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
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ISSN 1328-8091
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