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Thursday, 17 August 1972
Page: 189

The PRESIDENT - Before I put the question I remind honourable senators of what is involved in this. Honourable senators have agreed that there are areas iri which second reading speeches should be incorporated, particularly those that have been delivered in the other House where the Bills originated. 1 now put the question that leave be granted.

Senator Willesee - 1 have not a copy of the second reading speech so perhaps the Minister could inform me whether the speech on what could be called the parent Bill provides an explanation of all the Bills.

Senator WRIGHT - It does.

Senator Willesee - If the speech is not too long and so will not interfere with travel arrangements 1 suggest that it be read.

The PRESIDENT - Perhaps we should proceed on the assumption that leave is not granted.

Senator WRIGHT - il am obliged to Senator Willesee. I would prefer to read the speech in order to ensure that honourable senators who choose to be in the chamber will have some understanding of these rather technical measures.

The purpose of the first 7 Bills is to give effect in Australia to the Vienna Convention on Consular Relations which provides a comprehensive code of international conduct on consular relations. The last Bill amends the Diplomatic Privileges and Immunities Act 1967 to bring certain provisions of the Act into line with the provisions applicable to consuls under the Consular Privileges and Immunities Bill as well as introducing modifications found necessary in the light of experience since the 1967 Act has been in operation. Before continuing, I should perhaps mention the difference between the functions of a consul and those of a diplomat. While their functions might overlap in some matters, a diplomat primarily represents the sending state in the receiving state. A diplomatic mission, and in particular the head of the mission, is the spokesman for the sending state in communications with the receiving state or in any discussions with the government of that state to which relations between the 2 states may give rise. A consul, on the other hand, does not represent the sending state. He is an official of the sending state resident in the receiving state with the permission of that state. He is charged with the responsibility of performing official functions of the sending statefor example the issue of visas and passports - to protect the interest of the citizens of the sending state.

The history of the Vienna Convention on Consular Relations is closely parallel to that of the Vienna Convention on Diplomatic Relations. Consular intercourse and immunities were included in the 1949 agenda of the International Law Commission as one of 14 subjects provisionally designated as ripe for codification. The Commission, a body of 25 eminent jurists established by the General Assembly of the United Nations in 1947 and representative of the principal legal systems of the world, began work on the subject in 1955 and completed its first draft in 1960. This was transmitted to governments for comments. In the light of these comments the final text of the draft was completed in the following year and 2 years after was considered by a diplomatic conference in Vienna attended by the representatives of 92 states, including Australia. The text adopted by the conference entered into force in 1967 after 22 states had become party to it. There are now 52 states party to the Convention including the United States of America, the United Kingdom and the Federal Republic of Germany. The text of the Convention is an amalgamation of the views of expert lawyers and the views of governments and has now gained the active support of a significant number of countries.

Australia signed the Convention in 1964, but legislation is necessary before we are in a position to give effect to and to become a party to it. In this the Government is following the same course as it did in 1967 when the Diplomatic Privileges and Immunities Act was passed, thus allowing Australia to become party to the Vienna Convention on Diplomatic Relations. If the Bills at present before Parliament are enacted into law and Australia ratifies the Vienna Convention on Consular Relations, we shall have a system of privileges and immunities based on internationally accepted standards covering the entire field of diplomatic and consular relations. As indicated by the then Minister for External Affairs in his second reading speech on the Diplomatic Privileges and Immunities Bill on 9th March 1967, the effect is to set out the standards in the Conventions and the general level of privileges and immunities accorded to foreign representatives in Australia.

I should like to mention briefly here for the information of honourable senators the meaning to be attached to the terms 'consular privileges' and 'consular immunities'. In common parlance these terms are often confused and this has sometimes led to the belief that consuls do not have to respect the local law. This is not the case. The term 'privileges' is commonly used to describe the concessions, often of a fiscal nature, which countries traditionally accord to foreign consular posts and their staffs, while the term 'immunities' describes the jurisdictional immunities which international law confers on them. The Convention in Article 55 emphasises that it is the duty of all persons enjoying privileges and immunities to respect the laws and regulations of the receiving state. Thus, immunity is not immunity from the law. It is immunity from the jurisdiction of the courts of the receiving state. If such immunity is waived by the sending state in a particular case the court can proceed in the usual way.

