Opinion No. 1762
DRAFT CONVENTION ON PRIVILEGES AND IMMUNITIES FOR THE UNITED NATIONS: POWER OF COMMONWEALTH TO IMPLEMENT CONVENTION
CONSTITUTION s 51(xxix): CHARTER OF THE UNITED NATIONS art 105
14 February 1946
The Secretary, Department of External Affairs
I refer to your memorandum of 18th January, 1946, concerning the draft Convention on privileges and immunities for the United Nations, its officials and representatives of its members.
The only aspect of the matter which appears directly to concern this Department is the question of the power of the Commonwealth to implement, by legislation, the provisions of the Convention.
The provisions of the draft Convention include—
- matters within the specific legislative powers of the Commonwealth (for example, exemption from immigration laws and customs duty); and
- matters which do not fall under any head of Commonwealth legislative power unless they may be dealt with under the ‘external affairs’ power (for example, exemption from arrest, legal process, etc, under State laws).
There can, of course, be no doubt as to the power of the Commonwealth to pass laws giving effect to the provisions of the Convention on matters falling within (a) above. With regard to matters falling within (b), I am of the opinion that, should the Commonwealth become a party to a Convention dealing with these matters under the auspices of the United Nations, the Commonwealth would have power to implement its obligations by legislation.
It may be noted, however, that the draft Convention appears to contemplate, in clause 4, the passing of any necessary legislation by a member to implement the Convention before the depositing by the member of an instrument of accession. I do not think this order of proceeding would affect the power of the Commonwealth to implement the Convention. The fact that a draft Convention, capable of being acceded to by the Commonwealth, was in existence would, I consider, make legislation necessary to enable the Commonwealth to accede to the Convention, legislation with respect to ‘an external affair’. Possibly, the legislation could be expressed to come into operation upon the depositing of the instrument of accession.
With regard to your memorandum No. I.C. 45/11/7 of the 11th January concerning the immediate obligation of the Commonwealth to carry out the provision of Article 105 of the Charter, I suggest that it is unlikely that persons engaged in the business of the United Nations will be in Australia in the near future. It appears to me, therefore, that no action by the Commonwealth is necessary pending the completion of the Convention.
[Vol. 37, p. 33]