International Organisations (Privileges and Immunities) Amendment Bill 2023 - Concluded Matters [2023] AUPJCHR 91 (6 September 2023)

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Purpose	This bill seeks to amend the International Organisations (Privileges and Immunities) Act 1963 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 • increase flexibility in granting privileges and immunities to international organisations and connected persons
Portfolio	Foreign Affairs and Trade
Introduced	Senate, 21 June 2023
Rights	Right of access to courts and tribunals; right to an effective remedy; torture and inhuman treatment

1.226 The committee requested a response from the minister in relation to the bill in Report 8 of 2023.^[182]

1.227 This bill seeks to amend the International Organisations (Privileges and Immunities) Act 1963 (the Act) to permit an organisation of which two or more countries other than Australia are members, or that is constituted by two or more persons representing countries other than Australia, to be declared, by way of regulations, to be an international organisation to which the Act applies.^[183] This would have the effect of permitting Australia to confer privileges and immunities under the Act on international organisations of which Australia is not a member.^[184]

1.228 The bill also seeks to amend the Act to permit the conferral of privileges and immunities under the Act,^[185] by way of regulations, on persons connected in a specified way with an international organisation and on persons who have ceased to be connected with such an organisation.^[186] The effect of this amendment would be to extend immunities and privileges to categories of officials not prescribed in the Act, where requested by an international organisation and agreed to by Australia.^[187] The Act allows for the grant of both functional immunity (that is, immunity that attaches to those acts or functions undertaken by an individual in their official capacity as an officer of an international organisation) and personal immunity (that is, an absolute immunity attaching to all acts undertaken in an official or private capacity both before and during office).^[188] The Act therefore allows individuals to be conferred with immunity from personal arrest or detention, and from suit and from other legal process.^[189]

Right of access to courts and tribunals, right to an effective remedy and obligations under the Convention Against Torture

1.229 By extending privileges and immunities to international organisations to which Australia is not a member and to persons representing such organisations, as well as other categories of officials that are to be prescribed by regulations, the bill would engage and limit the right of access to courts and tribunals – an element of the right to equality before courts and tribunals, as well as the right to an effective remedy and Australia's obligations to investigate and prosecute (or extradite) persons alleged to have committed torture.^[190] This is acknowledged in the statement of compatibility.^[191]

1.230 The right to equality before courts and tribunals encompasses the right of access to the courts in cases of determination of criminal charges and rights and obligations in a suit at law.^[192] The UN Human Rights Committee has stated that:

The failure of a State party to establish a competent tribunal to determine such rights and obligations or to allow access to such a tribunal in specific cases would amount to a violation of article 14 if such limitations are not based on domestic legislation, are not necessary to pursue legitimate aims such as the proper administration of justice, or are based on exceptions from jurisdiction deriving from international law such, for example, as immunities, or if the access left to an individual would be limited to an extent that would undermine the very essence of the right.^[193]

1.231 The right to an effective remedy requires the availability of a remedy which is effective with respect to any violation of rights and freedoms recognised by the International Covenant on Civil and Political Rights.^[194] It includes the right to have such a remedy determined by competent judicial, administrative or legislative authorities or by any other competent authority provided for by the legal system of the state. This may take a variety of forms, such as prosecutions of suspected perpetrators or compensation to victims of abuse. While limitations may be placed in particular circumstances on the nature of the remedy provided (judicial or otherwise), States parties must comply with the fundamental obligation to provide a remedy that is effective.^[195]

1.232 In the context of this bill, the granting of immunities, including immunity from personal arrest or detention and from suit and other legal processes, to international organisations and other categories of officials, would involve an exclusion of the jurisdiction of Australian courts in criminal, civil and administrative cases. This, in effect, would restrict an individual's access to courts and tribunals, including for the purposes of determining an effective remedy for potential violations of human rights.

