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International
Organisations (Privileges and Immunities) Amendment Bill 2013
Introduced into the Senate on 13
March 2013
Portfolio: Foreign Affairs
Summary of committee view
1.1
The committee
seeks clarification as to whether the government considers that Australia may
not grant immunity to a former official of an international organisation or
foreign state in relation to criminal proceedings concerning alleged acts of
torture and if so, whether any legislative amendments are proposed to reflect
this position.
Overview
1.2
This bill seeks
to amend the International Organisations (Privileges and Immunities) Act
1963 (the Act) to enable regulations to be made that would confer
privileges and immunities on the International Committee for the Red Cross
(ICRC) and the International Criminal Court (ICC).
1.3
Currently the Act
allows privileges and immunities to be conferred on 'international
organisations' and 'overseas organisations' – which is too narrow a definition
to apply to the independent and non-intergovernmental character of the ICRC.
The Act also currently allows privileges and immunities to be conferred on
'international tribunals', such as the International Criminal Court, however,
it does not refer to victims participating in proceedings before such tribunals.
This bill would amend the Act to confer privileges and immunities on the ICRC
in accordance with an Agreement between Australia and the ICRC and on the ICC
in accordance with the Agreement on Privileges and Immunities of the ICC.
Compatibility with human
rights
1.4
The bill is
accompanied by a self-contained statement of compatibility which explains the
background to the bills and their effect. The statement does not refer to any
specific human rights but concludes:
The Bill
extends the operation of the IOPI Act to two further organisations without
changing the nature of the regime established by the Act. The Bill is
compatible with human rights as it does not raise human rights issues, has no
adverse implications for the Government’s compliance with its human rights
obligations and does not adversely affect the human rights of individuals.[1]
1.5
The bill will
provide a basis for enhanced cooperation with the ICRC and ICC, both of which
play significant roles in, among other things, promoting and implementing respect
for human rights and the rule of law. To this extent, the bill should
contribute to the advancement of human rights.
1.6
The
committee acknowledges the important contribution that both the ICC and the ICRC
have made in relation to the advancement of the rule of law, and to the
provision of redress for those who have been subjected to international crimes
and violations of international humanitarian law. To the extent that the bill
enhances the ability of these two bodies to carry out their work, it may be
viewed as promoting the enjoyment of many of the rights contained in the
conventions which are listed in the Human Rights (Parliamentary) Scrutiny
Act 2011.
1.7
At the same time
the bill gives rise to a number of human rights issues that are not addressed
in the explanatory memorandum or statement of compatibility. These relate in
particular to the implications of the bill for the right to a fair hearing
guaranteed by article 14(1) of the International Covenant on Civil and
Political Rights (ICCPR) and also for the positive obligations of Australia
under other provisions of the ICCPR and the other human rights treaties. These
obligations require Australia to ensure that individuals whose rights are
violated by other individuals have access to a remedy before courts, tribunals
or other appropriate authorities. They may also require that persons who commit
serious violations of human rights are subject to criminal investigation and
prosecution. Apart from these general obligations, under the Convention against
Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment,
Australia has accepted specific obligations to investigate and prosecute (or
extradite) alleged torturers who are in its territory.
1.8
While the
changes proposed by the bill give rise to these issues, they are not specific
to the two organisations covered by the bill. The points are of general
application, both in relation to the privileges and immunities conferred on
international organisations and their officials under the International
Organisations (Privileges and Immunities) Act 1963, and to those conferred
on States, and their officials and representatives (including diplomatic and
consular officials) under various statutes.[2]
Preliminary
matter – the agreement with the ICRC
1.9
The explanatory
memorandum states that the purpose of the amendments insofar as they relate to
the ICRC is to give effect to a memorandum of understanding between Australia
and the ICRC.[3]
Although it appears from the bill that a copy of this Agreement will be
included in the regulations to be made under the Act,[4]
a copy of that agreement was not provided with the bill or the explanatory
memorandum. Nor does there appear to be a readily accessible online text of the
Agreement on departmental websites, or on the Australian Treaties Library on
the Australasian Legal Information Institute (AUSTLII).
1.10
Without access
to the text of the Agreement, the committee does not know the extent of the
privileges and immunities proposed to be conferred on the ICRC. The extent and
nature of those privileges and immunities to be conferred may affect the
committee’s assessment of whether the bill is compatible with human rights.
1.11
The
committee notes that it would assist the committee in its examination of bills
giving effect to international agreements, memoranda of understanding or other
international instruments if a copy of the text of such documents were provided
to the committee where the document is not readily accessible on the internet.
1.12
The
committee intends to write to the Minister for Foreign Affairs to:
(a) request a
copy of the Agreement between Australia and the ICRC to which the bill gives
effect; and
(b) recommend
to the Minister that this document and other memoranda of understanding that
may have relevance to human rights be made publicly available on the Internet,
whether on the Department’s website or in a separate section of the Australian
Treaties Library on AUSTLII.
