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Recognition of Foreign Administrative Acts pp 51–89Cite as

Recognition of Foreign Administrative Acts in Australia

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Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 10))

Abstract

This chapter describes the recognition of foreign administrative acts in the Australian context. The models available to determine how administrative acts of one state can be given effect by other states are considered, including mutual recognition, harmonisation and uniformity of requirements. A key issue is whether the enforcement of another state’s administrative acts should require a prior recognition or authorisation. The chapter analyses the recognition and enforcement of specofoc administrative acts within the federation of Australia as well as Australia’s recognition and enforcement arrangements with different countries.

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Notes

  1. 1.

    See, e.g., Lafarge, F., Marin, L. 2010. Enforcement of Administrative Decisions between Member States under EU Law: From Exequatur to Automaticity? [online] Published 2010. Accessible from http://www.utwente.nl/mb/pa/staff/marin/Marin_Lafarge.pdf [cited 24 March 2014].

  2. 2.

    Ergas, H. Queensland Competition Authority. 2012. An Assessment of National Harmonisation. [online] Published 11 December 2012. Accessible from http://www.qca.org.au/ getattachment/b09563a9-2a12-49a1-935a-d68415ea9b9f/Ergas-Report-An-assessment-of-national-harmonisati.aspx [cited 24 March 2014].

  3. 3.

    See generally in the context of administrative actions, Campbell, E. and Groves, M. 2006. Enforcement of administrative determinations. In Australian Journal of Administrative Law, 2006, Vol. 13, No. 3, pp. 121–134.

  4. 4.

    See generally, Campbell and Groves, above n 3; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

  5. 5.

    See, e.g., Competition and Consumer Act 2010 (Cth) s 134F.

  6. 6.

    See, e.g., Competition and Consumer Act 2010 (Cth) s 134C.

  7. 7.

    Clean Energy Act 2011 (Cth) s 267.

  8. 8.

    Competition and Consumer Act 2010 (Cth) s 134A(1). Infringement notices may only be issued in relation to offences under the Australian Consumer Law, which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

  9. 9.

    Competition and Consumer Act 2010 (Cth) s 134A(2).

  10. 10.

    Ibid s 134G.

  11. 11.

    Ibid s 134E.

  12. 12.

    Do Not Call Register Act 2006 (Cth) Sch 3; Spam Act 2003 (Cth) Sch 3; Telecommunications Act 1997 (Cth) s 572E; Broadcasting Services Act 1992 (Cth) s 205Y.

  13. 13.

    Australian Securities and Investments Commission Act 2001 (Cth) s 12GXA; Corporations Act 2001 (Cth) s 1317DAC.

  14. 14.

    Clean Energy Act 2011 (Cth) s 265; National Electricity (NSW) Law No 20a s 74 as applied by the National Electricity (New South Wales) Act 1997 (NSW); National Gas (NSW) Law No 31a s 277 as applied by the National Gas (New South Wales) Act 2008 (NSW); National Greenhouse and Energy Reporting Act 2007 (Cth) s 39.

  15. 15.

    See generally, Griffiths, J. 2010. Apprehended Bias in Australian Administrative Law. In Federal Law Review, 2010, Vol. 38, p. 353.

  16. 16.

    At a state level, see, e.g., Subordinate Legislation Act 1989 (NSW); Statutory Instruments Act 1992 (Qld) and Subordinate Legislation Act 1992 (Tas).

  17. 17.

    Legislative Instruments Act 2003 (Cth) s 17(1).

  18. 18.

    Ibid s 17(2).

  19. 19.

    Ibid s 19.

  20. 20.

    Environment Protection and Biodiversity Conservation Act 1998 (Cth) s 14(2).

  21. 21.

    Ibid s 17A(2).

  22. 22.

    Ibid s 25(3).

  23. 23.

    Ibid s 58.

  24. 24.

    Ibid s 67.

  25. 25.

    Ibid ss 74(3), 75(1A).

  26. 26.

    Ibid s 266B.

  27. 27.

    Service and Execution of Process Act 1992 (Cth) s 82.

  28. 28.

    Ibid s 83.

  29. 29.

    Ibid s 86. It should be noted that there is some controversy regarding both the scope of such a review as well as the concept of “validity”, see, e.g., Rogers v Chief Commissioner of Victorian Police (2012) 263 FLR 478; [2012] VSC 305 (Pagone J). See generally Campbell and Groves, above n 3.

  30. 30.

    See also, the Cross-Border Insolvency Act 2008 (Cth) which adopts into Australian law the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law, which contains extensive provisions dealing with the recognition of foreign judicial or administrative proceedings relating to insolvency. The Model Law is generally regarded as reflecting a universalist approach, however it is essentially procedural in nature.

  31. 31.

    See generally Allsop, J. and Ward, D. 2013. Incoherence in Australian Private International Laws, unpublished paper delivered at Sydney Centre for International Law Conference, Sydney Law School, Australia, 10 April 2013.

