1 Introduction
Australian practice on diplomatic privileges and immunities is generally influenced by the foreign diplomatic presence in Australia, the level of commitment Australia shows to international law and to the specific principles of diplomatic law, and the relationships that Australia has with other nations.
On the first matter, Australia hosts a fair number of foreign diplomats and diplomatic missions. It has 112 embassies and high commissions in its capital city of Canberra, Australian Capital Territory (ACT),1 including missions of States from all regional groups in the United Nations (UN). Australia also has missions of various international organisations and some overseas territories not formally recognised as States, and many consular posts, mainly in Sydney and Melbourne.2 Often sending States use their missions in Australia as a base for relations with not only Australia but New Zealand and small nations in the Pacific region. The assumption is that Australia shall accord them the usual privileges and immunities.
On the second matter, Australia has played a relatively active role in contributing to the development of legal norms at the UN, although its level of commitment to international law has varied under different governments.3 With a supposedly “dormant” conservative government holding power in the 1960s, Australia was, according to the opposition government, “tardy” in ratifying the Vienna Convention on Diplomatic Relations (Vienna Convention) after 65 States.4 It had nevertheless inherited from its coloniser a framework for providing diplomatic privileges and immunities, influenced by the emphasis of the early world powers on executive government which features in diplomatic law.
On the third matter, Australia is not generally known for having the status of a politically neutral or unattached State. While a British colonial outpost, it paid allegiance to Great Britain. It then developed a dependence on the United States (US), which established the first embassy in Australia in 1946.5 These alliances and the political predispositions expected of a Western democracy have helped define Australia’s activity in relation to other nations, including its style of according their diplomatic corps privileges and immunities.
This article discusses the nature of these privileges and immunities, together with Australian perspectives that have been a defining influence. It does so in relation to the thematic areas of taxation, vehicle infringements, protests, serious crime, employment disputes, applicable missions, and applicable persons.
2 Enactment
First, however, an overview of the evolution of Australia’s obligations in the diplomatic sphere is in order. Since British colonisation, Australia has been an adherent of customary international law on diplomatic privileges and immunities, as international custom is embodied in the common law system, albeit with less certainty than when enshrined in statute. Patrick O’Keefe poses the possibility that Australia was also bound in its early colonial history by the Diplomatic Privileges Act 1708 belonging to the United Kingdom (UK).6
By the mid-20th century, Australia ensured that recognition of the rights of high commissioners would correspond with that of ambassadors by enacting the Diplomatic Immunities Act 1952/1958.7 But this statute only conferred immunities and not privileges on these dignitaries and their high commissions, which are the equivalent of embassies for Britain and its dominions, while concessions relating to taxation and customs were granted by Australia’s fiscal legislation. During the parliamentary debate on the law, a politician lamented that it represented “one more step in what might be described as the dissolution of the Empire,” in that it was predicated on there being disputes between nations that could warrant the protection of diplomats, which he considered redundant under a robust empire with “common bonds” and unitary nationality, citizenry, and laws.8
The Act was soon rendered obsolete as Australia brought its legislation into line with the international treaty system. In 1967, Australia introduced the Diplomatic Privileges and Immunities Act (DPI Act), giving effect to the Vienna Convention, which was adopted by the UN in 1961 and ratified by the dualist nation in 1968 on the same day that it acceded to the Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the Compulsory Settlement of Disputes. Australia entered into these treaties without reservation, while objecting from the 1960s to the 1980s to the reservations of other States, mostly socialist and Middle Eastern.9 However, it has failed to subscribe to the contemporaneous Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning Acquisition of Nationality, and purportedly exhibited “some reluctance” to ratify the international conventions on diplomatic and consular relations, special missions, and specialised agencies.10
Australia’s DPI Act states in section 7(1) that it gives only articles 1, 22–24, and 27–40 of the 53-article Convention the force of law. This provision mirrors that of the UK and some other Commonwealth nations. Australia does not oppose the remaining articles of the Convention but rather maintains that they are accounted for by Australian administrative policies and provisions in statutes on other topics of law, such as taxation, customs, public order, and crime.11 Limited enactment can cause practical difficulty for people bringing cases in the area. However, the courts may acknowledge that the entire Vienna Convention is reproduced in a schedule in the implementing legislation, which differs from the UK custom of appending only the enacted articles.12
3 Taxation
In relation to privileges, the legislation briefly departs from the Convention. It gives diplomats some concessions regarding sales tax and customs and excise duties not provided for by international law. For example, Australia has indirect taxes incorporated into the price of almost all goods and services. The Vienna Convention states that diplomatic agents are not exempt from indirect taxes (art. 34(a)). Yet the DPI Act permits exemption under an “indirect tax concession scheme” (DPI Act s. 10B). The government believes that this provision ensures reciprocity for States without indirect tax, as permitted under Article 47 of the Vienna Convention, and has nevertheless calculated that it still benefits financially overall.13 Consequently, Australia has an intricate system of different levels of tax exemptions for different missions of different countries with different tax regimes, and a complex claims process.14
