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Treaties tabled on 12 March 2009

CHAIR (Mr Kelvin Thomson) —I declare open this public hearing for the Joint Standing Committee on Treaties ongoing review of Australia’s international treaty obligations. The committee will take evidence on two treaty actions which were tabled in the parliament on 12 March and 13 May 2009. We will hear from witnesses representing the Department of Foreign Affairs and Trade, the Attorney-General Department, AusAID and the Department of Defence. I thank witnesses for being available for this hearing. We will now take evidence on the agreement on the employment of spouses and dependants of diplomatic and consular personnel between Australia and the Portuguese Republic. I call representatives from the Department of Foreign Affairs and Trade.

Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and warrants the same respect as proceedings of the House and the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of the parliament. If you nominate to take any questions on notice, could you please ensure that your written response to questions reaches the committee secretariat within seven working days of your receipt of the transcript of today’s proceedings. I invite you to make introductory remarks before we proceed to questions.

Ms Moores —Thank you, Chair, I do have an opening statement to make. This agreement that we are looking at today between Australia and the Portuguese Republic forms part of a series of bilateral employment agreements and arrangements that Australia has concluded with countries in which the Australian government has a diplomatic or consular presence. The purpose of such arrangements is to allow the dependants of Australian diplomatic and consular personnel to engage in paid employment while posted in another country, and, on a reciprocal basis, to enable dependants of diplomatic and consular officials posted to Australia to engage in paid employment. This agreement will apply to dependants of the Australian Embassy in Lisbon, and for Portugal it will apply to the dependants of personnel of the Portuguese Embassy in Canberra and the Portuguese Consulate-General in Sydney.

Such agreements are important to Australia for a number of reasons. They assist the Australian government in recruiting and retaining high-quality employees with dependants willing to serve abroad. Dual-income families are now an accepted part of Australian life and many spouses have established careers. Moreover, the financial commitments facing families today often make it unattractive for a spouse to cease work in order to accompany his or her partner on an overseas posting. The lack of opportunity for spouses and dependants of diplomatic and consular personnel to engage in paid employment overseas therefore acts as a disincentive either for officers with families to serve overseas or for their families to join them on their posting. While bilateral employment agreements do not guarantee employment for dependants they at least allow for that possibility. Furthermore they enable the Australian government agencies represented abroad to deliver on their broader commitment of providing family-friendly work environments.

We generally prefer that arrangements take the form of an instrument of less-than-treaty status. The main reason is that Australian law already permits dependants of diplomatic and consular officials to work in Australia; it is already provided for under migration regulations and it is therefore not normally necessary for us to conclude an arrangement-of-treaty status. However the domestic legal regimes in some countries require an arrangement-of-treaty status and this is the case for Portugal. Issues pertaining to taxation and social security regimes under Portuguese law go beyond the scope of a memorandum of understanding. Negotiations for employment arrangements are based on a standard Australian text and the agreement that we are looking at today broadly follows that text.

Ms PARKE —When you say that issues of taxation go beyond an MOU and that is why it is called a treaty, what will be the arrangement with regard to taxation?

Ms Moores —The normal arrangement is that people who work abroad are liable for the taxation regime in the country that they live. So if we have dependants in Portugal who engage in paid employment they would pay tax under the Portuguese taxation system and the same applies here in Australia where dependants of Portuguese diplomatic or consular personnel in Australia would pay tax to the Australian Taxation Office, the same as any worker in Australia.

Ms PARKE —How is a spouse or dependant defined for the purposes of the agreement? Does it include same-sex partners and so on?