  32. 32.

    See, e.g., Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature 15 November 1965, [2010] ATS 23 (general entry into force 10 February 1969, entry into force in Australia 1 November 2010).

  33. 33.

    Hawke, A. 2009. Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999, Canberra.

  34. 34.

    This Act was renamed in 2010 to the Wine Australia Corporation Act 1980 (Cth).

  35. 35.

    Taxation Administration Act 1953 (Cth) ss 263-10, 263-15.

  36. 36.

    The other 36 agreements are tax information exchange agreements, available at: www.eoi-tax.org/jurisdictions/au.

  37. 37.

    CCH Australia Limited. 2013. Australian Federal Tax Reporter (ITAA 1936 & Others). Sydney: CCH Australia, 2013, 977–859.

  38. 38.

    Convention on Mutual Administrative Assistance in Tax Matters, opened for signing 25 January 1988, [2011] ATNIF 28 (entered into force 1 June 2011) art 11.

  39. 39.

    See “Annex G – Taxation Code” to the Timor Sea Treaty, signed 20 May 2002, [2003] ATS 13 (entered into force 2 April 2003).

  40. 40.

    Agreement between Australia and the Kingdom of Belgium for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, signed 13 October 1977, [1986] ATS 25 (entered into force 1 November 1979) art 8.

  41. 41.

    Ibid art 6.

  42. 42.

    Taxation Administration Act 1953 (Cth) s 263-15.

  43. 43.

    Ibid ss 263-20–263-40.

  44. 44.

    Ibid s 255-1.

  45. 45.

    Australian Taxation Office, Practice Statement, PSLA 2011/13 [69].

  46. 46.

    The equivalent New Zealand legislation is the Civil Aviation Act 1990 (NZ) and the Civil Aviation (ANZA Mutual Recognition Agreement) Order 2007 (NZ).

  47. 47.

    Arrangement between the Australian and New Zealand Governments on Mutual Recognition of Aviation-Related Certification, signed 13 February 2007 principle 4.

  48. 48.

    See Howard, R. 2013. No Flight of Fancy, the Jetpack Is Coming – From New Zealand. In Wall Street Journal. [online] Published 16 September 2013. Accessible from http://online.wsj.com/news/articles/SB10001424127887323981304579078990245523348 [cited 24 March 2014].

  49. 49.

    Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, opened for signature 5 October 1961, [1995] ATS 11, (entered into force in Australia 16 March 1995) art 2.

  50. 50.

    Ibid art 5.

  51. 51.

    This decision was affirmed in Cabal v United Mexican States (2001) 108 FCR 311; [2001] FCA 427.

  52. 52.

    See Treaty on Extradition between Australia and the Republic of Venezuela, signed 11 October 1988, [1993] ATS 35 (entered into force 19 December 1993) art 9; Treaty on Extradition between Australia and the Oriental Republic of Uruguay, signed 7 October 1988, [2011] ATS 2 (entered into force 9 January 2011) art 2.

  53. 53.

    Agreement between Australia and Finland on Mutual Assistance in Criminal Matters, signed 22 June 1992, [1994] ATS 12 (entered into force 30 April 1994) art 16.

  54. 54.

    Agreement between Australia and Japan on Social Security, signed 27 February 2007, [2009] ATS 2 (entered into force 1 January 2009) art 22; Agreement between Australia and the Federal Republic of Germany on Social Security to Govern Persons Temporarily Employed in the Territory of the other State (“Supplementary Agreement”), Concluding Protocol and Implementation Arrangement, signed 9 February 2007, [2008] ATS 13 (entered into force 1 October 2008) art 10.

  55. 55.

    Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature 15 November 1965, [2010] ATS 23 (general entry into force 10 February 1969, entry into force in Australia 1 November 2010) art 3; Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations, opened for signature 2 October 1973, [2002] ATS 2 (general entry into force 1 August 1976, entry into force in Australia 1 February 2002); Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996, [2003] ATS 19 (general entry into force 1 January 2002, entry into force for Australia 1 August 2003) art 43.

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Acknowledgments

The author gratefully acknowledges the assistance provided by his Associates, Sam Thorpe and Alice Rumble, in preparing this report.

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Authors and Affiliations

  1. Federal Court of Australia, Sydney, Australia

    Justice John Griffiths

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  1. Justice John Griffiths
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Correspondence to Justice John Griffiths .

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Editors and Affiliations

  1. Full Professor of Administrative Law, Universidade da Coruña, Coruña, Spain

    Jaime Rodríguez-Arana Muñoz

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Griffiths, J.J. (2016). Recognition of Foreign Administrative Acts in Australia. In: Rodríguez-Arana Muñoz, J. (eds) Recognition of Foreign Administrative Acts. Ius Comparatum - Global Studies in Comparative Law, vol 10. Springer, Cham. https://doi.org/10.1007/978-3-319-18974-1_4

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