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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
INTERNATIONAL ORGANISATIONS (PRIVILEGES AND IMMUNITIES)
AMENDMENT BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Foreign Affairs,
the Senator the Hon Penny Wong)
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International Organisations (Privileges and Immunities) Amendment Bill 2023
OUTLINE
1. The International Organisations (Privileges and Immunities) Amendment Bill 2023
(the Bill) amends the International Organisations (Privileges and Immunities) Act 1963 (the
Act) to provide a legislative basis for the enactment of Regulations to:
• declare an organisation of which Australia is not a member as an international
organisation under the Act;
• confer privileges and immunities on categories of officials not prescribed in the Act,
where requested by an international organisation and agreed to by Australia; and
• more flexibly grant the privileges and immunities set out in Schedules 2 - 5 of the Act
to international organisations and connected persons.
2. The Bill also makes a minor technical amendment to provisions relating to
immigration restrictions in the Schedules.
3. The purpose of the Bill is to more closely align Australia's domestic legislation with
its international obligations, increase flexibility in the granting of privileges and immunities,
and assist in deepening Australia's international cooperation. The Bill will improve the
functionality of the Act and the administration of the privileges and immunities applying to
international organisations in Australia.
4. International organisations generally require host governments to confer privileges
and immunities on the organisation and connected persons to enable the performance of their
functions in a State, including for the purpose of supporting in-country visits, missions and
implementing programs.
5. Australia is currently unable to declare an organisation to be an 'international
organisation' under the Act unless Australia is a member of, or has a person representing
Australia in, the organisation, as outlined in section 5(1) of the Act. Consequently, Australia
is prevented from granting the privileges and immunities available to 'international
organisations' and their officials under sections 6 and Schedules 1-5 of the Act to
international organisations of which Australia is not a member.
6. While it is open to Australia to declare an organisation of which Australia is not a
member to be an 'overseas organisation' under section 5A of the Act, 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. In practice, there may be technical, geographic or other barriers to Australia becoming
a member of certain international organisations. Notwithstanding, it may be in Australia's
interests to enter into agreements with such organisations, granting privileges and immunities
and gaining mutual benefits from commercial, defence, scientific or other shared interests.
8. Enabling Australia to declare organisations of which it is not a member to be
'international organisations' under section 5(1) of the Act would benefit Australia by
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broadening the range of organisations with which Australia could partner, and expanding the
opportunities for cooperation.
9. The Framework Agreement between the Government of Australia and the
Organisation for Joint Armament Cooperation (Organisation Conjointe de Cooperation en
matière d'Armement (OCCAR) for the participation of Australia in OCCAR-managed
programmes [2022] ATS 3 requires Australia to extend the full range of privileges and
immunities to the organisation and connected persons in order to host meetings and receive
program benefits. The Bill will assist Australia in giving effect to the Framework Agreement.
10. The Bill would also allow for the conferral of privileges and immunities set out in
Schedules 2 - 5 of the Act on categories of officials not prescribed in the Act, where
requested by an international organisation and agreed by Australia.
11. At present, for conferral of privileges and immunities under the Act, a person must be
connected with an international organisation in one of the ways specified in sections 6(1)(b)
to (e) of the Act. Further, the nature of that person's connection with the international
organisation determines the privileges and immunities that are able to be conferred.
12. The categories of officials connected with international organisations is, in practice
varied, and the requirements of international organisations with respect to privileges and
immunities have evolved over time. This amendment 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.
13. The Bill makes minor amendments to the privileges and immunities dealing with
immigration in the Third Schedule and Fourth Schedule to the Act. The object of this
amendment is to better align the relevant provisions with the applicable treaties. In
accordance with those treaties, the exemption from immigration restrictions does not apply to
certain immigration laws, including requirements for visas and immigration clearances under
the Migration Act 1958.
14. Consultation on the development of measures to be included in the Bill has been
undertaken with Commonwealth agencies including the Attorney-General's Department,
Department of Defence, Department of Home Affairs, Australian Tax Office, Finance and
Treasury. The proposed amendments set out in the Bill will only have a minor impact (OIA
reference 23-04364).
FINANCIAL IMPACT STATEMENT
The financial impact of the Bill is low. Revenue costing would occur at the time when new
subsidiary regulations are made or amended under the Act.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the Bill
and assesses that the Bill is compatible with Australia's human rights obligations. A copy of
the Statement of Compatibility with Human Rights is included in the Attachment.