The Australian Government presents the tax entitlement as exceeding its international obligations, imparting the impression that it is a model international citizen.15 Yet diplomatic privileges and immunities form a curious area of international law, requiring a fine balance. Providing fewer entitlements for a sending State’s diplomats can endanger the receiving State’s diplomats overseas and undermine international and commercial relations, whereas providing more entitlements can give undue authority to the executive arm of foreign governments and thereby compromise the local population’s human rights, which have progressively become a centrepiece of international law. One Australian politician stated as early as the 1950s that immunity from civil process is “outmoded” in “modern times,”16 and another explained in the following decade:
We live in a modern age and many diplomatic immunities and privileges are delineal descendants of the traditions of sovereign monarchs in a former age when they were untrammelled by considerations of parliamentary government. Centuries ago it was the custom in the exchange of courtesies and of emissaries as between the absolute monarchs of various states to accord to one another very great privileges indeed. Conversely, when there was a need to stir up trouble and perhaps to provide good cause for aggression and war envoys could be treated most contumeliously, and with consequences that were well calculated in advance. But today we live in a period when, with the temper of a democratic community we must necessarily expect the continual whittling away of diplomatic privileges.17
Accordingly, despite its tax concessions, the DPI Act ended up reflecting a subtle shift in Australian law away from providing broad privileges and immunities that could lead to hardship for Australian citizens. As with Article 37 of the Vienna Convention, exemption from certain taxes and duties are curtailed under the Act for administrative, technical, and service staff at missions, as opposed to the core diplomatic community. In further keeping with the Convention, these peripheral staff can only receive immunity from jurisdiction for “official acts,” or those “performed in the course of their duties.”18 In addition, service staff are not entitled to immunity from criminal (as opposed to civil and administrative) jurisdiction, giving evidence, random breath testing, and most searches, and their dependants have no immunities, unlike those of other staff.19
4 Vehicle Infringements
While the legislature has shown resolve in determining taxation issues, it has recognised a persistent dilemma concerning driving and parking infringements. When the DPI legislation was being debated in the 1960s, one of the main points of concern was the protection of the public from these infringements. There was particular concern about drivers of diplomatic vehicles causing injury or death or simply contravening the road rules, not being accountable through prosecution or civil suit, and leaving victims without a remedy from an insurance policy, just as some politicians feared that employees at missions would not be able to access workers compensation.20
Various incidents were related in parliament. One concerned a French diplomat with a passion for sports cars and a history of racing around a famous ring road and thoroughfare in Canberra at 70 miles per hour and making record time between a hotel in Sydney and a hotel in Canberra.21 Another concerned a “wife of an Asian diplomat” who was refused a driver’s licence due to poor eyesight but was permitted to drive anyway.22 Yet another incident involved a 13-year-old daughter of a diplomat of unnamed nationality tearing across Canberra in a “high-powered American car.”23
The government ultimately decided not to make an issue of misdemeanours that it considered could be managed through diplomacy. But since the parliamentary debate, road rules and penalties have increased, such that there is starker contrast between these rules and the immunity enjoyed from them. It is not uncommon, therefore, to see concerns aired in the press about diplomatic staff and their families – who comprise a relatively high percentage of the population in Canberra24 – flouting the road rules without consequence.25
Contraventions continue despite there now being Protocol Guidelines issued by the Department of Foreign Affairs and Trade (DFAT). These guidelines require that diplomatic staff and their dependants hold a driver’s licence and learn the road rules; they expect compliance with random breath tests; they expect payment of driving and parking fines; and they warn that licences can be suspended for significant infringements and unpaid fines and that cars with diplomatic or consular plates can be towed if parked dangerously.26 The guidelines also state that the government can request that persons withdraw from Australia for driving with a suspended licence.27 While most missions comply with the guidelines, over 400 parking fines from embassies remain unpaid as of 2019, worth nearly AUD$60,000.28 In contrast, the global diplomatic centre of Manhattan has allowed authorities to confiscate diplomatic plates for parking violations since 2002, reducing violations by over 98%.29
Although the Vienna Convention implies a balance, if not a tension, between diplomatic immunity and law abidance by diplomats, Australia follows a traditional line of thinking by interpreting this balance as tilting towards immunity. Indeed, Article 31, which provides immunity from criminal and most civil jurisdiction of receiving States, is directly enacted in Australia, whereas Article 41, which states that persons enjoying privileges and immunities have a duty to respect local laws and regulations, is not. Inevitably, then, with the expanding number of diplomats in Canberra, and the world, driving and parking infringements remain a vexed question.
