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Bills Digest No. 141 2004–05
Consular Privileges and Immunities Amendment Bill 2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Consular Privileges and
Immunities Amendment Bill 2005
Date Introduced: 16 March 2005
House: The
Senate
Portfolio: Foreign Affairs
Commencement: Day
of Royal Assent
This Bill seeks to amend the Consular Privileges
and Immunities Act 1972 so as to set in place ‘a framework within
which Australia can negotiate, on a country by country basis, enhanced
protections for persons performing consular duties on behalf of the Australian
Government overseas.’(1) In response, says the government,
‘Australia will offer reciprocal treatment to consular officials from
overseas countries undertaking consular functions in Australia.’(2)
Diplomatic and consular officers have long been granted certain privileges
and immunities. It should be noted that this Bill relates only to consular
privileges and immunities, and not to diplomatic privileges and
immunities. The distinction between consular and diplomatic functions
is, broadly speaking, that the former are primarily technical whilst the
latter are political or representative. Some of the functions overlap.(3)
The multilateral sources of privileges and immunities granted to diplomatic
and consular officers are the Vienna Convention on Diplomatic Relations
and the Vienna Convention on Consular Relations (see below). The privileges
and immunities granted under the respective conventions differ substantially.
Diplomats are accorded immunities considerably broader in scope than those
accorded to consular officials. Diplomats enjoy, for example, immunity
from the criminal jurisdiction of the receiving state, subject only to
waiver by the sending state, whilst consular officials have only limited
immunity from criminal jurisdiction.(4) Similarly, diplomats
are not obliged to give evidence in legal proceedings, whilst consular
officials may be compelled to give evidence, subject to a few limitations.(5)
There is, therefore, greater scope to negotiate enhanced protections for
consular staff than there is for diplomatic staff. That consideration
may explain the lack of any Bill to amend the Diplomatic Privileges
and Immunities Act 1967 in a similar manner.
Three theories underpin the practice of granting privileges and immunities
to diplomatic and consular staff – personal representation; exterritoriality
and functional necessity.(6) The latter is the dominant theory
today but the others still have some relevance, if mainly historical.
Personal representation is the theory that deference is given to officers
out of respect for the sovereign that they represent. The representative
is treated as though dealing with the foreign sovereign in person, so
as to convey the respect held for the sovereign. Exterritoriality is the
idea that the offices, residences and even the persons of diplomats are
to be treated as though they are part of the sending state and not the
receiving one.(7) This theory has been largely discarded but
forms the original basis of some ideas still recognised in customary international
law and treaties such as the ability to seek asylum in an embassy.(8)
According to the predominant theory – functional necessity – diplomatic
and consular privileges are necessary to enable diplomatic and consular
officials to perform their duties effectively.(9) This justification
is cited in the preambles to the Vienna Convention on Diplomatic Relations
and the Vienna Convention on Consular Relations. It is there asserted
that the ‘purpose of such privileges and immunities is not to benefit
individuals but to ensure the efficient performance of the functions of
diplomatic missions as representing States.’ In the United Kingdom the
House of Commons Foreign Affairs Committee has put the case this way:
Diplomatic immunity is thus part of diplomatic law, and
is an exception to the general international law rule of territorial
jurisdiction. Its purpose is to allow diplomats to be able to carry
out their functions within the framework of necessary security and confidentiality.
It also acknowledges the representative character of a diplomatic mission.
This does not grant diplomats freedom to flout local law. They are still
required to obey it, but will in many cases be immune from local jurisdiction
to enforce such laws. A mission is not “extra-territorial” in the sense
that it is territory belonging to the sending state; but it is given
the protection of inviolability within the receiving state. Both inviolability
of premises and the diplomatic bag, and the privileges and immunities
of diplomats, are all directed towards facilitating the performance
of the diplomatic function.(10)
The rules relating to diplomatic and consular immunities and privileges
were long contained within the body of principles that make up customary
international law. In the 1960s the rules were codified in two multilateral
treaties – the Vienna Convention on Diplomatic Relations (which entered
into force on 24 April 1961) and the Vienna Convention on Consular Relations
(which entered into force on 19 March 1967). Australia ratified the former
on 26 January 1968 and the latter on 12 February 1973. The substantive
provisions of those treaties were given force in Australian domestic law
via the Diplomatic Privileges and Immunities Act and the Consular Privileges
and Immunities Act.
The Vienna conventions on diplomatic and consular relations both set
out a range of privileges and immunities applicable to diplomatic and
consular officers and their families. Both conventions also envisage that
bilateral agreements may be made supplementing, extending or amplifying
the provisions of the conventions.(11) Because the conventions
contemplate that bilateral agreements may be made extending their provisions,
it may be that the current Bill is not strictly necessary, but the intention
is to put the issue beyond doubt and to ensure that the ability to negotiate
bilateral agreements is recognised and reflected in domestic law via the
Consular Privileges and Immunities Act.(12)
Although this Bill does not of itself grant privileges or immunities,
the framework it establishes is clearly expansive in nature – it is likely
to lead to the winning of enhanced immunity for Australia’s consular staff
overseas and conversely, to the enhancement of immunities granted to other
countries’ consular staff in Australia. In that context it is relevant
to note that the granting of diplomatic and consular immunity has given
rise, over the years, to some controversy. On a number of occasions such
privileges have been abused.
