International Organisations (Privileges
and Immunities) (International Committee of the Red Cross) Regulation 2013
FRLI: F2013L01916
Portfolio: Foreign
Affairs
Tabled: House of Representatives and
Senate, 12 November 2013
Summary of committee concerns
2.1
The committee requires further information to assess the compatibility
of this regulation with human rights.
Overview
2.2
This regulation confers privileges and immunities on the International
Committee of the Red Cross (ICRC) to give effect to the Arrangement between
the Government of Australia and the International Committee of the Red Cross on
a Regional Headquarters in Australia, done at Canberra on 24 November 2005.
It confers on the ICRC in Australia legal status and such legal capacities as
are necessary for the exercise of its powers and the performance of its
functions. The regulation is intended to support the work of the ICRC in
Australia and the Pacific region.
Compatibility with human rights
Statement of compatibility
2.3
The instrument is accompanied by a statement of compatibility that
states that it does not engage any human rights. The statement asserts that the
instrument 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.[17]
2.4
The statement also states that the instrument 'should contribute to the
advancement of human rights' as it 'will provide a basis for enhanced cooperation
with the ICRC, which plays a significant role in, inter alia, promoting and
implementing respect for human rights.'[18]
Committee view on compatibility
2.5
The committee notes that its predecessor committee (former committee) examined
the enabling legislation for this regulation, namely, the International
Organisations (Privileges and Immunities) Amendment Bill 2013.[19]
As the former committee acknowledged,[20]
the ICRC has made a significant contribution to the rule of law and to providing
redress for people who have been subjected to international crimes and
violations of international humanitarian law. The committee agrees that this
regulation may be viewed as promoting human rights to the extent that it
enhances the ability of the ICRC to carry out its work.
Right to a fair hearing
2.6
However, the committee notes that the regulation may give rise to a
number of concerns which are not addressed in the statement of compatibility.
For example, the regulation will, among other things, provide immunity from
suit and other legal process (including being called as a witness) to delegates
of the ICRC in Australia and representatives of the ICRC on temporary mission
in Australia. These provisions clearly engage and limit the right to a fair
hearing contained in article 14(1) of the International Covenant on Civil and
Political Rights (ICCPR). While restrictions on the right of access to court may
be permissible in certain circumstances, the committee expects such measures to
be justified in the statement of compatibility, addressing whether they are
aimed at legitimate objectives and are reasonable, necessary and proportionate
to those objectives. The former committee noted similar concerns.[21]
Indeed, in light of the former committee's comments, it is surprising that the
statement of compatibility considers that the regulation does not engage any
rights.
Other issues relating to compliance
with obligations under the Convention against Torture
2.7
In its examination of the International Organisations (Privileges and
Immunities) Amendment Bill 2013,[22]
this committee’s predecessor took the opportunity to comment on the consistency
of the International Organisations (Privileges and Immunities) Act 1963
and three other statutes[23]
which relate to the conferral of privileges and immunities on particular
categories of persons. It noted that the effect of these statutes appeared to
be that Australian law conferred immunity from criminal process on persons who
might be suspected of having committed the offence of torture, and that this
immunity appeared to be inconsistent with Australia’s obligations under the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT).
2.8
The former committee also noted that at least one Australian appellate
court had in a civil case involving the CAT, upheld an interpretation of the
scope of the term ‘torture’ under the CAT that, if adopted in a criminal case,
would result in a failure by Australia to fulfil its obligations under the
Convention. That interpretation had been supported by the Commonwealth
Attorney-General.
2.9
The upshot of that interpretation is that under Australian law it
appears that a person who had previously enjoyed immunity because of their
status as a high level foreign official, diplomat or consular official would
not be liable to prosecution or extradition under Australian laws for alleged
acts of torture committed while holding that office. Under the CAT, Australia
has accepted an obligation to have in place laws which permit the investigation
and prosecution or extradition of persons alleged to have committed torture,
including persons who may enjoy immunity ratione materiae (that is, in
relation to acts performed as part of their official functions after they have
left that office).
2.10
The committee intends to write to the Minister for Foreign
Affairs to refer her to the previous committee's comments on this issue and to
seek clarification as to whether this regulation is compatible with human
rights, in particular, the right to a fair hearing.
2.11
The committee also draws to the attention of the Minister the
comments of its predecessor committee on the apparent inconsistency of
Australia’s laws on granting privileges and immunities with its obligations
under the Convention against Torture, and requests the Minister to undertake a
review of those laws in relation to this aspect of their operation.
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