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International Organisations (Privileges and Immunities) Amendment Bill 2023
NOTES ON PROVISIONS
Section 1 Short title
1. Section 1 of the Bill provides for the short title of the Act to be the International
Organisations (Privileges and Immunities) Amendment Act 2023.
Section 2 Commencement
2. Section 2 of the Bill sets out the times at which the Act commences.
3. Subsection 2(1) provides that each provision of the Act specified in column 1 of the
table commences, or is taken to have commenced, in accordance with column 2 of the table.
Any other statement in column 2 has effect according to its terms.
4. The effect of subsection 2(1), and the associated table, is that all provisions of the Bill
commence on the day the Act receives Royal Assent.
5. Subsection 2(2) is a standard provision enabling the insertion of information into
column 3 of the table without that information forming part of the Act. There is currently no
information in column 3 of the table.
Section 3 Schedules
6. Section 3 of the Bill is the mechanism by which its Schedules amend and repeal the
relevant provisions of the International Organisations (Privileges and Immunities) Act 1963
(the Act). There are 3 Schedules to the Bill. Schedule 1 relates to the organisations to which
the Act applies. Schedule 2 concerns the persons who are eligible for privileges and
immunities. Schedule 3 addresses privileges and immunities relating to immigration.
Pursuant to section 3, any other item in a Schedule to the Bill has effect according to its
terms.
Schedule 1--Organisations to which Act applies
International Organisations (Privileges and Immunities) Act 1963
Item 1 Subsection 3(1) (definition of international organisation to which this Act
applies)
7. Item 1 amends the definition of an international organisation under the Act. This is a
technical amendment to refer to the relevant provisions of the Act rather than describe the
bodies capable of falling within its scope. As such, Item 1 clarifies that international
organisations are those declared in accordance with subsection 5(1) of the Act, or organs
specified in accordance with subsections 5(5) or 5(6).
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Item 2 Subsection 3(1) (definition of overseas organisation to which this Act
applies)
8. Item 2 amends the definition of an overseas organisation to which this Act applies. It
makes a technical amendment to subsection 3(1) to refer to the relevant provisions of the Act
rather than describe the bodies capable of falling within its scope. It also clarifies that an
overseas organisation cannot, at the same time, constitute an international organisation for the
purposes of the Act. The object of this amendment is to preclude an organisation from being
concurrently declared as both an overseas organisation and an international organisation to
which the Act applies. This is intended to provide clarity with respect to the status of
organisations under the Act and the applicable privileges and immunities.
Item 3 After subsection 3(2)
9. Item 3 inserts a new subsection 3(2A) into the Act. Subsection 3(2A) provides that the
specified offices, organs, committees or other bodies within, or established by, an
international organisation are considered to be part of that organisation for the purpose of the
Act. This amendment is a clarification of the current operation of the Act and does not
represent a shift in how such bodies are treated under Australian law. It is subject to the
operation of subsection 5(5), according to which the regulations are able to treat a specified
organ of an international organisation as if it was an international organisation in its own
right.
Item 4 At the end of paragraph 5(1)(b)
10. Item 4 amends paragraph 5(1)(b) to preface additional subsections 5(1)(b)(c) and (d)
of the Act.
Item 5 After paragraph 5(1)(b)
11. Item 5 amends the power of the regulations to declare an organisation to be an
international organisation to which this Act applies.
12. New paragraph 5(1)(c) permits an organisation of which 2 or more countries other
than Australia are members to be declared to be an international organisation to which the
Act applies. This amendment is intended to enable Australia to confer the privileges and
immunities contained in the Act on international organisations of which Australia is not a
member.
13. New paragraph 5(1)(d) permits an organisation that is constituted by 2 or more
persons representing countries other than Australia to be declared to be an international
organisation to which the Act applies. This amendment is similarly intended to permit
Australia to confer privileges and immunities under the Act on international organisations
constituted by representatives of countries other than Australia.
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Item 6 Subsection 5(2)
14. Item 6 inserts a reference to new paragraph 5(1)(d) of the Act into the chapeau of
subsection 5(2). Its effect is to outline the conditions in which a person is taken to represent a
particular country for the purposes of determining whether paragraph 5(1)(d) applies.
