Multilateral Investment Guarantee Agency (Privileges and Immunities) Regulations 1998
1Multilateral Investment Guarantee Agency (Privileges and Immunities) Regulations 1998
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Multilateral Investment Guarantee Agency (Privileges and Immunities) Regulations 1998
Statutory Rules 1998 No. 135 as amended
made under the
International Organisations (Privileges and Immunities) Act 1963
This compilation was prepared on 18 June 2003
taking into account amendments up to SR 2000 No. 201
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
Contents
1 Name of Regulations [see Note 1]
2 Commencement [see Note 1]
3 Definitions
4 Act to apply to the Agency
5 Agency has legal personality and capacity
6 Privileges and immunities of the Agency
7 Privileges and immunities of President
8 Privileges and immunities of representatives attending conferences convened by the Agency
9 Privileges and immunities of officers of the Agency
10 Privileges and immunities of experts working with the Agency
10A Indirect tax concession scheme — acquisitions
10B Indirect tax concession scheme — conditions
10C Indirect tax concession scheme — claims for payment
10D Indirect tax concession scheme — manner of payment
11 Waiver of privileges and immunities
12 Liability for motor vehicle accident or offence
13 Privileges and immunities subject to quarantine laws etc
14 Delegation
Notes
1 Name of Regulations [see Note 1]
These Regulations are the Multilateral Investment Guarantee Agency (Privileges and Immunities) Regulations 1998.
2 Commencement [see Note 1]
These Regulations take effect from the day specified in a written determination made by the Minister under subsection 13 (2) of the Act for the purposes of the commencement of these Regulations.
3 Definitions
In these Regulations:
Act means the International Organisations (Privileges and Immunities) Act 1963.
Agency means the Multilateral Investment Guarantee Agency established under Article 1 of the Convention.
Convention means the Convention Establishing the Multilateral Investment Guarantee Agency done at Seoul on 12 October 1985.
expert means a person performing short term or temporary missions for or on behalf of the Agency.
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.
President means the person who holds, or is performing the duties of, the office of President of the Agency.
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.
4 Act to apply to the Agency
The Agency is declared to be an international organisation to which the Act applies.
5 Agency has legal personality and capacity
The Agency:
(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.
6 Privileges and immunities of the Agency
(1) Subject to this regulation, the Agency has all the privileges and immunities specified in the First Schedule to the Act.
(2) For item 1 of the First Schedule to the Act, an action may be brought against the Agency in an Australian court of competent jurisdiction if:
(a) the action:
(i) is not a dispute to which Article 57 or Article 58 of the Convention refers; or
(ii) does not concern personnel matters; or
(iii) is not an action taken by a member of the Agency or a person acting for or deriving a claim from a member of the Agency; and
(b) the Agency:
(i) has an office established in Australia; or
(ii) has appointed an agent in Australia for the purpose of accepting service or notice of process.
(3) In any action against the Agency to which subregulation (2) applies, the property and assets of the Agency are immune from all forms of seizure, attachment or execution before delivery of the final judgment or award against the Agency.
(4) Except as mentioned in subregulation (5), the privileges mentioned in items 3, 5, 6 and 9 of the First Schedule to the Act do not apply to the Agency for property or assets acquired by the Agency as successor to or by subrogation from:
(a) a holder of a guarantee; or
(b) a reinsured entity; or
(c) an investor insured by a reinsured entity.
(5) For property or assets mentioned in subregulation (4), the privileges referred to only apply to the Agency to the extent that they would have applied to the holder, entity or investor to whom the Agency is successor or is subrogated.
(6) Item 8 of the First Schedule to the Act only applies to an investment guaranteed or reinsured by the Agency, or an insurance policy reinsured by the Agency, that is held by any person or organisation, if:
(a) the levying of tax would discriminate against that investment or insurance only because it is guaranteed or reinsured by the Agency; or
(b) the sole jurisdictional basis for the levying of tax is the location of an office or place of business maintained by the Agency.
7 Privileges and immunities of President
(1) The office of President is a high office in the Agency for subparagraph 6 (1) (b) (i) of the Act.
(2) Subject to subregulations (4) and (5), a person who holds, or is performing the duties of, the office of President has the privileges and immunities specified in Part I of the Second Schedule to the Act.
(3) Subject to subregulation (5), a person who has ceased to hold, or perform the duties of, the office of President has the immunities specified in Part II of the Second Schedule to the Act.
(4) The privileges and immunities conferred on a person under subregulation (2) do not apply to a child of the person if the child:
(a) has attained the age of 18 years; or
(b) ceases to be a dependant of the person.
(5) Subject to subregulation (6), the privileges and immunities conferred on a person by subregulation (2), or the immunities conferred on a person by subregulation (3), do not extend to a person who is an Australian citizen or a permanent resident of Australia.
(6) Subregulation (5) does not affect immunity from civil or criminal process for actions of a person undertaken in performing the duties of the office of President.
8 Privileges and immunities of representatives attending conferences convened by the Agency
(1) A person who is accredited to, or attends a conference in Australia convened by the Agency as a representative of a country other than Australia, has the privileges and immunities specified in items 2, 5 and 6 of Part I of the Third Schedule to the Act.
(2) A person who has ceased to be accredited to, or who has attended a conference convened by the Agency in Australia as a representative of a country other than Australia, has the immunities specified in Part II of the Third Schedule to the Act.
(3) However, subregulations (1) and (2) do not apply to a person who is an Australian citizen or a person permanently resident in Australia.
9 Privileges and immunities of officers of the Agency
(1) Subject to subregulations (2) and (6), a person who holds an office in the Agency (other than the office of President) has the privileges and immunities specified in items 1, 2 and 3 of Part I of the Fourth Schedule to the Act.
