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Overseas Missions (Privileges and Immunities) Bill 1995



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House: Senate

Portfolio: Foreign Affairs and Trade

Commencement: Royal Assent

Purpose

The purpose of the Bill is to allow the Minister to make regulations giving diplomatic privileges and immunities to representatives of self-governing territories and autonomous areas.

Background

At the moment the Diplomatic Privileges and Immunities Act 1967, the Consular Privileges and Immunities Act 1972 and the International Organizations (Privileges and Immunities) Act 1963 give diplomatic privileges and immunities to diplomatic and consular missions and staff and allow the Australian Government to make regulations giving diplomatic privileges and immunities to international organisations. However, there is no legislative basis for these privileges and immunities to be given to autonomous or self-governing entities which have missions in Australia but are not recognised by Australia as independent States.

The Vienna Conventions on Diplomatic and Consular Relations establish a range of standard diplomatic immunities and privileges. These privileges and immunities are traditionally given to overseas missions of other States. The International Organizations (Privileges and Immunities) Act 1963(International Organizations Act) made it possible for the Government to extend particular elements of the standard range of diplomatic privileges and immunities to international organizations.

1

At present it seems that there are no written guidelines for the Department of Foreign Affairs and Trade when exercising its regulatory powers under the International Organizations Act, which is the legislation that the Overseas Missions (Privileges and Immunities) Bill is modelled upon. Neither the regulations under the International Organizations Act nor the regulations under the Overseas Missions Bill are disallowable by Parliament. Subsection 33(3) of the Acts Interpretation Act 1901 would allow the repeal of any regulations made under the proposed Act.

Under the International Organizations Act there are 30 organisations which have been granted privileges and immunities, including the:

Asian Development Bank;

International Organization for Migration (1991);

Organisation for Economic Co-operation and Development (1983);

United Nations (1986); and the

Taipei Economic and Cultural Office (1992). (A full list appears at

Appendix A).

The granting of diplomatic privileges and immunities has not been the occasion for much controversy in the Australian context. However there has been significant debate in countries where serious abuses of these privileges and immunities have taken place. Most notably this has occurred in the UK, after a policewoman was killed by gunshots emanating from the Libyan embassy in 1984. No-one was ever prosecuted for this killing, and the UK Government observed the inviolability of embassy premises and immunity of diplomats. This incident led to a Report by the Foreign Affairs Committee of the House of Commons: The Abuse of Diplomatic Immunities and Privileges.

2

There have been calls in the UK for the curtailment of diplomatic immunities 'except for offences directly connected with diplomatic work.'

3

There have also been suggestions that diplomatic privileges and immunities should be curtailed in the US, after abuses of diplomatic privileges and immunities both within the US and overseas, such as in the Tehran hostage crisis.

4

Hong Kong has been cited by the Department of Foreign Affairs and Trade as an example of a self-governing territory which, while not recognised by Australia as an independent State, may receive the benefits of diplomatic privileges and immunities for its proposed Hong Kong Economic and Trade Office under the Overseas Missions (Privileges and Immunities) Bill.

Financial Impact

Potential costs resulting from this Bill include revenue foregone if there is a decisions to exempt the designated overseas mission from a variety of taxation and/or fees and charges. There is also a potential economic cost associated with the immunity from Australia's criminal, civil or administrative jurisdiction of people associated with designated overseas missions.

Main Provisions

Clause 3 provides the definition of an overseas missions as an official mission in Australia which represents a 'foreign territory' - this definition encompasses a territory which is to some extent self-governing or is the protectorate of a foreign country. Item 4 allows for the creation of 'designated overseas missions' - which can be declared by regulations and there must be a written instrument signed by the Minister, authorising the mission to operate in Australia. This written instrument must be gazetted.

Clauses 6-10 deal with the privileges and immunities which may be conferred by the regulations onto the overseas mission or people associated with the overseas mission. The people who may be covered in the regulations include staff of the mission or family members of staff 'where the family member is part of the person's household.' The range of privileges and immunities which may be granted are specified in Schedules 1 2.

Clause 12 provides for exemptions from sales tax, customs duty or excise duty on goods that are for the official use of an overseas mission or the personal use people associated with the overseas mission.

Schedule 1

Schedule 1 provides for standard diplomatic privileges and immunities which may attach to the overseas mission, including the inviolability of the premises or property of the overseas mission, the freedom of communication and inviolability of official documents and archives and the exemption from taxation of the premises, the residence of the staff or articles for the official use of the mission.

Schedule 2

Schedule 2 provides for standard diplomatic privileges and immunities which may attach to the staff or family members of the staff of the overseas mission. These include the inviolability of private residences, papers correspondence and property, exemption from taxation, immigration and customs laws, and the immunity from Australia's criminal, civil or administrative jurisdictions.

Endnotes

1. See generally McClanahan, Grant V, Diplomatic Immunity: Principles, Practices, Problems, Institute for the Study of Diplomacy, Georgetown University, Washington, 1989; and Sen, B, A Diplomat's Handbook of International Law and Practice, Martinus Nijhoff Publishers, The Netherlands, 1988, (3rd Edn).

2. House of Commons, First Report from the Foreign Affairs Committee, Session 1984-85, The Abuse of Diplomatic Immunities and Privileges, 12 December 1984, Ref. no. 127 (London, HMSO).

3. The People (London), 17 August 1986, quoted in McClanahan, Diplomatic Immunity: Principles, Practices, Problem, p. 165.

4. See generally, McClanahan, pp. 8ff and pp. 165 ff. The report Firearm Felonies by Foreign Diplomats, US Congress, Senate, Committee on the Judiciary, Subcommittee on Security and Terrorism, 1984 recommended diplomatic privileges and immunities should be curtailed. There have also been a number of bills introduced into the US Senate and Congress to curtail diplomatic privileges and immunities.

Kirsty Magarey (277 2764)

Bills Digest Service

Parliamentary Research Service 30 May 1995

This Digest does not have any legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

Commonwealth of Australia 1995.

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1995.