Taipei Economic and Cultural Office (Privileges and Immunities) Regulations 1998
Statutory Rules 1998 No. 300 as amended
made under the
Overseas Missions (Privileges and Immunities) Act 1995
This compilation was prepared on 29 August 2002
taking into account amendments up to SR 2002 No. 197
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 TECO
5 Privileges and immunities of TECO offices
6 Privileges and immunities of the Representative
7 Privileges and immunities of persons associated with TECO
8 Duties of customs and excise
9 Sales tax
10 Loss of exemption — sales tax, customs duty and excise duty
11 Period of entitlement
11A Indirect tax concession scheme — acquisitions
11B Indirect tax concession scheme — conditions
11C Indirect tax concession scheme — claims for payment
11D Indirect tax concession scheme — manner of payment
12 Waiver of privileges and immunities
13 Privileges and immunities subject to quarantine laws etc
14 Delegation
Schedule 1 Limitations and conditions — TECO
Schedule 2 Limitations and conditions — persons associated with TECO
Notes
1 Name of regulations [see Note 1]
These regulations are the Taipei Economic and Cultural Office (Privileges and Immunities) Regulations 1998.
2 Commencement [see Note 1]
These regulations commence on gazettal.
3 Definitions
(1) In these regulations:
Act means the Overseas Missions (Privileges and Immunities) Act 1995.
authorised person means:
(a) the Minister for Customs and Consumer Affairs; or
(b) a person authorised in writing, for these regulations, by that Minister.
Canberra office means the TECO office in Canberra.
employee of a State office means a person employed in the technical or administrative service of a State office.
Section 1 - Taipei Economic and Cultural Office (Privileges and Immunities) Regulations 1998 - Taipei Economic and Cultural Office (Privileges and Immunities) Regulations 1998 | Zoe
employee of TECO means:
(a) an employee of a State office; and
(b) an employee of the Canberra office.
employee of the Canberra office means a person employed in the technical or administrative service of the Canberra office.
head of a State office means the person in charge of the functions of the State office of which the person is an officer.
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.
officer of a State office means a person, including the head of that State office, entrusted in that capacity with the exercise of functions of TECO for that office, but does not include an employee of that office.
officer of TECO means:
(a) an officer of a State office; and
(b) an officer of the Canberra office.
officer of the Canberra office means a person, including the Representative, entrusted in that capacity with the exercise of functions of TECO for the Canberra office, but does not include an employee of that office.
Representative means the person in charge of the functions of the Canberra office.
staff member of a State office means:
(a) the head of a State office; or
(b) an officer of a State office; or
(c) an employee of a State office.
staff member of the Canberra office means:
(a) the Representative; or
(b) an officer of the Canberra office; or
(c) an employee of the Canberra office.
State office includes the TECO offices in Sydney, Melbourne and Brisbane.
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.
TECO means the Taipei Economic and Cultural Office.
(2) In these regulations, a reference to a person on whom privileges and immunities are conferred by these regulations is a reference to a person who:
(a) is assigned (in whatever capacity) to TECO by the responsible agency in Taipei and is not engaged in employment in Australia other than by TECO, or is a member of the family of such a person; and
(b) is not a permanent resident of Australia; and
(c) is not an Australian citizen.
4 Act to apply to TECO
For subsection 4 (1) of the Act, TECO is declared to be a designated overseas mission.
Note For TECO to be effectively a designated overseas mission, there must also be in force an authority signed by the Minister (see subsection 4 (1) of the Act).
5 Privileges and immunities of TECO offices
(1) The Canberra office has the privileges and immunities mentioned in items 1, 2, 4, 5, 6, 7, 8, 9, 10, 11 and 12 in Schedule 1 to the Act.
(2) A State office has the privileges and immunities mentioned in items 1, 2, 4, 5, 6, 7, 8, 9, 10 and 12 in Schedule 1 to the Act.
(3) However, a privilege or immunity mentioned in column 2 of an item in Schedule 1 to these regulations is subject to the limitation or condition set out in column 3 of that item.
(4) Subregulation (1) does not exempt TECO from any dues and taxes that constitute payment for specific services for:
(a) premises owned, leased or occupied by TECO; or
(b) the private residence of the Representative.
6 Privileges and immunities of the Representative
The Representative has all the privileges and immunities set out in Schedule 2 to the Act.
