1Short title
This Act may be cited as the Consular Privileges and Immunities Act 1972.
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This Act may be cited as the Consular Privileges and Immunities Act 1972.
This Act shall come into operation on the day on which it receives the Royal Assent.
In this Act, unless the contrary intention appears:
acquisition has the meaning given by section 195‑1 of the GST Act.
approved form has the meaning given by section 995‑1 of the Income Tax Assessment Act 1997.
Commissioner means the Commissioner of Taxation.
Convention means the Vienna Convention on Consular Relations, a copy of the English text of which is set out in the Schedule.
Customs Minister means the Minister administering the Customs Act 1901.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999.
indirect tax means:
GST within the meaning of section 195‑1 of the GST Act; or
luxury car tax within the meaning of section 27‑1 of the Luxury Car Tax Act; or
wine equalisation tax within the meaning of section 33‑1 of the Wine Equalisation Tax Act.
Luxury Car Tax Act means the A New Tax System (Luxury Car Tax) Act 1999.
overseas country means a country other than Australia or an external Territory.
prescribed overseas country means an overseas country prescribed by the regulations for the purposes of this definition.
Wine Equalisation Tax Act means the A New Tax System (Wine Equalisation Tax) Act 1999.
In this Act, expressions defined by the Convention have the same respective meanings as they have in the Convention.
This Act extends to every external Territory.
Subject to this section, the provisions of Articles 1, 5, 15 and 17, paragraphs 1, 2 and 4 of Article 31, Articles 32, 33, 35 and 39, paragraphs 1 and 2 of Article 41, Articles 43 to 45 (inclusive) and 48 to 54 (inclusive), paragraphs 2 and 3 of Article 55, paragraph 2 of Article 57, paragraphs 1, 2 and 3 of Article 58, Articles 60 to 62 (inclusive), 66 and 67, paragraphs 1, 2 and 4 of Article 70 and Article 71 of the Convention have the force of law in Australia and in every external Territory.
For the purposes of those provisions as so having the force of law:
a reference in those provisions to the receiving State shall be read as a reference to Australia and, where the context so permits, as including a reference to every State of the Commonwealth and every Territory;
a reference in those provisions to a national of the receiving State shall be read as a reference to an Australian citizen;
a reference in those provisions to authorities of the receiving State shall be read as including a reference to members and special members of the Australian Federal Police, members of the police force of a State of the Commonwealth or of a Territory and persons exercising a power of entry to premises;
a reference to a grave crime shall be read as a reference to any offence punishable on a first conviction by imprisonment for a period that may extend to 5 years or by a more severe sentence;
a waiver shall be deemed to have been made by an overseas country if the waiver has been made by the head of the diplomatic mission, or by a person for the time being performing the functions of the head of the diplomatic mission, in Australia of that country, or, if there is no such mission by the head of the consular post concerned;
the reference in paragraph 2 of Article 17 to any privileges and immunities accorded by customary international law or by international agreements shall be read as a reference to any privileges and immunities conferred under the International Organisations (Privileges and Immunities) Act 1963;
Article 58 has effect as if the references in that Article to other Articles of the Convention the provisions of which do not have the force of law by virtue of subsection (1) were omitted;
Articles 50, 51, 52, 54, 62 and 67 shall be treated as granting the privileges or immunities that those Articles require to be granted;
Article 50 shall be treated as extending to career consular officers of a consular post the head of which is an honorary consular officer;
the reference in Article 57 to the privileges and immunities provided in Chapter II shall be read as a reference to the privileges and immunities provided in Section II of that Chapter;
the references in paragraph 1 of Article 50 and in Article 62 to such laws and regulations as the receiving State may adopt shall be read as including references to this Act and any law of an external Territory; and
the reference in Article 70 to the rules of international law concerning diplomatic relations shall be read as a reference to the provisions of the Diplomatic Privileges and Immunities Act 1967.
Nothing in subsection (1) affects the application of any law of the Commonwealth or of a Territory relating to quarantine, or prohibiting or restricting the importation into, or the exportation from, Australia or that Territory, as the case may be, of any animals, plants or goods, but this subsection does not prejudice any immunity from suit or from civil or criminal process that a person has by virtue of subsection (1).
The provisions of the Convention, in so far as they provide for the exemption from tax of any income, apply, for the purposes of the application of the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997, to assessments in respect of income of the year of income that commenced on 1 July 1972, and in respect of income of all subsequent years of income.
For the purposes of section 38 of the Judiciary Act 1903, a matter arising under the Convention as having the force of law by virtue of this section shall be deemed not to be a matter arising directly under a treaty.
