Chapter 3
Consideration of the Bill
3.1
The three submissions received by the committee all support the
amendments outlined in the bill. The submissions are from the ICRC, DFAT, and
Professor Ben Saul (University of Sydney). DFAT's submission has been discussed
in the previous chapter in the context of the provisions of the bill.
ICRC
3.2
The ICRC's submission supported the provisions of the bill and explained
that:
...the amendments made by this Bill will confer legal
personality on the ICRC in Australia's domestic legal order and will provide
privileges and immunities to the organisation and its delegates as are needed
for the ICRC to fulfil its mandate in full conformity with its fundamental
principles and working methods and otherwise facilitate its work in Australia
and the Pacific region.[1]
3.3
In particular, the ICRC's submission noted that the bill will give
effect to what the ICRC sees are a vital part of its ICRC Arrangement with
Australia: the protection of the 'confidentiality of ICRC reports,
correspondence and other communications.'[2]
The ICRC argued that this protection is essential for the organisation to be
able to carry out its work:
The ICRC's ability to engage with the parties to an armed
conflict, to access conflict areas, civilian populations and persons in
detention, and the security of its staff, depend on the preservation of the
confidentiality of its dialogue and exchanges with all concerned.[3]
Professor Ben Saul, University of Sydney
3.4
Professor Saul's submission supported the bill's intention to give
domestic privileges and immunities to the ICRC and the ICC. He noted that it is
'internationally accepted that privileges and immunities are necessary to
enable these organisations to carry out their functions.'[4]
3.5
In support of the ICRC's argument for confidentiality of ICRC communications,
Professor Saul noted that:
Such obligations have also reached the status of
international customary law. The ICRC is accorded immunity from the ICC and 80
states have recognised its immunity through legislation or agreements.[5]
3.6
In relation to the amendments regarding the ICC in the bill, Professor
Saul was also supportive, noting:
Article 43 of the Rome Statute 1998 provides the ICC with
such privileges and immunities as are necessary for the fulfilment of its
purposes. Although Australia has not acceded to the 2002 Agreement on
Privileges and Immunities of the ICC, the Agreement should not be viewed in
isolation, but rather as an elaboration of the general obligations in Article
43 of the Statute, which does bind Australia.[6]
3.7
Professor Saul also observed that whether the scheme would 'adequately
achieve its purpose depends on the detail of the implementing regulations',
which are currently unknown. He urged the government to ensure that 'the regulations
give effect to the full extent of privileges and immunities recognised in
international treaty and customary law'.[7]
Conclusion—human rights issues and regulations
3.8
The committee notes the human rights concerns raised by the PJCHR and,
further, that the PJCHR is taking action to obtain information relating to
these concerns. The committee agrees with the submission from Professor Saul
that:
...we do not think that this Bill is the appropriate avenue by
which to reconsider this wider controversy about the contemporary scope of
state or international organisation immunities.[8]
3.9
The committee notes and agrees with Professor Saul's suggestion that the
appropriate place to consider these issues is through a review of the Foreign
States Immunities Act 1985 undertaken by a body such as the Australian Law
Reform Commission.[9]
3.10
The committee notes that the regulations to be made under the Act (as
proposed to be amended by the bill) are not yet available and that, as
mentioned by Professor Saul and the PJCHR, the absence of draft regulations
means that it is difficult to be sure that the regulations adequately implement
the Arrangement. The committee encourages DFAT to continue to work with the
ICRC and the ICC, as well as any other relevant departments, to ensure that the
regulations adequately implement the agreements to which Australia is a party.
Recommendation 1
The committee recommends that the regulations to be made
under the bill be drafted and circulated as soon as possible to allow certainty
for the ICRC and the ICC.
Recommendation 2
The committee recommends that the bill be passed.
Senator the Hon Ursula Stephens
Chair
Senate Foreign Affairs, Defence and Trade Legislation Committee
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