1.233 In addition, as a State party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Australia has an obligation to investigate and prosecute (or extradite) such cases of torture as defined in the Convention if an alleged torturer is found in Australia.^[196] This obligation is enlivened even in a case where the alleged torturer may have enjoyed immunity from criminal proceedings in Australia and continues to enjoy immunity in relation to acts carried out in that person's official capacity.^[197] Thus, by extending personal immunity to a broader range of organisations and individuals, including potentially those alleged to have committed torture, the bill would have implications for Australia's obligation to investigate and prosecute allegations of torture.

1.234 Restricting access to courts and tribunals and consequently the availability of a remedy for potential rights violations (other than in relation to torture) may not amount to a violation under international human rights law if such restrictions are based on immunities that are accepted as a matter of international law.^[198] The granting of privileges and immunities to international organisations is commonly accepted practice in international law. Australia is bound under a number of multilateral and bilateral treaties to confer privileges and immunities on various international organisations and their officials, as well as on foreign States and their diplomatic and consular representatives. The extent of the privileges and immunities conferred varies among the different categories of conferee (for example, a diplomatic representative has more extensive accepted immunities than a consular official). Under customary international law Australia is also under additional obligations to afford immunity to certain types of high-level foreign officials, both personal immunity while they are in office and, functional immunity after they have left office.^[199]

1.235 Questions arise as to how the amendments in the bill are necessary to align Australia's domestic legislation with its international obligations. There is also nothing in the legislation itself to prevent personal immunity being granted. Indeed, the stated purpose of the amendments is to provide the Australian government with greater flexibility to confer immunities on categories of officials not prescribed in the Act. Without legislative safeguards to restrict the persons to whom personal immunity may be granted, there appears to be a risk that personal immunity from arrest and detention could be conferred on persons alleged to have committed torture or other serious human rights abuses. This may occur, for example, where an international organisation requests personal immunity for a person who is connected with the organisation and is also alleged to have committed torture, and Australia agrees to that request due to broader benefits that it may gain by cooperating with the organisation. The immunity in such cases would prevent Australia from complying with its international obligation to investigate and prosecute persons alleged to have committed torture.

1.236 The committee considered further information is required to assess the compatibility of this bill with the rights of access to courts and tribunals and effective remedy and Australia's obligations to investigate and prosecute (or extradite) persons alleged to have committed torture, and as such sought the minister's advice in relation to:

Conferral of personal immunities on representatives of international organisations

The proposed amendments will improve the implementation of Australia’s international obligations.

At present, Australian must ‘match’ the category of officials to whom we have agreed to grant privileges and immunities to the predetermined categories contained in the Act, and these do not always align. This issue has arisen in the context of the tax concessions accorded to the officials of international organisations, whereby a very small number of officials have not received the concessions Australia has agreed by treaty to grant.

Given there are only 70 officials accredited to 14 international organisations in Australia at present, this issue arises rarely but nonetheless warrants rectification. The amendments will enable future regulations to use the same terminology as in the relevant treaty. This will minimise the gaps between our international obligations and implementation.

Further, the amendments will enable the Government to choose specifically which of the existing privileges and immunities available under the Act are appropriate in the individual case, rather than being tied to a particular schedule of immunities in the Act. This will increase Australia’s ability to ensure that only those privileges and immunities that are necessary and reasonable are granted, having regard to the applicable treaty. It will also ensure closer alignment of the privileges and immunities agreed by Australia in treaty and those accorded under the Act.

It is also important to note that personal jurisdictional immunity (immunity for acts performed in a personal as well as an official capacity) is only conferred on a very limited class of persons in Australia, namely ‘high officers’ of international organisations. Only the most senior officers of an international organisation are accredited as ‘high officers’ for the purposes of the Act. There are currently only three people accredited as such in Australia – the Executive Secretaries of:

Other international organisations with a presence in Australia which are granted privileges and immunities do not have officers of sufficiently high rank to be accredited as ‘high officers’.

