International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 2000

The International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 2000 (Cth) establish the domestic legal framework required to give effect to the privileges and immunities of the International Tribunal for the Law of the Sea (ITLOS) within Australia. Made under the authority of the International Organisations (Privileges and Immunities) Act 1963 (Cth), these Regulations implement Australia's international obligations under the United Nations Convention on the Law of the Sea (UNCLOS) and the Statute of the International Tribunal for the Law of the Sea.

Mechanically, the Regulations confer corporate personality and legal capacity on the Tribunal, rendering it capable of entering into contracts, acquiring and disposing of property, and initiating legal proceedings in Australian courts. Simultaneously, they shield the Tribunal from the jurisdiction of Australian courts and administrative bodies by declaring its premises, property, archives, and official communications to be inviolable and immune from suit or execution, subject to express waiver.

Beyond the institution itself, the Regulations distribute a structured matrix of personal privileges, fiscal exemptions, and jurisdictional immunities to various categories of natural persons associated with the Tribunal. This includes elected and ad hoc members, the Registrar and Registry staff, agents, counsel, advocates, court-appointed experts, witnesses, and persons performing official missions.

The instrument also details an indirect tax concession scheme. This scheme allows the Tribunal and its qualifying members to claim refunds from the Commissioner of Taxation for Goods and Services Tax (GST) and excise duties paid on significant domestic acquisitions, subject to strict transactional thresholds, holding periods, and repayment covenants.

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International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 2000

Statutory Rules 2000 No. 2831

I, WILLIAM PATRICK DEANE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the International Organisations (Privileges and Immunities) Act 1963.

Dated 25 October 2000

WILLIAM DEANE

Governor-General

By His Excellency’s Command

ALEXANDER DOWNER

Minister for Foreign Affairs

Contents

Page

Part 1 Introductory

1 Name of Regulations

2 Commencement

3 Definitions

4 Privileges and immunities are subject to quarantine laws etc

5 No immunity from prosecution for motor vehicle and motor traffic offences

6 Limitation on privileges and immunities for Australian citizens and residents

Part 2 Privileges and immunities of the Tribunal

7 Privileges and immunities of the Tribunal

8 Legal capacity and personality

9 Premises of the Tribunal are inviolable

10 Immunity of the Tribunal from suit and other legal process

11 Immunity of property of the Tribunal

12 Archives of the Tribunal are inviolable

13 Communications

14 Exemption from direct taxes

15 Exemptions relating to imports and exports

16 Exemption from currency restrictions

Part 3 Privileges and immunities of members of the Tribunal

17 Members of the Tribunal engaged on business of the Tribunal

18 Members on a journey

19 Members holding themselves at the disposal of the Tribunal

20 Members not engaged on business of the Tribunal

Part 4 Privileges and immunities of other persons associated with the Tribunal

21 Privileges and immunities of officials of the Tribunal

22 Privileges and immunities of agents, counsel and advocates

23 Privileges and immunities of experts appointed under article 289 of the Convention

24 Privileges and immunities of witnesses, experts and persons performing missions

Part 5 Indirect tax concession scheme

25 Acquisitions

26 Conditions

27 Claims for payment

28 Manner of payment

Part 6 Waiver and delegation

29 Waiver of privileges and immunities

30 Delegation

Part 7 Repeal and saving

31 International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 1998 — repeal

32 Transitional

Part 1 Introductory

1 Name of Regulations

These Regulations are the International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 2000.

2 Commencement

These Regulations take effect from a day specified in a written determination made by the Minister under subsection 13 (2) of the International Organisations (Privileges and Immunities) Act 1963 for the purposes of the commencement of these Regulations.

3 Definitions

In these Regulations:

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

Convention means the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982.

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 Tribunal includes:

(a) an elected member of the Tribunal; and

(b) an elected member of the Tribunal who has been replaced but is finishing proceedings in accordance with paragraph 3 of article 5 of the Statute; and

official of the Tribunal includes the Registrar of the Tribunal and the other members of the staff of the Registry.

Registrar of the Tribunal includes an official of the Tribunal who is acting as Registrar of the Tribunal.

Statute means the Statute of the International Tribunal for the Law of the Sea set out in Annex VI to the Convention.

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.

Tribunal means the International Tribunal for the Law of the Sea established by the Statute.

4 Privileges and immunities are subject to quarantine laws etc

(1) Nothing in these Regulations affects the application of a law about:

(a) quarantine; or

(b) importation into, or exportation from, Australia or an external Territory.

(2) However, subregulation (1) does not affect any immunity from civil or criminal process.

5 No immunity from prosecution for motor vehicle and motor traffic offences

Nothing in these Regulations 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.

6 Limitation on privileges and immunities for Australian citizens and residents

(1) Nothing in these Regulations confers a privilege or immunity on a person who is an Australian citizen or a permanent resident of Australia except:

(a) a privilege or immunity conferred by these Regulations in respect of an exemption from tax on salaries and allowances received from the Tribunal; and

(b) a privilege or immunity conferred by these Regulations in respect of a period in which a member or official of the Tribunal is in Australia being taken not to be a period of residence in Australia for the purposes of any form of taxation the imposition of which depends on residency; and

(c) a privilege or immunity conferred by these Regulations in respect of immunity from suit and other legal process for acts and things done in carrying out official duties.