Ms Moores —The definition is in article 1. It defines a member of the family as a person who the receiving state has accepted as such and who forms part of the official household and it includes: spouses; unmarried dependant children under 21 years of age; unmarried dependant children under 25 years of age who are in full-time attendance as students at a post-secondary educational institution; and unmarried dependant children who are suffering from a physical or mental disability where there is no age limit. In the term ‘spouse’ the definition is the definition that is applied when we accredit and recognise somebody as a member of the household. So in Australia we recognise same-sex partners and we recognise heterosexual de facto partners as well as married partners. Portugal does not currently recognise same-sex partners for the purposes of diplomatic accreditation, so because this agreement only applies to those partners who are recognised for diplomatic accreditation it currently would not apply to same-sex partners. But if the Portuguese policy on this were to change because the agreement says ‘spouses’ it would then extend more broadly to same-sex partners.

Ms PARKE —Does it include unmarried partners?

Ms Moores —I might have to take that on notice but I do not believe Portugal does recognise de facto heterosexual partners. I will get somebody to check that for you.

Ms PARKE —Does this agreement have any implications for permitting spouses and dependants to work anywhere in the European Union or is it just confined to Portugal?

Ms Moores —It is just confined to Portugal. To be recognised as a dependant, you have to form part of the household. To form part of the household, you have to be living with the person who is accredited, so you have to be in the same house. If you are not in the same house, you are not recognised as part of the household and this would not apply to you.

Mr FORREST —This agreement is just with the Republic of Portugal, but we obviously have agreements similar to this with other nations as well.

Ms Moores —Yes, we do.

Mr FORREST —Do we have a list of those?

Ms Moores —We can submit a list. We have treaty-level agreements with six countries—Portugal would make the seventh—and we have 31 less-than-treaty-status arrangements. We are in negotiations with seven countries to conclude similar further agreements.

Mr FORREST —Could you supply the committee with that list?

Ms Moores —We certainly can.

Mr FORREST —The only other question I have is about extending arrangements beyond Portugal to nearby nations, such as Spain, France or other EU nations. Is that an extension of this agreement?

Ms Moores —No, it has to be bilateral, so we would have to have an agreement with each country in the European Union separately. We currently have a number of agreements with European Union countries: Belgium, France, the Netherlands and Spain at treaty level; Germany, I think, at less-than-treaty status; and also Poland, Sweden and the UK. The policy of the government is to conclude an agreement in every country in which we have a diplomatic or consular presence, so the broad policy is that eventually we hope to have a full suite of either arrangements or agreements covering every country.

Mr BRIGGS —Is it common for the spouses of diplomatic staff to work?

Ms Moores —Obviously it varies depending on people’s individual circumstances, but it is a very strong view on the part of staff of the department and their families that they should have the opportunity to work, and certainly one of the issues on which people seek advice before applying for a posting is whether their spouse or children would be able to work in that country. It is certainly a factor that affects their decision on whether to apply for a posting or not.

Mr BRIGGS —It has been a factor in people applying?

Ms Moores —Yes, certainly.

Mr BRIGGS —That would be in certain countries, obviously, that do not have the agreements.

Ms Moores —It varies. If you have an agreement, it makes a country a more attractive posting if you have a spouse who would like to pursue paid employment while overseas.

Mr BRIGGS —Prior to this treaty with Portugal, were spouses allowed to work or was it unknown?

Ms Moores —In some countries, even without an agreement, there can be a policy that allows it to happen, but it is certainly much better from our perspective that we have something formal in place so that it does not rely on the whims of whoever is in the position to make those decisions at the time. Also, it covers the sorts of general legal aspects, such as what happens to people’s immunities and privileges and those sorts of things, so it is certainly our preference that there be a formal agreement, either a treaty or a less-than-treaty status arrangement, in place so that there is no confusion or misunderstanding about the ability of the person to seek work.

Mr MURPHY —Are there any limitations on the variety of work that a spouse could undertake?