Australia’s
obligations in relation to the conferral of privileges and immunities on
international organisations and foreign States and their officials
1.13
The granting of
privileges and immunities to international organisations such as the ICC is
commonly accepted practice in international law. Australia is bound under a
number of multilateral and bilateral treaties to confer privileges and
immunities on various international organisations and their officials, as well
as on foreign States and their diplomatic and consular representatives. The
extent of the privileges and immunities conferred varies among the different
categories of conferee (a diplomatic representative has more extensive
immunities than a consular official, for example). Immunity may also apply in
the case of a former official, though it will be normally be less extensive
than the immunity enjoyed by a serving official. Under customary international
law Australia is also under additional obligations to afford immunity to certain
types of high-level foreign officials, both while they are in office and, to a
lesser extent, after they have left office.
1.14
While it is not
clear exactly which privileges and immunities are to be conferred on the ICC
and the ICRC, they will be drawn from standard lists in the Schedules to the International
Organisation (Privileges and Immunities) Act 1963. They are likely to
involve the exclusion of the jurisdiction of the courts in criminal matters and
many civil matters, and may also limit the execution of Australian and overseas
judgments against certain assets.
1.15
The granting of
immunities to international organisations and officials and employees of such
organisations, involves an exclusion of the jurisdiction of Australian courts
in certain criminal and civil cases. It thus involves a significant
encroachment on the enjoyment of the right of access to court guaranteed by
article 14 of the ICCPR. The type of cases in in which issues of immunity
commonly arise are where a person who enjoys immunity invokes that immunity to
prevent the bringing of a criminal charge, to resist the enforcement compulsive
powers of courts, or to prevent a person from bringing a civil action against a
State or international organisation in relation to alleged wrongs (such as
violation of the terms of an employment contract). In addition, the restriction
on the use of normal law enforcement powers may also impede the ability of public
authorities to take positive measures to promote the enjoyment of rights (for
example, in the investigation of alleged criminal acts).
Immunity
as a permissible restriction on the right of access to court
1.16
Restrictions on
the right of access to court are permissible under the ICCPR if these are a
reasonable and proportionate measure adopted in the pursuit of a legitimate
objective. The granting of immunity to State officials and international
organisations under national law has been challenged without success on a
number of occasions before international courts as inconsistent with the right
of access to courts.[5]
In recent years challenges have been based on the argument that there is a
‘human rights exception’ to the granting of immunity where a person is accused
of a serious human rights violation (in particular an international crime such
as torture).[6]
While the issue is controversial and the law continues to evolve, it cannot be
said that a ‘human rights exception’ to immunity has become part of international
law.[7]
1.17
However, in one
respect there appears to have been a significant inroad made into the immunity
from criminal proceedings enjoyed by certain former officials of States (and by
extension international organisations); these include heads of state and high
officials, as well as diplomatic representatives. These officials are generally
immune from criminal and civil process while in office,[8]
but enjoy more limited immunity after they step down from that position. At
that stage they enjoy immunity before the courts of other countries only in
relation to acts undertaken in their capacity as a high-level official or
diplomatic representative. It is a matter of some debate whether this immunity
does (or should) extend to human rights violations undertaken as a state
policy.
Impact
of the Convention against Torture on the immunity of a former official
1.18
In one respect,
however, this immunity may have been limited as a result of the Convention
against Torture. In the Pinochet case the House of Lords considered an
extradition request for the surrender of the former President of Chile to face
a number of charges of torture.[9]
As a former head of state, Pinochet enjoyed immunity for acts undertaken in his
capacity as President of Chile. The House of Lords held that, even if the
alleged acts of torture had been performed in his capacity as President, the
effect of the Convention against Torture was that this immunity was abrogated
in relation to alleged acts of torture as defined in that convention and to which
the convention applied temporally.
1.19
The UN Committee
against Torture was of a similar view in relation to the effect of the Torture
Convention on the immunity of former foreign state officials in the Pinochet
case[10]
and in other cases.
1.20
As a State party
to the Convention against Torture, Australia thus appears to have an obligation
to investigate and prosecute such cases of torture as defined in the Convention
if an alleged torturer is found in Australia. This is so, even in a case where
the person may have enjoyed immunity from criminal proceedings in Australia and
continues to enjoy immunity in relation to acts carried out in the person’s
official capacity.
1.21
The developments
in the Pinochet case and other international developments have not been
reflected in any amendment to the International Organisations (Privileges
and Immunities) Act 1963, or the corresponding legislation relating to
diplomatic and consular privileges and immunities. It is thus not clear whether
under Australian law a person in respect of whom Australia has a Torture
Convention obligation to investigate and prosecute allegations of torture may
be able to rely on the provisions of existing legislation to plead immunity
from such criminal investigation and prosecution.
1.22
The
committee intends to write to the Minster for Foreign Affairs to seek
clarification:
(a) whether
Australia considers that, in conformity with the views of the House of Lords
and of the UN Committee against Torture, Australia may not grant immunity to a
former official of an international organisation or foreign state in Australia
in relation to criminal proceedings concerning alleged acts of torture as
defined in the Convention against Torture; and
(b) if so,
whether any legislative amendments are proposed to reflect this position, in
particular to the International Organisation (Privileges and Immunities) Act
1963, the Diplomatic Privileges and Immunities Act 1967, and
the Consular Privileges and Immunities Act 1972.
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