Travel

Protocol Guidelines

5. PRIVILEGES AND IMMUNITIES

5.1    Introduction

5.2    Diplomatic Privileges and Immunities Act 1967

5.3    Australian citizens and permanent residents

5.4    Freedom of communication

5.4.1     Couriers and diplomatic bags
5.4.2     Radio transmitters
5.4.3     Installation of satellite receiving dishes

5.5    Arrival in Australia

5.5.1     Screening of personal baggage by airlines
5.5.2     Imports and exports

5.6    Employment in Australia

5.6.1     Voluntary work

5.7    Medical costs

5.8    Education

5.1 Introduction

"The purpose of ...... privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States".

(Preamble to the Vienna Convention on Diplomatic Relations, 1961 - there is a similar preamble to the Vienna Convention on Consular Relations 1963)

5.2 Diplomatic Privileges and Immunities Act 1967

The Australian Parliament passed the Diplomatic Privileges and Immunities Act 1967 (the Act) and the Consular Privileges and Immunities Act 1972   to give relevant provisions of the Vienna Conventions the force of law in Australia.

In relation to privileges, the Act gives effect in Australia to the provisions of Articles 36(1) and 37(1) and (2) of the VCDR.  In general, it imposes certain conditions in relation to the sale or disposal of privileged goods within two years (three years for motor vehicles) of purchase.

In relation to immunities, the Act provides for Articles 1, 22 to 24, and 27 to 40 of the VCDR to have the force of law in Australia.

Under the Act, any or all privileges or immunities may be withdrawn from a particular mission on the basis of reciprocity where the relevant privileges and immunities provided to a mission of Australia in an overseas country are less than the privileges and immunities granted under this Act to that country's diplomatic mission in Australia.

The Consular Privileges and Immunities Act 1972 parallels the Diplomatic Privileges and Immunities Act and specifies those Articles of the VCCR which are given force of law in Australia.  However, the privileges and immunities available to consular officials under the Act, in accordance with the VCCR, differ from and are more circumscribed than those available to diplomatic and administrative and technical staff.

Immunity from jurisdiction of Consular Officers and Consular Employees is limited to those established under Article 43 of the VCCR.  No other privileges or immunities will be accorded.

5.3 Australian citizens and permanent residents

Articles 8 of the VCDR and 22 of the VCCR provide for the receiving State to agree to the appointment of persons who are citizens or permanent residents of the receiving State see section 4.1.1.  Where such approval is given for diplomatic staff, Article 38 of the VCDR provides for limitations to be placed on the privileges and immunities of those who are nationals of the receiving State or permanently resident in that State.

In general, a diplomatic officer in Australia who is a national or permanent resident of Australia will enjoy immunity from jurisdiction and inviolability only in respect of official acts performed in the exercise of his or her functions.  This is often referred to as "functional immunity".  No other privileges or immunities will be accorded.

Other members of the staff of the mission who are nationals of Australia or permanent residents similarly have only "functional immunity".

5.4 Freedom of communication

5.4.1 Couriers and diplomatic bags

Australia attaches importance to the full and proper observance of Article 27 of the VCDR (Article 35 of the VCCR).  The Department is willing at all times to discuss with missions and posts any problem that may arise.

The correct and expeditious movement of diplomatic couriers and bags will be facilitated if in each case there is proper identification and documentation.  In accordance with aviation security requirements, couriers and their personal baggage are subject to normal security screening procedures.

Arrangements can be made with the Australian Customs Service for a properly identified and accredited staff member of a mission or post to have escorted access to restricted areas of the airport in order to meet incoming flights carrying diplomatic or consular bags (whether accompanied or unaccompanied).  The same applies for the diplomatic or consular bags overseas.

Any use of a bag or courier to import or export firearms, narcotic drugs or other items that contravene Australian laws would be regarded with the utmost seriousness.  In this context, missions and posts are reminded of Article 41.1 of the VCDR (Article 55.1 of the VCCR) on respecting the laws and regulations of the receiving State, and of their obligation to comply with customs and quarantine requirements relating to the import and export of certain animals, plants, foodstuffs and goods (Section 5.5.2).