5 Protests
Another aspect of diplomatic immunities law that has captured public attention in Australia concerns the principle of the inviolability of missions. The Vienna Convention provides in Article 22 that “[t]he receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.” The word “appropriate” here allows the government some discretion in dealing with political protests at the doorstep of missions. This section of the article outlines prominent cases in which this discretion has been exercised in Australia.
The case of The Queen v. Turnbull and Others; Ex parte Petroff, heard by the ACT Supreme Court in 1971, concerns an incident in which a man named Peter Nikoloff Petroff and others threw an explosive substance, gelignite, near a building of the former Embassy of the Union of Soviet Socialist Republics (USSR).30 Mr Petroff argued that the conduct in question occurred on USSR territory rather than ACT territory and that the court, therefore, did not have jurisdiction. However, the court maintained its competence to preside over the matter, reasoning that missions are on the territory of the receiving State, not the sending State. It referred to overseas authority on “the fiction of extraterritoriality” as “an inroad into the common law” and “confined to an ambassador or minister”31 and not more generally their mission, akin to the doctrine of representation in which diplomatic representatives per se are deemed inviolable.32 Hence, the ruling restricted the independence of missions, but did so to enable their protection by the local State. It also preserved the authority of Australian law – in this circumstance, over Soviet law.
In terms of the other participant in the Cold War, the US, the Australian Government has tended to be sympathetic towards its mission, even where freedoms of expression and peaceful assembly, provided for in the International Covenant on Civil and Political Rights (arts 19, 21), have been at stake. For example, in the 1970 case of Wright v. McQualter, the ACT Supreme Court held that while sitting on the lawn outside the US Embassy in Canberra, shouting anti-Vietnam War slogans, and holding placards did not impair the mission’s dignity, police were justified firstly in taking action against a demonstrator who refused to leave upon request and secondly in dealing, as the Vienna Convention stipulates, with “risk of damage or intrusion” rather than simply actual disturbance.33
In accordance with this position, the federal legislature enacted public order legislation the following year, which relates, among other things, to “the Premises and Personnel of Diplomatic and Special Missions, Consular Posts, Designated Overseas Missions and International Organizations” (Public Order (Protection of Persons and Property) Act 1971 long title), as well as the Crimes (Internationally Protected Persons) Act 1976 five years later, which gives effect to the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents.
Australia nevertheless does not have as stringent controls on demonstrations as the US, which observes a Joint Resolution sanctioned in 1938 by both Houses of Congress, codified in 1981, deemed constitutional in 1939 and 1981 by the US Court of Appeals, and modified by the US Supreme Court in 1988.34 Originally, the Resolution prohibited political flags, banners, placards and devices, and the act of congregating within 500 feet of diplomatic premises in the District of Columbia. The Supreme Court upheld the ban only on congregations, even though political displays are not likely to be as effective without an assembly of people. Therefore, the expectation of police in Wright v. McQualter that the gathering would be moved from the lawn to the footpath opposite the US Embassy, while constituting “selective law-enforcement,”35 was still short of the reciprocity that the US might expect from other nations especially given that its embassies are subjected to a great many protests across the world – recently, for example, in response to the US Supreme Court’s ruling on abortion.
Australia has since further narrowed its model. In a case from 1992, Minister for Foreign Affairs and Trade and Others v. Magno and Another, the Federal Court of Australia permitted the executive to make regulations stating that a Minister may issue certificates, effective for 30 days, that empower police officers to remove “prescribed objects,” effectively taking the momentum out of a protest reliant on these objects.36 The certificate in question authorised the removal of 124 wooden crosses, measuring 50 cm, planted on public land outside the Indonesian Embassy for several months in protest at the killing of East Timorese people by the Indonesian military. It was issued by the Minister for Foreign Affairs and Trade, Gareth Evans, who, prior to his political career, had been an academic specialising in civil liberties.37 Justice Marcus Einfeld delivered a vigorous dissenting opinion on appeal, stating that “Australia’s values … will certainly not be guided by the nations whose reprehensible actions are being highlighted by particular protests” and indicating that the regulations were applied retrospectively.38
Another mission that has been an unwilling subject of public dissent is that of China, Australia’s primary trading partner. Australia initially came to the defence of the Chinese Embassy by signing 39 certificates between 2002 and 2005 permitting police to prohibit large staked banners and the broadcasting of amplified taped announcements and music to passing busloads of Chinese tourists by Falun Gong, a movement outlawed in China and various other countries.39 In 2005, some Falun Gong practitioners sued Foreign Affairs Minister Alexander Downer in the ACT Supreme Court but withdrew their case in 2006 when he ceased signing certificates on the understanding that Falun Gong would contain its protests within defined parameters.40 Thus, Australia compromised, reflecting its broader positioning on China, which it relies on economically but is not allied to politically.