7 Privileges and immunities of persons associated with TECO
(1) Officers of the Canberra office (other than the Representative) have the privileges and immunities mentioned in items 1 to 10 (inclusive) in Schedule 2 to the Act.
(1A) Members of the family of an officer of the Canberra office (other than the Representative) have the privileges and immunities mentioned in items 1 to 10 (inclusive) in
Schedule 2 to the Act.
(2) Officers of a State office (including the head of that State office) have the privileges and immunities mentioned in items 2, 3, 4, 5, 7, 8 and 9 in Schedule 2 to the Act.
(3) Employees of the Canberra office or of a State office have the privileges and immunities mentioned in items 2, 3 ,4, 7 and 8 in Schedule 2 to the Act.
(4) The operation of subregulation (1), (2) or (3) is not affected by a temporary secondment of a person who is a TECO officer or employee from the person’s usual TECO office to another.
(5) However, a privilege or immunity mentioned in column 2 of an item in Schedule 2 to these regulations is subject to the limitation or condition mentioned in column 3 of that item.
8 Duties of customs and excise
(1) TECO, and a person who, in relation to TECO, is a person mentioned in section 7 of the Act, are exempt from duties of customs on articles imported into Australia and from excise duties on excisable goods produced in Australia purchased:
(a) for use by TECO; or
(b) for personal use by the person or a member of his or her family.
(2) In the case of a person who is an employee of a State office or an employee of the Canberra office, or a member of an employee’s family, the exemption applies only to the personal effects of that employee or a family member of that employee imported within 6 months after the person’s first arrival in Australia.
(3) The exemption does not apply unless an authorised person holds a written undertaking that, if the exemption is lost under subregulation 10 (2), the authorised person will:
(a) be given written notice of that fact; and
(b) be paid the amount determined in relation to the lost exemption under that subregulation.
(4) The written undertaking is to be given:
(a) in the case of goods for use by TECO — by the Representative or the head of a State office; or
(b) in the case of goods for personal use — by the person who (or a member of whose family) had the benefit of the exemption.
(5) The exemption does not apply to goods:
(a) to which a declaration under subregulation 10 (1) applies; or
(b) to which a declaration under subregulation 10 (4) applies, unless an authorised person is given the further undertaking and security (if required).
9 Sales tax
(1) The sale of goods mentioned in regulation 8, to TECO or a person mentioned in subregulation 8 (1), is exempt from sales tax.
(2) The exemption does not apply unless an authorised person holds a written undertaking that, if the exemption is lost under subregulation 10 (2), the authorised person will:
(a) be given written notice of that fact; and
(b) be paid the amount determined in relation to the lost exemption under that subregulation.
(3) The written undertaking is to be given by:
(a) in the case of goods for use by TECO — the Representative or the head of a State office; or
(b) in the case of goods for personal use — the person who (or a member of whose family) had the benefit of the exemption.
(4) The exemption does not apply to goods:
(a) to which a declaration under subregulation 10 (1) applies; or
(b) to which a declaration under subregulation 10 (4) applies, unless an authorised person is given the further undertaking and security (if required).
10 Loss of exemption — sales tax, customs duty and excise duty
(1) An authorised person may declare, in writing, in relation to particular goods, that in his or her opinion, the reasonable requirements of TECO or the person purchasing the goods, have adequately been met by other goods for which TECO or the person has already had the benefit of an exemption claimed under regulation 8 or 9.
(2) If goods for which an exemption has been claimed under regulation 8 or 9 are sold or disposed of within the forfeiture period, the exemption is lost and the Commonwealth must be paid an amount for duties or tax, as the case requires, equal to the amount that an authorised person determines would have been payable, if the exemption had not been claimed.
(3) Liability for payment under subregulation (2) is borne by:
(a) in the case of goods for use by TECO — TECO; or
(b) in the case of goods for personal use — the person who (or a member of whose family) had the benefit of the exemption.
(4) The forfeiture period is:
(a) in the case of a motor vehicle — 3 years from:
(i) the date of entry of the motor vehicle into Australia (if imported); or
(ii) the date of purchase of the motor vehicle (if produced in Australia); and
(b) in any other case — 2 years from:
(i) the date of entry of the goods into Australia (if imported); or
(ii) the date of purchase of the goods (if produced in Australia).