5.4.2 Radio transmitters

The VCDR and VCCR (Articles 27 and 35 respectively) stipulate that a mission or post "may install and use a wireless transmitter only with the consent of the receiving State".  Requests for licences should be made through Protocol Branch.  The licence is issued by the Australian Communications Authority, an agency of the Department of Communications, Information Technology and the Arts.  Consideration of a request will be facilitated if it clearly indicates that:

a)     reciprocal approval will be given to an Australian diplomatic mission or consular post in the country making the request to install and use a radio communication transmitter for diplomatic or consular communications

b)    the technical specifications and operating arrangements of the equipment will conform with the requirements of the Australian Communications Authority.  (Missions and posts are encouraged to seek guidance directly from the Australian Communications Authority at an early stage in considering the installation of a transmitter.  This may precede the submission of a formal request, though Protocol Branch should be kept informed of any such approach.)

c)     any physical constraints and procedural requirements of the relevant State and local government authorities will be met.  (State governments, local councils and like bodies exercise varying powers and the Department can neither override their requirements nor be expected as a general rule to influence their decisions.)

Once a request is approved in principle, the Department will formally refer the mission or post concerned to the Australian Communications Authority for completion of technical requirements and the issue of a licence.

Normal commercial arrangements apply to the installation and operation of such communications equipment as telephones, teleprinters and short range VHF/UHF hand-held and mobile radio transceivers.  Missions and posts should deal direct with a carrier service provider in respect of telephones and teleprinters and with the Australian Communications Authority in respect of VHF and UHF radios.

Section 14.3 refers to the carriage of communications equipment by foreign bodyguards.

5.4.3 Installation of satellite receiving dishes

Where a mission intends to install a satellite receiving dish, the Department should be informed before purchase, importation or installation.  In the ACT, the approval of the National Capital Authority may be required.  Outside the ACT, local council approval may be required and should not be assumed.

5.5 Arrival in Australia

5.5.1 Screening of personal baggage by airlines

World-wide practice is that the persons and personal baggage of airline passengers (including diplomats) are screened or searched before air travel is permitted.  The purpose of such searches is solely to ensure the safety of all air travellers.

These searches are not considered to be a breach of Article 36 of the VCDR, as Article 36, paragraph 2, of the Convention deals with a different set of circumstances.  It places States, including their servants or agents, under an obligation to refrain from inspecting the personal baggage of a diplomat unless there are serious grounds for believing that the baggage contains articles not covered by the exemptions from customs duties and other taxes set out in Article 36, Paragraph 1, or which are otherwise prohibited.

Airline security requirements are a different matter, and airlines may require as a condition of carriage the inspection of all luggage, including that of diplomats.  Baggage screening is not undertaken by servants or agents of the Australian Government in the context of customs or other formalities relating to entry to Australia, but by security personnel acting on behalf of airlines (which are independent corporations) in the context of the safety of air travel. 

Airline security staff may require any electrical equipment to be turned on to show that it works, X-rayed, or opened for inspection.  Portable telephones and telephone message pagers are also subject to inspection.  Where missions are concerned about special items they are carrying (for example, when carrying official gifts that have been wrapped for presentation) it would assist security processing if prior notification were given to airline security.  Where possible, such gifts will be X-rayed only, and not opened.

As is the case with any other person, a diplomatic or consular officer is entitled to refuse permission for airline security personnel to search his or her personal baggage.  In this case, however, the airline would be under no obligation to carry the individual and may refuse to allow that person to board the aircraft.  The Department understands that it is the practice of airlines to refuse to carry passengers who will not give permission for searches.

The only exception is official diplomatic mail which is sealed and clearly marked as diplomatic mail (see also Section 5.4.1 concerning arrangements for diplomatic couriers).  All other materials are subject to inspection.

5.5.2 Imports and exports

Australia is free of many of the plant and animal diseases and pests found in other parts of the world.  To preserve this position, strict controls are placed on the entry of animals and plants, and products of animal or plant origin.  Where such items are being brought into Australia, they must be declared to Customs officials at the point of entry.  Some items may be disinfected, placed in quarantine or, if necessary, destroyed.

Many of Australia's animal, bird and plant species are rare;  some are in danger of becoming extinct.  To protect them, their export is strictly controlled and in some cases is illegal.  Similarly, there are controls on the export of some items deemed important to Australia's cultural heritage.

The attention of diplomatic missions and consular posts is drawn to Section 7(3) of the Diplomatic Privileges and Immunities Act 1967 and Section 5(3) of the Consular Privileges and Immunities Act 1972  which, in accordance with Articles 36.2 of the VCDR and 50.3 of the VCCR, broadly provide that immunity will not affect the application of laws relating to quarantine or prohibiting or restricting the import or export of animals, plants or goods, and seeks the cooperation of Heads of Missions and Posts, and their staff, in ensuring that prohibited goods are not imported or exported.  Diplomatic or consular privileges must not be used in an attempt to circumvent these controls.

