South Pacific Commission (Privileges and Immunities) Regulations 1970
Statutory Rules 1970 No. 171 as amended
made under the
International Organisations (Privileges and Immunities) Act 1963
This compilation was prepared on 21 September 2000
taking into account amendments up to SR 2000 No. 201
Prepared by the Office of Legislative Drafting
Attorney-General’s Department, Canberra
Contents
Page
1 Name of Regulations [see Note 1]
2 Definitions
3 Act applies to Commission
4 The Commission to have juridical personality and legal capacities
5 Privileges and immunities of Commission
6 Privileges and immunities of high officers of the Commission
7 Privileges and immunities of representatives to Commission
8 Privileges and immunities of officers of Commission other than high officers
9 Privileges and immunities of other persons connected with Commission
9A Indirect tax concession scheme — acquisitions
9B Indirect tax concession scheme — conditions
9C Indirect tax concession scheme — claims for payment
9D Indirect tax concession scheme — manner of payment
10 Waiver of privileges and immunities
11 Privileges and immunities subject to quarantine laws and laws relating to importation and exportation of goods etc
11A Delegation
12 Official emblem of Commission
13 Official seal of Commission
First Schedule
Second Schedule
Notes
1 Name of Regulations [see Note 1]
These Regulations are the South Pacific Commission (Privileges and Immunities) Regulations 1970.
2 Definitions
In these Regulations:
Act means the International Organisation (Privileges and Immunities) Act 1963.
Commission means the South Pacific Commission.
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.
3 Act applies to Commission
The Commission is an international organisation to which the Act applies.
4 The Commission to have juridical personality and legal capacities
(1) The Commission:
(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.
(2) All courts, judges and persons acting judicially in Australia shall take judicial notice of the seal of the Commission affixed to a document and shall presume that it was duly affixed.
5 Privileges and immunities of Commission
(1) Subject to subregulations (2), (3) and (4), the Commission has the privileges and immunities specified in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 11 and 12 of the First Schedule to the Act.
(2) The Commission 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 Commission, whether owned or leased, as represent payment for specific services rendered.
(3) Where goods (not being publications of the Commission) are imported, manufactured or purchased by the Commission for sale by it, subregulation (1) of this regulation does not operate to prevent sales tax being payable by the Commission or by any other person upon the sale value of the goods.
(4) The Commission’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 9A (1).
6 Privileges and immunities of high officers of the Commission
(1) The offices of Secretary-General and Deputy Secretary-General of the Commission are each a high office in the Commission for the purposes of subparagraph (i) of paragraph (b) of subsection (1) of section 6 of the Act.
(2) A person who holds, or is performing the duties of, an office specified in the last preceding subregulation has the privileges and immunities specified in Part I of the Second Schedule to the Act.
(3) A person who has ceased to hold, or to perform the duties of, an office specified in subregulation (1) of this regulation has the immunities specified in Part II of the Second Schedule to the Act.
7 Privileges and immunities of representatives to Commission
(1) A person who is accredited to, or who is in attendance at an international conference convened by, the Commission 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 has attended an international conference convened by, the Commission as a representative of a country other than Australia has the immunities specified in Part II of the Third Schedule to the Act.
8 Privileges and immunities of officers of Commission other than high officers
(1) Subject to the next two succeeding subregulations, a person who holds an office in the Commission, other than a person who holds, or who is performing the duties of, an office specified in subregulation (1) of regulation 6 of these Regulations, has the privileges and immunities specified in paragraphs 1, 2, 3, 5, 6 and 7 of Part I of the Fourth Schedule to the Act.
(2) The salary and emoluments received from the Commission by a person to whom the last preceding subregulation applies, being a resident of Australia within the meaning of the Income Tax Assessment Act 1936-1969, 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 Commission held by him.
(5) A person, being an Australian citizen, who holds an office in the Commission, other than a person who holds, or is performing the duties of, an office specified in subregulation (1) of regulation 6 of these Regulations, does not have the privilege specified in paragraph 7 of Part I of the Fourth Schedule to the Act.
(6) A person who has ceased to hold an office in the Commission, other than an office specified in subregulation (1) of regulation 6 of these Regulations, has the immunities specified in Part II of the Fourth Schedule to the Act.
9 Privileges and immunities of other persons connected with Commission
(1) A person who is serving on a committee, or is participating in the work, of the Commission or is performing, whether alone or jointly with other persons, a mission on behalf of the Commission has the privileges and immunities specified in paragraphs 1, 2, 3 and 5 of Part I of the Fifth Schedule to the Act and immunity from seizure of personal baggage.
(2) The privileges and immunities specified in paragraph 3 in Part I of the Fifth Schedule to the Act extend, in relation to a person, to:
(a) papers and documents that relate to the work of the committee of the Commission on which he is serving;
(b) the work of the Commission in which he is participating; or
(c) the mission that he is performing on behalf of the Commission,
as the case may be, but not to any other papers and documents.