(2) In this regulation:

law of Australia has the same meaning as in the Foreign States Immunities Act 1985.

permanent resident of Australia means a person resident in Australia whose continued presence in Australia is not subject to a limitation as to time imposed by or under a law of Australia.

Part 2 Privileges and immunities of the Tribunal

7 Privileges and immunities of the Tribunal

The Tribunal has the privileges and immunities mentioned in this Part.

8 Legal capacity and personality

The Tribunal:

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

(b) is capable, in its corporate name:

(i) of entering into contracts; and

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

(iii) of suing and being sued.

9 Premises of the Tribunal are inviolable

The premises of, or occupied by, the Tribunal are inviolable.

10 Immunity of the Tribunal from suit and other legal process

(1) The Tribunal is immune from suit and other legal process.

(2) The Tribunal may waive its immunity.

(3) However, a waiver extends to a measure of execution of a judgment only if the waiver is expressed to do so.

(4) The Tribunal may waive its immunity from a measure of execution of a judgment arising from a suit at the same time as, or after, the Tribunal waives its immunity from suit.

11 Immunity of property of the Tribunal

The property of, or in the custody of, the Tribunal is immune from suit and other legal or administrative process.

12 Archives of the Tribunal are inviolable

The archives of the Tribunal, and all documents belonging to, or in the custody of, the Tribunal, are inviolable.

13 Communications

(1) For telecommunications sent by the Tribunal that contain only matter intended for publication by the press or for broadcasting (including communications addressed to or despatched from places outside Australia), the Tribunal is entitled to any reduced rates applicable in relation to such telecommunications by the press.

(2) The Tribunal is also entitled to any more favourable treatment in relation to priorities, rates and taxes for official communications and correspondence that is received by any of the following:

(a) a diplomatic mission;

(b) an international organisation to which the Act applies;

(c) an international organisation to which the Act would apply if Australia or a person representing Australia were a member of the organisation.

(3) For its official communications and correspondence, the Tribunal may use:

(a) any appropriate means of communication; and

(b) codes or ciphers.

(4) Official communications and correspondence of the Tribunal are inviolable.

(5) If the Tribunal uses a courier to send or receive correspondence or other things, the Tribunal is entitled to have the courier treated as a diplomatic courier.

(6) If the Tribunal uses a sealed bag to send or receive correspondence or other things, the Tribunal is entitled to have the bag treated as a diplomatic bag.

14 Exemption from direct taxes

(1) The Tribunal, its assets, income and other property, and its operations and transactions, are exempt from direct taxes.

(2) However, nothing in subregulation (1) exempts the Tribunal from charges for public utility services.

15 Exemptions relating to imports and exports

(1) For goods imported or exported by the Tribunal for its official use, and for publications of the Tribunal imported or exported by the Tribunal, the Tribunal is exempt from the following:

(a) customs duties;

(b) liability to pay and collect taxes for the importation or exportation;

(2) However, the exemption ceases to apply to imported goods (other than publications of the Tribunal) that are sold, donated or otherwise disposed of in Australia within 2 years after the goods were imported.

16 Exemption from currency restrictions

(1) The Tribunal is exempt from financial controls, regulations and moratoriums in respect of its official activities.

(2) For carrying on its official activities, the Tribunal may:

(a) hold funds in any kind of currency (including gold); and

(b) operate accounts in any currency; and

(c) transfer its funds in any kind of currency (including gold) from Australia to another country, or within Australia; and

(d) convert any currency held by it into any other currency; and

(e) receive, hold, negotiate, transfer, convert or otherwise deal with bonds or other financial securities.

Part 3 Privileges and immunities of members of the Tribunal

17 Members of the Tribunal engaged on business of the Tribunal

(1) A member of the Tribunal engaged on business of the Tribunal has the following privileges and immunities:

(a) the privileges and immunities mentioned in the Second Schedule to the Act as if the member were a high officer, or former high officer, mentioned in that Schedule;

(b) any period during which the member is engaged on business of the Tribunal in Australia is taken not to be a period of residence in Australia for the purposes of any form of taxation the imposition of which depends on residency.

(2) However, paragraph (1) (b) does not apply in relation to the imposition of tax on a transaction or income of a member if application of the paragraph would result in an amount of tax being imposed that is more than the amount of tax that would be imposed if the paragraph did not apply.

18 Members on a journey

A member of the Tribunal on a journey related to carrying out his or her official duties has the privileges and immunities mentioned in regulation 17.

19 Members holding themselves at the disposal of the Tribunal

A member of the Tribunal residing in Australia for the purpose of holding himself or herself at the disposal of the Tribunal has the privileges and immunities mentioned in regulation 17.

20 Members not engaged on business of the Tribunal

A member of the Tribunal who is not engaged on business of the Tribunal is entitled to the same repatriation facilities in a time of international crisis as are accorded to a diplomatic agent who is not accredited or assigned to Australia.

Part 4 Privileges and immunities of other persons associated with the Tribunal

21 Privileges and immunities of officials of the Tribunal

(1) The Registrar of the Tribunal has, when engaged on the business of the Tribunal, the same privileges and immunities under these Regulations as a member of the Tribunal engaged on business of the Tribunal, including the privileges mentioned in Part 5 of these Regulations.