(2) For subregulation (1), the salary and allowances received from the Agency for services performed in Australia by a person who is a resident of Australia within the meaning of the Income Tax Assessment Act 1936, are exempt from taxation only if:
(a) the person is not an Australian citizen or a person permanently resident in Australia; and
(b) the person came to Australia solely for the purpose of performing duties of the office in the Agency.
(3) A person to whom subregulation (1) applies and who is not an Australian citizen or a person permanently resident in Australia has, in addition to the privileges and immunities mentioned in subregulation (1), the privileges and immunities specified in items 4 and 5 of Part I of the Fourth Schedule to the Act.
(4) A person to whom subregulation (1) applies and who is an Australian citizen or a person permanently resident in Australia has the privilege specified in item 4 of Part I of the Fourth Schedule to the Act, only if the name of that person is included in a list that has been drawn up by the President and approved by the Minister by instrument in writing.
(5) A person who has ceased to hold an office in the Agency (other than the office of President) has the immunities specified in Part II of the Fourth Schedule to the Act.
(6) The privilege specified in item 3 of Part I of the Fourth Schedule to the Act and conferred under subregulation (1) does not apply to a child of the person if the child:
(a) has attained the age of 18 years; or
(b) ceases to be a dependant of the person.
10 Privileges and immunities of experts working with the Agency
(1) An expert, not being a person to whom subregulation 8 (1) or 9 (1) applies, has the privileges and immunities specified in items 2, 2A, 3 and 5 of Part I of the Fifth Schedule to the Act.
(2) An expert who has served on a committee, or participated in the work of the Agency, or performed a mission on behalf of the Agency has the immunities specified in Part II of the Fifth Schedule to the Act.
10A Indirect tax concession scheme — acquisitions
(1) For paragraph 11C (1) (a) of the Act, acquisitions by the Agency are covered by these Regulations.
(2) However, an acquisition by the Agency is covered by these Regulations only if, at the time of the acquisition, it was intended for the official use of the Agency.
(3) For paragraph 11C (1) (a) of the Act, the following acquisitions by the President 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 7 (2);
(c) an acquisition of warehoused goods (within the meaning of the Customs Act 1901), the importation of which is covered by an immunity from taxation (including customs duties) conferred by these Regulations.
(4) However:
(a) an acquisition by the President is covered by these Regulations only if, at the time of the acquisition, it was intended for the personal use of the President, or of a member of the family of the President; and
(b) an acquisition of a motor vehicle for the personal use of the President is covered by these Regulations only if:
(i) the vehicle was acquired in exceptional circumstances to replace a motor vehicle for which the President 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 President 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 the President is covered by these Regulations only if:
(i) the vehicle is acquired in exceptional circumstances to replace a motor vehicle for which the President 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 President 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.
(5) 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 Agency (other than the office of President), 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.
(6) In subparagraphs (4) (b) (i) and (c) (i) and paragraph (5) (b):
exceptional circumstances, in relation to the replacement of a motor vehicle, includes the original vehicle being stolen or damaged beyond repair.
Note Section 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.
10B 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 Agency 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 — 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 Agency.
10C Indirect tax concession scheme — claims for payment
A claim for payment under regulation 10A:
(a) must be signed by, or for, the President; 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 that is subject to an arrangement between the Agency and the Commonwealth for reimbursement of indirect tax, except an acquisition of real property by lease — may only be sent:
(i) in accordance with the arrangement; 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 Agency.
Note Paragraphs 10C (e) and (f) are intended to limit the number of claims from the Agency to one in each quarter, to minimise delays in the processing of claims.
10D 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 President.
11 Waiver of privileges and immunities
(1) The Agency may waive a privilege or immunity conferred by the Act or these Regulations on:
(a) the Agency; or
(b) a person who holds, or has ceased to hold, the office of President.
(2) The President may waive a privilege or immunity to which a person is entitled under regulation 9.
(3) The government of a country may waive a privilege or immunity conferred by the Act or these Regulations on a person who, as a representative of that country:
(a) is a person mentioned in regulation 8; or
(b) is, or has been, a member of the official staff of a person mentioned in paragraph (a).
12 Liability for motor vehicle accident or offence
The immunities conferred by these Regulations do not extend to civil or criminal process:
(a) for the recovery of damages for any damage, injury or death resulting from an accident involving a motor vehicle owned or operated by the Agency, or owned or driven by a person to whom a provision of these Regulations applies; or
(b) in relation to the commission of an offence under the law of the Commonwealth, a State or a Territory, relating to motor traffic, motor vehicles or the use of a motor vehicle.
13 Privileges and immunities subject to quarantine laws etc
(1) These Regulations do not affect the application of any law of the Commonwealth, a State or a Territory about:
(a) quarantine; or
(b) importation into, or exportation from, Australia or an External Territory.
(2) However, subregulation (1) does affect any immunity from civil or criminal process.
14 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 10B (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 Multilateral Investment Guarantee Agency (Privileges and Immunities) Regulations 1998
Note 1
Note: The Multilateral Investment Guarantee Agency (Privileges and Immunities) Regulations 1998 (in force under the International Organisations (Privileges and Immunities) Act 1963) as shown in this compilation comprise Statutory Rules 1998 No. 135 amended as indicated in the Tables below.
Note: For all relevant information pertaining to application, saving or transitional provisions see Table A.
Note: Table of Statutory Rules
Year andnumber
Date of notificationin Gazette
Date ofcommencement
Application, saving ortransitional provisions
1998 No. 135
25 June 1998
1 July 2001: (see r. 2 and Gazette 2001, No. GN26)
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.