The exemption from customs duties, taxes and related charges provided for by paragraph 1 or paragraph 2 of Article 50, or Article 62, of the Convention as having the force of law by virtue of section 5 in respect of articles imported into Australia that are for the use of a consular post or person referred to in that Article:
does not apply where any other articles of the same kind, or of a similar kind, that have been imported into Australia were, at the time when they were entered for home consumption under the Customs Act 1901, intended for the use of the consular post or person and the Customs Minister, by instrument in writing, declares that, in his or her opinion, the reasonable requirements of the consular post or person, as the case may be, have adequately been met by the other articles; and
does not apply unless:
the person for whose use the articles are intended, or, if the articles are intended for the use of a consular post, the head of the consular post, agrees that, if the articles are sold or otherwise disposed of in Australia or in an external Territory within, in the case of articles other than motor vehicles, 2 years, and in the case of motor vehicles, 3 years, after the date of entry of the articles for home consumption under the Customs Act 1901, he or she will pay to the Commonwealth an amount equal to so much (if any) as the Customs Minister determines of the customs duties, taxes and related charges that, but for paragraph 1 or paragraph 2 of Article 50, or Article 62, as the case may be, of the Convention, would have been payable in respect of the articles; and
where the person so entering into an agreement has previously entered into a similar agreement in relation to any other articles and has committed a breach of that last‑mentioned agreement—the person complies with such conditions (if any) as the Customs Minister, by instrument in writing, determines (which may include a condition that the person give security, satisfactory to that Minister, that he or she will comply with the first‑mentioned agreement).
Despite:
section 177‑5 of the GST Act; and
section 21‑5 of the Luxury Car Tax Act; and
section 27‑25 of the Wine Equalisation Tax Act;
indirect tax that would be payable on an importation under one of those Acts is not payable on an importation covered by the exemption from customs duties, taxes and related charges provided for by paragraph 1 or paragraph 2 of Article 50, or Article 62, of the Convention and section 5 of this Act.
Duties of customs imposed by the Customs Tariff Act 1995 are not payable in respect of articles that:
are, at the time when they are entered for home consumption under the Customs Act 1901, intended for the official use of a consular post in Australia of an overseas country, being a consular post to which Article 62 of the Convention as having the force of law by virtue of section 5 applies;
are declared by the head of the consular post, in writing, to be for the official use of the consular post; and
are articles, or are included in a class of articles, approved by the Customs Minister for the purposes of this subsection.
In subsection (1), motor vehicle means a vehicle with a motor engine, being a vehicle ordinarily for use on land.
Subject to subsections (3) and (4), duties of excise imposed by the Excise Tariff Act 1921 are not payable in respect of goods that are, at the time when they are entered for home consumption under an Act relating to duties of excise, intended for:
the official use of a consular post in Australia of an overseas country, being a consular post the head of which is a person who is not an Australian citizen, is not ordinarily resident in Australia or in an external Territory and is not otherwise engaged in a profession, business or occupation;
the personal use of a consular officer at a consular post in Australia of an overseas country, being a person who is not an Australian citizen, is not ordinarily resident in Australia or in an external Territory and is not otherwise engaged in a profession, business or occupation; or
the personal use of a member of the family of a person referred to in paragraph (b), being a member of the family who forms part of the household of the person, is not an Australian citizen, is not ordinarily resident in Australia or in an external Territory and is not engaged in a profession, business or occupation.
Duties of excise imposed by the Excise Tariff Act 1921 are not payable in respect of goods that:
are, at the time when they are entered for home consumption under an Act relating to duties of excise, intended for the official use of a consular post in Australia of an overseas country, being a consular post to which paragraph (1)(a) does not apply;
are declared by the head of the consular post, in writing, to be for the official use of the consular post; and
are goods, or are included in a class of goods, approved by the Customs Minister for the purposes of this subsection.
Subsection (1) does not apply in respect of goods that are intended for the use of a consular post or person referred to in that subsection where any other goods of the same kind, or of a similar kind, that have been entered for home consumption under an Act relating to duties of excise were, at the time when they were so entered, intended for the use of the consular post or person and the Customs Minister, by instrument in writing, declares that, in his or her opinion, the reasonable requirements of the consular post or person, as the case may be, have adequately been met by the other goods.
Subsection (1) does not apply in respect of any goods unless:
the person for whose use the goods are intended, or, if the goods are intended for the use of a consular post, the head of the consular post, agrees that, if the goods are sold or otherwise disposed of in Australia or in an external Territory within 2 years after the date of entry of the goods for home consumption under an Act relating to duties of excise, he or she will, unless the Customs Minister otherwise determines, pay to the Commonwealth an amount equal to the duties of excise that, but for this section, would have been payable in respect of the goods; and
where the person so entering into an agreement has previously entered into a similar agreement in relation to any other goods and has committed a breach of that last‑mentioned agreement—the person complies with such conditions (if any) as the Customs Minister, by instrument in writing, determines (which may include a condition that the person give security, satisfactory to that Minister, that he or she will comply with the first‑mentioned agreement).