Item 7 Paragraphs 5(3)(a) and (b)
15. Item 7 amends paragraphs 5(3)(a) and (b), which describe the conditions in which
international organisations will amount to designated organisations for the purposes of
subsection 5(2). This is a consequential amendment to subsections 5(1) and (2) of the Act, as
privileges and immunities will now be able to be conferred on international organisations of
which Australia is not a member, or that are constituted by persons representing countries
other than Australia.
Item 8 Paragraph 5(6)(b)
16. Item 8 is a consequential amendment to subsection 5(1) of the Act to ensure that in
the event that an organ of an international organisation covered by the Act (including
organisations of which Australia is not a member) ceases to be an organ of the parent
organisation, and becomes a new organisation in its own right, that new organisation will be
taken to be an international organisation to which this Act applies throughout the relevant
period.
Schedule 2--Persons who are eligible for privileges and immunities
International Organisations (Privileges and Immunities) Act 1963
Item 1 At the end of subparagraphs 6(1)(a)(ii), (b)(ii) and (c)(ii)
17. Item 1 amends subparagraphs 6(1)(a)(ii), (b)(ii) and (c)(ii) to preface additional
subsection 6(1)(f) of the Act.
Item 2 Subparagraph 6(1)(d)(ii)
18. Item 2 amends subparagraph 6(1)(d)(ii) to preface additional subsection 6(1)(f) of the
Act.
Item 3 At the end of subsection 6(1)
19. Item 3 introduces new paragraph 6(1)(f) of the Act.
20. New subparagraphs 6(1)(f)(i) and (ii) permit the conferral of the privileges and
immunities specified in Parts 1 and 2 of the Second to Fifth Schedules of the Act on persons
connected to international organisations. The purpose of this amendment is to enable
Australia to confer privileges and immunities on categories of officials not prescribed in the
Act, where requested by an international organisation and agreed to by Australia. It also
provides more flexibility in which privileges and immunities may be granted to persons
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connected to international organisations, without expanding the available privileges and
immunities under the Act. The categories of officials to be accorded privileges and
immunities under this provision will be prescribed by way of regulations.
Item 4 At the end of paragraphs 6(2)(a) and (b)
21. Item 4 amends paragraphs 6(2)(a) and (b) to preface additional paragraph 6(2)(e) of
the Act.
Item 5 At the end of subsection 6(2)
22. Item 5 amends subsection 6(2) to add paragraph 6(2)(e) of the Act. This is
amendment is related to new subsection 6(1)(f) of the Act. It enables regulations to confer
privileges and immunities by reference to particular classes of persons, which was not
previously available under the Act.
Item 6 After subsection 6(2)
23. Item 6 amends subsection 6(2) to insert new subsection 6(2A) of the Act. New
subsection 6(2A) provides that regulations made pursuant to section 6 may reference
legislative instruments made by the Minister, Australia's international obligations or
agreements between 2 or more countries, in prescribing the privileges and immunities
applicable to eligible persons. This item is not intended to limit the operation of the section.
Rather, its purpose is to articulate the instruments and international obligations to which the
regulations may have regard so as to align the categories of persons receiving privileges and
immunities; the privileges and immunities to which they are entitled; and the privileges and
immunities granted in the regulations.
Schedule 3--Privileges and immunities relating to immigration
International Organisations (Privileges and Immunities) Act 1963
Item 1 Item 5 of Part 1 of the Third Schedule
24. Item 1 amends Part 1 Item 5 of the Third Schedule to the Act to employ the same
language as the exemption from immigration restrictions in the Convention on the Privileges
and Immunities of the United Nations [1949] ATS 3 and Convention on the Privileges and
Immunities of the Specialized Agencies [1988] ATS 41. Pursuant to this provision, certain
immigration laws will remain applicable to persons benefiting from privileges and
immunities, such as the requirements to obtain entry visas and immigration clearances. This
is a technical amendment that aligns language between the treaties and the item and does not
represent a shift in Government policy or the operation of the Act.