(5) If a person (the exempt person) fails to comply with subregulation (2) or an undertaking under regulation 8 or 9, an authorised person may, declare in writing, that the exempt person cannot claim any further exemption under those regulations unless that person gives a further written undertaking, for any other goods purchased, that may include a condition that the person give security, satisfactory to an authorised person, that the exempt person will comply with the undertaking.
11 Period of entitlement
(1) An entitlement to a privilege or immunity under these regulations for a matter that is not of an official nature commences on the date when:
(a) in the case of a staff member of the Canberra office, or a staff member of a State office — the staff member first arrives in Australia for service with TECO; or
(b) in the case of a member of the family of a staff member — the last occurring of the following:
(i) the staff member first arrives in Australia for service with TECO;
(ii) the member of the family first arrives in Australia;
(iii) the person becomes a member of the family.
(2) An entitlement to a privilege or immunity under these regulations for a matter that is not of an official nature ceases for a staff member when:
(a) the staff member permanently leaves Australia; or
(b) if, before permanently leaving, the staff member ceases to perform his or her official functions — that cessation occurs.
(3) An entitlement to a privilege or immunity under these regulations for a matter that is not of an official nature ceases for a member of the family of the staff member when the staff member’s eligibility ceases.
11A Indirect tax concession scheme — acquisitions
(1) For paragraph 12A (1) (a) of the Act, the following acquisitions by a person mentioned in section 7 of the Act 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 for TECO;
(iii) telecommunications services;
(iv) electricity or gas services;
(v) protection of premises services;
(vi) removal of goods services;
(vii) freight and cartage other than removal of goods;
(b) an acquisition of goods that are freed from duties of excise by regulation 8;
(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 Representative and the Commonwealth for reimbursement of indirect tax:
(i) construction or renovation services;
(ii) real property;
(iii) any other thing.
(2) However, subject to subregulations (3), (5) and (6), an acquisition is covered by these Regulations only if, at the time of the acquisition, it was intended for the official use of TECO.
(3) For paragraph 12A (1) (a) of the Act, the following acquisitions by an officer of TECO or a member of an officer’s family 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 regulation 8;
(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 an officer of TECO or a member of an officer’s family is covered by these Regulations (under subregulation (3)) only if, at the time of the acquisition, it was intended for the personal use of the officer, or of a member of the family of the officer; and
(b) an acquisition of a motor vehicle for the personal use of an officer of TECO is covered by these Regulations only if:
(i) the vehicle was acquired in exceptional circumstances to replace a motor vehicle for which the officer received:
(A) a concession under section 12A of the Act; or
(B) an exemption from indirect tax under subsection 9 (2) of the Act; or
(ii) within the previous 3 years, the officer has not received:
(A) a concession under section 12A of the Act for the acquisition of another motor vehicle; or
(B) an exemption from indirect tax under subsection 9 (2) 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 an officer of TECO is covered by these Regulations only if:
(i) the vehicle is acquired in exceptional circumstances to replace a motor vehicle for which a family member (except the officer) received:
(A) a concession under section 12A of the Act; or
(B) an exemption under subsection 9 (2) 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, no family member (except the officer) has received:
(A) a concession under section 12A of the Act for the acquisition of another motor vehicle; or
(B) an exemption from indirect tax under subsection 9 (2) of the Act on the importation of another motor vehicle.
(5) For paragraph 12A (1) (a) of the Act, the acquisition of a locally-manufactured motor vehicle by an employee, or a member of the family of an employee, of the Canberra office for the personal use of the employee or a family member, is covered by these Regulations if:
(a) the vehicle is acquired within the first 6 months of the employee’s installation in Australia and no family member has previously received:
(i) a concession under section 12A of the Act for the acquisition of another motor vehicle; or
(ii) an exemption from indirect tax under subsection 9 (2) 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 a family member received:
(i) a concession under section 12A of the Act; or
(ii) an exemption from indirect tax under subsection 9 (2) of the Act.
(6) For paragraph 12A (1) (a) of the Act, the acquisition of a locally-manufactured motor vehicle by an employee of a State office for the employee’s personal use is covered by these Regulations if:
(a) the vehicle is acquired within the first 6 months of the employee’s installation in Australia and the employee has not previously received:
(i) a concession under section 12A of the Act for the acquisition of another motor vehicle; or
(ii) an exemption from indirect tax under subsection 9 (2) 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 employee received:
(i) a concession under section 12A of the Act; or
(ii) an exemption from indirect tax under subsection 9 (2) of the Act.
