. 7) are repealed.
3 Interpretation
(1) In these Regulations, unless the contrary intention appears:
Act means the International Organisations (Privileges and Immunities) Act 1963.
high office in the Commonwealth Secretariat means an office in the Commonwealth Secretariat that is, by virtue of regulation 8 of these Regulations, a high office in the Commonwealth Secretariat for the purposes of subparagraph (i) of paragraph (b) of subsection (1) of section 6 of the Act.
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.
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.
the Commonwealth Secretariat means the organ of the Commonwealth of Nations established, under the name ‘Commonwealth Secretariat’, at a meeting of the Commonwealth Prime Ministers held in the year 1965.
(2) A reference in these Regulations to a person who holds a high office in the Commonwealth Secretariat shall be read as including a reference to a person who is performing the duties of a high office in the Commonwealth Secretariat.
(3) Where, by virtue of the last preceding subregulation, a provision of these Regulations applies to a person who is performing the duties of a high office in the Commonwealth Secretariat, a reference in the provision to the high office held by a person shall be read, in the application of the provision to a person who is performing the duties of a high office in the Commonwealth Secretariat, as a reference to the high office the duties of which the person is so performing.
5 Act to apply to Commonwealth of Nations
The Commonwealth of Nations is an international organisation to which the Act applies.
6 Commonwealth Secretariat to have juridical personality and legal capacities
The Commonwealth Secretariat:
(a) is a body corporate with perpetual succession;
(b) has the capacity to contract; and
(c) is capable, in its corporate name, of acquiring, holding and disposing of real and personal property and of instituting legal proceedings.
7 Privileges and immunities of the Commonwealth Secretariat
(1) Subject to subregulations (2), (3) and (4), the Commonwealth Secretariat has the privileges and immunities specified in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 10, 11 and 12 of the First Schedule to the Act.
(2) The Commonwealth Secretariat is not, by virtue of the last preceding subregulation, exempt from such national, regional or municipal dues and taxes in respect of the premises of the Commonwealth Secretariat, whether owned or leased, as represent payment for specific services rendered.
(3) Where goods (not being publications of the Commonwealth Secretariat) are imported, manufactured or purchased by the Commonwealth Secretariat for sale by it, subregulation (1) of this regulation does not operate to prevent sales tax being payable by the Commonwealth Secretariat or by any other person upon the sale value of the goods.
(4) The Commonwealth Secretariat’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 subregulation 10B (1).
8 Privileges and immunities of high officers of the Commonwealth Secretariat
(1) The offices of:
(a) Secretary-General of the Commonwealth Secretariat;
(b) Assistant Secretary-General of the Commonwealth Secretariat; and
(c) Managing Director of the Commonwealth Fund for Technical Co-operation;
are each a high office in the Commonwealth Secretariat for the purposes of subparagraph (i) of paragraph (b) of subsection (1) of section 6 of the Act.
(2) Each office in the Commonwealth Secretariat of Deputy Secretary-General, Advisor, Director, Assistant Director and Special Assistant is a high office in the Commonwealth Secretariat for the purposes of subparagraph (i) of paragraph (b) of subsection (1) of section 6 of the Act.
(3) Subject to the next succeeding subregulation, a person who holds a high office in the Commonwealth Secretariat has, while exercising the functions of the office that he holds, the privileges and immunities specified in Part I of the Second Schedule to the Act.
(4) The salary and emoluments received from the Commonwealth Secretariat by a person who holds a high office in the Commonwealth Secretariat are not exempt from taxation unless the salary and emoluments are subject to tax in the United Kingdom.
(5) A person who has ceased to hold a high office in the Commonwealth Secretariat has the immunities specified in Part II of the Second Schedule to the Act.
9 Privileges and immunities of representatives to a conference convened by the Commonwealth Secretariat
(1) A person who is accredited to, or is in attendance at an international conference convened by, the Commonwealth Secretariat as a representative of a country other than Australia has, while exercising his functions as such a representative, the privileges and immunities specified in Part I of the Third Schedule to the Act.