(2) An official of the Tribunal (other than the Registrar of the Tribunal) has, when engaged on the business of the Tribunal, the following privileges and immunities:

(a) immunity from personal arrest and detention;

(b) immunity from seizure of his or her personal baggage;

(d) immunity from suit and other legal process in respect of acts and things done in carrying out his or her official duties;

(e) exemption from the obligation to perform national service;

(f) exemption (including exemption of members of the official’s family forming part of his or her household) from the application of laws relating to immigration and registration of aliens;

(g) exemption from currency and exchange restrictions to the same extent as for an official, of comparable rank, forming part of a diplomatic mission to Australia;

(h) the same repatriation facilities (including repatriation facilities for members of the official’s family forming part of his or her household) in a time of international crisis as are accorded to a diplomatic agent;

(i) exemption from taxation on salaries and allowances received from the Tribunal;

(j) any period during which the official is engaged on the business of the Tribunal in Australia is taken not to be a period of residence in Australia for the purposes of any form of taxation the imposition of which depends on residency.

(3) However, paragraph (2) (j) does not apply in relation to the imposition of tax on a transaction or income of an official if application of the paragraph would result in an amount of tax being imposed that is more than the amount of tax that would be imposed if the paragraph did not apply.

(4) However, an official of the Tribunal has the privileges and immunities mentioned in subregulation (2) only if the official is part of a class of officials that the Tribunal tells the Minister, the Australian Ambassador to Germany or the Australian Embassy in Berlin, in writing, is a class to which subregulation (2) is to apply.

22 Privileges and immunities of agents, counsel and advocates

A person who is an agent, counsel or advocate of a party to a case before the Tribunal has, during his or her mission for that party (including journeys related to the mission), the following privileges and immunities:

(a) immunity from personal arrest or detention;

(b) immunity from seizure of his or her personal baggage;

(d) immunity from suit and other legal process in respect of acts and things done in carrying out his or her official duties;

(e) inviolability of documents and papers;

(f) the right to receive papers and correspondence by courier and in sealed bags;

(g) exemption from the application of laws relating to immigration and registration of aliens;

(h) the same privileges and immunities in respect of personal baggage as for a representative of a foreign government on a temporary official mission on behalf of that government;

(i) exemption from currency and exchange restrictions to the same extent as for a representative of a foreign government on a temporary official mission on behalf of that government;

(j) the same repatriation facilities in a time of international crisis as are accorded to a diplomatic agent.

23 Privileges and immunities of experts appointed under article 289 of the Convention

An expert appointed under article 289 of the Convention has, during the mission for which he or she is appointed (including journeys related to the mission), the following privileges and immunities:

(a) immunity from personal arrest or detention;

(b) immunity from seizure of his or her personal baggage;

(d) immunity from suit and other legal process in respect of acts and things done in carrying out his or her official duties;

(e) inviolability of documents and papers;

(f) exemption from the application of laws relating to immigration and registration of aliens;

(g) exemption from currency and exchange restrictions to the same extent as for a representative of a foreign government on a temporary official mission on behalf of that government;

(h) the same repatriation facilities in a time of international crisis as are accorded to a diplomatic agent.

24 Privileges and immunities of witnesses, experts and persons performing missions

(1) A person to whom this subregulation applies has, during his or her mission for the Tribunal (including journeys related to the mission), the privileges and immunities mentioned in subregulation (3).

(2) Subregulation (1) applies to a person:

(a) who is a witness in a case before the Tribunal; or

(b) who is:

(i) an expert (other than an expert appointed under article 289 of the Convention) engaged on a mission by order of the Tribunal; or

(ii) otherwise engaged on a mission by order of the Tribunal.

(3) The privileges and immunities for the person are:

(a) immunity from personal arrest or detention; and

(b) immunity from seizure of his or her personal baggage; and

(d) immunity from suit and other legal process in respect of acts and things done in carrying out his or her official duties; and

(e) inviolability of documents and papers; and

(f) exemption from the application of laws relating to immigration and registration of aliens; and

(g) exemption from currency and exchange restrictions to the same extent as for a representative of a foreign government on a temporary official mission on behalf of that government; and

(h) the same repatriation facilities in a time of international crisis as for an official of comparable rank forming part of a diplomatic mission to Australia.

Part 5 Indirect tax concession scheme

25 Acquisitions

(1) For paragraph 11C (1) (a) of the Act, the following acquisitions by the Tribunal or a member of the Tribunal engaged on business of the Tribunal 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) services consisting of the removal of goods;

(b) an acquisition of goods that are freed from duties of excise by paragraph 17 (1) (a);

(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.

(2) However:

(a) an acquisition mentioned in subregulation (1) is covered by these Regulations only if, at the time of the acquisition, it was intended for the official use of the Tribunal, the personal use of a member of the Tribunal, or the personal use of a member of the family of the member of the Tribunal; and

(b) an acquisition of a motor vehicle for the official use of the Tribunal or the personal use of a member of the Tribunal is covered by these Regulations only if:

(i) within the previous 3 years, the Tribunal or member of the Tribunal 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; or

(ii) the vehicle was acquired in exceptional circumstances to replace a motor vehicle for which the Tribunal or member of the Tribunal received:

(A) a concession under section 11C of the Act; or

(B) an exemption from indirect tax under section 11B of the Act; and

(c) an acquisition of a motor vehicle for the personal use of a member of the family of a member of the Tribunal is covered by these Regulations only if:

(i) the family member is eligible to hold a driver’s licence that is valid in Australia and, within the previous 3 years, the family member 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; or

(ii) the vehicle was acquired in exceptional circumstances to replace a motor vehicle for which the family member received:

(A) a concession under section 11C of the Act; or

(B) an exemption under section 11B of the Act.

