EXPLANATORY STATEMENT
International Organizations (Privileges and Immunities) Act 1963 - Commonwealth Secretariat (Privileges and Immunities) Regulations (Amendment)
Statutory Rules 198 2 No. 136 Issued by Authority of the Minister of State for Foreign Affairs
Section 13 of the International Organizations (Privileges and Immunities) Act 1963 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Sub-paragraph 6(1)(e)(i) of the Act provides that the regulations may confer upon a person who is serving on a committee or is participating in the work, of an international organization to which the Act applies or is performing, whether alone or jointly with other persons, a mission on behalf of such an organization all or any of the privileges and immunities specified in Part I of the Fifth Schedule to the Act. Persons described in sub-paragraph 6(1)(e)(i) of the Act are referred to in this statement as “experts”.
The Commonwealth Secretariat and certain persons associated with it are currently accorded privileges and immunities in Australia by the Commonwealth Secretariat (Privileges and Immunities) Regulations 1972 (the Regulations) which were made pursuant to the Act. There is, however, no provision in the Regulations for experts of the Commonwealth Secretariat or its subsidiary bodies to be accorded privileges and immunities.
By Regulation 5 of the Regulations, the Commonwealth of Nations is declared to be an organization to which the Act applies. Sub-section 3(1) of the Act defines an international organization to which the Act applies as including a body established by an organ of an international organization to which the Act applies. Regulation 3(1) defines the Commonwealth Secretariat as an organ of the Commonwealth of Nations. The Commonwealth Fund for Technical Cooperation (CFTC) is a body established by the Commonwealth Secretariat.
The purpose of the proposed Regulations is to amend the Regulations so as to accord experts of the Commonwealth Secretariat and its subsidiary bodies (including the CFTC) certain privileges and immunities. In addition to privileges and immunities related to official acts, such as inviolability of documents, the proposed Regulations will accord experts immunity from personal arrest or detention and the like privileges and immunities in respect of personal baggage as are accorded to an envoy.
Under an arrangement between Australia and the CFTC, an expert of the CFTC has been posted to Australia to perform the duties of Technical Adviser to the Commonwealth Heads of Government Regional Meeting Consultative Group on Trade. Persons performing the duties of this position meet the criteria specified in sub-paragraph 6(1)(e)(i) and are referred to by the CFTC as “experts”.
International practice is that experts of international organizations who take up duties in countries other than their own are accorded an appropriate level of privileges and immunities. Australian experts employed by international organizations in other countries are accorded privileges and immunities similar to those in the proposed Regulations. The CFTC has requested that its expert, who has already taken up duty in Australia, be accorded such privileges and immunities. It is expected that there will be very few similar cases in future.
The proposed Regulations also provide that former experts continue to be immune, after completing their duties as experts, from suit and legal process in respect of acts done in the course of their duties. This is in accordance with international practice.
Overview
The International Organizations (Privileges and Immunities) Act 1963 was enacted to establish a legal framework for the privileges and immunities of international organisations and their officials operating in Australia. The Act was introduced to address the need to facilitate the effective functioning of international organisations by ensuring their officials are granted appropriate protections while operating in Australia. This Act empowers the Governor-General to make regulations necessary for carrying out the Act's provisions, including conferring privileges and immunities upon individuals serving on committees or performing missions for such organisations. The policy objective is to align Australian law with international practices and to support the work of international organisations and their experts in Australia.
The Commonwealth Secretariat (Privileges and Immunities) Regulations (Amendment) Statutory Rules 1982 No. 136, issued by authority of the Minister of State for Foreign Affairs, were introduced to amend the existing regulations and address the gap in providing privileges and immunities to experts of the Commonwealth Secretariat and its subsidiary bodies. This amendment responds to a specific request from the Commonwealth Fund for Technical Cooperation, which has an expert stationed in Australia. The proposed regulations aim to accord these experts the same level of privileges and immunities as those granted to Australian experts working for international organisations abroad, thereby ensuring consistency and fairness in treatment.
Scope and Application
The International Organizations (Privileges and Immunities) Act 1963 applies to international organizations and their experts who are serving on committees or participating in their work or performing missions on their behalf. This Act allows for the Governor-General to make regulations conferring privileges and immunities to these individuals, aligning with international practice. The Commonwealth Secretariat (Privileges and Immunities) Regulations 1972 were initially made under this Act to provide privileges and immunities to the Commonwealth Secretariat and its subsidiary bodies such as the Commonwealth Fund for Technical Cooperation (CFTC), but these did not cover experts. The proposed amendments to the regulations aim to extend these protections to experts of the Commonwealth Secretariat and its subsidiary bodies, including immunity from personal arrest or detention and privileges regarding personal baggage similar to those accorded to envoys. This change is in response to a request from the CFTC to provide appropriate privileges and immunities to an expert already stationed in Australia, reflecting international norms and ensuring reciprocity for Australian experts working abroad. Additionally, the amendments ensure that former experts retain immunity from suit and legal process for acts performed in their official capacity, consistent with international standards.
Key Provisions
The Commonwealth Secretariat (Privileges and Immunities) Regulations (Amendment) Statutory Rules 1982 No. 136, made under section 13 of the International Organizations (Privileges and Immunities) Act 1963 (the Act), aim to amend the existing Regulations to extend privileges and immunities to experts of the Commonwealth Secretariat and its subsidiary bodies, such as the Commonwealth Fund for Technical Cooperation (CFTC). Section 6(1)(e)(i) of the Act allows the Governor-General to prescribe privileges and immunities for individuals serving on committees or participating in the work of international organizations, referred to as "experts". Currently, the existing Regulations do not cover such experts, but the proposed Regulations will address this gap by providing them with privileges and immunities similar to those enjoyed by envoys. This includes immunity from personal arrest or detention and privileges concerning personal baggage.
The proposed Regulations impose obligations on the Commonwealth Secretariat and its subsidiary bodies to ensure that their experts, when serving in Australia, are granted the specified privileges and immunities. This is to align with international practices where experts of international organizations are accorded appropriate privileges when they take up duties in countries other than their own. The Regulations also ensure that former experts remain immune from suit and legal process in respect of acts performed during their duties, in line with international standards.
Breaches of the provisions outlined in the proposed Regulations may not be explicitly stated in the explanatory statement; however, under the International Organizations (Privileges and Immunities) Act 1963, any violations of the privileges and immunities granted could lead to civil or criminal consequences. Although the explanatory statement does not detail specific penalties, the Act generally provides for enforcement mechanisms to address breaches, ensuring that the privileges and immunities are respected and upheld. The consequences of non-compliance could include legal actions against the individuals or entities involved, potentially leading to fines or other legal repercussions as determined by the relevant authorities.