(2) A person who has ceased to be accredited to, or who has attended an international conference convened by, the Commonwealth Secretariat as a representative of a country other than Australia has the immunities specified in Part II of the Third Schedule to the Act.
10 Privileges and immunities of officers other than high officers of the Commonwealth Secretariat
(1) Subject to subregulations (2), (3) and (5) of this regulation, a person who holds an office in the Commonwealth Secretariat, other than a person who holds a high office in the Commonwealth Secretariat, has the privileges and immunities specified in paragraphs 1 and 2 of Part I of the Fourth Schedule to the Act.
(2) The salary and emoluments received from the Commonwealth Secretariat by a person to whom subregulation (1) of this regulation applies are not exempt from taxation unless the salary and emoluments are subject to tax in the United Kingdom.
(3) Notwithstanding the last preceding subregulation, the salary and emoluments received from the Commonwealth Secretariat by a person to whom subregulation (1) of this regulation applies, being a resident of Australia within the meaning of the Income Tax Assessment Act 1936-1972, are not, to the extent to which they are for services rendered in Australia, exempt from taxation unless the person is not an Australian citizen and came to Australia solely for the purpose of performing duties of the office in the Commonwealth Secretariat held by him.
(4) Subject to subregulation (5) of this regulation, a person who has ceased to hold an office in the Commonwealth Secretariat, other than a high office in the Commonwealth Secretariat, has the immunities specified in Part II of the Fourth Schedule to the Act.
(5) The immunities conferred by subregulations (1) and (4) of this regulation do not extend to immunity from a suit or other legal process:
(a) seeking to recover damages in relation to the driving of a motor vehicle; or
(b) with respect to the commission of an offence under a provision of a law of the Commonwealth, a State or a Territory of the Commonwealth, being a provision with respect to motor traffic, motor vehicles or the use of a motor vehicle.
10A Privileges and immunities of persons performing missions for Secretariat
(1) A person who is serving on a committee, or is participating in the work, of the Commonwealth Secretariat or is performing, whether alone or jointly with other persons, a mission on behalf of the Commonwealth Secretariat has the privileges and immunities specified in paragraphs 1, 2, 3, 4, 5 and 6 of Part I of the Fifth Schedule to the Act.
(2) A person who has served on a committee, or participated in the work, of the Commonwealth Secretariat or has performed a mission on behalf of the Commonwealth Secretariat has the immunities specified in Part II of the Fifth Schedule to the Act.
10B Indirect tax concession scheme — acquisitions
(1) For paragraph 11C (1) (a) of the Act, the following acquisitions by the Commonwealth Secretariat 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;
(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 subregulation 7 (1);
(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 Commonwealth Secretariat and the Commonwealth for reimbursement of indirect tax:
(i) construction or renovation services;
(ii) real property;
(iii) any other thing.
(2) However, an acquisition by the Commonwealth Secretariat is covered by these Regulations only if, at the time of the acquisition, it was intended for the official use of the Commonwealth Secretariat.
(3) For paragraph 11C (1) (a) of the Act, the following acquisitions by a person mentioned in subregulation (4) 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 subregulation 8 (3);
(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) For subregulation (3), the persons are:
(a) the Secretary-General of the Commonwealth Secretariat; and
(b) the Assistant Secretary-General of the Commonwealth Secretariat; and
(c) the Managing Director of the Commonwealth Fund for Technical Co-operation; and
(d) the holder of each of the following offices in the Commonwealth Secretariat:
(i) Advisor;
(ii) Director;
(iii) Assistant Director;
(iv) Special Assistant.
(5) However:
(a) an acquisition by a person mentioned in subregulation (4) is covered by these Regulations 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 a person mentioned in subregulation (4) is covered by these Regulations only if:
(i) the vehicle was acquired in exceptional circumstances to replace a motor vehicle for which the person received:
(A) a concession under section 11C of the Act; or
(B) an exemption from indirect tax under section 11B of the Act; or
(ii) within the previous 3 years, the person has not received:
(A) a concession under section 11C of the Act for the acquisition of another motor vehicle; or
(B) an exemption from indirect tax under section 11B 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 a person mentioned in subregulation (4) is covered by these Regulations only if:
(i) the vehicle is acquired in exceptional circumstances to replace a motor vehicle for which the person received:
(A) a concession under section 11C of the Act; or
(B) an exemption under section 11B 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, the person has not received:
(A) a concession under section 11C of the Act for the acquisition of another motor vehicle for the personal use of a family member; or
(B) an exemption from indirect tax under section 11B of the Act on the importation of another motor vehicle for the personal use of a family member.