The Act accords personal jurisdictional immunity on ‘high officers’ by conferring like privileges and immunities as are accorded to a diplomatic agent (Schedule 2 to Part 1 of the Act). This includes immunity from criminal jurisdiction and from civil and administrative jurisdiction, with certain exceptions relating to actions for private immovable property, succession and professional or commercial activity exercised outside of official functions. Lower ranking ‘officers’ of international organisations only enjoy functional immunities under the Act. This means that they only have immunities from legal process for acts done and things said in the exercise of their official functions. The scope of a person’s official functions is limited by reference to the functions of the international organisation in question, which are generally set out in the relevant treaty.

As explained below, the mechanism for granting privileges and immunities also requires regulations to be made, ensuring that as a limitation on human rights, any privileges and immunities are based on domestic legislation and there is a high degree of parliamentary oversight of which persons in an organisation will be conferred which privileges and immunities.

The processes for conferring privileges and immunities on an organisation incorporates robust safeguards, including parliamentary scrutiny.

Under the Act, conferral of privileges and immunities on an international organisation and its officials occurs by way of regulations made by the Governor-General. The Bill in no way affects this process. This means that regulations implementing the Bill will be required to be tabled in Parliament and will be disallowable in each case. Parliament will have the opportunity to consider each set of regulations and either House of Parliament may stop their operation by a vote. At present, the decision to grant privileges and immunities will be a decision for the Australian Government, with the highest level of government oversight and subject to parliamentary scrutiny.

This safeguard increases consistency with human rights, ensuring privileges and immunities are based on domestic legislation, considered by the Government to be appropriate to pursue legitimate aims, and closely align with applicable international obligations.

As a matter of general practice, privileges and immunities are also only conferred where Australia has agreed to do so. International agreements requiring Australia to accord privileges and immunities are subject to the treaty making process under Australian law, which includes ministerial and parliamentary scrutiny (by the Joint Standing Committee on Treaties) of the proposed treaty and its domestic and foreign policy impacts.

Australia has an unwavering commitment to the absolute prohibition against torture and cruel, inhuman or degrading treatment or punishment, for all people and in all circumstances. Australia is a party to the Convention and acts consistently with its international law obligations under the Convention. Australia regularly advocates against torture bilaterally, multilaterally and through the Universal Periodic Review mechanism.

The purpose of privileges and immunities is not to shield the individual, but rather to protect them in the fulfillment of their functions. The proposed amendments will not increase the immunities available in Australia to representatives of international organisations or promote the conferral of personal jurisdictional immunities to categories of officials other than as are currently conferred under the Act. Rather, as set out above, these amendments will provide greater flexibility and efficiency to the process of conferring the existing suite of privileges and immunities in the Act to officials, overcoming the divergences between rigid classifications contained in the Act and the variety of different designations and structures adopted by the many organisations that exist in the multilateral environment.

Australia will at all times continue to act consistently with its international human rights obligations, including under the Convention.

Obligations under international law to confer privileges and immunities on organisations

The granting of privileges and immunities to international organisations is a commonly accepted practice in international law. Australia is bound under a number of multilateral and bilateral treaties to confer privileges and immunities on various international organisations and their officials.

One of the purposes of the Bill is to enable Australia, in accordance with its national interests, to enter into treaties with organisations which require the conferral of privileges and immunities to that organisation, and meet the obligations contained in those treaties. This scenario, whereby the privileges and immunities capable of conferral under the Act do not strictly align with the treaty, is demonstrated by the current OCCAR example. We anticipate other scenarios of this nature will arise as Australia expands its international cooperation.

The proposed changes to the Act will help broaden and deepen Australia’s engagement with the international community, including international organisations of which Australia is not a member. They will benefit Australia’s international engagements in the commercial, defence, humanitarian, scientific and other fields. They will open up opportunities for industry engagement, attracting international expertise and promoting the exchange of information, knowledge and ideas.