The purpose of privileges and immunities - as the preamble to the Convention recites - is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective states. Immunities in particular are protections which experience has long established as necessary to ensure the per,formance of the functions of a consular post without undue interference. In this respect we should also bear in mind that Australia cannot expect that its overseas posts and their staff should receive more generous treatment than that which Australia is prepared to concede to overseas posts and their staffs in Australia. Any curtailment of the internationally recognised privileges and immunities - particularly the latter - on Australia's part could thus create difficulties for our Australian posts overseas and perhaps jeopardise their security. There is need to maintain a proper balance between these 2 considerations.

There are now some 52 consular posts in Australia headed by career consular officers and 106 headed by honorary consuls. The privileges enjoyed by these posts and their staffs, as well as members of the family of some of them, are presently to be found in the Acts concerned with income tax, sales tax, customs, excise and so on. The Bills now before the House do not alter the levels of privileges accorded under these Acts. This is because the present level of privileges was established in 1967 by legislation supplementary to the Diplomatic Privileges and Immunities Act. For example, a provision - section 23aaa - was inserted in the Income Tax Assessment Act authorising exemptions which were in line with those required by the Consular Convention. The provisions inserted in the sales ta\, payroll tax and customs duties legislation also incorporated the standard of privileges required by the Consular Convention. Besides bringing these privileges into line with those of the Consular Convention this action also brought them into a proper relationship with those granted to diplomatic missions and their staffs. Had this not been done at the time, there would have been a disparity in favour of consular personnel brought about by a reduction generally of diplomatic privileges under the Diplomatic Privileges and Immunities Act.

The system of privileges established under the 1967 Act exceeded the level required by the Convention in some respects. For example, although the Diplomatic Convention did not provide for exemption from excise duty, the Acts passed at that time gave excise concessions on the same basis as customs concessions - that is, in cases where purchases were made from bond. Exciseable goods were also exempted from sales tax. The Consular Privileges and Immunities Bill continues these limited excise and sales tax concessions in excess of requirements under the Convention. The present legislative system of imposing quantitative limitations on goods that may be exempted for use under the customs, excise and sales tax provisions as well as time limitations on selling or otherwise disposing of them, is of course continued.

However, in the case of customs duties and sales tax applicable to imported goods, the Consular Privileges and Immunities Bill introduces certain alterations in the system of limitations. At present, if, for example, a consular officer purchased a car free of customs duty, he may not sell it within 2 years after the date of entry for home consumption without paying an amount equal to that customs duty, unless the Minister for Customs and Excise otherwise determines. Under the existing legislation the Minister's power to determine otherwise is limited to determining that, in the particular circumstances of a case, no payment need be made. There is no provision enabling the Minister to determine that if, for instance, a consular officer is transferred from Australia before the expiry of the 2-year period, he should pay a proportion of the duty only. On the one hand a determination that no payment need be made results in a loss to Commonwealth revenue while, on the other hand, if the consular officer has to pay the full amount, it could result in an unfair personal loss to him. In these circumstances the Bill provides, in addition to the Minister's authority to waive or require payment of the full amount of duty in any particular case, a general scheme whereby, if goods are sold within a denned time after importation, duty and tax are assessed on a pro rata basis - the time and basis for assessment being determined by the Minister for each class of goods. This right of the Minister to require the whole or part of the duty or tax in the event of the sale of the goods concerned in Australia within 2 years after importation is extended to cover the case where the goods are sold in an external territory of the Commonwealth within that period. Thus, apart from this aspect, these Bills do not alter the level or nature of the privileges consular posts and their personnel have been accorded for the past 5 years. In effect what is involved is mainly a change in the form of the legislation dealing with such matters. Instead of being scattered over 6 different Acts such privileges will now all be found in the one Act closely linked to the standards in the Convention. 1 now turn to the question of consular immunities. There is at present no legislation covering consular immunity in Australia. This is governed by the common law and is often uncertain. Both consular officers and consular employees, that is, persons employed in the administration or technical service of a consular post, are accorded in the Consular Privileges and Immunities Bill immunity from jurisdiction in respect of acts performed in the exercise of consular functions. The immunity accorded to these people is thus less than that accorded to corresponding ranks in a diplomatic mission. Overseas practice and interpretation of the requirements of the Convention in this regard has been that consular officers do not enjoy immunity from jurisdiction in respect of acts associated with, but not forming part of, their consular acts'; for example,- parking in a no parking' zone while making an official call, lt, of course, remains to be seen whether our own courts adopt a similar interpretation. In respect of motor vehicle accidents the Convention lays down specific rules. All members of a consular post are required to comply with local laws dealing with third party insurance for vehicles, vessels or aircraft and there is no immunity in respect of civil action by a third party for damages arising from an accident caused by a vehicle, vessel or aircraft. Moreover, there is no immunity from the jurisdiction of the Australian courts in respect of a civil action against a consular officer or consular employee arising out of a contract concluded by him in which he did not expressly or impliedly contract as an agent of the sending State. If the consular officer commits a grave crime - and this has been defined in the Bill as one for which the maximum penalty on first conviction is imprisonment that may extend to 5 years or more - he may be arrested in the same way as any other person in similar circumstances. If criminal proceedings are instituted against him. he must appear before the appropriate court.