Item 2 Item 3 of Part 1 of the Fourth Schedule
25. Item 2 amends Part 1 Item 3 of the Fourth Schedule to the Act to employ the same
language as the exemption from immigration restrictions in the Convention on the Privileges
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and Immunities of the United Nations [1949] ATS 3 and Convention on the Privileges and
Immunities of the Specialized Agencies [1988] ATS 41. Pursuant to this provision, certain
immigration laws will remain applicable to persons benefiting from privileges and
immunities, such as the requirements to obtain entry visas and immigration clearances. This
is a technical amendment that aligns language between the treaties and the item and does not
represent a shift in Government policy or the operation of the Act.
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ATTACHMENT
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
International Organisations (Privileges and Immunities) Amendment Bill 2023
The International Organisations (Privileges and Immunities) Amendment Bill 2023 (the Bill)
is compatible with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
1. The Bill amends the International Organisations (Privileges and Immunities) Act
1963 (the Act) to provide a legislative basis for the enactment of Regulations to:
• declare an organisation of which Australia is not a member as an international
organisation under the Act;
• confer privileges and immunities on categories of officials not prescribed in the Act,
where requested by an international organisation and agreed to by Australia; and
• more flexibly grant the privileges and immunities set out in Schedules 2 - 5 of the Act
to international organisations and connected persons.
The Bill will also make a minor technical amendment to provisions relating to immigration
restrictions in the Schedules.
2. The purpose of the Bill is to more closely align Australia's domestic legislation with
its international obligations, increase flexibility in the granting of privileges and immunities,
and assist in deepening Australia's international cooperation. The Bill will improve the
functionality of the Act and the administration of the privileges and immunities applying to
international organisations in Australia.
3. International organisations generally require host governments to confer privileges
and immunities on the organisation and connected persons to enable the performance of their
functions in a State, including for the purpose of supporting in-country visits, missions and
implementing programs.
4. Australia is currently unable to declare an organisation to be an 'international
organisation' under the Act unless Australia is a member of, or has a person representing
Australia in, the organisation, as outlined in section 5(1) of the Act. Consequently, Australia
is prevented from granting the privileges and immunities available to 'international
organisations' and their officials under sections 6 and Schedules 1-5 of the Act on
international organisations of which Australia is not a member.
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5. While it is open to Australia to declare an organisation of which Australia is not a
member to be an 'overseas organisation' under section 5A of the Act, 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.
6. In practice, there may be technical, geographic or other barriers to Australia becoming
a member of certain international organisations. Notwithstanding, it may be in Australia's
interests to enter into arrangements with such organisations, granting privileges and
immunities and gaining mutual benefits from commercial, defence, scientific or other shared
interests.
7. Enabling Australia to declare organisations of which it is not a member to be
'international organisations' under section 5(1) of the Act would benefit Australia by
broadening the range of organisations with which Australia could partner, and expanding the
opportunities for cooperation.
8. The Framework Agreement between the Government of Australia and the
Organisation for Joint Armament Cooperation (Organisation Conjointe de Cooperation en
matière d'Armement (OCCAR) for the participation of Australia in OCCAR-managed
programmes [2022] ATS 3 requires Australia to extend the full range of privileges and
immunities to the organisation and connected persons in order to host meetings and receive
program benefits. The Bill will assist Australia in giving effect to the Framework
Agreement.
9. At present, for conferral of privileges and immunities under the Act, a person must be
connected with an international organisation in one of the ways specified in sections 6(1)(b)
to (e) of the Act. Further, the nature of that person's connection with the international
organisation determines the privileges and immunities that are able to be conferred.
10. The categories of officials connected with international organisations is, in practice
varied, and the requirements of international organisations with respect to privileges and
immunities have evolved over time. This amendment would provide flexibility to Australia
to grant privileges and immunities and more accurately match the official 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.
Human rights implications
11. The Bill engages:
• the right to an effective remedy under Article 2(3) of the International Covenant on
Civil and Political Rights (ICCPR); and
• freedom of movement under Articles 12 and 13 of the ICCPR.
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Effective Remedy
12. The right to an effective remedy under Article 2(3) of the ICCPR provides that any
person "whose rights or freedoms ... are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons acting in an official
capacity." Article 2(3)(c) requires State Parties to the ICCPR to ensure that the competent
authorities enforce such remedies when granted.
13. The Bill provides the legislative basis to make regulations to confer: (i) privileges and
immunities on international organisations of which Australia is not a member; and (ii) the
existing suite of privileges and immunities in section 6(1) and Schedules 2-5 of the Act on
categories of officials not prescribed in the Act.