A famous incident involving the abuse of immunity occurred in London
on 17 April 1984. During a demonstration outside the Libyan People’s Bureau
in St James’ Square shots, apparently fired from within the Bureau, struck
and killed a 25 year-old police officer, Yvonne Fletcher, and injured
ten demonstrators. The British authorities pressured the Libyan Government
to waive immunity in respect of the perpetrators but the latter refused
to do so. On 22 April the UK terminated diplomatic relations with Libya
and the people’s Bureau was evacuated on 27 April. No occupants of the
Bureau were charged.
Concern about the extent of diplomatic immunities before and after the
Libyan People’s Bureau incident resulted in an inquiry into the subject
by the House of Commons Foreign Affairs Committee. In the Committee’s
report of 12 December 1984 it was noted that, during the period from 1974
to mid-1984, there were 546 instances in which members of the diplomatic,
administrative or technical staff of foreign missions, or members of their
families, had escaped prosecution for serious offences.(13)
In 1988 a similar event occurred, though with less tragic consequences,
at the Yugoslavian Consulate in Sydney when a security guard shot and
wounded Joseph Tokic, who had been protesting outside. On 30 November
1988 Gareth Evans, then Minister for Foreign Affairs, told the Senate
that no question of diplomatic or consular immunity for the security guard
had been raised by the Yugoslav authorities.(14) The guard
was, however, to escape prosecution. On 5 December Senator Evans explained
to the Senate that, whilst the guard did not have immunity per se, he
achieved de facto immunity by remaining in the shelter of consular premises,
which made impossible his practical arrest, until, arguably, such time
as he moved out or the status of the consulate changed.(15)
The Australian Government then ordered the closure of the consulate, with
the effect, explained Senator Evans, that the government was ‘committed
by the terms of article 26 of the Vienna Convention on Consular Relations
to ensure safe passage of all the staff and dependants of the consulate
out of the country.’(16)
The Vienna Convention on Consular Relations represents a multilateral
framework which prescribes privileges and immunities on a non-discriminatory
basis. This Bill seems to reflect a policy decision by the Government
to move to a more bilateral system for the establishment of applicable
privileges and immunities. That is confirmed by the statement in the second
reading speech ‘In line with growing international practice in this field,
the granting of privileges or immunities will be negotiated bilaterally
on a reciprocal basis.’(17) One effect of this is that the
immunities enjoyed by other countries’ consular officers in Australia
could vary significantly – officers from one country might enjoy, for
example, immunity from criminal prosecution, whilst officers from another
country might not.
Schedule 1 item 1 inserts into the Consular Privileges and Immunities
Act a new section – 10AA, headed ‘Additional privileges or immunities
granted by agreement, arrangement or understanding’. The Minister is given
power to determine, by legislative instrument, that certain countries
are countries to which s.10AA applies (s.10AA(2)). Where such a determination
is in place, and a written agreement, arrangement or understanding is
made between Australia and another country to grant privileges or immunities
supplementing or extending those in the Vienna Convention to consular
officers of both countries, such agreement shall be given effect so long
as the Minister’s determination in relation to the relevant country remains
in place. The Minister also has power to revoke the determination.
The fact that the Minister’s determinations are to be made by legislative
instrument brings into play the provisions of the Legislative Instruments
Act 2003. This means that there will be scope for parliamentary scrutiny
of the Minister’s determinations under Part 5 of that Act, including the
possibility that the instrument could be disallowed by a resolution to
that effect in either house.(18)
Concluding Comments
This Bill is directed at clarifying, for the purposes of domestic law,
Australia’s right to negotiate bilaterally for enhanced privileges and
immunities for its consular staff overseas. Any enhanced privileges or
immunities negotiated will require a corresponding grant by Australia
of enhanced privileges or immunities to the other country’s consular staff
in Australia. This potential for the expansion of immunity granted to
consular staff in Australia may give rise to some concern given past controversies
here and internationally regarding abuse of privileges and immunity. The
Bill also raises the question of the equity of treating consular staff
differently depending on the country from which they originate and its
status in terms of bilateral agreements with Australia.
-
Senator Chris Ellison, ‘Second reading speech: Consular Privileges
and Immunities Bill 2005’, Senate, Debates, 16 March 2005,
p. 1.
-
ibid.
-
The functions of each are outlined in Article 3 of the Vienna Convention
on Diplomatic Relations and Article 5 of the Vienna Convention on
Consular Relations.
-
See articles 31 of the Vienna Convention on Diplomatic Relations
and articles 41 and 42 of the Vienna Convention on Consular Relations.
-
See articles 41 of the Vienna Convention on Diplomatic Relations
and 44 of the Vienna Convention on Consular Relations.
-
Grant McClanahan, Diplomatic Immunity: Principles, Practices,
Problems, Hurst and Co. London, 1989, p. 28.
-
ibid., p. 30.
-
ibid., p. 32.
-
ibid.
-
UK House of Commons, First Report from the Foreign Affairs Committee,
‘The Abuse of Diplomatic Immunities and Privileges,’ 12 December 1984,
p. 8.
-
Convention on Diplomatic Relations, art. 47(2)(b); Convention on
Consular Relations, art. 73(2).
-
Department of Foreign Affairs and Trade, in conversation with the
author, 11 April 2005.
-
‘The Abuse of Diplomatic Immunities and Privileges,’ op. cit., p.
15.
-
Senate, Debates, 30 November 1988, p. 3167.
-
Senate, Debates, 5 December 1988, p. 3433.
-
ibid.
-
Second reading speech, op. cit., p. 2.
-
Legislative Instruments Act 2003, s. 42.
Jerome Davidson
21 April 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Information and Research Service,
nor do they constitute professional legal opinion.
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with Senators and Members and their staff but not with members of the
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ISSN 1328-8091
© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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