(3) In subparagraphs (2) (b) (ii) and (c) (ii):

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.

26 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 person and the Commonwealth to repay to the Commonwealth the amount worked out under subregulation (3) 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 the right to receive services — 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.

Note The expression ‘person’ includes the Tribunal — see paragraph 8 (a) and the Acts Interpretation Act 1901, paragraph 22 (1) (a).

(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 the Minister’s opinion, the person’s reasonable needs were met by that acquisition.

27 Claims for payment

(1) A claim for an amount covered by subsection 11C (1) of the Act for an acquisition covered by these Regulations:

(a) must be signed:

(i) if the expense of the acquisition was incurred by a member of the Tribunal — by that member; or

(ii) if the expense of the acquisition was incurred by the Tribunal — by the Registrar or Deputy Registrar of the Tribunal; and

(b) must be sent with the tax invoice for the acquisition; and

(i) for an acquisition of a motor vehicle — to 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 — may be sent at any time after the acquisition; and

(e) for an acquisition of anything other than a motor vehicle — may only be sent:

(i) with another claim; or

(ii) at least 3 months after another claim from the Tribunal or member of the Tribunal.

(2) In this regulation:

Deputy Registrar of the Tribunal includes an official of the Tribunal who is acting as Deputy Registrar of the Tribunal.

28 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 the Tribunal or member of the Tribunal.

Part 6 Waiver and delegation

29 Waiver of privileges and immunities

(1) The Tribunal may waive any privileges or immunities conferred by the Act or these Regulations on the following people:

(a) a member of the Tribunal;

(b) the Registrar of the Tribunal;

(d) witnesses, experts and persons performing missions;

(e) agents, counsel and advocates, other than those agents, counsel and advocates mentioned in subregulation (2).

(2) A State that is a party to proceedings before the Tribunal may waive any privileges or immunities conferred by the Act or these Regulations on an agent, counsel or advocate representing, or designated by, that State for the proceedings.

(3) The Registrar may, with the approval of the President of the Tribunal, waive any privileges or immunities conferred by the Act or these Regulations on officials of the Tribunal not mentioned in subregulation (1).

30 Delegation

(1) The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Minister, delegate to an SES employee or an acting SES employee the Minister’s powers under paragraphs 26 (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.

(4) In this regulation:

SES employee and acting SES employee have the same meanings as in the Public Service Act 1999.

Part 7 Repeal and saving

31 International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 1998 — repeal

Statutory Rules 1998 No. 41 is repealed.

32 Transitional

(1) If:

(a) a privilege or immunity conferred on a member of the Tribunal under the old regulations was waived under those regulations and the waiver was in force immediately before the commencement of these Regulations; and

(b) the privilege or immunity is conferred on the member by these Regulations;

the waiver mentioned in paragraph (1) (a) continues to have effect for the privilege or immunity conferred under these Regulations.

(2) An acquisition of the kind mentioned in Part 5 that was covered by the old regulations for which a claim for payment has not been made or finally determined before the commencement of these Regulations is taken to be an acquisition covered by these Regulations.

(3) In this regulation:

old regulations means the International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 1998 as in force immediately before the commencement of these Regulations.

Note

1. Notified in the Commonwealth of Australia Gazette on 26 October 2000.

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International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 2000

Statutory Rules 2000 No. 2831

Dated 25 October 2000

WILLIAM DEANE

Governor-General

By His Excellency’s Command

ALEXANDER DOWNER

Minister for Foreign Affairs

Contents

Page

Part 1 Introductory

1 Name of Regulations

2 Commencement

3 Definitions

4 Privileges and immunities are subject to quarantine laws etc

5 No immunity from prosecution for motor vehicle and motor traffic offences

6 Limitation on privileges and immunities for Australian citizens and residents

Part 2 Privileges and immunities of the Tribunal

7 Privileges and immunities of the Tribunal

8 Legal capacity and personality

9 Premises of the Tribunal are inviolable

10 Immunity of the Tribunal from suit and other legal process

11 Immunity of property of the Tribunal

12 Archives of the Tribunal are inviolable

13 Communications

14 Exemption from direct taxes

15 Exemptions relating to imports and exports

16 Exemption from currency restrictions

Part 3 Privileges and immunities of members of the Tribunal

17 Members of the Tribunal engaged on business of the Tribunal

18 Members on a journey

19 Members holding themselves at the disposal of the Tribunal

20 Members not engaged on business of the Tribunal

Part 4 Privileges and immunities of other persons associated with the Tribunal

21 Privileges and immunities of officials of the Tribunal

22 Privileges and immunities of agents, counsel and advocates

Understanding the operation of these Regulations requires a precise grasp of several core statutory concepts and definitions set out in Part 1 and integrated throughout the text.

The definition of a "member of the Tribunal" under regulation 3 is tripartite. It encompasses not only currently serving elected members but also retired elected members who continue to sit to finish proceedings in accordance with paragraph 3 of Article 5 of the Statute. Additionally, it covers ad hoc members chosen under Article 17 of the Statute to participate in a particular case. This ensures that the temporary or transitional status of an adjudicator does not diminish their legal protections while performing judicial functions.

The term "official of the Tribunal" includes the Registrar of the Tribunal, any person acting as Registrar, and all other members of the staff of the Registry. The scope of their immunities is significantly narrower than that of members, and is functionally linked to their official duties.

