8. Driving in Australia
8.1 Driver's licences
All diplomatic and consular staff, including administrative and technical staff, service staff, consular officers and consular employees, and their accompanying dependants who wish to drive in Australia must be in possession of a currently valid driver's licence, either issued in the sending State or by the relevant Australian State or Territory authority.
For an overseas licence to be acceptable, in addition to being current and valid, it must be written in English or have with it an English translation certified by the mission or post as being genuine.
Drivers are required by law to carry their licence at all times when in charge of a motor vehicle. Failure to carry their licence, or not having a licence that is currently valid, may result in the issue of a traffic infringement notice.
Service staff members of diplomatic and consular missions, and their dependants, are expected to obtain a State or Territory driver's licence if they wish to drive in Australia. Licences and learner permits are issued free of charge to diplomatic and administrative and technical staff of Canberra based missions, and to their spouses and eligible dependants. However, service staff, including spouses and dependants, are required to pay for licences and permits, and must undertake a written theory test and a practical driving test before being issued with a licence.
Any mission wishing to nominate an officer whose duties will be exclusively or predominately that of a driver should provide verifiable evidence to the responsible Australian diplomatic mission of at least 5 years driving experience in the sending country. Failure to provide satisfactory advice may delay the accreditation process.
To obtain a driver's licence in the ACT, applicants will need to provide satisfactory proof of identity- a valid passport or identity card(if one has been issued by the Department) as well as an original, currently valid, overseas driver's licence(photocopies are not acceptable), with English translation if applicable. Dependent children, who are not issued with identity cards, should present their passport, valid driver's licence (if they have one) and the following information, on mission letterhead:
- details of the parent who is a diplomatic or privileged officer, ie. full name, identity card number, entitlement (diplomatic or administrative and technical), and licence and/or car registration number
- details of dependant, ie. full name and full address
Applicants in the ACT who need to undertake the written and practical tests to qualify for a driver's licence should contact the Motor Vehicle Registry at Dickson, tel: (02) 6207 7000, to obtain further information. Tests must be booked in advance, and fees apply. The written theory test is available in Greek, Italian, Vietnamese, Spanish, Serbian, Croatian, Lao and Chinese, as well as English. The minimum age to obtain a driver's licence in the ACT is 17 years. A learner permit can be obtained at the age of years. A driver must have at least six months' driving experience before undertaking a driving test for issue of a licence. On passing the test, a provisional licence, valid for three years, will be issued. A full driver's licence can only be issued after the provisional licence period has been completed.
ACT driver's licences are issued in a plasticised photographic format from the Dickson Motor Registry and the City Manager's Shopfront Offices in Civic, Woden, Tuggeranong and Belconnen. Licences issued to diplomatic staff and dependants are stamped "DIPLOMATIC". Those for administrative and technical staff and dependants are stamped "PRIVILEGED".
As the regulations regarding issue and validity of driver's licences vary throughout Australia, consular posts in the States and the Northern Territory should ascertain from the local authorities the requirements for obtaining driver's licences. State and Territory Offices of the Department of Foreign Affairs and Trade can assist with information in this regard.
In Australia, the State and Territory police and traffic services issue on-the-spot traffic or parking infringement notices. Such notices may entail fines and/or demerit points (demerit points are not applied for parking infringements). The traffic infringement notice may be in the form of a “traffic infringement caution”, to which no fine applies. The “traffic infringement caution” would, however, be noted on the driver’s record and may be considered by police in the event the driver is involved in a future traffic violation. All such notices may be issued to members of staff of diplomatic missions, to members of consular posts, and to their family members.
When issuing an infringement notice, officers of the police and traffic services are not required to make a judgement about whether immunity exists either in general or in respect of a particular circumstance. Where limited "functional" immunity might apply (see Section 5.3), the Department considers it proper for a court or similar authority to decide whether or not immunity exists in the particular circumstances, if immunity is claimed in respect of any charges arising out of an offence.
Issue of a traffic infringement notice, or its local equivalent, is not considered a violation of the immunities to which a diplomatic or consular official may be entitled. It represents a notice that the recipient appears, on the face of events, not to have complied with local traffic laws or ordinances. It is a matter of public safety. This practice is now adopted in many countries.
Payment of fines is consistent with acceptance of the obligation under the Vienna Conventions to respect the laws and regulations of the receiving State (Articles 41.1 VCDR and 55.1 VCCR.). The Department of Foreign Affairs and Trade is of the view that payment of on-the-spot traffic or parking fines by diplomatic and consular staff does not require or constitute waiver of immunity from jurisdiction under the Vienna Conventions.
The Australian authorities expect that persons holding diplomatic or consular immunity will pay any fine resulting from on-the-spot infringement notices, unless it is their intention to contest the notice. This practice is followed abroad by Australian diplomatic missions and consular posts.
The Department does not intervene with local authorities to seek the cancellation of traffic infringement notices. Should missions and posts wish to contest the facts which form the basis of a particular traffic infringement notice, they may raise the matter directly with the relevant local authorities. The Department finds it difficult to accept the view that traffic infringements, including parking and speeding infringements, can be regarded as occurring in the course of the performance of official duties, even in the most exceptional circumstances.
The Department informs Heads of Mission and Post of all serious or repeat traffic infringements involving diplomatic or consular agents or family members, and where there are outstanding fines.
Traffic infringements (but not parking infringements in the ACT) incur, in addition to any fine imposed, licence demerit points. Where the number or type of infringement adds up to a total of seven or more demerit points, Protocol Branchwill be notified by the traffic authorities and may bring this to the attention of the Head of Mission/Post. If the number of infringements or a particular infringement were considered sufficiently serious, this could result in consideration being given to requesting that the individual responsible be withdrawn from Australia.