Where Australia accepts obligations to confer privileges and immunities with an organisation by entering into an agreement, this will be subject to the treaty process (including parliamentary and Vice-Regal consideration) outlined above. Additionally, whether such organisations are ultimately conferred privileges and immunities will be subject to parliament’s agreement do so, as this will require the creation of regulations which will be subject to parliamentary scrutiny and Vice-Regal action.

1.239 As set out in the initial analysis, restricting access to courts and tribunals and consequently the availability of a remedy for potential rights violations (other than in relation to torture) may not amount to a violation under international human rights law if such restrictions are based on immunities that are accepted as a matter of international law.^[201] The minister advised that Australia is bound under a number of treaties to confer privileges and immunities on various international organisations and their officials. The minister advised that the proposed changes to the Act will help broaden and deepen Australia’s engagement with the international community, including international organisations of which Australia is not a member.

1.240 However, as set out in the initial analysis, while Australia may have an obligation to grant certain immunities to international organisations to which Australia is a member, it is not clear that such an obligation exists under international law with respect to organisations (and associated officials) to which Australia is not a member.^[202] In order for such an obligation to exist, it must be derived from either a treaty commitment or because there is a relevant customary international law rule that applies. However, there appears to be insufficient evidence of a customary international law rule requiring states to confer immunities on international organisations of which they are not members.^[203] The minister's response did not address the question of whether Australia currently has any obligations under international law to confer privileges and immunities on organisations of which it is not a member.

1.241 In the absence of a clear international law obligation to grant the immunities as allowed for by this bill, it is necessary to consider the compatibility of granting such immunities with the right to access the courts and the right to an effective remedy. In relation to the right to an effective remedy, this right requires the availability of a remedy which is effective with respect to any violation of rights and freedoms recognised by the International Covenant on Civil and Political Rights.^[204] While limitations may be placed in particular circumstances on the nature of the remedy provided (judicial or otherwise), States parties must comply with the fundamental obligation to provide a remedy that is effective.^[205] The granting of immunities, including immunity from personal arrest or detention and from suit and other legal processes, to international organisations and other categories of officials, would involve an exclusion of the jurisdiction of Australian courts in criminal, civil and administrative cases. This, in effect, would restrict an individual's access to courts and tribunals, including for the purposes of determining an effective remedy for potential violations of human rights. As the granting of immunities would preclude an individual seeking a remedy against someone who may have violated their rights, the bill (by allowing regulations to be made to grant such immunities in circumstances where there is no clear international law obligation to do so) does not appear to be compatible with the right to an effective remedy.

1.242 In relation to whether granting immunities would be compatible with the right to access the courts, this would depend on the nature of the immunities granted and whether to do so was necessary and reasonable in all the circumstances. As each immunity would be granted by regulations, it would be necessary to assess each regulation for compatibility with this right.

1.243 In addition, and as set out in the initial analysis, the bill (and Act) appears to enable the conferral of personal immunities (immunity for acts performed in a personal as well as an official capacity) on a broader category of individuals than those recognised as entitled to immunity under general international law. The bill would allow immunities to be conferred by regulations on general classes of persons connected with international organisations. The minister advised that the amendments in the bill will enable the government to choose which of the existing privileges and immunities available under the Act are appropriate in the individual case, rather than being tied to a particular schedule of immunities in the Act. Depending on the breadth of the immunities that are granted in each individual case, the immunities granted may be consistent with general international law. However, there is nothing in the legislation that would ensure that only those privileges and immunities that are appropriate under international law would be granted. The minister advised that personal jurisdictional immunity is currently only conferred on a very limited class of persons in Australia, with only the most senior officers of an international organisation accredited as ‘high officers’ for the purposes of the Act. The minister advised currently only three people are accredited as such in Australia, being the Executive Secretaries of organisations relating to the conservation of marine animals and albatrosses and petrels. While this current practice would appear to be broadly consistent with Australia’s obligations under international law, the amendments to the bill would allow personal immunities to be granted to a much wider range of persons. Noting that there is no requirement in the bill for such immunities only to be granted where required under international law, there is a risk that the bill would allow the granting of personal immunities (with the potential to limit the right to an effective remedy and the right to access the courts) in situations where there is no basis in international law for doing so.