At the same time, the Australian Government has itself intruded on the Chinese Embassy and compromised its inviolability. In the 1990s, it was revealed that Australian and American intelligence officers and technicians planted listening devices in the Chinese Embassy in the 1980s during its construction and transmitted the content of these devices to the US via the UK, both of which have a history of intercepting communications from embassies, contrary to Articles 22 and 27 of the Vienna Convention.41 To the chagrin of Australia, it transpired that the US used the information to gain an advantage over Australia in trade agreements with China.42
Further examples exist of reluctance by Australia to assist embassies. Australia’s communication with the Embassy of France regarding a public protest was terse against a backdrop of environmental disputes between the countries. In 1995, France resumed nuclear testing in the Pacific Ocean, which was the same conduct that had led Australia and New Zealand to institute proceedings against France at the International Court of Justice in 1973. In response to the nuclear testing, a union picket appeared in front of the French Embassy and a series of diplomatic notes between France and Australia ensued. France complained that the picket obstructed the post office from delivering mail to the Embassy and that protestors were filming staff leaving the mission. Australia replied that it was sorry for the inconvenience but that there was no report from police of laws being broken or persons threatened, that it was not illegal for picketers to explain their presence to visitors, that the Embassy was still functioning, that it was able to collect its mail from the post office if the mail carrier was blocked, that the picket had not been continuous, and that it was the place of the receiving State, not the sending State, to judge the appropriate level of protection.43
Australia has also tolerated fervent protests outside the Russian Embassy since Russia annexed the Crimean Peninsula in 2014 and began its invasion of Ukraine in 2022, with the media reporting that police had removed only persons supporting Russia who descended on the protests. In the meantime, the Australian Government has provided Ukraine with substantial military assistance, sanctioned Russia, expelled two of its diplomats suspected of being “undeclared intelligence officers,” and considered expelling its Ambassador to Australia.44 Moreover, in 2022, Australia’s National Capital Authority (NCA) terminated the Russian Government’s 99-year lease of land where a new Russian Embassy was being built and which the Ukrainian Government had expressed an interest in acquiring, claiming that unfinished building works detracted from the aesthetic of the area.45 However, when this decision was challenged at the Federal Court, the judge described the NCA’s submissions as “an absolute disgrace” and “embarrassing” and awarded the Russian Embassy a stay of execution.46 Purportedly owing to national security concerns about the proximity of the Embassy to Parliament House, the federal parliament then terminated the lease by enacting the Home Affairs Act 2023. The High Court of Australia subsequently dismissed a constitutional challenge to this legislation brought by Russia.
Yet the Australian Government, as with others in the Asia–Pacific region, has not gone so far as to rename the streets on which the Russian Embassy and Consulates stand. In contrast, several States, mainly in Europe, have decided to call such streets “Free Ukraine Street,” “Ukrainian Heroes’ Street,” “Ukrainian Independence Street,” and so forth, including Albania, Bulgaria, Canada, the Czech Republic, Iceland, Latvia, Lithuania, Norway, Poland, Spain, and Sweden. While a local council in Sydney initially voted to follow suit in relation to a Russian Consulate, community opposition halted the plan that could have technically undermined Russia’s dignity provided for under the Vienna Convention (arts 22(2), 29).47
6 Serious Crime
A week after Russia invaded Ukraine, the Russian Embassy in Canberra was evacuated when a package containing white powder arrived.48 Although no crime was uncovered, Duff v. The Queen provides a precedent for prosecuting those who harm or attempt to harm diplomatic agents and who thereby contravene the principle that diplomatic agents are inviolable and must not be subject to “attack,” which coincides with expectations for the treatment of all persons.49
Conversely, where diplomatic personnel have themselves engaged in serious criminal conduct, international law provides them with a unique avenue of immunity. In some cases in Australia, where they have not surrendered, the head of the mission of the sending State has expressly waived immunity, such as when a bookkeeper of the Greek Embassy was accused of embezzlement.50 Or the Australian Government has expelled the staff and closed the mission, with the offender given safe passage, such as when a security guard at the Yugoslav Consulate-General wounded a teenager at a protest while others intruded on the premises in an attempt to bring down the Yugoslav flag, having allegedly fired a warning shot.51 The Consulate in the latter case was allowed to reopen 19 months later, but by then the government had imposed restrictions on firearms in diplomatic and consular communities.52
One may notice a parallel between the Yugoslav case and events in the UK four years earlier, in 1984. Infamously, someone inside the Libyan Embassy in London fatally shot a police officer monitoring a demonstration against the Libyan Government. The British Government reacted by severing diplomatic ties with Libya and requiring its embassy staff to leave the premises in single file. Two years later, it permitted the US to bomb Libya from British bases, citing the police officer’s murder as a factor behind the decision, although it had also disapproved of socialist elements of the regime. Similarly, Australia was critical of the Yugoslav Government’s retention of features of socialism and supported NATO’s bombing of Yugoslavia in 1999. While it was mindful of the importance of diplomatic relations, particularly given the significant Yugoslav population in Australia, its diplomatic conduct around the expulsion was probably influenced to some degree by its broader political posture on Yugoslavia.
