5. Privileges and immunities
"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/Consular Privileges and Immunities Act 1972
The Australian Parliament passed the Diplomatic Privileges and Immunities Act 1967 and the Consular Privileges and Immunities Act 1972 (the CPI Act) to give relevant provisions of the Vienna Conventions relating specifically to diplomatic and consular privileges and immunities the force of law in Australia.
Section 7 of the DPI Act provides for Articles 1, 22 to 24, and 27 to 40 of the VCDR to have the force of law in Australia. Section 5 of the CPI Act provides for Articles 1, 5, 15 and 17, paragraphs 1, 2 and 4 of Article 31, Articles 32, 33, 35 and 39, paragraphs 1 and 2 of Article 41, Articles 43 to 45 (inclusive) and 48 to 54 (inclusive), paragraphs 2 and 3 of Article 55, paragraph 2 of Article 57, paragraphs 1, 2 and 3 of Article 58, Articles 60 to 62 (inclusive), 66, and 67, paragraphs 1, 2 and 4 of Article 70 and Article 71 to have force of law in Australia.
Under the DPI Act, any or all privileges or immunities may be withdrawn from a particular mission on the basis of reciprocity where the relevant privileges and immunities provided to a mission of Australia in an overseas country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 privileges and immunities available to consular officials under the CPI 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, that is, in respect of acts performed in the exercise of consular functions. Honorary consular officials are reminded that Articles 58 to 68 of the VCCR determine the applicable provisions of the VCCR relating to Honorary Consular officers and consular posts headed by such officers.
A matrix of immunities covering foreign representatives in Australia is attached at Appendix 21 [ PDF ] and provides a quick reference to immunities for the information of missions and posts and their officers and dependents.
5.3 Australian citizens and permanent residents
In the case of diplomats posted to Australia whose dual nationality includes Australian citizenship, Australia has a long-standing practice of requiring such diplomats to revoke their Australian citizenship before taking up their posting.
This is consistent with the Vienna Convention on Diplomatic Relations (VCDR) which notes that Members of the diplomatic staff should, in principle, be of the nationality of the sending state (Article 8).
We consider it is anomalous for an Australian national to represent another country, in Australia, and to enjoy diplomatic privileges and immunities and protection in Australia because of their employment.
In exceptional circumstances consent to a dual (Australian) national may be given.
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 Customs and Border Protection 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. 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 and Media Authority. (Missions and posts are encouraged to seek guidance directly from the Australian Communications and Media 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 and Media 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 14.9 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 Unaccompanied Personal Effects
It is the responsibility of diplomatic missions and consular posts to ensure that diplomatic and consular staff arriving in Australia at the start of a posting are made aware of Australian Customs and Border Protection and Department of Agriculture requirements before personal effects are packed and consigned from home countries or from a previous posting locality. Diplomatic and consular staff must be properly briefed by their home ministries and must then make appropriate arrangements before consigning their unaccompanied personal effects to Australia, whether by ship or by air. This will help to minimise uncertainty and confusion over what items, including packing materials, are prohibited or subject to restricted entry, and what arrangements can be made for goods inspection on arrival, as well as any costs/charges associated with inspection or fumigation processes. Diplomatic missions and consular posts should particularly note that any charges involved are specifically for a services rendered. The Department of Agriculture has confirmed to the Department that no waiver of charges is possible for any inspection or fumigation processes.
Australian diplomatic missions or posts abroad can provide travellers to Australia, including diplomatic or consular staff, with advice about access to websites which provide comprehensive and authoritative information about Australian Customs and Border Protection Service and Department of Agriculture matters. Diplomatic and consular posts should note the following links:
1. For Australian Customs and Border Protection issues, the relevant website is www.customs.gov.au.
This website provides links to:
- "Guide to travellers" (also "travellers")
- "Guide to prohibited and restricted imports" (and "imports exports")
2. For Department of Agriculture issues, the relevant website is: www.daff.gov.au.
These websites provide links to:
- http://daff.gov.au/biosecurity/travel/cant-bring-form. This is a web page which provides answers to commonly asked questions about what can’t be brought or sent to Australia.
- "Arriving in Australia – Declare it!" – This pages should be brought to the attention of all officers before personal effects are packed for shipment to Australia.
- “Moving/Emigrating to Australia” – This page provides further information on all personal effects and household goods issues of interest to the Department of Agriculture, including a section headed “Documentary Clearance” which provides links to the Australian Customs and Border Protection website, and includes links to:
- “Common items of quarantine concern”
- “Prohibited goods”
- “What should I do when packing?”
- “How do I clear my goods through quarantine”
Further information can be obtained by contacting the Department of Agriculture via a free-call (from within Australia) on 1800 020 504.
5.5.3 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 a Department of Agriculture officer at the point of entry. Some items may need to be inspected, treated, 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.
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 (Article 42 in the VCDR and Article 57.1 in the VCCR).
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 model Memorandum of Understanding text 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, consular officials and International Organisations 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. The note should include the identity of the dependant, the nature of the work proposed, weekly hours of work, the employer and place of employment.
Should dependants of diplomatic, consular officials and International Organisations wish to work at more than one job, the prior approval of the Department of Foreign Affairs and Trade must be sought for each different job application.
Where a dependant chooses employment that requires an Australian qualification or approval by an Australian professional or industry organisation, the dependant should also seek approval from the relevant organisation separately. This is additional to the requirement to seek the Department’s approval to work. The Department’s approval is not a substitute for any local industry requirements.
The Department will consider each work application on its merits. For dependants of diplomatic and consular officials, 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:
- Australian tax must be paid on the income earned
- the person must remain part of the diplomatic or consular official's household
- should the need arise, the person's immunity is to be waived to enable an issue arising from the employment to be adjudicated
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:
- tel: (02) 6251 4060
- fax: (02) 6251 4161
- e-mail: email@example.com
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.
5.6.2 Claiming Australian Superannuation upon completion of Employment
Sub class 995 visa holders are eligible to claim any superannuation they contributed during their employment in Australia. The Australian Tax Office (ATO) recommends that the dependant claim their superannuation two to three weeks after they have departed Australia. While the application process may be started payment will not be made by the ATO until the 995 visa has been ceased by the Department of Immigration and Border Protection.
Below are the steps to follow when claiming superannuation contributions:
- Log onto the ATO website: ato.gov.au
- Type in the page number in the search box: page no. 17136
- Complete the online application form.
For any questions on superannuation dependants can call the ATO superannuation hotline on 13 10 20 (in Australia) or International Number: +61 2-6216 1111.
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.
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.