The Convention aims to accord to the consulate and its staff that degree of immunity which the international community considers necessary for them to perform their functions free from interference or harassment, while at the same time the rights of citizens and the receiving State are protected to the greatest extent possible commensurate with that need. The balancing of interest can be seen, for example, in the degree of inviolability given the consular premises. The authorities of the receiving State are not permitted to enter that part of the premises used exclusively for the work of the consular post, except with the consent of the head of the post. Moreover, the authorities are under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity. On the other hand, the consent of the head of the post for entry by the authorities of the host State is assumed in case of fire or other disaster requiring prompt protective action. In such circumstances the interests of the host State are regarded as paramount.

It would be appropriate to mention at this point that the Convention makes special provision regarding members of the consular post who are either Australian citizens or who are permanently resident in Australia. In the case of consular officers in this category the Convention itself specifies the privileges and immunities to which they are entitled. But consular employees and members of the service staff are entitled only to such privileges and immunities as the receiving State determines. The Government considers that such consular employees, only, should be granted immunity from jurisdiction in respect of official acts performed in the exercise of their functions.

What I have said so far relates to what are called 'career' consuls and posts headed by such people. There is. however, another category of consuls known as 'honorary' consuls in relation to whom separate provision is made in the Convention. In general the facilities, privileges and immunities accorded to honorary consuls are much less than those accorded to a career consul. For example, there is no personal inviolability; that is, an honorary consular officer may be subject to arrest. He does, however, have immunity, similar to that of a career consular officer, in respect of acts performed in the exercise of his consular functions. Unfortunately, the international conference in 1963 which considered the draft Convention found that it could not agree on a definition of 'honorary' consul. Broadly, the distinction is that, while a career consul is a subject of the sending State, is specially sent by that State and has to devote the whole of his time to his consular functions, an honorary consul may or may not be a subject of the sending State, is appointed from individuals, usually businessmen, residing in the district of the receiving State for which he is to perform consular functions and. for part of the time, follows his ordinary calling. Present Australian practice is not to appoint honorary consuls in other countries; but we do accept them.- As I have said, there are now in Australia some 106 consular posts headed by honorary consular officers.

There is another matter dealt with by the Consular Privileges and Immunities Bill to which 1 should like to draw the attention of honourable senators. For many years a number of overseas countries - mainly Commonwealth countries - has maintained offices with diplomatic status in cities other than Canberra. The Convention on Diplomatic Relations precludes the sending State from establishing such offices without the prior consent of the receiving State and in international practice it is unusual for this consent to be given. In April 1971, following the Government's decision on the matter, the heads of foreign diplomatic missions and consular posts were notified that the maintenance of diplomatic offices outside Canberra could not be continued and that diplomatic status and designation would in future be accorded only to missions and personnel respectively situated in. or resident in Canberra. They were informed that consular status would then be the most that could be granted to the representation of foreign countries located elsewhere in Australia than Canberra and entitlement to this would depend on the type of functions performed by that representation and accepted by Australia.

In the case of the representation of Commonwealth countries in Australia specific legislation is needed to achieve this objective because there is as yet no system of consular relations between Commonwealth countries. We have what is known as the 'host country convention*. This is an unwritten understanding according to which each Commonwealth country provides the equivalent of consular facilities for citizens of other Commonwealth countries. The Government now proposes to grant an office of a Commonwealth country not covered by the Diplomatic

Privileges and Immunities Act 1967, but performing tasks substantially corresponding te those of a consulate, the same privileges and immunities as a consulate. The staff of such an office would be treated on a corresponding basis. Clause 9 of the Bill gives effect to this proposal. The British Consular Relations Act 1968 establishes a similar system.