7 Employment Disputes
Unlike criminal conduct, the Australian Government may be less inclined to react strongly to breaches of civil law. Civil matters in the diplomatic sphere can nevertheless have political overtones, especially where they concern the exploitation or mistreatment of embassy workers subordinate to diplomats and senior civil servants, who may form part of a less privileged class. Hence, it is important to raise the question of diplomatic privileges and immunities in relation to employment.
There are various types of non-diplomatic embassy workers, including those who perform domestic duties – such as cooks and cleaners needed for receptions hosted by diplomats, and carers who mind the children of diplomats – and those who perform administrative and technical jobs – such as secretaries, security staff, and translators.53 They are often nationals or residents of the State where the embassy is located.54 The employment issues they may encounter include unfair dismissal, unpaid wages and entitlements, discrimination, abuse, and, in extreme circumstances, modern slavery.55
As the Vienna Convention does not specifically exclude immunity for employment matters, unlike the United Nations Convention on Jurisdictional Immunities of States and Their Property (art. 11), and as heads of missions rarely choose to waive immunity in the context of employment,56 attempts have been made to eschew the blanket operation of immunity.57 Many jurisdictions have reframed the legal position of the employer at missions so it no longer enjoys absolute immunity and so restrictive immunity is less of a barrier.58
In this way, Australia followed the 1970s example of European and anglophone countries by introducing the Foreign State Immunities Act in 1985. This Act complements the contemporaneously modified common law doctrine of sovereign immunity, which suspends immunity of foreign State employers for non-sovereign (i.e., private or commercial) matters, thereby replacing absolute immunity with restrictive immunity.59 Moreover, while section 9 of the Act provides general immunity to foreign States, section 12 removes it for foreign State employers in both commercial and non-commercial contexts. However, employees under a contract with a foreign State employer must have Australian citizenship or permanent residency (s. 12(3)). They must also be employed by a State (or mission acting on behalf of a State), as with administrative and technical staff (Vienna Convention art. 1(f)) and service staff (art. 1(g)), as distinct from private servants of individual diplomats, who are, by definition, “in the domestic service of a member of the mission and … not an employee of the sending State” (art. 1(h)). Moreover, the remedy cannot include employment or reinstatement (s. 29(2)), in line with State practice, and will typically consist of compensation.60
The Act extends beyond employment claims under contract law to those under Australian law in general.61 It applies to cases heard not only in courts but also in industrial relations commissions and tribunals, which are taken to exercise judicial-like powers.62 Furthermore, according to the former Australian Industrial Relations Commission, it permits an embassy and not simply a foreign State to be sued.63 In Robin Saville v. Embassy of the Republic of Korea, the respondent argued, relying on an obiter dictum of a Chief Justice of the ACT Supreme Court, that an embassy does not exist as a legal entity.64 However, the Commission was unconvinced, stating that the Republic of Korea was the legitimate employer and that its embassy was part of that nation.65
Most employment cases regarding missions have been concerned with unfair dismissal. In a 1997 lawsuit brought by a gardener, the Kuwait Liaison Office (upgraded to the Kuwait Embassy in 2002) was found to be not immune from jurisdiction for the cognate law on unlawful termination.66 In a 2006 case against the Libyan Embassy, a driver-cum-receptionist, dismissed under the Libyan policy of capping employment at three years, successfully argued unfair dismissal and was awarded compensation.67 In the abovementioned 2006 case against the Korean Embassy, the Commission found that it had jurisdiction to hear the unfair dismissal claim of a member of the administrative and technical staff who had purportedly been stood down for being “uncooperative” and “rude.”68 In a 2016 suit against the Algerian Embassy, a 77-year-old housekeeper successfully argued unfair dismissal and was awarded compensation.69 Finally, in a 2018 case against the Iraqi Embassy, a driver with a back injury was found to be unfairly dismissed and was duly compensated.70
