13. Diplomatic and consular premises
Diplomatic missions in Canberra are required to have their chanceries in certain areas - principally in the diplomatic estates which form part of the suburbs of Yarralumla, O'Malley and Deakin - or in commercial office buildings. They may not establish their offices in premises elsewhere, particularly in residential areas.
There are no restrictions on where missions may acquire (whether by purchase or by lease) their residential premises, including Head of Mission residences.
Missions are urged to consult the Department before they enter into any commitment to acquire premises, whether for a chancery or for residences. The Department is keen to ensure that missions do not, by acting without such consultation, acquire premises which cannot be accorded appropriate protection.
All land in the ACT is leasehold and divided into two categories - National Land and Territory Land. Essentially, National Land is land used or intended to be used by or on behalf of the Commonwealth. This includes land set aside for diplomatic missions. Land which is not declared to be National Land is Territory Land, and is managed by the ACT Government.
The National Capital Authority (NCA) is responsible for the National Capital Plan, and for the detailed planning and control of development within designated areas.
Under the National Capital Plan there are National Land areas within the suburbs of Yarralumla, Deakin and O'Malley that are designated for diplomatic use. Chanceries can only be built and operated on such land. The NCA administers the leasing of land in these areas.
Within O'Malley, there is a separate area controlled by the ACT Government where, subject to approval, residential property may be utilised for chancery purposes by diplomatic missions. Missions contemplating the purchase of property in O'Malley for use as a diplomatic chancery should discuss the matter with Protocol Branch at an early stage in negotiations to avoid any later difficulties with the lease purpose.
Chanceries may also operate from commercial premises or land zoned for commercial use, but may not operate from other residential areas in the ACT. This restriction does not apply to Head of Mission or staff residences.
If a site is allocated to a diplomatic mission for construction of a chancery and/or Head of Mission residence, the lease will be granted for a term of 99 years. There is an obligation to start building within 18 months and to complete construction within 36 months from the date of commencement of the lease.
The grant of a lease may be on the basis of a premium calculated on the current unimproved value of the land, or by paying an annual rent (currently calculated at 5% of the unimproved value fixed for 20 years, after which period the rent will be reviewed based on unimproved values then current).
In certain circumstances land for diplomatic purposes in the ACT may be obtained on the basis of a land exchange, where land of equivalent size, amenity and location is made available to the Australian Government for diplomatic use in the other country.
Foreign governments wishing to initiate discussions on the purchase of a lease in the ACT for diplomatic use should send a request formally through Protocol Branch.
The Manager, Diplomatic Leasing, at the National Capital Authority, can be contacted on tel (02) 6271 2888 or fax (02) 6273 4427.
Article 23 of the VCDR provides exemption "from all national, regional or municipal dues and taxes in respect of the premises of the mission", including the Head of Mission residence, other than those which "represent payment for specific services rendered", ie the beneficial portion of land rates charged by local governments (see below). Exemptions are only granted for chanceries and Head of Mission residences that are owned by the sending State, not in respect of leased premises, where the rates are levied on the lessor.
Diplomatic missions are required to pay for specific services, namely the beneficial portion of local government rates for diplomatic premises owned by the sending State. These include services such as street cleaning, parks and gardens, garbage collection and disposal, street lighting, footpaths, guttering and drainage.
The non-beneficial component of local government rates is paid by the Department of Foreign Affairs and Trade. The non-beneficial portion covers services such as the police, education, housing, cemeteries, public health and libraries.
Separate invoices will be issued to diplomatic missions and the Department of Foreign Affairs and Trade for the beneficial and non-beneficial components of rates.
In addition to the beneficial proportion of local government rates, separate assessments are provided to missions for the use of water and sewerage services.
Article 32 of the VCCR allows for similar exemptions for the consular premises and the residence of the Head of Post owned by the sending State. Exemptions are not extended to staff residences.
The service and facilities which make up the beneficial and non-beneficial portions of the general rates vary from local council to council.