A "member of the family" or "family member" is defined through a strict two-tier cumulative test. First, the individual must be part of the household of the primary member or official. Second, they must fall within specific categories: a spouse, an unmarried child under the age of 21 years, an unmarried child under the age of 25 years who is enrolled in full-time studies at an Australian educational institution, or an unmarried child who is incapable of self-support due to a physical or mental disability. This tight definition prevents the open-ended extension of fiscal and personal benefits to extended relatives.

The concept of "inviolability" is applied in these Regulations to premises, archives, documents, and official communications. Inviolability represents an absolute barrier to unilateral executive or judicial entry, search, seizure, or inspection by Australian authorities. Under regulation 9, the premises occupied by the Tribunal are inviolable, meaning domestic law enforcement or bailiffs cannot enter without consent. Similarly, under regulation 12, archives and documents belonging to or in the custody of the Tribunal are immune from subpoena or seizure.

"Immunity from suit and other legal process" is the core jurisdictional shield. As applied to the Tribunal under regulation 10, it prevents any party from bringing civil, criminal, or administrative actions against the entity in Australian forums. This must be distinguished from the limited "immunity from suit and other legal process for acts and things done in carrying out official duties" granted to lower-level officials, agents, and experts. The latter is a functional immunity (ratione materiae) that survives the termination of their service but only covers acts performed in an official capacity.

Finally, the Regulations rely on the definitions of "taxable supply" and "tax invoice" set out in sections 195-1 and 29-70 of A New Tax System (Goods and Services Tax) Act 1999 (Cth) (the GST Act). This ensures that the indirect tax concession scheme operates in complete administrative alignment with Australia's domestic consumption tax framework.

The Regulations directly govern, benefit, or restrict several distinct classes of natural and legal persons.

The primary legal beneficiary is the Tribunal itself, which gains corporate status and a comprehensive suite of jurisdictional and fiscal exemptions under Part 2. This directly affects domestic commercial entities, landlords, and utility providers who enter into contracts with the Tribunal. Because the Tribunal is immune from suit under regulation 10 and its property is immune from execution under regulation 11, commercial counter-parties must recognize that contractual disputes cannot be resolved through standard domestic litigation unless the Tribunal formally waives its immunity.

The second class consists of the natural persons who perform judicial or administrative roles for the Tribunal. Under Part 3, members of the Tribunal enjoy the highest tier of diplomatic-grade privileges and immunities when engaged on business, on journeys, or when holding themselves at the disposal of the Tribunal in Australia. Under Part 4, officials of the Tribunal (such as the Registrar and Registry staff) receive a narrower, functional set of immunities. However, under regulation 21(4), officials other than the Registrar only receive these protections if they belong to a class of officials notified in writing by the Tribunal to the Minister, the Australian Ambassador to Germany, or the Australian Embassy in Berlin.

The third class consists of external participants in litigation before the Tribunal. This includes agents, counsel, and advocates representing parties to a case, as well as experts appointed under Article 289 of the Convention, witnesses, and persons performing court-ordered missions. These individuals are granted temporary immunities under regulations 22, 23, and 24 to guarantee that they can participate in proceedings without fear of civil arrest, baggage seizure, or legal action concerning their advocacy or testimony.

The fourth class comprises Australian citizens and permanent residents. Regulation 6 imposes a strict clawback on this group. If an Australian citizen or permanent resident serves as a member, official, or representative, they lose almost all privileges and immunities under the Regulations. They retain only an exemption from tax on salaries received from the Tribunal, a residency exclusion for tax purposes, and functional immunity from suit for official acts.

Finally, the Regulations affect domestic government agencies. The Australian Taxation Office (ATO) and the Department of Foreign Affairs and Trade (DFAT) are directly affected by Part 5, as they are responsible for assessing, processing, and paying indirect tax concession claims. The Minister for Foreign Affairs (and delegated Senior Executive Service employees) also holds specific administrative responsibilities concerning waivers, delegations, and the determination of "reasonable needs" under regulation 26(5).

The Regulations construct a complex system of rights (conferred privileges and immunities) and matching duties (limitations, conditions, and compliance obligations).

The Tribunal holds the right to absolute immunity from suit and legal process under regulation 10, and its property and archives are declared immune and inviolable under regulations 11 and 12. Its official communications enjoy diplomatic-grade protection under regulation 13, including the right to use codes, ciphers, and to send or receive correspondence via diplomatic couriers and sealed bags. It also holds the right to import and export goods and publications for official use free from customs duties, taxes, and standard prohibitions under regulation 15. On the duty side, the Tribunal is not exempt from paying standard charges for public utility services under regulation 14(2), meaning it must pay for water, electricity, and sewerage like any domestic ratepayer.

Members of the Tribunal hold the right to high officer privileges under regulation 17, which includes exemptions from Australian income tax on their salaries. Crucially, regulation 17(1)(b) grants members the right to treat periods spent in Australia on Tribunal business as non-residential for tax purposes. However, this right is limited by a "tax floor" duty under regulation 17(2): the non-residency rule does not apply if its application would actually result in a higher tax liability than if the rule were ignored.

For other officials, agents, and experts, the primary right is immunity from personal arrest or detention, immunity from baggage seizure, and immunity from suit for official acts. These parties are also exempt from alien registration and immigration restrictions.