The Department does not consider that driving a motor vehicle would normally fall within the definition of consular functions under Article 43 of the VCCR. Consular immunity would not apply in such circumstances.
Therefore the normal laws in regard to payment of fines, demerit points or suspension of drivers' licences or vehicle registration are considered to apply to traffic or parking infringements involving members of Consular posts.
Members may of course contestsuch matters with the appropriate authorities or through the courts, if they wish.
Driving under the influence of alcohol or drugs is regarded in Australia as a serious offence. Strong action is being taken within the community to curb this offence, prompted primarily by the large number of serious accidents attributed to such driving.
Police have the authority to stop any motor vehicle and request that the driver submit to a breath screening test. Any request to stop by a police officer must be obeyed. In the Department's view, a request to stop does not constitute "detention" within the meaning of the Conventions or involve, at that point, any question of immunity. In accordance with the driving laws of Australia, diplomatic and consular staff are expected to undergo an alcohol breath test when requested to do so by a police officer. This includes random breath testing. Failure to abide by this requirement may result in the driver of the vehicle being summonsed for the offence of failing to take a breath test, in addition to any other driving offence committed.
The Department adopts the view that, given the transport alternatives available (such as using drivers, hire cars, taxis and other forms of public transport), there should be nocircumstance where a diplomatic or consular officer should drive a vehicle in the course of official duty or otherwise while under the influence of alcohol or drugs. It is a matter of public safety.
A police officer may request the driver of a motor vehicle bearing diplomatic registration plates to submit to a breath screening test. Drivers who can provide appropriate diplomatic identity may either accede to or refusethe police request. The Department asks that any person who enjoys diplomatic immunitycooperate, in the interests of public safety, if asked to submit to a screening test. This will not only protect the driver and any potential victim but will provide proof of the facts should any subsequent suggestion be made that the person was driving under the influence of alcohol or drugs. Refusal to comply with a request to submit to a breath test in these circumstances may be taken into account by the Department in deciding whether to take further action.
Where the driver is able to establish appropriate diplomatic identity but refuses to undergo a screening test, the police authorities have no obligation to allow the driver to continue to drive if, in their judgement, his or her continued driving poses a danger to the public. In the interests of the public and the driver's safety, the police authorities may assist by making arrangements for the driver to get to his or her destination. This may include requesting that a passenger, or a member of the driver's family, or a member of the relevant mission or post, drive the vehicle and escort the driver to his or her destination.
If the driver is unable to prove diplomatic status, the police request to submit to a screening test cannot be refused and the police authorities may have no choice but to proceed with this test. If this test shows a reading above the legal limit, the police may escort the driver to the local police station. They will then arrange for the relevant authorities (the Department, the mission or post) to be contacted to seek to establish status.
The policy of the Department of Foreign Affairs and Trade is that consular officials are expected to undergo a breath testif requested by a police officer.
As the immunityof consular officials is limited to acts performed in the exercise of their consular functions, and the Department's view is that driving a vehicle is considered to be outside the scope of consular functions, consular immunitydoes not absolve the person from an obligation to submit to a breath test.
Failure to comply with a request to undergo a breath test is failure to respect and comply with the law (noting also Article 55 of the VCCR). A consular officer, in refusing a breath test, would not be arrested but could be charged and summonsed to appear before a court and would be required to appear. The court would decide if the charge relates to acts outside the official functions.
If there were any question of public safety, the official would not be allowed to continue to drive.
The consular official could, if there were secondary evidence of drink driving and it was considered an offence had been committed, be summonsed for that offence or any other driving offence (for example, dangerous driving) in respect of the particular incident.
Family members of consular officials have no immunityand can, if the circumstances warrant, summonsed, arrested or detained. Consular employees have less immunitythan consular officers and could also be summonsed, arrested or detained, if circumstances warranted.
All members of the diplomatic and consular community are asked to observe parking regulations. Failure to do so can cause inconvenience, traffic disruption and danger to other road users. On-the-spot infringementnotices are issued in respect of offending diplomatic and consular vehicles.
A consular vehicle unlawfully parked, or found to be causing obstruction or danger to other road users, in some jurisdictions may be towed away. So may a diplomatic vehicle if it is unlawfully parked in such a way as to cause danger to other road users.
The ACT Administration no longer provides public parking spaces for diplomatic vehicles where reasonable alternatives are available. There are, however, a limited number of reserved parking spaces for diplomatic vehicles available in certain commercial areas of Canberra for official use by diplomatic missions. These are located as follows:
- One space adjacent to No. 1 Marcus Clarke Street in the City
- Six spaces at No. 2 Reg Saunders Way (off Russell Drive, adjacent to R7 North Building – Defence headquarters)
- Five spaces in the courtyard accessed from Riverside Lane, off Ainslie Avenue in the City
- Four spaces in the off-street parking area opposite the Alexander Building, Phillip
Vehicles with DC or DX registration plates are eligible to use these spaces.
These spaces are not intended for non-official (eg private) use by members of the diplomatic community, who should use normal commercial parking facilities in such circumstances.
Missions and officials may obtain details of any outstanding fines by contacting the Manager, Infringement Office, Road Use Management, tel (02) 6207 7099, or fax (02) 6207 7107.
The Canberra airport is currently undergoing a major upgrade. The Protocol Branch of DFAT is currently working with Canberra Airport management to develop revised procedures around parking at Canberra airport. An update of this section of the Protocol Guidelines will be issued when these arrangements are finalised.