Ms Moores —There is one limitation in the treaty itself, in article 2, paragraph 2, which talks about what happens if the member of the family requires a security clearance and therefore only nationals of the receiving state can do the job. For instance, if you want to work in the Australian Public Service, that would not be open to a dependant of a foreign country. Also, sometimes when we are given requests to approve for dependants to work here in Australia we will make some judgments about whether that would be suitable given the nature of the work. For instance, we had a request for somebody to open a family day care centre out of their house. Diplomatic premises are inviolable—they cannot be entered—and we decided that it would not be appropriate for somebody to be in charge of children in premises that could not be entered by people wanting to do inspections, by police or by emergency services. So it would be up to the receiving state, either Australia or Portugal, to make decisions on a case-by-case basis.

Senator McGAURAN —Why Portugal?

Ms Moores —It is just one on the long list of countries that we either do not have an agreement with yet or are negotiating with. And it is a country in which we have a diplomatic presence.

Senator McGAURAN —But you haven’t with Germany?

Ms Moores —We do have one with Germany, already.

Senator McGAURAN —You have one with Germany? I thought you said you had not.

Ms Moores —No, we have a less-than-treaty status arrangement with Germany.

Senator McGAURAN —Less than treaty?

Ms Moores —It just means that it is not a treaty but it covers exactly the same conditions. Most of our arrangements with other countries on employment for dependents are not treaties. Usually there is a treaty if the country’s own domestic legal situation requires them to have a treaty to offer this to our dependents.

Senator McGAURAN —So it is not as if something has prompted this—like a request from the ambassador or something?

Ms Moores —No, we made the request to start this, because we have a policy of making requests of every country in which we have a diplomatic or consular presence.

Mr FORREST —Just further to that, has it been a limiting factor in attracting staff to Portugal? Is that why it is—

Ms Moores —I would have to take that on notice. I do not have an in-depth knowledge of staff posted to Portugal.

Ms HALL —On that, is it your goal to have a similar treaty with every country in which we have a post?

Ms Moores —That is the long-term goal. Yes.

Senator McGAURAN —I think Senator Forrest touched on this. It is a bit of a surprise. Why not just a blanket EU agreement or treaty? Why does it have to be bilateral?

Ms Moores —I think the ability to offer that is not an EU-wide competency. My understanding is that it has to be on each individual country.

Senator McGAURAN —Well, in that case why is it so slow? Why hasn’t all this been done a long time ago?

Ms Moores —Different countries give greater or lesser priority to this issue. For us it is a very high priority, given the nature of our staff and the fact that they have spouses who have careers and want to work. Not all countries have those same demands from their diplomatic personnel. So, while we place a very high priority on that, it is not always the same level of priority placed by other countries. Also, we are negotiating a lot of bilateral agreements and this is only one of them. Sometimes things do not get done as quickly as we might hope.

Senator McGAURAN —I am just surprised that it is not as old as diplomacy itself—the fact that a spouse would take the opportunity to—

Ms Moores —I think it is a reasonably recent phenomenon that you had families with partners who had their own careers and who wanted to engage in paid employment.

Senator McGAURAN —How recent?

Ms Moores —I would say that occurred in the last couple of decades, probably.

Senator McGAURAN —Twenty years. I would have thought so, too. Is there the same long, drawn-out process in, say, the United States and South America as there is in the European attachments?

Ms Moores —I do not know how long every one of our agreements has taken to negotiation but certainly some of the ones we have on our books have taken a long time.

Senator McGAURAN —Do we have any in South America, for example?

Ms Moores —We have agreements with Brazil and with Venezuela. We are currently negotiating one with Colombia and Argentina. We have one with Ecuador. I think that covers South America. Sorry, I am informed that we have one with Chile.

CHAIR —The National Interest Analysis indicates that the Portuguese Republic had a domestic legal imperative to conclude a treaty. What was that?

Ms Moores —They need a legal basis to be able to allow dependents to work and to be able to tax them and cover them with social security.

CHAIR —Thank you very much for attending today. If the committee has any further questions, the committee secretariat may seek further comment from you at a later date.

Ms Moores —Thank you.

CHAIR —We will now take evidence on the Convention on Cluster Munitions.

[10.50 am]