The indirect tax concession scheme under Part 5 establishes detailed statutory rights and conditional duties. The Tribunal or a member holds the right to be reimbursed for GST and excise duties paid on acquisitions of goods or removal services under regulation 25. However, this right only arises if several strict conditions are met. Under regulation 25(1)(a), the acquisition must be documented on a single tax invoice showing a taxable supply of at least $200 (inclusive of tax). Under regulation 25(2), the goods must be intended solely for official use, the personal use of a member, or the personal use of an eligible family member.

Furthermore, any person claiming an indirect tax concession must execute a written agreement with the Commonwealth. This agreement creates a binding duty to repay a proportion of the concession to the Commonwealth if the goods are disposed of within a specified period: three years for motor vehicles, or two years for other goods (regulation 26(1)(a)). If a claimant has previously breached such an agreement, the Minister may demand security as a condition for future payments.

The enforcement framework of the Regulations is unusual because its primary legal function is to prevent the enforcement of Australian laws against the Tribunal and its personnel. However, the Regulations contain several internal mechanisms to handle breaches, enforce tax clawbacks, and allow for the structured waiver of immunities.

Because the Tribunal, its property, and its archives are immune from suit and execution, standard domestic civil and criminal enforcement is completely suspended. Australian courts have no jurisdiction to issue writs, warrants, or orders against the Tribunal's assets. If a domestic supplier or employee attempts to sue the Tribunal, the court must dismiss the action for lack of jurisdiction unless a valid waiver is executed.

Under regulation 29, the power to waive these immunities is carefully allocated:

The Tribunal itself holds the sole authority to waive the privileges and immunities of its members, the Registrar, court-appointed experts, witnesses, and general agents, counsel, or advocates (regulation 29(1)).
If an agent, counsel, or advocate has been designated by a specific foreign State that is a party to the proceedings, only that foreign State has the power to waive their immunities (regulation 29(2)).
For lower-level officials of the Tribunal, the Registrar may waive their immunities, but only with the formal approval of the President of the Tribunal (regulation 29(3)).

Crucially, under regulation 10, any waiver of the Tribunal’s immunity from suit does not automatically extend to measures of execution. If a party successfully sues the Tribunal following a waiver of suit, they still cannot seize Tribunal bank accounts or property to satisfy the judgment unless the Tribunal has executed a separate, explicit waiver of immunity from execution (regulation 10(3)).

Where individuals commit offences or cause harm outside their official duties, the Regulations provide specific carve-outs that restore domestic enforcement. Under regulation 5, there is absolutely no immunity from civil or criminal process for any motor vehicle or traffic offences. This means that if a member or official of the Tribunal is involved in a traffic accident, domestic police can prosecute them for driving offences, and private parties can sue them in tort for damages, injury, or death.

Additionally, under regulation 26, the Commonwealth possesses direct enforcement rights to recover unpaid taxes and concession payouts. If a member or the Tribunal disposes of a tax-exempt motor vehicle within three years of acquisition, or other goods within two years, the proportion of the tax concession matching the remaining period becomes a debt due to the Commonwealth. The Minister or their delegate can enforce this debt through standard contractual remedies under the written agreements required by regulation 26(1)(a). If a claimant has breached a prior repayment agreement, the Minister can refuse future tax concessions or demand financial security before approving any new claims.

The Regulations do not operate in isolation; they are designed to interface directly with several Australian Commonwealth statutes.

The primary statutory relationship is with the parent Act, the International Organisations (Privileges and Immunities) Act 1963 (Cth). The Regulations are made under this Act, and they frequently rely on its provisions to define the scope of the concessions they grant. For example, regulation 17(1)(a) imports the entire suite of privileges and immunities listed in the Second Schedule to the Act, applying them to members of the Tribunal as if they were "high officers" of a standard international organisation.

The indirect tax concession scheme is also explicitly built upon the foundations laid by sections 11B and 11C of the Act. Section 11C establishes the basic mechanism for the Commissioner of Taxation to reimburse indirect taxes, while these Regulations specify which acquisitions are covered and what conditions must be met to trigger that statutory obligation.

The Regulations are also designed to align with Australia's consumption tax regime. Regulation 3 imports key terms directly from A New Tax System (Goods and Services Tax) Act 1999 (Cth). By adopting the domestic definitions of "taxable supply" (section 195-1) and "tax invoice" (section 29-70), the Regulations ensure that claimants must produce standard Australian tax invoices to support their claims. This allows the ATO to process these international claims using its standard GST administration systems.

For imported goods, the Regulations interact directly with the Customs Act 1901 (Cth). Regulation 25(1)(c) covers acquisitions of "warehoused goods" within the meaning of the Customs Act, provided their importation is otherwise covered by an immunity conferred by these Regulations. This ensures that the customs clearance process for goods imported by the Tribunal integrates smoothly with the indirect tax refund system.

The Regulations also interact with the Foreign States Immunities Act 1985 (Cth). Under regulation 6(2), the term "law of Australia" is given the exact same meaning as in the Foreign States Immunities Act. This provides consistency in defining the legal boundaries of permanent residency and the scope of Australian jurisdiction.

Finally, the Regulations preserve the supremacy of Australia’s biosecurity framework. Regulation 4(1) explicitly states that nothing in the Regulations affects the application of any Australian law relating to quarantine, or to the importation and exportation of goods. While regulation 4(2) clarifies that this preservation does not override any personal immunity from civil or criminal process, the physical cargo, vessels, and baggage imported by the Tribunal or its officers remain subject to inspection, treatment, or destruction under Australian quarantine and biosecurity laws.