14. The conferral of immunities from Australia's jurisdiction could limit the right to an
effective remedy for breaches of human rights. This includes, but is not limited to, the right to
a fair hearing guaranteed by article 14(1) of the ICCPR and Australia's obligations to
investigate and prosecute (or extradite) persons alleged to have committed torture who are in
its territory under the Convention against Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment or Punishment (CAT).
15. The Bill is a permissible limitation on the right to an effective remedy because:
• The Bill is a reasonable and proportionate means of achieving the legitimate goal of
respecting privileges and immunities in Australia. The Bill does not change the
privileges and immunities contained in the Act. 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:
o The applicable privileges and immunities for organisations of which Australia
is not a member are consistent with those currently provided to 'international
organisations' declared under the Act.
o Similarly, the privileges and immunities conferred on other categories of
officials, where requested by an international organisation and agreed to by
Australia, will be those already provided for in section 6(1) and Schedules
2 to 5 of the Act. The conferral of privileges and immunities would be subject
to Australia's agreement and requires a rational connection with the
international organisation and its functions, limiting the categories and number
of persons benefiting from these protections.
• The granting of privileges and immunities to international organisations and their
officials also reflects established international law and practice. Privileges and
immunities are conferred reciprocally between countries and to international
organisations to ensure that representatives are able to: perform their work
independently; report freely; and fulfil their official duties. The privileges and
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immunities that would be conferred are not only essential in allowing an
organisation's officials to perform their functions, but also as part of a wider and
reciprocal legal framework that protects Australian representatives overseas and
enables them to perform their duties without fear of local pressure, harassment or
intimidation.
• Importantly, privileges and immunities are necessary to ensure the effective
functioning of international organisations and connected persons in Australia. They
are in the interest of the international organisation in question and not provided for the
benefit of the individuals.
• Finally, it is expected that there will be few instances in which the Bill will have the
effect of limiting the right to an effective remedy for a violation of human rights. The
availability of remedies will depend on the matter in question, and there will be
matters in which privileges and immunities do not apply. It is expected that, for the
most part, the officials benefiting from privileges and immunities will have functional
immunity, meaning that their immunities are restricted by reference to the functions
undertaken by the international organisation. Further, the application of immunities to
serious crimes remains unsettled under international law. It is assessed that the Bill is
unlikely to give rise to situations involving Australia's obligations under the CAT,
ICCPR or other human right treaties. If such a case were to arise, it would be open to
the Australian Government to take a range of responses, including request that the
organisation in question waive the immunity of the individual concerned.
Freedom of Movement
15. The Bill also engages freedom of movement under Articles 12 and 13 of the
International Covenant on Civil and Political Rights (ICCPR). The right to freedom of
movement includes the right to move freely within a country for those who are lawfully
within the country, the right to leave any country and the right to enter a country of which a
person is a citizen. The right may be restricted in certain circumstances.
16. The Bill amends Part 1 Item 5 of the Third Schedule and Part 1 Item 3 of the Fourth
Schedule in the Act to reflect the same language as the exemption from immigration
restrictions in the Convention on the Privileges and Immunities of the United Nations [1949]
ATS 3 and Convention on the Privileges and Immunities of the Specialized Agencies [1988]
ATS 41. Pursuant to these provisions, certain immigration laws remain applicable to
representatives of international organisations, such as the requirement to obtain entry visas
and immigration clearances. This is a technical amendment and does not represent a shift in
Government policy or the operation of the Act.
17. These measures, to the extent that they limit the enjoyment by privileged persons of
the rights contained in Articles 12 and 13, are reasonable, necessary and proportionate as
they: (i) clarify that privileges and immunities do not impact the application of certain
immigration laws in Australia; and (ii) confirm that such laws apply to privileged persons
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under the Act. Consistent with international law and practice, it is reasonable, necessary and
proportionate for States to impose restrictions on who may enter - including the officials of
international organisations - and the conditions under which they do so. While privileges and
immunities are necessary to ensure international organisations are able to function effectively
in Australia, they are not provided for the benefit of individuals, who remain subject to a
range of immigration laws.
Conclusion
18. The Bill is compatible with human rights because to the extent that it may limit
human rights, those limitations are reasonable, necessary and proportionate.
Minister for Foreign Affairs, Senator the Hon Penny Wong