95R364

Statutory Rules 1996 No. 3341

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Hong Kong Economic and Trade Office (Privileges and Immunities) Regulations

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Overseas Missions (Privileges and Immunities) Act 1995.

Dated 20 December 1996.

WILLIAM DEANE

Governor-General

By His Excellency’s Command,

ALEXANDER DOWNER

Minister for Foreign Affairs

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Citation

1. These Regulations may be cited as the Hong Kong Economic and Trade Office (Privileges and Immunities) Regulations.

[NOTE: These Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.]

Interpretation

2. (1) In these Regulations:

“Act” means the Overseas Missions (Privileges and Immunities) Act 1995;

“authorised person” means:

(a) the Minister responsible for Customs; or

(b) a person authorised in writing by the Minister responsible for Customs for the purposes of these Regulations;

“employee of the Mission” means a person employed in the administrative or technical service of the Mission;

“Head of Mission” means the person in charge of the functions of the Mission;

“member of the Mission” means:

(a) an officer of the Mission; or

(b) an employee of the Mission;

“Mission” means the Hong Kong Economic and Trade Office;

“officer of the Mission” means a person, including the Head of Mission, entrusted in that capacity with the exercise of the functions of the Mission.

(2) Unless the contrary intention appears, a reference to a person in relation to whom privileges and immunities are conferred by these Regulations is taken to be a reference to a person who:

(a) has been sent by the government of Hong Kong and is not engaged in employment other than by the Mission, or is a member of the family of such a person; and

(b) is not a permanent resident of Australia; and

(3) A reference to a member of the family of a person is taken to be a reference to a member of the family who forms part of the household of the first person.

Act to apply to the Mission

3. The Mission is declared to be a designated overseas mission.

Privileges and immunities of the Mission

4. (1) Subject to this regulation, the Mission has the privileges and immunities set out in items 1, 2, 4, 5, 6, 7, 8, 9, 10 and 12 in Schedule 1 to the Act.

(2) A privilege or immunity set out 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.

(3) The Mission is not exempt under subregulation (1) from any dues and taxes that constitute payment for specific services in respect of:

(a) premises owned, leased or occupied by the Mission; or

(b) the residence of the Head of Mission.

Privileges and immunities of members of the Mission

5. (1) Subject to this regulation, a member of the Mission has the privileges and immunities set out in items 1, 2, 7 and 8 in Schedule 2 to the Act.

(2) A privilege or immunity set out in Column 2 of an item in Schedule 2 to these Regulations is subject to the limitation or condition set out in Column 3 of that item.

(3) A member of the Mission is not entitled to immunity from criminal jurisdiction.

Duties of customs and excise

6. (1) Subject to this regulation and regulation 8, the Mission and officers and employees of the Mission are exempt from duties of customs and excise on goods that are purchased for the official use of the Mission or for personal use by them or by members of their families.

(2) In the case of employees, the exemption applies only to goods imported or purchased by them within 6 months after their first arrival in Australia.

(3) The exemption does not apply unless:

(a) in the case of goods for official use—the Head of Mission; or

(b) in the case of goods for personal use—the person who had the benefit of the exemption;

enters an agreement with an authorised person:

(d) to pay an amount that an authorised person may determine and notify under that subregulation.

Sales tax

7. (1) Subject to this regulation and regulation 8, the Mission and officers and employees of the Mission are exempt from the obligation to pay sales tax on goods that are exempt from duties of customs or excise under regulation 6.

(2) The exemption does not apply unless:

(a) in the case of goods for official use—the Head of Mission; or

(b) in the case of goods for personal use—the person who had the benefit of the exemption;

enters an agreement with an authorised person:

(d) to pay an amount that the authorised person may determine and notify under that subregulation.

Loss of exemption—sales tax, customs duty and excise duty

8. (1) Regulations 6 and 7 do not apply in relation to goods if an authorised person, by instrument in writing, declares that, in his or her opinion, the reasonable requirements of the Mission or the person purchasing the goods have adequately been met by goods for which the Mission or the person has already had the benefit of an exemption claimed under those regulations.

(2) If goods for which an exemption has been claimed under regulation 6 or 7 are sold or disposed of within the period specified in subregulation (3):

(a) in the case of goods for official use—the Head of Mission; or

(b) in the case of goods for personal use—the person who had the benefit of the exemption;

must pay the Commonwealth an amount for duties or tax, as the case may be, that would have been payable, apart from the period of exemption before the sale or disposal, as determined and notified by an authorised person.