In 2001, the Australian Government announced significantly increased quarantine intervention at its borders that included, among other things, increased examination of passengers' baggage entering Australia.  Australian Quarantine and Inspection Service (AQIS) officers will check all items of incoming passenger baggage.  In the case of accredited diplomatic or consular officers the screening of personal baggage will normally be undertaken by x-ray or detector dogs.  In circumstances where that x-ray or dog screening provides grounds for serious concern that baggage contains prohibited items, a physical examination of the baggage will take place, subject to the exception in the immediately following paragraph.

Should a person in a situation referred to in the preceding paragraph object to their personal baggage being searched, AQIS can, as an alternative to opening the person's personal baggage, arrange with the owner to send out of Australia all or some of the baggage.

Australian diplomatic missions and consular posts can provide potential travellers to Australia, including diplomatic and consular staff, with information brochures and links to Internet sites about quarantine matters.  This information may be obtained directly by contacting the Australian Quarantine and Inspection Service (AQIS) through the following e-mail sites:

AQIS also has a website at www.affa.gov.au and a free-call (from within Australia) phone number at 1800 020 504.

5.6 Employment in Australia

Members of the Diplomatic and Consular Corps may not seek secondary employment or undertake activities outside their official function for personal gain.

Australia has negotiated bilateral employment agreements or arrangements with a number of countries to facilitate the employment of dependants of representatives posted between the two countries.  A copy of Australia's standard draft model text for such arrangements can be found at Appendix 12 (pdf). Missions wishing to commence negotiations for the establishment of an employment arrangement between their country and Australia should contact the Chief of Protocol.

Dependants of diplomatic and consular officials are not permitted to work in Australia without the prior approval of the Department of Foreign Affairs and Trade.  Applications for approval for dependants to work must be sent by Note Verbale to Protocol Branch or the Department's relevant State or Territory Office, setting out the identity of the dependant and the nature of the work proposed.

The Department will consider each application on its merits.  Approval will be granted on the basis of reciprocity where bilateral employment agreements exist, or where dependants of Australian diplomatic and consular officials in the relevant sending State would be permitted to work.  The Note seeking approval should indicate whether the sending State would extend similar approval to an Australian dependant.

Should approval be given, it will always be on condition that:

5.6.1 Voluntary work

Many Australian community organisations welcome the service of volunteers.  Volunteers work in areas such as sport, culture and heritage, science and technology, arts, health and environment and many more.  Volunteering provides opportunities to become involved in the community, to make friends and meet people, and to share and broaden skills and experience.

In Canberra, Volunteering ACT can provide training and advice to potential volunteers, and can match their talents and interests with organisations in need of voluntary assistance.  Volunteering ACT, based at Belconnen, can be contacted via:

Members of the Diplomatic Corps who wish to volunteer are not required to seek prior approval from the Department.  However, they need to be aware that, in the unlikely event that any judicial matters arise in relation to their voluntary service, waiver of diplomatic immunity would be requested.

5.7 Medical costs

A small minority of members of the Diplomatic and Consular Corps (those belonging to missions or posts of the United Kingdom, the Netherlands, Sweden, Finland, Italy, Malta and Ireland) have access to Medicare, Australia's national health system.  This arises from reciprocal health care arrangements between Australia and their countries.  All other diplomatic and consular representatives are liable to pay the full rate for medical treatment received in Australia, including ambulance transport charges.  As medical care in Australia is expensive, officers whose medical costs are not covered by their home governments may wish to take out private health insurance tailored to their needs as visitors to Australia.  Further information can be sought from private health insurance companies.

5.8 Education

In Australia, all children must receive formal schooling from 6 to 15 years of age.  In certain very limited circumstances, exemptions can be given.  There are two educational systems in Australia, namely State (operated by State and Territory governments) and private (operated by non-government organisations).  Parents are free to choose which system to use.

A fee is charged for education of overseas students in State or Territory primary or secondary schools.  However, accredited children of diplomatic and consular personnel are not treated as overseas students at this level and are able to attend such schools on the same financial basis as Australian children while their parents are accredited by the Department of Foreign Affairs and Trade. Private schools usually charge tuition fees.  The Department regards the fees charged by private schools as a matter between the parents and the school.

Diplomatic and consular personnel and their dependants may enrol in tertiary educational institutions in Australia, provided they meet the educational requirements for entry, which vary from institution to institution.  Full fees are payable.  However, as members of the Diplomatic and Consular Corps are not eligible for Medicare benefits, they should seek a waiver of the Medicare component of overseas student fees.

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