The regulations may:
confer on a post established in Australia or in an external Territory by the Government of a declared Commonwealth country, being a post that is not entitled to any privileges or immunities under this Act or under the Diplomatic Privileges and Immunities Act 1967 and appears to the Governor‑General to exercise functions substantially corresponding to functions exercised by a consular post, all or any of the privileges and immunities that are conferred by this Act on a consular post;
confer on:
the person charged with the duty of acting as head of a post of a kind referred to in paragraph (a) being a person who is not entitled to any privileges or immunities under this Act or under the Diplomatic Privileges and Immunities Act 1967;
a member of the staff of a person referred to in subparagraph (i), being a member who appears to the Governor‑General to perform duties substantially corresponding to the duties performed by a consular officer; and
members of the family of a person to whom subparagraph (i) or (ii) applies, being members of the family who form part of the household of the person;
all or any of the privileges and immunities that are conferred by this Act on consular officers and members of their families;
confer on:
a member of the staff of a person referred to in subparagraph (b)(i), being a member who appears to the Governor‑General to perform duties substantially corresponding to the duties performed by a consular employee; and
members of the family of a person to whom subparagraph (i) applies, being members of the family who form part of the household of the person;
all or any of the privileges and immunities that are conferred by this Act on consular employees and members of their families;
confer on:
a member of the staff of a person referred to in subparagraph (b)(i), being a member who appears to the Governor‑General to perform duties substantially corresponding to the duties performed by a member of the service staff of a consular post; and
members of the family of a person to whom subparagraph (i) applies, being members of the family who form part of the household of the person;
all or any of the privileges and immunities that are conferred by this Act on members of the service staff of a consular post and members of their families; and
confer on a person who is employed exclusively in the private service of:
a person referred to in subparagraph (b)(i); or
a member of the staff of such a person;
all or any of the privileges and immunities that are conferred by this Act on persons who are employed exclusively in the private service of members of a consular post.
Where the Government of a declared Commonwealth country has established in Australia, or in an external Territory, a post of a kind referred to in paragraph (1)(a), the head of the diplomatic mission in Australia of that country, or, if there is no such mission, the person charged with the duty of acting as head of the post, may waive any privileges or immunities conferred by the regulations on:
the post;
the person charged with the duty of acting as head of the post;
a member of the staff of the person referred to in paragraph (b);
a member of the family of a person referred to in paragraph (b) or (c); or
a person employed in the private service of a person referred to in paragraph (b) or (c).
In this section:
declared Commonwealth country means a country declared by the regulations to be a Commonwealth country to which this section applies.
post includes a mission, agency or office.
Consular employees of a consular post of an overseas country who are Australian citizens or are ordinarily resident in Australia or in an external Territory are entitled to immunity from jurisdiction in respect of official acts performed in the exercise of their functions.
If:
Australia, in writing, enters into an agreement, arrangement or understanding (the reciprocal instrument) with an overseas country (the reciprocating country); and
either:
at the time Australia enters into the reciprocal instrument, a determination under subsection (2) that the reciprocating country is one to which this section applies is in force; or
at any later time, a determination under subsection (2) that the reciprocating country is one to which this section applies comes into force; and
the reciprocal instrument grants:
privileges or immunities, or both, to consular officers of Australia in the reciprocating country; and
the same, or equivalent, privileges or immunities, or both, to consular officers of the reciprocating country in Australia; and
the privileges or immunities, or both, mentioned in paragraph (c) supplement, extend or amplify those granted by the Convention;
then, for so long as the reciprocal instrument continues to grant the privileges or immunities, or both, and the determination remains in force, the privileges or immunities, or both, are granted as mentioned in subparagraph (c)(ii).
The Minister may, by legislative instrument, determine an overseas country to be an overseas country to which this section applies. The Minister may, by legislative instrument, revoke the determination.
If:
an acquisition covered by a determination of the Minister is made:
by or on behalf of the head of a consular post; or
by a consular officer or member of his or her family forming part of his or her household, or another person, who is:
covered by a determination of the Minister; and
at the time of the acquisition, it was intended for:
the official use of the consular post; or
a use covered by a determination of the Minister;
the Commissioner must, on behalf of the Commonwealth and subject to subsection (3), pay to the head of the consular post (or a person in a class of persons determined by the Minister) an amount equal to the amount of indirect tax payable (if any) in respect of the supply of that acquisition.
A claim for an amount covered by subsection (1) must be in the approved form.
The amount is payable:
in accordance with the conditions and limitations; and
within the period and in the manner;
determined by the Minister.
A determination under this section is a legislative instrument.
In this section:
consular post includes a post that has privileges and immunities conferred on it under section 9.
Where the Minister is satisfied that the privileges and immunities granted in relation to a consular post of Australia in an overseas country, or to persons connected with that consular post, are less than the privileges and immunities granted by this Act in relation to a consular post of that country, or to persons connected with such a post, he or she may, by instrument in writing, withdraw, in relation to that post or persons connected with that post, all or any of the privileges and immunities granted by this Act.
The Minister shall cause any such instrument to be published in the Gazette.
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