Simon Birmingham (SA, Liberal Party, Shadow Minister for Foreign Affairs) Share this | Hansard source

I rise to speak on the International Organisations (Privileges and Immunities) Amendment Bill 2023. I acknowledge this is a largely technical bill, one which introduces new powers for the government to grant privileges and immunities, such as immunity from Australian legal processes or tax exemptions for Australian residents employed by any organisation, to particular international organisations and individuals.

At the outset I want to acknowledge the work of the Senate Foreign Affairs, Defence and Trade Legislation Committee in relation to its consideration of this legislation, and particularly the work of coalition senators and their additional comments, which I will reference during my remarks this morning. The government, in introducing this bill, indicated that its aim is to provide flexibility in the granting of privileges and immunities, to give effect to privileges and immunities agreed under existing treaties—for example, with entities such as the OECD—and to assist in deepening Australia's defence, science and other strategic relationships.

The coalition has a strong record of ensuring that international organisations and relevant officials are granted the necessary privileges and immunities to function effectively and to operate independently. This is in important recognition that the types of diplomatic privileges extended to countries with whom we have diplomatic relations and who have a presence in Australia as a function of those diplomatic relations also extend to the network of international organisations that pursue interests that Australia aligns with that undertake important work in the advancement of diplomacy internationally in the advancement of other issues and causes of concern to Australia. And it's important that they have the ability to operate effectively and to operate independently and, in doing so, have comparable capacity and capability to engage as nation states do in their engagement of work in Australia under various diplomatic immunities.

In the past there has been a strict and conventional interpretation of what was and was not an international organisation. This has been a longstanding approach of successive Australian governments and it's one that in particular my coalition Senate colleagues gave careful consideration to in relation to the government's proposed changes to this act. The International Organisations (Privileges and Immunities) Act 1963 was first introduced and passed by the coalition during the Menzies government in bipartisan spirit. It repealed an earlier privileges and immunities act which had been in existence since 1948. The act sought to give the parliament a greater degree of control over the kinds of privileges and immunities that may be conferred. Indeed, former Senator Gorton—later, of course, to become Prime Minister Gorton—stated in his second reading speech, as referenced in our additional comments:

… under the previous Act, regulations may be made to give effect to any international convention on the subject to which Australia has acceded. The regulations could, provided that they give effect to such an international convention, be unlimited in their scope and subject only to the procedures for disallowance of regulations …

It was important for the government at the time that there remain a substantial degree of parliamentary control, which is why the replacement act was put in place, and that that control was exerted in terms of limitations in the types of regulations that could be made.

In February 1982 the coalition amended the act again with the support of the then Labor opposition. It was amended in particular because of an agreement between Australia and the Commission for the Conservation of Antarctic Marine Living Resources, or CCAMLR, convention. The amendments expanded the power to make regulations under the act so that representatives in international organisations attending CCAMLR conferences in Australia could be accorded similar privileges and immunities to those accorded to the representatives of member countries. This again, as I emphasised, goes to a concept of consistency between the treatment of those nations with whom we have diplomatic relations and who enjoy certain immunities and protections in relation to their operations in Australia and to similar privileges and immunities being extended to organisations undertaking similar and comparable international work and advancement.

In 1997 the coalition again made further amendments, again with the support of Labor, to ensure that the act kept pace with the increasing number and diversity of international organisations being established. As former Senator Parer stated in his second reading speech:

Australia only grants privileges and immunities which are required under our international obligations and commitments. When negotiating privileges and immunities as part of international agreements, this Government takes the line that specific items should be included only where there is a demonstrated functional need. We have to be satisfied that the specific privilege or immunity is necessary for the effective operation of the organisation.

This again highlights a key principle that is to be maintained in relation to the operation of such privileges and immunities, be they extended to other nations or to international organisations: that, critically, in a country such as Australia—with a strong rule of law that is upheld here and high standards in relation to the application of those laws and precedents—we should be providing exemptions, privileges and protections only so far as they are necessary and appropriate.