This brings me to the specific provisions of the Bills. As to the Consular Privileges and Immunities Bill, clauses 1 and 2 are formal provisions. Clause 3 contains several necessary definitions of terms used in the Convention. Clause 4 provides for the extension of the Act to the Territories of the Commonwealth, Clause 5 is the main operative clause of the Bill and provides for the incorporation into Australian law of specific articles of the Convention. The remaining articles are not regarded as appropriate or necessary for action by legislation and the obligations in them can be met by administrative action, the other provisions of clause 5 are inserted for reasons of clarity of interpretation. Clause 6 qualifies the privileges of duty-free importation of goods in the same way as is done in the present Customs Tariff Act. with the addition of the alteration regarding pro rata payment of duties and taxes, which I discussed earlier, and extension of the legislation to cover the case where goods are sold in an external territory of the Commonwealth. Clause 7 grants exemption from excise duty on goods purchased from bond and clause 8 provides for the exemption of the same goods from sales tax.- These clauses have the same effect as existing provisions in the excise and sales tax legislation except that provision is made for the case of sale in an external territory of the Commonwealth.

Clause 9 deals with the position of posts established by Commonwealth countries in cities other than Canberra. The reasons for this 1 have already mentioned. This clause enables regulations to be made conferring on such posts all or any of the privileges and immunities conferred by the Act on a consular post. Provision is also made to cover ,r the various classes of personnel attached to the post in a similar fashion. Clause 10 establishes the extent of privileges and immunities to be enjoyed in Australia by consular employees who are Aus traiian citizens or ordinarily resident in Australia. This is to be confined to immunity from jurisdiction in respect of official acts performed in the exercise of their functions. Clause 11 enables privileges and immunities accorded under the Bill to be withdrawn from a consular post or from persons connected with the post in Australia if the country to which the post belongs has curtailed the privileges and immunities of the Australian consular post or the staff of that post in that country. The international approval of such reciprocal action is to be found in Article 72 of the Convention. Clause 12 enables the Minister to certify in writing for the purpose of the Act or the regulations, any fact relevant to the question whether a person is or was entitled to privileges and immunities. Certificates of this nature are sought from time to time for use in our courts. I would emphasise that the certificates are certificates as to the facts on which the court can base its decision; and the certificates are evidence only, not conclusive evidence.

The Dip'omatic Privileges and Immunities Bill amends the 1967 Act where this is necessary to maintain conformity with the provisions of the Consular Bill to regulate duty and tax free entry of goods etc. Thus, clause 5 amends section 8 of the principal Act to provide a similar system of pro rata payment of customs duties and sales tax as is proposed for the consular field. Moreover, the right of the Minister to require payment of the whole or part of the duty or tax in the event of the sale of the goods concerned in Australia within 2 years is extended to cover the case where goods arc sold in an external Territory of the Commonwealth within that period. Clauses 6 and 7 provide for a similar extension of the legislation to the Territories in the case of exemption from excise duty and from sales tax in excisable goods.

Clause 8 amends section II of the principal Act to remedy an existing anomaly. Under the existing legislation private servants other than those serving the Head of Mission may be subject to the jurisdiction of the Australian courts in respect of acts performed in the course of their duties if they are foreign nationals or foreign residents but immune if they are Australian citizens or residents. The amendment places ail such servants on the same footing. Section 13 of the Diplomatic Privileges and Immunities Act 1967 was inserted to enable appropriate immunities in respect of official acts to be accorded to members of non-diplomatic posts in Australia established by the governments of British territories. The immunities considered appropriate were based on the consular standard. In view of this, clause 9 repeals section 13 - such persons now being dealt with under clause 9 of the Consular Privileges and Immunities Bill.

The remaining Bills propose amendments to the customs tariff, excise tariff, income tax, sales tax, Territory payroll tax and Australian Capital Territory stamp duty legislation. Each of the Acts to bc amended contains taxation exemptions in relation to consular posts, but once the Consular Privileges and Immunities Bill becomes law it will grant the taxation privileges now contained in the separate Acts. Accordingly, the 6 Acts that are the subject of the remaining Bills are to be amended by the omission of provisions that will become redundant on the enactment of the comprehensive consular privileges and immunities legislation. The provisions of the last 4 of the remaining Bills are dealt with in more detail in an explanatory memorandum, which is being circulated for the information of honourable senators. The Government considers that the Vienna Convention on Consular Relations represents a balanced and realistic approach to the subject, particularly in respect of privileges and immunities. It also sees considerable advantage in removing existing uncertainty on consular immunities in Australia and establishing the internationally accepted standards of privileges and immunities set out in the Convention. I commend all 8 Bills to honourable senators.

Debate (on motion by Senator Willesee) adjourned.

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