Key points
- The International Organisations (Privileges and Immunities) Amendment Bill 2023 will amend the International Organisations (Privileges and Immunities) Act 1963 to provide greater flexibility for the Australian Government to grant privileges and immunities to international organisations and connected persons in Australia.
- Specifically, the Bill will enable international organisations of which Australia is not a member to be granted privileges and immunities and expand the category of officials connected to an international organisation to whom privileges and immunities can be conferred.
- As the Government has stated, the Bill ‘does not change the privileges and immunities contained in the Act’ but ‘rather it provides greater flexibility to Australia to grant those privileges and immunities to international organisations and connected persons in Australia, where agreed by Australia and in accordance with Australia’s obligations under international law’.
- The actual conferral of privileges and immunities on an organisation generally occurs by way of regulations made by the Governor-General and the Bill does not change this process.
- Stakeholders have not commented on the Bill at the time of writing this Bills Digest.
Introductory Info
Date introduced: 21 June 2023
House: Senate
Portfolio: Foreign Affairs and Trade
Commencement: On Royal Assent
Purpose of
the Bill
The purpose of the International
Organisations (Privileges and Immunities) Amendment Bill 2023 (the Bill) is
to amend the International
Organisations (Privileges and Immunities) Act 1963 (the Act) to:
- enable
international organisations of which Australia is not a member to be granted
privileges and immunities
- expand
the category of officials connected to an international organisation to whom
privileges and immunities can be conferred and
- make
minor technical amendments to the privileges and immunities dealing with immigration
in the Third and Fourth Schedules to the Act.
Background
The concept
of privileges and immunities
Under Australia's Diplomatic
Privileges and Immunities Act 1967 and Consular Privileges
and Immunities Act 1972, diplomatic missions, consular posts, their
staff and family members who form part of staff households, enjoy privileges
and immunities in accordance with the Vienna
Convention on Diplomatic Relations 1961 and the Vienna
Convention on Consular Relations 1963.[1]
As noted by the United States’ Department of State, ‘The purpose of these
privileges and immunities is not to benefit individuals but to ensure the
efficient and effective performance of their official missions on behalf of
their governments’.[2]
As with foreign governments, international organisations
are also recognised as having the right to those privileges and immunities
necessary for the fulfilment of the organisation’s purpose. For example, Article
105 of the Charter
of the United Nations provides that ‘the Organization shall enjoy in
the territory of each of its Members such privileges and immunities as are
necessary for the fulfilment of its purposes’ and that ‘representatives of the
Members of the United Nations and officials of the Organization shall similarly
enjoy such privileges and immunities as are necessary for the independent
exercise of their functions in connection with the Organization’.
Upon being recognised as having international legal
personality, an organisation will be seen as capable of possessing
international rights and duties. One such right includes the power to make
treaties which confer certain privileges and immunities on the organisation and
its personnel.[3]
The
operation of privileges and immunities in Australia
In Australia, the Act sets out which international
organisations are able to be granted privileges and immunities, as well as
specifying what privileges and immunities can be granted.[4]
The actual conferral of privileges and immunities on an organisation occurs by
way of regulations made by the Governor-General.
The following organisations are examples of those that
have been granted various privileges and immunities:
The Australian Government has also conferred privileges
and immunities on persons from countries other than Australia participating in
conferences organised by an international organisation which are taking place
in Australia (for example, the Energy Charter
Conference or the Conference of the
Parties to the United Nations Framework on Climate Change).
The First Schedule of the Act provides for the various
privileges and immunities that may be granted to organisations under the Act,
which include:
- immunity
of the organisation and its property and assets from legal process
- exemption
with regards to taxes
- inviolability
of the organisation’s archives and the
- absence
of censorship with regards to the organisation’s official correspondence and
other official communications.
The other schedules provide for the various privileges and
immunities that may be granted to certain persons connected with an
international organisation.
Committee
consideration
At the time of writing, the Bill has not been referred to any
committees for inquiry and report.
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing, the Committee had yet to report on
the Bill.
Policy
position of non-government parties/independents
At the time of writing, non-government
parties/independents do not appear to have commented on the Bill.
Position of
major interest groups
At the time of
writing, stakeholder responses and media reporting specifically on the Bill
were not available.
Financial
implications
The Explanatory Memorandum states that the financial
impact of the Bill is low, and that revenue costing would occur at the time
when new subsidiary regulations are made or amended under the Act.[5]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act.
The Government notes that the Bill engages:
The Government considers that the Bill is compatible with
human rights because to the extent that it may limit human rights, those
limitations are reasonable, necessary and proportionate.[6]
Parliamentary
Joint Committee on Human Rights
At the time of writing, the Committee had yet to report on
the Bill.
Key issues
and provisions
Schedule 1—Declaration
of international organisations of which Australia is a not a member
Sections 5 to 9D of the Act set out the circumstances upon
which privileges and immunities may be granted, while the Schedules to the Act
set out which privileges and immunities may be conferred on
organisations/individuals.
Specifically, subsection 5(1) provides that the
regulations may declare an organisation:
- of
which Australia and a country or countries other than Australia are members or
- that
is constituted by a person or persons representing Australia and a person or
persons representing a country or countries other than Australia
to be an international organisation to which
the Act applies.
