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.
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. 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’.
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.
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. 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.
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.
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.
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.
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’. An organisation cannot be declared to be an overseas organisation where it would meet the requirements to be declared an international organisation. 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.
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.
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’.
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.
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’. 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.