(7) In subparagraphs (4) (b) (i) and (c) (i) and paragraphs (5) (b) and (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 12A 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.
11B Indirect tax concession scheme — conditions
(1) For paragraph 12A (3) (a) of the Act, the amount mentioned in subsection 12A (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 Representative 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 for an acquisition covered by paragraph 11A (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 12A 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 12A 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 12A 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 section 12A 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.
11C Indirect tax concession scheme — claims for payment
A claim for payment under regulation 11A:
(a) must be signed by, or for, the Representative or the head of a State office; 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 11A (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 TECO 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 TECO.
Note Paragraphs 11C (e) and (f) are intended to limit the number of claims from TECO to one in each quarter, to minimise delays in the processing of claims.
11D Indirect tax concession scheme — manner of payment
For paragraph 12A (3) (b) of the Act, the amount is to be paid to a single recipient, or an account, nominated by:
(a) for a claim by the Canberra office — the Representative; and
(b) for a claim by a State office — the head of the office.
12 Waiver of privileges and immunities
(1) The responsible agency in Taipei may waive a privilege or immunity conferred by these regulations.
(2) The Representative may waive a privilege or immunity to which a person is entitled under regulation 7.
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 not 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 11B (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.
Schedule 1 Limitations and conditions — TECO
(regulation 5)
Column 1Item
Column 2Item in Schedule 1 to the Act
Column 3Limitations or conditions
1
1
Inviolability of premises is limited to the extent that local authorities cannot enter:(a) the Canberra office except with the consent of the Representative; and(b) a State office, except:(i) with the consent of the head of that office; or(ii) in cases of emergency.
2
2
Inviolability of property and assets is limited, for a State office, to the extent that property and assets (including furnishings and means of transport) will not be requisitioned for purposes of national defence or public utility.
3
7
The privileges and immunities relating to TECO documents sent or received by courier are not conferred.
4
9
Exemption from taxation is limited to premises used exclusively for the purposes of TECO.
5
12
Exemption from taxation of articles does not apply in relation to:(b) duties levied in Australia on transfers;(c) registration, court and record fees, mortgage dues and stamp duties, other than stamp duty payable for the lease or purchase of:(i) TECO premises; and(ii) the private residence of the Representative.
Schedule 2 Limitations and conditions — persons associated with TECO
(regulation 7)
Column 1Item
Column 2Item in Schedule 2 to the Act
Column 3Limitations or conditions
2
2
Exemption from taxation does not apply in relation to:(b) dues and taxes on private immovable property situated in Australia (except TECO premises and the private residence of the Representative);(c) estate, succession or inheritance duties, and duties on transfers, levied in Australia;(d) dues and taxes on private income, including capital gains, having its source in Australia;(e) capital taxes relating to investments made in commercial or financial undertakings in Australia;(f) charges levied for specific services rendered;
(g) registration, court and record fees, mortgage dues and stamp duties (except in relation to goods and services for premises used by TECO and the private residence of the Representative).
3
2
Exemption from taxation does not extend to income tax laws in their application to payments:(a) made by a staff member of the Canberra office, or a staff member of a State office, to a person employed by the staff member; and(b) that are not payments exempted, under the Act, from taxation.
4
7
Immunity in relation to acts performed by a staff member of a State office, or an employee of the Canberra office, extends only to acts performed in the exercise of official functions, and does not extend to civil or criminal action:(a) arising out of a private contractual matter; or(b) instituted by a third party for damages arising in Australia; or(c) for an offence for which conviction would result in a sentence of at least 5 years imprisonment.
5
8
Exemption from obligations to give evidence is limited to:(a) evidence of matters connected with the exercise of an official function of a staff member of a State office or an employee of the Canberra office; and(b) evidence requiring production of an official document; and(c) evidence as an expert witness in relation to the law of Taiwan.
Notes to the Taipei Economic and Cultural Office (Privileges and Immunities) Regulations 1998
Note 1
Note: The Taipei Economic and Cultural Office (Privileges and Immunities) Regulations 1998 (in force under the Overseas Missions (Privileges and Immunities) Act 1995) as shown in this compilation comprise Statutory Rules 1998 No. 300 amended as indicated in the Tables below.