1.244 Further, the granting of personal immunity would appear to preclude Australian courts exercising jurisdiction over persons alleged to have committed torture or other serious human rights abuses, even where such persons would not otherwise fall within the general category of individuals covered by personal immunity under general international law (e.g. heads of state).^[206] The statement of compatibility states that the conferral of privileges and immunities on categories of officials would occur where requested by an international organisation and agreed to by Australia.^[207] It states that while the bill is unlikely to give rise to situations involving Australia's obligations under international human rights law, including under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention), if such cases 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'.^[208]

1.245 The minister advised that Australia has an unwavering commitment to the absolute prohibition against torture and cruel, inhuman or degrading treatment or punishment, and will continue to act consistently with its human rights obligations. The minister advised that the proposed amendments will not increase the immunities available in Australia or promote the conferral of personal jurisdictional immunities to categories of officials other than as are currently conferred – but will provide greater flexibility and efficiency to the process of conferring the existing suite of privileges and immunities. In circumstances where personal immunity has been granted by Australia under the Act, it would appear that the ability to investigate, prosecute or extradite a person for torture would rely on the relevant organisation granting a waiver. Leaving this matter to the discretion of the organisation would not appear to be consistent with Australia's obligations under the Convention. While the bill may not increase the immunities available, it does, in providing greater flexibility and efficiency to the process of conferring the existing suite of privileges and immunities in the Act, make those immunities more widely available. This increases the risk that privileges and immunities may be granted in circumstances which are incompatible with Australia’s obligations under the Convention.

1.246 The committee thanks the minister for this response. The committee acknowledges the desirability of improving Australia’s engagement with the international community. However, the committee also notes the importance of ensuring that the granting of privileges and immunities to organisations and officials, which includes immunity from personal arrest or detention and from suit and other legal processes, is compatible with Australia's international human rights obligations.

1.247 The committee notes that the bill would extend privileges and immunities to officials attached to international organisations of which Australia is not a member. In the absence of a clear international law obligation to grant the immunities as allowed for by this bill, it is necessary to consider the compatibility of granting such immunities with the right to access the courts and the right to an effective remedy. In relation to the right to an effective remedy, as the granting of immunities would preclude an individual seeking a remedy against someone who may have violated their rights, the committee considers that the bill (by allowing regulations to be made to grant such immunities in circumstances where there is no clear international law obligation to do so) does not appear to be compatible with the right to an effective remedy. In relation to the right to access the courts, the committee considers the compatibility of the measure would depend on the nature of the immunities granted and whether to do so was necessary and reasonable in all the circumstances. As such, the committee will carefully consider the compatibility of any future regulations made under the Act for compatibility with this right.

1.248 Further, the amendments to the bill would allow personal immunities to be granted to a much wider range of persons. Noting that there is no requirement in the bill for such immunities only to be granted where required under international law, the committee considers there is a risk that the bill would allow the granting of personal immunities (with the potential to limit the right to an effective remedy and the right to access the courts) in situations where there is no basis in international law for doing so. Again, the committee will carefully consider the compatibility of any future regulations that confer such personal immunities.

1.249 Finally, the committee considers there is a risk under the existing Act that the granting of privileges and immunities to individuals is not compatible with Australia's obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (as it appears that the ability to investigate, prosecute or extradite a person for torture would rely on the relevant organisation granting a waiver). The bill, in providing greater flexibility and efficiency to the process of conferring the existing suite of privileges and immunities in the Act, makes those immunities more widely available, and therefore increases the risk that privileges and immunities may be granted in circumstances which are incompatible with Australia’s obligations under the Convention.

