Diplomatic Privileges and Immunities Regulations (Amendment) 1992 No. 118
EXPLANATORY STATEMENT
STATUTORY RULES 1992 No. 118
Issued by the Authority of the Minister for Foreign Affairs and Trade
Diplomatic Privileges and Immunities Act 1967
Diplomatic Privileges and Immunities Regulations (Amendment)
Section 15 of the Diplomatic Privileges and Immunities Act 1967 (the Act) provides that the Governor-General may make regulations necessary or convenient to be prescribed for the carrying out or giving effect to the Act.
Subsection 7(1) of the Act provides, inter alia, that Articles 22 and 29 of the Vienna Convention on Diplomatic Relations (the Vienna Convention) have the force of law in Australia and every external Territory. Articles 22, paragraph 2, and 29 of the Vienna Convention provide:
Article 22
2. The 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.
Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
Paragraph 7(2)(a) of the Act provides that references in the Vienna Convention to the "receiving State" shall be read as references to Australia, or where the context permits, to every State and Territory.
Australia has an international obligation under the Vienna Convention to take appropriate steps to prevent not only disturbance of the peace in relation to a foreign mission but also impairment of its dignity. Situations can arise where, as a consequence of the nature, proximity and duration of a demonstration, even one wholly non-violent in character, steps such as the removal or relocation of material associated with a demonstration may have to be taken if Australia is to properly discharge its international obligations. Specific authority in law to enable such "appropriate steps" to be taken is required because although section 7 of the Act imposes a duty on the Commonwealth, it does not expressly confer powers to enable the discharge of that duty.
Accordingly, amendments to the Diplomatic Privileges and Immunities Regulations (the Regulations), being Statutory Rules 1992 No. 7, ware made by the Governor-General in Council to enable Australia to meet its obligations under the Vienna Convention by empowering the Australian Federal Police, or the Australian Protective Service, to remove or relocate material or objects associated with a demonstration away from mission premises, or the private residence of a diplomat, when the Minister for Foreign Affairs and Trade certified that such removal or relocation was an "appropriate step" under Articles 22.2 or 29 of the Vienna Convention to prevent an attack on or disturbance of the peace, or impairment of the dignity, of a mission or diplomat.
In the light of comments made by Mr Justice Ryan of the Federal Court of Australia concerning the validity of Statutory Rules 1992 No. 7, the Regulations were amended to clarify that the power of the Minister for Foreign Affairs and Trade to certify removal or relocation of objects is an "appropriate step" to give effect to Articles 22.2 or 29 arises only when a disturbance of the peace, or impairment of the dignity, of a mission or diplomatic agent is in fact occurring or threatened. other ancillary amendments were also made.
In the light of comments made by Mr Justice Olney in the Federal Court of Australia on 16 April 1992, a further amendment is proposed which seeks to make clear that the "impairment" of dignity is an objective precondition for the issuing of a certificate under the Regulations. An amendment seeking to put beyond doubt the powers of the Police and members of the Australian Protective Services to relocate objects which have been removed and other ancillary amendments are also proposed.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Diplomatic Privileges and Immunities Regulations (Amendment)
Regulation 1: This Regulation provides for the amendment of the principal Regulations as set out below.
Regulation 2: This Regulation amends Regulation 5A of the principal Regulations as follows:
2.1 By omitting subregulations 5A(1) and (2) and substituting:
11(1) Where the presence of a prescribed object on prescribed land or premises impairs, or (if it were to take place or continue) would impair, the dignity of a mission or the residence of the head, or another diplomatic agent, of a mission, and the removal of the object would be an appropriate step to prevent the impairment, or the continuation of the impairment, the Minister may certify to that effect.
(2) A certificate must be in the form set out in the Schedule".
2.2 The word "issued" is omitted from subregulation 5A(3) and the word "signed" is substituted.
2.3 The word "issued" is omitted from subregulation 5A(4) and the word "signed" is substituted.
2.4 The word "issue" is omitted from subregulation 5A(5) and the word "signing" is substituted.
2.5 The word "issued" is omitted from subregulation 5A(6) and the word "signed" is substituted.
Regulation 3: This Regulation amends Regulation 5B of the principal Regulations as follows:
3.1 Subregulations 5B(3) and (4) are omitted and substituted by :
"(3) A prescribed officer must not remove a prescribed object from the prescribed land or premises before giving a reasonable opportunity to a person:
(a) who is apparently in control of the object; or
(b) who placed the object on the land or premises; or
(c) who is apparently a representative of a person referred to in paragraph (a) or (b);
to remove the object from the land or premises.
(4) Where a prescribed officer removes a prescribed object from the prescribed land or premises, the officer may:
(a) give the object to a person who was apparently in control of the object, or is a person referred to in paragraph (3)(b) or (c); or
(b) leave the object on other land or premises; or
(c) retain the object for up to 7 days.
(4A) Before leaving a prescribed object on land or premises referred to in paragraph (4)(b), a prescribed officer must give any of the persons referred to in paragraph (3)(a), (b) or (c) at least 24 hours' notice of the location of the land or premises."
3.2 The word "At" is omitted from subregulation 5B(5)and the words "Where an object is retained under paragraph (4)(c) and has not been returned to a person referred to in paragraph 3(a),(b) or (c), at" are substituted.
3.3 The phrase "or (b)" is omitted from subregulation 5B(5) and the phrase "(b) or (c)" is substituted.
Regulation 4: This regulation omits the Schedule and substitutes:
" SCHEDULE
Subregulation 5A(2)
COMMONWEALTH OF AUSTRALIA
Diplomatic Privileges and Immunities Regulations
CERTIFICATE
I, (insert the full name of the Minister), Minister of State for Foreign Affairs and Trade, certify that the presence of the following prescribed objects:
(insert a description of the prescribed objects)
on prescribed land or premises, being (insert a description of the land or premises), impairs or (if it were to take place or continue) would impair, the dignity of the mission or of the residence of the head, or another diplomatic agent, of the mission and that its removal would be an appropriate step to prevent the impairment or the continuation of the impairment (here insert a description of the mission or residence).
This certificate was signed (insert time and date of signature) and has effect
*from that time and date
*from (insert time and date from which certificate is to have effect).
(signature of Minister) Minister of State for Foreign Affairs and Trade
Omit if inapplicable."