The requirement in cases like this not to award reinstatement or the return to work, provided for under Australian foreign State immunities law, is intended to respect the sensitive nature of diplomatic work. Yet it inevitably underlines the interests of the employer. By contrast, in setting reinstatement as the default position and stating that compensation may only be ordered where reinstatement is “inappropriate” and where “compensation is appropriate in all the circumstances of the case,” the Australian Fair Work Act 2009 (s. 390(3)) emphasises the interests of employees and their future prospects, even though the Fair Work Commission rarely awards reinstatement in practice.71 So, the restriction on reinstatement in foreign State immunities law goes against the grain and the equitable nature of Australian statutory unfair dismissal law, which not only provides for the specific performance of reinstatement, unlike the common law, but situates it as the primary remedy with a presumption in favour of it. The restriction also diverges from the International Labour Organization’s Termination of Employment Convention, 1982 (No. 158), which provides for both remedies and shows an understanding that compensation could, unlike reinstatement, validate termination of employment (art. 10).
Another question concerns pay rates and working conditions for mission employees. In Australia, pay and conditions set out in individual contracts cannot be less than safety nets in the National Employment Standards decided by the legislature; in Modern Awards, which apply to a range of industries and occupations and are determined by the Fair Work Commission; and in enterprise agreements between an employer and employees. In the case of Kumar v. Consulate General of India, albeit in relation to a consulate worker, the Federal Circuit Court of Australia decided that the applicant, who was a chauffeur-cum-messenger, could not rely on the Clerks – Private Sector Award 2010 because a consulate is not part of the private sector, just as it does not sit comfortably within the public sector; it is a sui generis entity not clearly captured by standard employment classifications.72 While it might be suggested that the Miscellaneous Award, with its more generic terms, could apply,73 the decision highlights the difficulty employees in missions can face in accessing established pay and conditions.
These workers are also less likely to be organised in trade unions. Although unions have been known to picket embassies to highlight political and human rights issues and stand in solidarity with workers being mistreated overseas, including in Asian countries,74 they are less known for representing workers at embassies, who are yet to have their collective claims tested in Australia.75 The unionisation of mission employees faces challenges in a country like Australia, where even standard industries struggle to gain members and where the legal scope that unions have to help workers through collective bargaining and industrial action is limited compared with standards prescribed under international law.
At the same time, certain workers at missions are constrained by loopholes in Australian law that continue to extend immunity to employers. These workers include non-Australian workers, such as persons from developing countries who perform “cheap labour” at missions, and workers retained privately by a diplomat rather than by the mission itself, often for domestic labour. As with many other jurisdictions, Australia does not recognise that they fall under the Vienna Convention’s professional and commercial exception to immunity (art. 31(c)), and they do not benefit from foreign State immunity exemptions. Consequently, legal action by such workers against their employer has had little success.76 Being typically from disadvantaged backgrounds, put to work in a relatively isolated setting, and situated beyond the purview of employment law, these workers are particularly vulnerable. Moreover, their employers need not turn their minds to the Australian Modern Slavery Act 2018, which merely concerns reporting on risks of forced labour and only pertains to large businesses in Australia.
8 Applicable Missions
This article has thus far discussed various areas in which diplomatic privileges and immunities are applied in Australia. It will now consider Australia’s position on the types of missions that can be included in this discussion.
The government has declared that only bona fide missions may enjoy privileges and immunities. This issue arose in 1978 in response to a “so-called Croatian Embassy” that was established when Croatia was not yet a sovereign State and still part of Yugoslavia.77 It prompted the passage in Australia of the Diplomatic and Consular Missions Act 1978, which restrains people from making false representations about missions (s. 4). Foreign Affairs Minister Andrew Peacock said that the unofficial embassy impaired the dignity of the Yugoslav Embassy in Australia and Australia’s ability to conduct international relations and contributed to ethnic tensions.78 He added that the Aboriginal Tent Embassy, stationed on the lawn opposite the (now Old) Parliament House in Canberra since 1972 to draw attention to the plight of Australia’s First Nations peoples, did not fall in the same category.