The ACT Heritage Council, pursuant to the Land (Planning and Environment) Act 1991, is responsible for the listing of heritage properties. The Department expects missions to comply with heritage laws in the same way that they are expected to comply with other property laws and regulations.
Australia takes seriously its obligation under Article 22.2 of the VCDR and Article 31.3 of the VCCR to take appropriate steps to protect the premises of missions and posts against intrusion or damage. It takes the view that this obligation extends only to providing special protection against politically-motivated violence - against the special and additional risks which arise because of the status of a building or its occupants. Normal law enforcement is considered to provide adequate protection against common risks such as burglary. Any damage resulting from acts other than politically motivated violence would be a matter for the mission or its own insurance arrangements.
If politically motivated violence should occur and the protection provided by Australia should fail due to unusual circumstances and if, as a result, the property owned by a mission or post were damaged, the Department may consider paying compensation on an ex-gratia basis in appropriate cases. In considering such compensation, the Department would take into account the circumstances in which the damage occurred, the responsibility of the mission to take appropriate measures for its own security and the extent of those measures, and whether the damage would be covered by insurance or other forms of compensation. If, however, the premises which sustained damage were leased by the mission or post, not owned by it, any repairs would be for the lessor and not covered by any ex-gratia compensation arrangements by this Department. For this reason, members of missions and posts who occupy rented premises, whether office or residential, should point out to their landlords the need to have proper insurance cover.
Missions and posts are strongly urged to have appropriate insurance cover for all significant property which they own. The Department will expect them, particularly in respect of motor vehicles, to regard insurance as their first recourse in the event of loss or damage.
If premises or other property of a mission or post sustain damage which appears to be politically motivated, the Department (Protocol Branch or, if the incident occurs in a State, the DFAT State or Territory Office) should be notified as soon as practicable.
Missions may purchase or construct property for use as offices or residential premises subject to the requirements of Australian law. Missions should seek the advice of a local lawyer early in the process of purchasing property.
As noted in paragraph 13.1 above, missions should inform the Department of Foreign Affairs and Trade (Protocol Branch) before committing to the purchase of property.
Missions wishing to purchase property for the official purposes of the mission or to accommodate diplomatic staff are not required under foreign investment legislation or policy to notify such acquisitions to the Foreign Investment Review Board (FIRB). However, the purchase of property by Missions for other purposes, such as for investment, would require prior notification to the FIRB under foreign investment policy. Mission officers wishing to purchase property in their own names are also expected to notify the FIRB of any proposed acquisitions prior to entering into contracts to purchase the property. Missions are encouraged to consult the FIRB where necessary on telephone number (02) 6263 3795. Information is also available on the Board's website: www.firb.gov.au.
When missions in Canberra are planning to construct or alter owned property, they need to be aware that they must comply with Commonwealth and ACT Government laws and regulations in the planning and construction phases, including relevant local building codes. Building design approval and building and works certifications are required at key stages during the planning and construction phases. Without the necessary certifications, it will be unlawful to occupy or use a new building and may impact on the connection of services such as electricity, water and sewerage.
In the ACT, the National Capital Authority (NCA), a Commonwealth agency, is responsible for planning and control of development within National Land areas including diplomatic estates in the suburbs of Yarralumla, Deakin and O'Malley. Further advice can be obtained in the first instance from the Director, Estate Management at the National Capital Authority (telephone (02) 6271 2888). Once NCA planning approval to proceed is received, the subsequent construction phase falls under the control of the ACT Planning and Land Authority (ACTPLA) who can be contacted on telephone (02) 6207 1923 or fax (02) 6209 1925. ACTPLA regulates private building certifiers that must be hired as part of the construction process. These certifiers liaise with the construction contractor to ensure compliance with relevant building codes and regulations. The private building certifier will also assess construction at key stages and issue certifications, as appropriate, to allow lawful occupation of the final building.
In the States and Northern Territory, contact should be made with the local government authorities and the relevant office of the Department of Foreign Affairs and Trade.