International Privileges and Immunities in Australia—The Legislative Framework
| Author | Patrick J. O'Keefe |
| DOI | 10.1177/0067205X7700800301 |
| Published date | 01 September 1977 |
| Date | 01 September 1977 |
| Subject Matter | Article |
INTERNATIONAL PRIVILEGES AND IMMUNITIES .
IN
AUSTRALIA-THE
LEGISLATIVE FRAMEWORK
By PATRICK J.
O'KEEFE*
In recent years the Commonwealth Government has passed
legislation implementing international conventions on diplomatic
and consular relations. Australia now has alegislative framework
regulating the grant 0/ privileges and imn1,unities to diplomatic
missions, consular posts, international organizations and the
personnel
of
all
of
them. In this article Mr O'Keefe describes this
legislation, explains how it operates and examines the relationship
between the various Acts.
The Commonwealth of Australia came into being in 1901. However,
the first ambassador was not received until 1941. This reflects the fact
that in her early years Australia was only gradually acquiring the
status of an international person separate from the United Kingdom.
Today there are 60 diplomatic missions established in Australia and
consular posts of some 67 states.
In
addition there
is
apermanent
office of the United Nations in Sydney. Conferences of international
organizations have been held in Australia with delegates of many
countries in attendance. Officials of these organizations pay regular
visits to Australia in the course of their duties.
The Applicable
Law
What
is
the municipal law in Australia that specifically regulates the
conduct of these diplomatic missions, consular posts, international
organizations and the personnel of all of them? Here
we
refer to what
is
known colloquially
as
the "privileges and immunities" law.
The term 'privileges'
is
commonly used to describe the concessions,
often of afiscal nature, which countries traditionally accord to
foreign consular posts and their staffs, while the term 'immunities'
describes the jurisdictional immunities which international law
confers on them.1
In
other respects the local law
is
applicable and it
is
expected that this
will be respected by those enjoying these concessions.
Prior to 1948 the law on privileges and immunities was largely the
common law of England which embodied the relevant rules of cus-
tomary international law. There was apossibility that certain English
legislation-the
Diplomatic Privileges Act
1708-was
in force in
Australia. The relevant fiscal legislation-income tax, customs
etc.-
*B.A., LL.B.
(Qld),
LL.M.
(A.N.V.),
M.A. (Business
Law)
(City
of
London
Polytechnic); Senior Lecturer in Law, University of Sydney.
1H.R. Deb. 1972, Vol. 78, 3008.
265
266 Federal Law Review
[VOLUME
8
granted some privileges. Then, in 1948, the Commonwealth Parliament
passed the International Organizations (Privileges and Immunities)
Act.
It
was the first Commonwealth legislation directly on the subject.
However, since that time the Commonwealth has created alegislative
framework to cover nearly all aspects of privileges and immunities.
This framework
is
based on anumber of international Conventions and
other instruments on privileges and immunities. The following article
discusses how Australia has proceeded to incorporate these into
municipal law.
Commonwealth Parliamentary Powers
The Commonwealth of Australia
is
afederal state. Legislative power
is
divided between the six State Parliaments and the Commonwealth
Parliament. Under the Constitution the latter has power to make "laws
for the peace, order and good government of the Commonwealth with
respect to
...
(xxix) External affairs".2 The precise extent of this
power has not been set by the High Court. What cases there have been
"establish the proposition that the power with respect to external affairs
authorizes legislation to give effect to obligations undertaken by Aus-
tralia under an international convention,
at
least dealing with asubject
properly
or
indisputably of an international character,
or
of inter-
national concern, to which Australia
is
aparty".3 All the existing
Commonwealth legislation on the topic of privileges and immunities
is
designed to give effect to Australia's obligations under international
conventions
or
other international instruments. The subject itself
is
surely one "indisputably of an international character,
or
of inter-
national concern". Moreover, the "external affairs" power
is
not
limited to implementation of treaties;
it
"extends to authorize legis-
lation with respect to all matters which come within the expression
'external affairs'''4 which expression itself
is
considered to be wider
than "foreign affairs".
"External affairs"
is
alarger expression than "foreign affairs",
though the expressions are often used interchangeably.
In
my
opinion, the description "external affairs" covers alarger area of
legislative power than would the description "foreign affairs".5
Lane concludes that various judicial expressions of opinion "all focus
on amutuality or reciprocity 0/ international interest and concern in
what
is
to be described
as
an 'external affair'
".6
He then gives
as
an
2Commonwealth
of
Australia Constitution,
s.
51.
3Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976)
297-298.
4Id.300.
5
New
South Wales v. The Commonwealth (1976) 50
A.LJ.R.
218,
221
per
Barwick C.J.
6Lane, The Australian Federal System (1972) 145.
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