(6) For paragraph 11C (1) (a) of the Act, the acquisition of a locally-manufactured motor vehicle by a person who holds an office in the Commonwealth Secretariat (other than a person who holds an office mentioned in subregulation (4)), for the personal use of the person or of a member of the family of the person, is covered by these Regulations if:
(a) the vehicle is acquired within the first 6 months of the person’s installation in Australia and the person has not previously received:
(i) a concession under section 11C of the Act for the acquisition of another motor vehicle; or
(ii) an exemption from indirect tax under section 11B 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 person has received:
(i) a concession under section 11C of the Act; or
(ii) an exemption from indirect tax under section 11B of the Act.
(7) In subparagraphs (5) (b) (i) and (c) (i) and paragraph (6) (b):
exceptional circumstances, in relation to the replacement of a motor vehicle, includes the original vehicle being stolen or damaged beyond repair.
Note Section 11C 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.
10C Indirect tax concession scheme — conditions
(1) For 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 person who made the acquisition is subject to an agreement in writing between the Commonwealth Secretariat 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 an acquisition covered by paragraph 10B (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 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 person disposes of the goods; and
(b) for an acquisition to which subparagraph (1) (a) (iii) 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 person 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 person in writing that, in his or her opinion, the person’s reasonable needs were met by that acquisition.
(6) In this regulation, person includes the Commonwealth Secretariat.
10D Indirect tax concession scheme — claim for payment
A claim for payment under regulation 10B:
(a) must be signed by, or for, the Secretary-General of the Commonwealth Secretariat; 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 10B (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 Commonwealth Secretariat 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 Commonwealth Secretariat.
Note Paragraphs 10D (e) and (f) are intended to limit the number of claims from the Commonwealth Secretariat to one in each quarter, to minimise delays in the processing of claims.
10E Indirect tax concession scheme — manner of payment
For paragraph 11C (3) (b) of the Act, the amount is to be paid to a single recipient, or an account, nominated by, or for, the Secretary-General of the Commonwealth Secretariat.
11 Waiver of privileges and immunities
(1) The Commonwealth Secretariat may waive any privileges or immunities to which:
(a) the Commonwealth Secretariat;
(b) a person who holds or has ceased to hold a high office in the Commonwealth Secretariat; or
(c) a person who holds or has ceased to hold any other office in the Commonwealth Secretariat;
is entitled by virtue of the Act or these Regulations.
(2) The government of a country may waive any privileges or immunities to which a person who is, or has ceased to be, accredited to, or is in attendance at, or has attended, an international conference convened by, the Commonwealth Secretariat as a representative of that country is entitled by virtue of the Act or these Regulations.
12 Privileges and immunities subject to quarantine laws etc
Nothing in these Regulations affects the application of any law of the Commonwealth or of a Territory of the Commonwealth relating to quarantine, or prohibiting or restricting the importation into, or the exportation from, Australia or that Territory, as the case may be, of any animals, plants or goods, but this regulation does not prejudice the immunity from suit or from civil or criminal process conferred by these Regulations.
13 Delegation
(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 10C (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.
Notes to the Commonwealth Secretariat (Privileges and Immunities) Regulations 1972
Note 1
Note: The Commonwealth Secretariat (Privileges and Immunities) Regulations 1972 (in force under the International Organisations (Privileges and Immunities) Act 1963) as shown in this compilation comprise Statutory Rules 1972 No. 175 amended as indicated in the Tables below.
Note: See Table A for information about application, saving or transitional provisions.
These Regulations amend Regulations made under the International Organisations (Privileges and Immunities) Act 1963 (the Act) to apply the indirect tax concession scheme under section 11C of the Act to the organisations covered by those Regulations and officers and high officers of those organisations.