Agreement between the Government of Australia and the Government of the Italian Republic regarding the undertaking of work by cohabiting family members of diplomatic, consular and technical and administrative staff
7.1
This chapter considers the Agreement between the Government of Australia and the Government of the Italian Republic regarding the undertaking of work by cohabiting family members of diplomatic, consular and technical and administrative staff (the Agreement). The treaty action was signed in Canberra on 27 November 2017 and tabled in the Parliament on 12 February 2019. A public hearing was held on 1 April 2019. The Committee’s inquiry into the treaty action lapsed at the dissolution of the 45th Parliament on 11 April 2019. The treaty was re-referred to the Committee by the Minister for Foreign Affairs on 29 July 2019, following the re-establishment of the Committee in the 46th Parliament. As noted in paragraph 1.13, updated advice was sough at that time and the Department of Foreign Affairs and Trade (DFAT) advised that no additional comment was needed.
7.2
The National Interest Analysis (NIA) states that the Agreement will allow family members of diplomatic staff stationed in Australia and Italy to engage in paid work for the duration of an official’s posting in the receiving country.
7.3
According to the NIA, it is in Australia’s interest to address barriers to the employment of family members of Australian diplomatic and consular personnel serving overseas. The opportunity for spouses and family members of Australian diplomatic and consular personnel to engage in gainful employment overseas can be an incentive for staff to serve in particular countries.
7.4
DFAT stated that these types of agreements are valuable to Australia, as they support DFAT and other agencies to recruit and retain high-quality officers willing to serve abroad. The Department emphasised that:
The financial implications of one spouse ceasing work can lead to a reduced number of officers seeking overseas postings, or an increase in families being separated, with the associated problems that that can create. These agreements don't secure or guarantee employment; rather, these agreements provide the opportunity to seek employment locally, including as remote workers for current jobs in Australia.
7.5
The NIA notes that the Australian Government also has a strong commitment, as an employer, to support its employees to balance their work and family responsibilities.
7.6
In order to encourage other countries to provide employment opportunities to family members of Australian diplomatic and consular personnel serving overseas, the Australian Government offers reciprocal opportunities to family members of foreign officials.
7.7
The Agreement is one of a series of bilateral employment arrangements that Australia has concluded with countries in which the Australian Government has a diplomatic or consular presence. Bilateral employment arrangements are usually conducted at a less than treaty level, by way of a memorandum of understanding. However, the domestic laws of Italy require a treaty level agreement.
7.8
To date, Australia has seven treaty level agreements (not including this Agreement), and 46 less than treaty level arrangements concerning the employment of spouses and family members of diplomatic and consular officials, and negotiations are currently under way for similar agreements or arrangements with seven other countries.
7.9
The Agreement broadly follows the form of the Australian model text for arrangements concerning the employment of family members of diplomatic and consular personnel.
7.10
DFAT advised that there are currently 219 Partners and 84 children over the age of 16 accompanying Australian posted officers abroad, although records are not kept as to how many of these are employed because of bilateral work agreements of this sort.
7.11
The NIA states that the Agreement is in the national interest as it will assist in enabling the highest quality of official representation by Australia in Italy and by Italy in Australia.
7.12
DFAT advised that the Agreement will apply to dependants of Australian officers posted to Rome, Milan and the Holy See, and to dependants of Italian officers posted to Australia across their embassy and five consulates.
Obligations
7.13
The following summary of the obligations under the Agreement are taken from the NIA.
7.14
Article 1 provides that on a reciprocal basis the cohabiting family members who form a part of the official household of diplomatic and consular personnel of the sending State, will be authorised by the receiving State to carry out self-employed or salaried work, in compliance with the provisions of the Agreement.
7.15
Article 6 provides that this authorisation would commence from the time of arrival of the member of the diplomatic mission or consular post in the receiving State, until their time of departure, or until such time as the person ceases to be a family member forming part of the household of a member of the diplomatic mission or consular post.
7.16
The expression ‘family members’ is defined by Article 1(2) to include spouses, unmarried dependent children aged 16 to 25, and other members of the family pursuant to Article 37 of the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention of Consular Relations of 1963. DFAT clarified that the definition of ‘spouse’ includes de facto and those in LGBTI relationships.
7.17
Articles 2 and 3 set out the process for requesting the requisite authorisation. In Italy, the Embassy of Australia will send its request to the Diplomatic Protocol Office of the Italian Republic, informing it of the name of the relevant family member that wishes to engage in work, and a description of the nature of the proposed work. In Australia, the Embassy of Italy will submit its request to the Protocol Branch of DFAT.
7.18
Article 4 provides that family members who have been authorised to undertake gainful employment would be subject to the applicable taxation, social security and employment law in force in the receiving State for all matters connected with their work.
7.19
Article 6(3) provides that each Party may refuse authorisation in cases where the family member has worked illegally in the receiving State or has violated the laws and regulations on tax and social security. Authorisation may also be refused in those cases where, for reasons of security, only citizens of the receiving State may be employed.
7.20
Article 5(1) provides that the sending State will waive immunities from the civil or administrative jurisdiction of the receiving State, which would otherwise be enjoyed by family members of the diplomatic and consular personnel authorised to work under the proposed Agreement, in respect of all matters arising out of the aforementioned work.
7.21
Article 5(2) provides that the sending State will waive immunities from criminal jurisdiction, which would otherwise be enjoyed by cohabiting family members, in respect of any act or omission arising out of the aforementioned work, except in special instances when the sending State considers that such a waiver could be contrary to its interests.
7.22
Asked to provide examples of sending States waiving immunities contrary to their interest, DFAT told the Committee that:
no waivers of immunity in relation to the employment of a dependant of a diplomatic or consular officer being either sought or provided has been recorded, either in Australia or overseas;
it is unlikely that Australia would waive immunity of dependants overseas if it is contrary to their interests; and
in relation to immunities regarding employment, if there is a bilateral employment treaty in place, immunities in relation to work are removed. If there is no bilateral treaty, the dependant may be required to give up their immunities entirely if they wished to work overseas.
Additional reasons for declining a request
7.23
DFAT acknowledged that a receiving State could decline a request for family members of diplomatic and consular personnel to undertake employment for reasons other than those specified in the Agreement.
7.24
The Committee queried whether a receiving State could decline a request on the basis that the employment may constitute a conflict of interest. DFAT stated that this was possible, but that it would be up to the employer to determine whether there is a conflict of interest.
7.25
DFAT clarified that it would be notified about a potential conflict of interest as it:
… receive[s] notice of intention from the prospective employee, so the spouse or family member of the diplomatic or consular official notifies DFAT of their intention to commence employment, ostensibly seeking approval from us to pursue that. So, if they were intending to work for a government agency or something other than that, it would come to our attention that way and then we would potentially make inquiries … We would then give that to somebody else to look into, but we would be notified of their intention to commence that employment.
Implementation
7.26
According to the NIA, the Agreement can be implemented using existing legislation.
Conclusion
7.27
The Committee notes that the Agreement was signed in 2017, and as it has previously observed, has some concern about the length of time that occurs between the signing and tabling of these treaty actions.
7.28
The Committee supports the Agreement and recommends that binding treaty action be taken.
7.29
The Committee supports the Agreement between the Government of Australia and the Government of the Italian Republic regarding the undertaking of work by cohabiting family members of diplomatic, consular and technical and administrative staff and recommends that binding treaty action be taken.