To understand the legal history of this instrument, it is necessary to trace its origins and transitions as documented in the text.

The International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 2000 were made on 25 October 2000 and notified in the Commonwealth of Australia Gazette on 26 October 2000. Under regulation 2, their commencement was tied to a specific written determination made by the Minister for Foreign Affairs under subsection 13(2) of the parent Act.

These Regulations did not create a new regime from scratch; instead, they replaced a previous framework. Regulation 31 explicitly repealed the International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 1998 (Statutory Rules 1998 No. 41).

The transition from the 1998 regulations to the 2000 regulations is governed by the transitional provisions in regulation 32. These provisions ensure legal and administrative continuity between the two regimes:

Under regulation 32(1), if a privilege or immunity conferred on a member under the 1998 regulations had been waived, and that waiver was still active immediately before the commencement of the 2000 regulations, the waiver continues to apply to the corresponding privilege or immunity under the 2000 Regulations. This prevents any temporary gap in waiver status that could disrupt domestic litigation or investigations.
Under regulation 32(2), any acquisition of goods or services made under the 1998 regulations for which an indirect tax claim had not yet been made, or had not been finally determined before the 2000 regulations commenced, is treated as an acquisition under the 2000 Regulations. This protected pending tax claims from being invalidated by the repeal of the 1998 regulations, allowing the ATO to process them under the new framework.

The source text does not record any subsequent amendments to these Regulations, meaning that the instrument as drafted in 2000 remains the operative text.

Because these Regulations serve to shield the Tribunal and its officers from the jurisdiction of Australian courts, they are designed to prevent litigation from occurring in the first place. The source text does not identify any domestic or international judicial decisions that have interpreted or applied these specific Regulations.

However, the text of the Regulations clearly structures and anticipates several potential fields of litigation. By analyzing these provisions, we can see where legal disputes are most likely to arise and how the courts would have to resolve them.

The first potential area of litigation involves contractual disputes under regulation 8. Because the Regulations grant the Tribunal corporate personality, including the capacity to sue and be sued in its corporate name, the Tribunal can initiate litigation in Australian courts to enforce its contracts or protect its property. However, if a commercial counterparty attempts to file a counterclaim against the Tribunal in those same proceedings, the court must determine whether the Tribunal’s act of initiating the lawsuit constitutes an implied waiver of immunity from suit under regulation 10. Under standard principles of international law, any such waiver must be clear and unequivocal, and under regulation 10(3), it would not permit the counterparty to enforce any subsequent judgment against the Tribunal's assets without a second, express waiver of execution.

The second potential area of litigation relates to motor vehicle accidents under regulation 5. Because the Regulations completely remove any immunity from civil or criminal process for motor vehicle traffic offences or damage claims, this is the most likely area where a member or official of the Tribunal could face domestic court proceedings. If an official is sued for negligence following a car accident in Australia, they cannot claim diplomatic immunity. Any litigation would proceed through standard domestic courts under State or Territory traffic laws, and the defendant's liability would be assessed exactly like that of an ordinary Australian driver.

The third potential area involves debt recovery actions initiated by the Commonwealth under Part 5. If a member or official of the Tribunal receives an indirect tax concession and subsequently sells the tax-exempt motor vehicle in Australia within three years without repaying the required portion of the tax to the Commonwealth, the Minister can sue the individual for breach of the written agreement required by regulation 26(1)(a). Because these agreements are private contracts governed by Australian law, any lawsuit to recover the debt would be a standard civil contract claim, and the defendant would be bound by the terms of the agreement they signed.

For legal practitioners, accountants, and compliance professionals, these Regulations contain several non-obvious traps and administrative hurdles.

+--------------------------------------------------------------------------+
|                        KEY COMPLIANCE TRAPS                              |
+--------------------------------------------------------------------------+
| 1. The $200 Minimum Invoice Rule (r 25(1)(a))                            |
|    - Claims are rejected if a single tax invoice is under $200.          |
|    - Multiple smaller invoices cannot be aggregated to meet the threshold. |
+--------------------------------------------------------------------------+
| 2. The Official Class Notification Requirement (r 21(4))                 |
|    - Registry staff do not automatically receive immunities.             |
|    - The Tribunal must have notified DFAT of their class in writing.     |
+--------------------------------------------------------------------------+
| 3. The Two-Year Disposal Trap for Imported Goods (r 15(2))               |
|    - Tax exemptions on imported goods are clawed back if the goods       |
|      are sold, donated, or disposed of in Australia within two years.    |
+--------------------------------------------------------------------------+
| 4. The Tax Floor Rule (r 17(2) and r 21(3))                              |
|    - Tax residency exclusions are overridden if they would result        |
|      in a higher overall tax liability for the individual.               |
+--------------------------------------------------------------------------+

The first major trap is the $200 minimum invoice threshold under regulation 25(1)(a). An accountant or compliance officer attempting to claim a GST refund on behalf of the Tribunal or a member must ensure that every single claim is supported by a tax invoice showing a taxable supply of at least $200 (including the tax). Crucially, the regulations do not permit the aggregation of multiple smaller invoices to reach this $200 limit. If a claimant accumulates ten separate invoices of $150 each for official supplies, the entire $1,500 run of acquisitions is completely ineligible for reimbursement.