The 1948 act was further amended in 2013—then by a Labor government but again, in bipartisan spirit, with coalition support—to allow for the making of regulations to confer privileges and immunities on the International Committee of the Red Cross and also in relation to the International Criminal Court. At the time, the Department of Foreign Affairs and Trade stated that providing a separate legislative basis for regulations relating to the ICRC, rather than expanding the definition of 'international organisation', would ensure that the act contained a legislative basis for enacting regulations conferring privileges and immunities on the ICRC without—and this is important—'inadvertently extending the scope of the act to other organisations'.

DFAT's submission to the inquiry undertaken in relation to the bill before us today does not specifically go into the reasons for the change in position since 2013, which sought to ensure a step-by-step approach, if you like, in terms of the inclusion of international organisations and how they are outlined. It is our view that the parliament should continue to ensure, itself, that the new arrangements being proposed work in ways that prevent the inadvertent extension of the scope of privileges or immunities to other organisations. But we do note, importantly, in terms of the operation of this bill, that the conferral of privileges will continue to occur by the making of regulations and that these regulations will continue to be tabled in parliament and will be subject to the usual disallowance procedures. We also note that the Senate Standing Committee for the Scrutiny of Bills had no comment on the bill, and that is a committee that is, of course, well known for its work in relation to ensuring that any overreach by governments about the use of regulations is called out.

We also note that DFAT have highlighted the limitations that exist in the current framework, as stated in their submission and highlighted in our additional comments:

… Australia is currently unable to declare an organisation to be an 'international organisation' under the Act in order to confer privileges and immunities on it unless Australia is a member of, or has a person representing Australia in, the organisation. While the Act currently provides for an organisation of which Australia is not a member be an 'overseas organisation', the privileges and immunities that can be granted to such an organisation are more limited, as they only apply to persons connected to the organisation—not the organisation itself. The provisions in Schedule 1 to the Bill will remedy this deficiency in the Act to expand the category of organisations which can be declared an International organisation to include organisations of which Australia is not a member.

Whilst it may seem unusual to some for us to wish to extend the application of the act and the conferral of privileges and immunities under the act to organisations that Australia is not a member of, there are indeed many examples of organisations, such as European based organisations, that have geographically based memberships but also very close connections, partnerships and working relationships with Australia. The same could be said in relation to ASEAN. Again, it's an organisation with whom Australia has very close relations and longstanding partnership principles in place. Though Australia is not a member, we would certainly wish to ensure that we were able to operate in a way where we provided as much respect to its operations as we would any other with whom we had such close relations.

Whilst the coalition senators have noted that this bill's approach does somewhat deviate from the approach taken previously by the coalition and by the Labor Party in the parliament more generally during previous proposals, we recognise that the proposed changes, implemented appropriately and with sufficient safeguards, will prevent inadvertent expansion to organisations and that it does have the potential to broaden and deepen Australia's engagement with the international community in a way that streamlines operations. It is the current practice, as we've highlighted, that privileges and immunities are only conferred where Australia has agreed to do so.

Coalition senators also note that the explanatory memorandum states that the bill would also allow for the conferral of privileges and immunities set out in schedules 2 to 5 of the act on categories of officials not prescribed in the act where requested by an international organisation and agreed by Australia. We note that, whilst there is nothing explicit in the bill that requires an international organisation to request the conferral of such privileges and immunities, it is reasonable to infer that a request would have to be made for such a conferral to receive the agreement of Australia.

We will, and we trust that the parliament will, through various processes, including committees that assess regulations, carefully monitor the implementation of the new framework. This will ensure that Australia continues to grant privileges and immunities when they are required under international obligations and commitments but that we do not extend them to apply to organisations where they are not required, nor do we extend the scope of those privileges and immunities beyond what is absolutely necessary. With that, I indicate that, consistent with all previous engagements on this bill, we maintain the bipartisanship that has been applied to its modernisation and amendments over time.