Suggested action

1.250 The committee considers the compatibility with human rights of this measure may be assisted were the Act amended to:

(a) ensure that privileges and immunities may only be granted where this is required as a matter of international law; and

(a) to ensure that any such immunities do not override Australia's obligations in relation to the prohibition against torture or other cruel, inhuman or degrading treatment or punishment.

1.251 The committee further considers that the explanatory materials accompanying any future regulations granting such privileges and immunities should make clear how the measure is compatible with international law (as well as international human rights law).

1.252 The committee recommends that the statement of compatibility be updated to reflect the information provided by the minister.

1.253 The committee draws these human rights concerns to the attention of the minister and the Parliament.

^[182] Parliamentary Joint Committee on Human Rights, Report 8 of 2023 (2 August 2023) pp. 69-77.

^[188] Personal immunities which may be granted to representatives of international organisations are set out under Part 1 of the Second to Fifth Schedules of the International Organisations (Privileges and Immunities) Act 1963. Personal and functional immunities are also granted under other legislation, such as those accorded to a diplomatic agent, under the Diplomatic Privileges and Immunities Act 1967, specifically the Schedule – Vienna Convention on Diplomatic Relations. The Foreign States Immunities Act 1985 also provides functional immunity to foreign states and their representatives in civil proceedings, and personal immunity from both civil and criminal proceedings for foreign heads of state (s 36).

^[190] International Covenant on Civil and Political Rights, articles 2(3) and 14.

^[191] Statement of compatibility, p. 2–4. The statement of compatibility also states that the right to freedom of movement is engaged. However, it is not clear that enabling the continued application of immigration laws would engage and limit the right to freedom of movement as a matter of international human rights law, and as such, this right has not been addressed in this report entry.

^[192] UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial (2007) [9].

^[193] UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial (2007) [18]. See also UN Human Rights Committee, Concluding observations on Zambia, CCPR/C/79/Add.92 (1996) [10], where the UN committee found that it was incompatible with article 14 for persons to be vested with total immunity from suit.

^[194] International Covenant on Civil and Political Rights (ICCPR), article 2(3). See, Kazantzis v Cyprus, UN Human Rights Committee Communication No. 972/01 (2003) and Faure v Australia, UN Human Rights Committee Communication No. 1036/01 (2005), State parties must not only provide remedies for violations of the ICCPR, but must also provide forums in which a person can pursue arguable if unsuccessful claims of violations of the ICCPR. Per C v Australia UN Human Rights Committee Communication No. 900/99 (2002), remedies sufficient for the purposes of article 5(2)(b) of the ICCPR must have a binding obligatory effect.

^[195] See UN Human Rights Committee, General Comment 29: States of Emergency (Article 4) (2001) [14].

^[196] Convention Against Torture, articles 5‑‑–8. The UN Human Rights Committee has stated that: 'States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible': General Comment No. 20: Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment) (1992) [15]. See also Suleymane Guengueng et al. v Senegal, UN Committee Against Torture Communication No. 181/2001 (2006), which found the failure by Senegal to prosecute the former head of state of Chad to be a violation of the Torture Convention.