However, Australia has since permitted missions of certain territories not recognised as States by Australia and other nations, through its Overseas Missions (Privileges and Immunities) Act 1995. The government stated in its second reading speech that the DPI Act and corresponding consular Act were “deficient” in not recognising such missions, and that the new legislation would provide privileges and immunities of an “upper limit” but not beyond the Vienna Conventions on diplomatic and consular relations.79
While originally suggesting that the new legislation be aimed at Hong Kong, New Caledonia, and the Cook Islands “to accommodate the changing political climate in our region” and promote bilateral economic relations,80 the Australian Government subsequently applied the law via regulations to Hong Kong and Taipei representative offices in Australia, in tacit support of the autonomy of these societies and in recognition of the importance of their economies to Australian trade, at the same time that it has officially endorsed a one-China policy.81 It has accorded foreign representatives at the Taipei Economic and Cultural Office in Canberra and their dependants the same level of immunity as standard diplomats, despite not formally recognising that the Office has “diplomatic status.”82 But it has given less immunity to the administrative and technical staff at this Office and to all officials and staff at its state branches and the Hong Kong Economic and Trade Office, and no immunity to their dependants.83
Notably, the government has specified that the law does not apply to the Palestine Liberation Organisation, which it deems “purely political,” even though this entity has diplomatic relations with over 100 other nations.84 Minister Evans directed the following comment at the Palestine Information Office in the ACT:
Let me make it absolutely clear, however, that since the Government does not recognise the “State of Palestine,” your office will not be accorded diplomatic or consular status nor any privileges and immunities. As I have said previously, the question of Australian recognition of a “Palestinian State” will arise only in the context of an overall peace settlement.85
In relation to international organisations, Australia has enacted the International Organisations (Privileges and Immunities) Act 1963 and numerous regulations for specific international organisations, whose terms depend on individual agreements with the organisations. The level of privileges and immunities accorded to international organisations and their staff varies; some receive maximal privileges and immunities, while others are given barely any. For example, the Asian and Pacific Development Centre is merely accorded legal personality in the relevant instrument, with the standard capacity to contract, deal in property, and institute legal proceedings.86 Although, according to DFAT, all international organisations are immune from searches of their official premises.87
Regarding cases on privileges of international organisations, in Macoun v. Commissioner of Taxation, the High Court of Australia decided that, for want of consistent State practice, the respondent’s pension from the International Bank for Reconstruction and Development (IBRD) could be taxed.88 In Commissioner of Taxation v. Jayasinghe, the High Court held that while the applicant had an independent contract in name, he could be classed as an employee, but that, regardless of this classification, he did not hold an office in the organisation to be exempt from paying tax.89 However, the Specialized Agencies (Privileges and Immunities) Amendment Regulations 2022 have since provided exemption from tax in relation to “salaries and emoluments” received from various specialised agencies, including the IBRD, with a retrospective period of five years (sch. 1).
Regarding cases on immunities of international organisations, von Arnim v. Federal Republic of Germany and Castle v. United States each concern claims of immunity from extradition for fraud-related crimes. In the first case, the Federal Court decided that the applicant was not a diplomatic agent, relying on Ministerial certification rather than equivocal evidence connected with the World Health Organisation.90 In the second case, it found that the international organisation itself, which the applicant claimed to lead, was not legally recognised.91 It also raised the potential argument, with reference to Article 31(4) of the Vienna Convention, that immunity, in any case, pertains to the jurisdiction of the receiving State, not the sending State seeking extradition.92
9 Applicable Persons
A final question in this article concerns the persons to whom Australia extends diplomatic privileges and immunities. DFAT’s Protocol Guidelines define these as “[f]oreign government employees assigned to diplomatic missions” and their foreign dependants.93 Australians with dual citizenship, which is permitted in Australia, may encounter a problem when attempting to enter another State’s diplomatic corps that is situated in Australia.94 Consistent with Article 8 of the Vienna Convention, the Protocol Guidelines state:
The Australian Government does not accept the appointment of Australian citizens or permanent residents as diplomatic or consular representatives of another country unless there are exceptional circumstances. If consent is given, privileges and immunities will be strictly limited in accordance with Article 38.1 of the Vienna Convention on Diplomatic Relations or Article 71 of the Vienna Convention on Consular Relations.95
The Protocol Guidelines continue that where persons with Australian citizenship or permanent residency elect to renounce this status to assume a diplomatic post for another country, they cannot be guaranteed reinstatement of their citizenship or permanent residency by the Department of Home Affairs – that is, they cannot expect to enjoy different beneficial statuses in succession. However, a circular note issued to diplomatic missions in 1989 states that members of missions who have been in Australia for over six years, which is two years longer than the length of a diplomatic visa, may be taken to be “permanently resident in Australia,” unless they can otherwise satisfy DFAT.96 Further, diplomats can have their visas renewed up to 10-years, decided on a case-by-case basis.97