(3) A person who has served on such a committee or has participated in such work or has performed such a mission has the immunities specified in Part II of the Fifth Schedule to the Act.
9A Indirect tax concession scheme — acquisitions
(1) For paragraph 11C (1) (a) of the Act, the following acquisitions by the Commission 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;
(viii) services directly relating to matters listed in Article IV of the 1947 Agreement Establishing the South Pacific Commission, other than services relating to the ordinary operations of the Commission;
(b) an acquisition of goods that are freed from duties of excise by subregulation 5 (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 Commission 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 Commission is covered by these Regulations only if, at the time of the acquisition, it was intended for the official use of the Commission.
(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 6 (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) For subregulation (3), the persons are:
(a) the Secretary-General of the Commission; and
(b) the Deputy Secretary-General of the Commission.
(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 Commission (other than a person 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.
9B 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 Commission 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 9A (1) (d)) — the person assigns the services to another person (except to another person entitled to an indirect tax concession under these Regulations or another law of the Commonwealth in relation to similar acquisitions) in Australia or an external Territory;
(b) if the person has breached a previous agreement under paragraph (a) — the person complies with any written requirements, including a requirement to give security, that the Minister considers necessary to ensure that the person complies with the agreement.
(2) For subparagraphs (1) (a) (i) and (ii):
(a) a sale of goods to a finance company as part of a sale and lease-back arrangement is not a disposal of the goods; and
(b) a person (the first person) is taken to have disposed of goods to which 1 of those subparagraphs applies within the period mentioned in that subparagraph to a person who is not entitled to an indirect tax concession in relation to similar acquisitions if:
(i) the first person disposes of the goods to a person (the second person) who is entitled to the concession; and
(ii) the second person disposes of the goods to another person; and
(iii) the series of disposals of the goods to other persons continues (if necessary) until the goods are eventually acquired, within the period mentioned in that paragraph, by a person who is not entitled to the concession.
(3) For paragraph (1) (a), the amount to be repaid is:
(a) for an acquisition to which subparagraph (1) (a) (i) or (ii) applies — the proportion of the amount paid under section 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 Commission.
9C Indirect tax concession scheme — claims for payment
A claim for payment under regulation 9A:
(a) must be signed by, or for, the Secretary-General of the Commission; and
(b) must be sent with the tax invoice for the acquisition; and
(c) must be sent:
(i) for an acquisition of a motor vehicle — to the Protocol Branch of the Department of Foreign Affairs and Trade; or
(ii) in any other case — to the Australian Taxation Office; and
(d) for an acquisition of a motor vehicle or an acquisition of real property by lease — may be sent at any time after the acquisition; and
(e) for an acquisition of a kind mentioned in paragraph 9A (1) (d), except an acquisition of real property by lease — may only be sent:
(i) in accordance with the arrangement mentioned in that paragraph; or
(ii) if the arrangement does not specify a time when a claim may be sent:
(A) with another claim; or
(B) at least 3 months after another claim from the Commission 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 Commission.
Note Paragraphs 9C (e) and (f) are intended to limit the number of claims from the Commission to one in each quarter, to minimise delays in the processing of claims.
9D 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 Commission.
10 Waiver of privileges and immunities
(1) The Commission may waive any privileges or immunities to which:
(a) the Commission;
(b) a person who holds or has ceased to hold, or is performing or has ceased to perform the duties of, an office specified in subregulation (1) of regulation 6 of these Regulations;
(c) a person who holds or has ceased to hold any other office in the Commission; or
(d) a person who is serving on a committee or participating in the work, or has served on a committee or participated in the work, of the Commission or is performing or has performed, whether alone or jointly with other persons, a mission on behalf of the Commission,
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, a conference convened by, the Commission as a representative of that country is entitled by virtue of the Act or these Regulations.
11 Privileges and immunities subject to quarantine laws and laws relating to importation and exportation of goods etc
Nothing in these Regulations affects the application of any law of the Commonwealth or 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.
11A 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 9B (1) (b) and (5) (b) of these Regulations.
(2) A power delegated under subregulation (1), when exercised by the delegate, is taken to have been exercised by the Minister.
(3) A delegation of power under subregulation (1) does not prevent the exercise of the power by the Minister.
12 Official emblem of Commission
For the purposes of section 12 of the Act, the emblem in the First Schedule to these Regulations is declared to be the official emblem of the Commission.
13 Official seal of Commission
For the purposes of section 12 of the Act, the seal, the design of which is set out in the Second Schedule to these Regulations, is declared to be the official seal of the Commission.
The Schedules
First Schedule
(regulation 12)
Official Emblem of the South Pacific Commission
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Second Schedule
(regulation 13)
Design of the Official Seal of the South Pacific Commission
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Notes to the South Pacific Commission (Privileges and Immunities) Regulations 1970
Note 1
Note: The South Pacific Commission (Privileges and Immunities) Regulations 1970 (in force under the International Organisations (Privileges and Immunities) Act 1963) as shown in this compilation comprise Statutory Rules 1970 No. 171 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.