The second trap is the strict class notification requirement for Registry staff under regulation 21(4). Unlike the Registrar, who automatically receives privileges and immunities when engaged on official business, other officials of the Tribunal have no personal standing or protection under these Regulations unless they belong to a class of officials that has been formally notified in writing to the Minister, the Australian Ambassador to Germany, or the Australian Embassy in Berlin. If the Tribunal’s administration fails to keep this written notification updated, an administrative employee travelling to Australia on official business could find themselves entirely subject to domestic jurisdiction, immigration delays, and baggage searches.

The third trap is the two-year disposal rule for imported goods under regulation 15(2). While the Tribunal can import official goods and publications free from customs duties and import taxes under regulation 15(1), this exemption is instantly revoked if the goods (excluding publications) are sold, donated, or otherwise disposed of in Australia within two years of their import date. This means that if the Tribunal imports office equipment and later decides to donate it to an Australian charity or sell it to a local business eighteen months later, it will retroactively face the full liability for all customs duties and import taxes that were waived at the border.

The fourth trap is the "tax floor" rule in regulations 17(2) and 21(3). This rule states that the tax residency exclusion (which prevents periods spent in Australia on official business from counting toward tax residency) does not apply if its application would result in a higher tax liability for the individual than if the exclusion were ignored. This creates a complex compliance burden for tax agents, who must run parallel tax calculations for any member or official spending significant time in Australia to determine which method of tax assessment is legally required.

The fifth trap is the driver's licence requirement for family members under regulation 25(2)(c). A member of the Tribunal cannot claim an indirect tax concession for a motor vehicle intended for the personal use of a family member unless that family member holds a driver’s licence that is valid in Australia. If a spouse or dependent child holds only a foreign licence that is not recognized in Australia, any acquisition of a motor vehicle for their personal use will be disqualified from the tax concession scheme.

To ensure full compliance with the Regulations, individuals and organisations must follow structured administrative procedures.

For a member of the Tribunal or the Registry administration seeking to claim an indirect tax concession under Part 5, the compliance process must follow these steps:

Verify the Invoice Value: Ensure that the acquisition is documented on a single tax invoice issued by an Australian supplier and that the total value of the taxable supply is at least $200 (inclusive of GST).
Confirm Intended Use: Verify that the goods or removal services are intended solely for the official use of the Tribunal, the personal use of a member, or the personal use of an eligible family member who holds a valid Australian driver's licence (if the acquisition is a motor vehicle).
Execute the Repayment Agreement: Before submitting a claim, the claimant must execute a written agreement with the Commonwealth. Under regulation 26, this agreement must bind the claimant to repay a proportion of the tax concession if they dispose of the goods within three years (for motor vehicles) or two years (for other goods).
Sign the Claim Form: Under regulation 27(1)(a), the claim must be signed by the member themselves if they personally incurred the expense. If the expense was incurred by the Tribunal, the claim must be signed by the Registrar or the Deputy Registrar (including any official acting in those roles).
Submit to the Correct Agency: Under regulation 27(1)(c), if the claim relates to the acquisition of a motor vehicle, it must be sent to the Department of Foreign Affairs and Trade (DFAT). For all other goods and services, the claim and supporting tax invoices must be sent to the Australian Taxation Office (ATO).
Observe the Timing Rules: Claims for motor vehicles can be submitted at any time after the acquisition. For all other goods and services, claims can only be sent together with another claim, or at least three months after the claimant's previous claim.

For the Tribunal’s administrative staff managing human resources and international travel to Australia, the following compliance workflow is required:

+--------------------------------------------------------------------------+
|                  TRIBUNAL TRAVEL COMPLIANCE WORKFLOW                     |
+--------------------------------------------------------------------------+
| 1. Update the Class Notification List (r 21(4))                         |
|    - Send updated list of staff classes to DFAT or the Berlin Embassy.   |
+--------------------------------------------------------------------------+
| 2. Review Travel Manifests                                               |
|    - Verify that all travelling staff fall within a notified class.      |
+--------------------------------------------------------------------------+
| 3. Brief Travellers on Motor Vehicle Rules (r 5)                         |
|    - Advise that traffic offences and accident liabilities are NOT immune. |
+--------------------------------------------------------------------------+
| 4. Maintain Document Control (r 12 and r 22(e))                          |
|    - Ensure official papers are clearly marked to maintain inviolability. |
+--------------------------------------------------------------------------+

First, they must maintain and update the written class notification list required by regulation 21(4). Before any Registry staff travel to Australia on official business, the administration must confirm that the traveller’s specific job class is included on the official list previously sent in writing to the Minister, the Australian Ambassador to Germany, or the Australian Embassy in Berlin. If a traveller's class is not covered, the administration must submit an updated notification to the relevant Australian embassy before travel commences.

Second, the administration must brief all travelling personnel on the strict limits of their immunities. Travellers must be warned that under regulation 5, they enjoy absolutely no immunity from Australian laws relating to motor vehicles, traffic offences, or civil liability for car accidents. They must ensure that any vehicles they drive in Australia are fully insured and that their driving licences are valid and up to date.

Third, to protect the inviolability of official correspondence and documents under regulations 13, 22, and 23, the administration must ensure that all official papers, files, and correspondence carried by staff, agents, or experts are clearly marked as belonging to the Tribunal. When shipping physical materials to Australia, they must use official couriers or sealed bags, which are entitled to diplomatic treatment under regulations 13(5) and 13(6).

International Tribunal for the Law of the Sea (Privileges and Immunities) Regulations 2000

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