Regarding foreign dependants of diplomatic agents, the Protocol Guidelines state:
The Australian Government will accept as a dependant a spouse, de facto or same sex partner provided they are formally nominated by the sending government or international organisation, and that reciprocal recognition would be given by the sending state. Unmarried children up to 21 years of age who are full time members of the official’s household and formally nominated are also accepted as dependants and are eligible for diplomatic visas.98
Family members “such as adult children or aged parents” who have “an established history of dependence for medical reasons” may be granted a diplomatic visa but not diplomatic privileges and immunities.99 Parents, dependants who leave the household, and other family members are otherwise ineligible but may be granted a visitor visa or student visa where appropriate for up to 12 months.100 Children of diplomats who are born in Australia receive a diplomatic visa and privileges and immunities referred to in Article 37(1) of the Vienna Convention, instead of being naturalised, as indicated by the Optional Protocol on nationality (art. 2); however, the birth is required to be registered in Australia with the Registrar of Births, Deaths and Marriages.101
Australia defines a family in the diplomatic context according to relatively liberal values. As stated, Australia permits same-sex partners. This policy exists against a backdrop of legal recognition of same-sex marriage since 2017, even though Australia’s last state to decriminalise homosexuality, Tasmania, only did so as late as 1997.102
Regarding diplomats in polygamous arrangements, a 2019 global study by Peter Rosputinský has shown that Australia extends privileges and immunities only to one wife and the children of that wife, and that this is currently the most common practice in the world.103 By contrast, Australia’s neighbour, New Zealand, grants all wives and their children diplomatic status. This difference may be considered unusual given the parallels that otherwise exist between the two countries – for example, both of their Indigenous peoples have historically engaged in polygamy to a limited extent through their customary law, while both of their governments have outlawed bigamy. In addition, the Full Court of the Family Court of Australia held in 2016 that foreign polygamous marriages can be recognised in Australia,104 and Australia is a party to the Hague Convention on Celebration and Recognition of the Validity of Marriages, which does not decline recognition of such marriages.
It is open to debate whether Australia has appropriately negotiated the competing perspectives of, on the one hand, respect for women who may be disadvantaged by polygamy and, on the other hand, respect for cultural differences and the Vienna Convention’s preambular objective of friendly relations. This is a question that goes to comity as well as diplomats’ personal circumstances that may not be expected to have a great bearing on political matters.
10 Conclusion
This article has presented an outline of current Australian practice on diplomatic privileges and immunities. While this practice generally follows international norms and customs, it has some individual characteristics due to the Vienna Convention’s scope for discretion and Australia’s political and economic priorities. In addition, it has significant implications for not only diplomatic relations but also for the Australian people and other parties, not least in the areas of protest activity and employment.
Regarding protests in the vicinity of missions, Australia’s approach to safeguarding the dignity of missions has varied, with different ramifications for freedom of speech. The government has tended to be cautious with respect to States on whom it relies economically – including those in Asia, which is the only region Australia has granted special missions for territories not internationally recognised as sovereign nations – and whom it supports politically, and less so in relation to States that Australia perceives as compromising its sovereignty and the international order.
Regarding employees at missions, Australia has kept pace with international developments that have extended their rights. However, these developments do not provide for all workers, including many low-paid domestic workers, whose legal protection is well below the standard for other workers in Australia, and those who have been unfairly dismissed and wish to continue their employment. There are increasing calls among human rights activists to rectify this lacuna, which exists in many countries. Yet Australia continues to negotiate its industrial relations system around its diplomatic responsibilities and what it identifies as a unique class of employees rather than ensuring that the system meets their needs. Its effective suspension of some workers’ rights is coupled with a perception that taking strict measures to protect diplomatic relations and sensitive diplomatic information is a virtuous sacrifice, even though this suspension may not constitute a solid foundation for diplomatic relationships, and even though diplomatic information is commonly used in the modern age towards international competition rather than cooperation.
Whereas an Australian politician once mused on the problem that diplomatic immunities and privileges are “descendants” of the “untrammelled” power of the executive sphere, referred to above, the Australian Government is yet to pursue this proposition in a fundamental way, if indeed it is possible to do so while fulfilling its international obligations. A change in policy at the international level may be needed before the interests of less privileged people can be better served.
Lecturer, School of Law, Faculty of Business and Law, at the University of Wollongong.
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