Coalition Senators' Additional Comments

1.1The International Organisations (Privileges and Immunities) Amendment Bill2023 (the bill) introduces new powers for the Government to grant privileges and immunities (such as immunity from Australian legal processes or tax exemptions for Australian residents employed by the organisation) to international organisations and individuals.

1.2The Government’s stated aim is to provide flexibility in the granting of privileges and immunities, give effect to agreed privileges and immunities under existing treaties (for example, with the OECD) and ‘assist in deepening Australia's defence, science and other strategic relationships.’[1]

1.3The Coalition has a strong record of ensuring that international organisations and relevant officials are granted the necessary privileges and immunities to function effectively and operate independently.

1.4In the past there has been a strict and conventional interpretation of what was, and what was not, an international organisation. This was a long standing approach of successive Australian governments, and Coalition senators have given careful consideration as to why this approach should now change.

1.5The International Organisations (Privileges and Immunities) Act 1963 (the Act) was introduced and passed by the Coalition under Sir Robert Menzies, with support from Labor. The Act repealed an earlier Privileges and Immunities Act which passed in 1948.

1.6The Act sought to ‘give the Parliament a greater degree of control over the kind of privileges and immunities which may be conferred’.[2] As former Senator Gorton stated in the second reading speech:

under the previous Act, regulations may be made to give effect to any international convention on the subject to which Australia has acceded. The regulations could, provided that they give effect to such an international convention, be unlimited in their scope and subject only to the procedures for disallowance of regulations which now prevail.[3]

1.7It was important for the Government at the time that there remain a ‘substantial degree of parliamentary control’[4], over the making of the regulations. In February 1982, the Coalition amended the Act (with the support of Labor) due to an agreement between Australia and the Commission for the Conservation of Antarctic Marine Living Resources (the CCAMLR).

1.8The amendments expanded the power to make regulations under the Act so that representatives of international organisations attending the CCAMLR conferences in Australia may be accorded similar privileges and immunities to those accorded to the representatives of member countries.

1.9In October 1997, the Coalition made further amendments (with support from Labor) to the Act to ‘keep pace with the increasing number and diversity of international organisations now being established.’[5] Former Senator Parer stated in his second reading speech that:

Australia only grants privileges and immunities which are required under our international obligations and commitments. When negotiating privileges and immunities as part of international agreements, this Government takes the line that specific items should be included only where there is a demonstrated functional need. We have to be satisfied that the specific privilege or immunity is necessary for the effective operation of the organisation.[6]

1.10The Act was further amended in 2013 by Labor (with Coalition support) to allow for the making of regulations which confer privileges and immunities on the International Committee for the Red Cross (ICRC) and the InternationalCriminal Court.

1.11At the time, the Department of Foreign Affairs and Trade (DFAT) stated that providing a separate legislative basis for regulations relating to the ICRC, rather than expanding the definition of ‘international organisation’, would ensure that the Act contained a legislative basis for enacting regulations conferring privileges and immunities on the ICRC without ‘inadvertently extending the scope of the Act to other organisations.’[7]

1.12DFAT’s submission does not go to reasons for its change in position since 2013, and therefore it does not articulate how the new bill prevents or mitigates the Department’s previous concerns regarding an inadvertent expansion of the scope of the Act.

1.13Coalition senators are of the view that the Parliament should continue to assure itself the new arrangements are working in ways that prevent the inadvertent extensions of scope to other organisations.

1.14Coalition senators note that the conferral of privileges will continue to occur by the making of regulations, and these regulations are tabled in Parliament and subject to the usual disallowance procedures. Coalition senators further note that the Senate Standing Committee on the Scrutiny of Bills had no comment on the bill.[8]

1.15Coalition senators recognise and accept that there are limitations with the current framework. As stated by DFAT in its submission:

Australia is currently unable to declare an organisation to be an ‘international organisation’ under the Act in order to confer privileges and immunities on it unless Australia is a member of, or has a person representing Australia in, the organisation. While the Act currently provides for an organisation of which Australia is not a member be an ‘overseas organisation’, the privileges and immunities that can be granted to such an organisation are more limited, as they only apply to persons connected to the organisation – not the organisation itself. The provisions in Schedule 1 to the Bill will remedy this deficiency in the Act to expand the category of organisations which can be declared an International organisation to include organisations of which Australia is not a member.[9]

1.16Coalition senators note that the bill’s approach arguably deviates from the approach taken by the Coalition, and the Parliament, over successive decades, however, we recognise that the proposed changes, implemented appropriately and with sufficient safeguards to prevent ‘inadvertent expansion’ to organisations has the potential to broaden and deepen Australia’s engagement with the international community.

1.17It is current practice that privileges and immunities are only conferred where Australia has agreed to do so. Coalition senators also note that the explanatory memorandum states that the bill ‘would also allow for the conferral of privileges and immunities set out in Schedules 2 – 5 of the Act on categories of officials not prescribed in the Act, where requested by an international organisation and agreed by Australia’[10] (emphasis added).

1.18Coalition senators note that there is nothing explicit in the bill that requires an international organisation to request the conferral of privileges and immunities on categories of officials not prescribed in the Act, however, it is reasonable to imply that a request would have to be made if such a conferral requires the agreement of Australia.

1.19The Coalition will carefully monitor the implementation of the new framework to ensure that Australia continues to grant privileges and immunities when they are required under our international obligations and commitments, and in ways that do not inadvertently extend the scope to other organisations.

Senator Claire Chandler Senator the Hon. David Fawcett

Deputy ChairLiberal Senator for South Australia

Liberal Senator for Tasmania

Footnotes

[1]Second reading speech, International Organisations (Privileges and Immunities) Amendment Bill 2023, Senate Hansard, 21 June 2023, p. 65.

[2]Second reading speech, International Organisations (Privileges and Immunities) Bill 1963, Senate Hansard, 21 August 1963 p. 95.

[3]Second reading speech, International Organisations (Privileges and Immunities) Bill 1963, Senate Hansard, 21 August 1963 p. 95.

[4]Second reading speech, International Organisations (Privileges and Immunities) Bill 1963, Senate Hansard, 21 August 1963 p. 95.

[5]Second reading speech, Foreign Affairs and Trade Legislation Amendment Bill 1997, Senate Hansard, 1 October 1997, p. 7374.

[6]Second reading speech, Foreign Affairs and Trade Legislation Amendment Bill 1997, Senate Hansard, p. 7374.

[7]Department of Foreign Affairs and Trade, Submission 2, International Organisations (Privileges and Immunities) Amendment Bill 2013, p. 2.

[8]Senate Standing Committee for the Scrutiny of Bills, Bills with no committee comment, Scrutiny Digest 8 of 2023; [2023] AUSStaCSBSD 124.

[9]Department of Foreign Affairs and Trade, Submission 1, p. 4.

[10]EM, p. 2.