(3) The period referred to in subregulation (2) 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).

(4) If a person fails to comply with the requirements of subregulation (2) or an agreement under subregulation 6 (3) or 7 (2), an authorised person may, by instrument in writing, determine that the person cannot claim any further exemption under regulation 6 or regulation 7 unless the person enters a similar agreement, for any other goods, that may include a condition that the person give security, satisfactory to an authorised person, that he or she will comply with the agreement.

Period of entitlement

9. (1) An entitlement to a privilege or immunity under these Regulations in respect of a matter that is not of an official nature commences on the date:

(a) in the case of a member of the Mission—the member first arrived in Australia for service with the Mission; or

(b) in the case of a member of the family of a member of the Mission:

(i) the member of the Mission first arrived in Australia for service with the Mission; or

(ii) the member of the family first arrived in Australia; or

(iii) the person became a member of the family;

whichever occurs last.

(2) An entitlement to a privilege or immunity under these Regulations in respect of a matter that is not of an official nature ceases on the date the member of the Mission:

(a) ceases to perform his or her official functions; or

(b) leaves Australia;

whichever occurs first.

Application of laws about quarantine, importation and exportation and public order

10. (1) Subject to subregulation (2), nothing in these Regulations affects the application of any law of the Commonwealth, a State or a Territory relating to:

(a) quarantine; or

(b) the prohibition or restriction of imports into, or exports from, Australia or an External Territory of any animals, plants or goods; or

(2) Subregulation (1) does not prejudice the immunity from suit or from other legal processes conferred by these Regulations.

Waiver

11. The government of Hong Kong may waive a privilege or immunity conferred by these Regulations.

Application

12. To the extent that these Regulations confer an exemption from an obligation to pay taxes to the Commonwealth, these Regulations are taken to have effect on 1 October 1995.

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SCHEDULE 1 Regulation 4

LIMITATIONS AND CONDITIONS—the mission

Column 1 Item	Column 2 Item in Schedule 1 to the Act	Column 3 Limitations or conditions
1	1	Inviolability of premises is limited to the extent that local authorities cannot enter the official premises of the Mission except: (a) with the consent of the Head of Mission; or (b) in cases of emergency.
2	2	Inviolability of property and assets is limited to the extent that the property and assets of the official premises of the Mission (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 a courier are not conferred.
4	9	Exemption from taxation is limited to premises used exclusively for the purposes of the Mission.

SCHEDULE 1—continued

Column 1
Item

Column 2
Item in Schedule 1 to the Act

Column 3
Limitations or conditions

Exemption from taxation of articles does not apply in relation to:

(a) indirect taxes of a kind normally incorporated in the price of goods and services, including sales tax (other than sales tax for which an exemption is granted under regulation 7);

(b) duties on transfers levied in Australia;

(c) registration, court or record fees, mortgage dues and stamp duties (other than stamp duty payable in respect of the lease or purchase of the official premises of the Mission or the private residence of the Head of Mission).

SCHEDULE 2 Regulation 5

LIMITATIONS AND CONDITIONS—MEMBERS OF THE MISSION

Column 1
Item

Column 2
Item in Schedule 2 to the Act

Column 3
Limitations or conditions

Only the private residence of the Head of Mission is inviolable.

Exemption from taxation does not apply in relation to:

(a) indirect taxes of a kind normally incorporated in the price of goods and services, including sales tax (other than sales tax for which an exemption is granted under regulation 7);

(b) dues or taxes on private immovable property situated in Australia (except the official premises of the Mission and the residence of the Head of Mission);

(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;

SCHEDULE 2—continued

Column 1 Item	Column 2 Item in Schedule 2 to the Act	Column 3 Limitations or conditions
		(g) registration, court or record fees, mortgage dues and stamp duties except where they apply to the official premises of the Mission or the Head of Mission’s residence.
3	2	Members of the Mission who employ persons whose wages or salaries are subject to income tax in Australia must comply with the laws of Australia relating to income tax.
4	7	Immunity from civil and administrative jurisdiction is conferred only in relation to acts performed in the exercise of official functions, and not in relation to civil action: (a) arising out of private contractual matters; or (b) by a third party for damages arising in Australia.
5	8	The exemption from obligations to give evidence in judicial or administrative proceedings is limited to evidence by members of the Mission: (a) of matters connected with the exercise of their official functions; or (b) requiring production of official documents; or (c) as expert witnesses of the law of Hong Kong.