Section 5A of the Act also allows for the regulations to
declare an organisation to be an overseas organisation, however ‘the
privileges and immunities able to be conferred under section 5A are more
limited and apply only to persons connected to international organisations, not
the organisations themselves’.[7]
An organisation cannot be declared to be an overseas organisation
where it would meet the requirements to be declared an international
organisation.[8]
Under the Act, generally only an organisation that has been declared to be an international
organisation (or persons connected to that organisation) may be
conferred privileges and immunities through the making of regulations.[9]
The provisions in Schedule 1 of the Bill will amend 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. Specifically, items 4-8 of Schedule 1 will amend section 5 of
the Act to allow an organisation:
- of
which 2 or more countries other than Australia are members or
- that
is constituted by 2 or more persons representing countries other than Australia
to be declared an international organisation.
The Bill will preserve the existing conditions in which a
person is taken to represent a particular country for the purposes of determining
whether the organisation is one to which subsection 5(1) applies; namely that
the person has been nominated by and is subject to the direction of the
government of the country which they are representing.
Example of
the OCAAR Agreement
The Explanatory Memorandum to the Bill notes that the Bill
will assist Australia in giving effect to the Framework
Agreement between the Government of Australia and the Organisation for Joint
Armament Cooperation (Organisation Conjointe de Coopération en Matière
d’Armement (OCCAR)) for the Participation of Australia in OCCAR-Managed
Programmes.[10]
OCCAR is a
European inter-governmental organisation that manages cooperative arms
procurement and support. Its Member States are Belgium, France, Germany, Italy,
Spain, and the United Kingdom. Australia is a non-Member Participating State
and participates in relevant OCCAR programmes, which includes hosting OCCAR
related meetings to support Australian Defence capability projects. On this
basis, OCCAR does not satisfy the requirements of section 5 of the Act for the
purpose of declaring it to be an international organisation to which the Act
applies.
On 5 September 2022, the Government registered the International
Organisations (Privileges and Immunities) (Declaration of Organisation for
Joint Armament Co‑operation Related Meetings) Regulations 2022 which conferred
privileges and immunities on specified categories of OCCAR personnel and
representatives of countries other than Australia participating in any OCCAR
meetings held in Australia for 12 months from 6 September 2022 (the date the Regulations
commenced).
As set out in the Explanatory
Statement to the Regulations, the key privileges and immunities include:
personal inviolability; immunity from Australian jurisdiction; inviolability of
papers, correspondence and property; and tax exemptions. However, these privileges
and immunities were only granted to OCCAR personnel and relevant representatives
of countries other than Australia. As noted in the Explanatory Memorandum, the
amendments proposed in the Bill will allow the Australian Government to ‘to
extend the full range of privileges and immunities to the organisation and
connected persons in order to host meetings and receive program benefits’.[11]
Schedule
2—Persons who are eligible for privileges and immunities
The First Schedule of the Act provides for the various
privileges and immunities that may be granted to organisations under the Act,
while the Second to Fifth Schedules provide for the various privileges and
immunities that may be granted to certain persons connected with an
international organisation.
Currently, paragraphs 6(1)(b)-(e) limit the category of
officials who can be conferred privileges and immunities by way of regulations to
those with a specific connection to the organisation (for example, holding an
office), with the nature of that person’s connection with the international
organisation determining the privileges and immunities that are able to be
conferred. Subsection 6(2) allows for regulations to be made which specify
for the purposes of section 6:
- particular
international organisations to which the Act applies
- particular
offices or classes of offices
- particular
conferences, committees or missions or classes of conferences, committees or
missions or
- representatives
of particular countries, of particular international organisations to which the
Act applies or of particular overseas organisations to which the Act applies.
The provisions in Schedule 2 of the Bill will expand the
category of officials to whom the privileges and immunities set out in the
Second to Fifth Schedules can be conferred. Specifically, item 3 inserts
proposed paragraph 6(1)(f) which allows for the conferral of the
privileges and immunities specified in Parts 1 and 2 of the Second to Fifth
Schedules of the Act on ‘a person connected in a specified way with an
international organisation’.
Item 6 will insert proposed subsection 6(2A)
which, without limiting section 6, will allow for regulations making such a
conferral to prescribe a matter by referring to any of the following sources:
- a legislative
instrument made by the Minister
- Australia’s
international obligations
- an
agreement to which Australia and one or more other countries, or 2 or more
countries other than Australia, are parties (including by reference to kinds of
persons referred to in such an agreement).
The Explanatory Memorandum provides that the amendments:
… would provide flexibility to Australia to grant privileges
and immunities and more accurately match an official and their functions to the
appropriate privileges and immunities under the Act. It would also assist
Australia in implementing its international obligations where a person is
connected to an international organisation but does not fall within a
particular category under the Act, or the privileges and immunities set out in
the applicable treaty and able to be granted under the Act do not align.[12]
Concluding comments
As the Government has stated, the Bill ‘does not change
the privileges and immunities contained in the Act’ but ‘rather it provides
greater flexibility to Australia to grant those privileges and immunities to
international organisations and connected persons in Australia, where agreed by
Australia and in accordance with Australia’s obligations under international
law’.[13]
While the Bill broadens the scope of organisations/personnel who can be granted
privileges and immunities under the Act, the Government will still be required
to make regulations to confer such privileges and immunities.