^[197] The view that immunity may be limited as a result of the Convention against Torture is supported by jurisprudence, particularly the Pinochet case, and the views of the UN Committee against Torture. In the Pinochet case the House of Lords considered an extradition request for the surrender of the former President of Chile to face a number of charges of torture. As a former head of state, Pinochet enjoyed immunity for acts undertaken in his capacity as President of Chile. The House of Lords held that, even if the alleged acts of torture had been performed in his capacity as President, the effect of the Convention against Torture was that this immunity was abrogated in relation to alleged acts of torture as defined in that Convention and to which the Convention applied temporally. See R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] UKHL 17; [2000] 1 AC 147. Regarding the UN Human Rights Committee's views, see UN Committee Against Torture, Consideration of reports submitted by States parties under article 19 of the Convention, CAT/C/SR.354 (1998) [39]–[40], [46], where the UN Committee stated that article 5, paragraph 2 of the Convention Against Torture 'conferred on States parties universal jurisdiction over torturers present in their territory, whether former heads of State or not, in cases where it was unable or unwilling to extradite them. Whether they decided to prosecute would depend on the evidence available, but they must at least exercise their jurisdiction to consider the possibility'. See also Conclusions and recommendations on the third periodic report of the United Kingdom of Great Britain and Northern Ireland and Dependent Territories, CAT/C/SR.360 (1999) [11] and Report of the Committee against Torture: United Kingdom of Great Britain and Northern Ireland and Dependent Territories, CAT A/54/44 (1999) para [77(f)].

^[198] UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial [18]. While the law remains unsettled and continues to evolve at the international level, it has not yet been accepted that there exists a 'human rights exception' to immunity under international law. See, e.g., the rejection of this argument by the House of Lords in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another [2006] UKHL 26; [2007] 1 AC 270. For an earlier discussion of this issue, see Parliamentary Joint Committee on Human Rights, International Organisations (Privileges and Immunities) Amendment Bill 2013, Fourth Report of 2014 (20 March 2013) pp. 42–47 and Sixth Report of 2013 (15 May 2013) pp. 228–243.

^[199] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), International Court of Justice (ICJ), 14 February 2002 [2002] ICJ Rep 3, especially at [51]-[55].

^[200] The minister's response to the committee's inquiries was received on 17 August 2023. This is an extract of the response. The response is available in full on the committee's webpage.

^[201] UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial (2007) [18]. While the law remains unsettled and continues to evolve at the international level, it has not yet been accepted that there exists a 'human rights exception' to immunity under international law. See, e.g., the rejection of this argument by the House of Lords in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another [2006] UKHL 26; [2007] 1 AC 270. For an earlier discussion of this issue, see Parliamentary Joint Committee on Human Rights, International Organisations (Privileges and Immunities) Amendment Bill 2013, Fourth Report of 2014 (20 March 2013) pp. 42–47 and Sixth Report of 2013 (15 May 2013) pp. 228–243.

^[203] In fact, it remains unsettled whether there is a rule of customary international law that international organisations enjoy immunity even with respect to states which are members of the international organisation. Michael Wood, Do International Organizations Enjoy Immunity Under Customary International Law? (2013) 10 International Organizations Law Review 287-318, especially at 316-17; Edward Chukwuemeke Okeke, Jurisdictional Immunities of States and International Organizations 2018, especially at 269, 275 and 278; Jan Klabbers, An Introduction to International Organizations Law, 4^th ed 2022, 152.

^[204] International Covenant on Civil and Political Rights (ICCPR), article 2(3). See, Kazantzis v Cyprus, UN Human Rights Committee Communication No. 972/01 (2003) and Faure v Australia, UN Human Rights Committee Communication No. 1036/01 (2005), State parties must not only provide remedies for violations of the ICCPR, but must also provide forums in which a person can pursue arguable if unsuccessful claims of violations of the ICCPR. Per C v Australia UN Human Rights Committee Communication No. 900/99 (2002), remedies sufficient for the purposes of article 5(2)(b) of the ICCPR must have a binding obligatory effect.

^[205] See UN Human Rights Committee, General Comment 29: States of Emergency (Article 4) (2001) [14].

^[206] Under customary international law, this category of individuals includes heads of state, heads of government, foreign ministers and other high-ranking ministers.

Australian Parliamentary Joint Committee on Human Rights

International Organisations (Privileges and Immunities) Amendment Bill 2023 - Concluded Matters [2023] AUPJCHR 91 (6 September 2023)

International Organisations (Privileges and Immunities) Amendment Bill 2023[181]

International Organisations (Privileges and Immunities) Amendment Bill 2023^[181]