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Diplomatic Immunity in Australia

The recent behaviour of a Russian embassy staff member in Canberra has shone the light on so called ‘diplomatic immunity’. But how real is this legal concept in Australia?...

Janelle Tarabay

The recent behaviour of a Russian embassy staff member in Canberra has shone the light on so called ‘diplomatic immunity’. But how real is this legal concept in Australia?

Diplomatic Immunity in Australia

Although there is no legal principle of ‘diplomatic immunity’, the concept affording privileges and immunities to foreign diplomatic staff is very real in Australia.

Depending on their level of seniority, members of foreign diplomatic missions in Australia can be immune from arrest, criminal prosecution, civil legal action and search and seizure laws.

The immunity stems from Australia’s ratification of Vienna Convention on Diplomatic Relations 1967, as enacted into Australian law by the Diplomatic Privileges and Immunity Act 1967 (Cth).

How Far Does it Extend?

According to the Department of Foreign Affairs and Trade, the extent of the immunity depends on the status of the individual. Helpfully, foreign representatives are given colour codes depending on their level of seniority. If you are a diplomatic agent and given a red colour coded card, you might be immune from all level of criminal prosecutions, arrest and detention. Although police can request a breath test, there is no power to enforce it.

In contrast, low level service staff might be given a yellow card which restricts searches only on diplomatic premises. These foreign representatives are not immune from prosecution.

Under Article 37 of the Convention, the privileges and immunities enjoyed can also extend to family members of the foreign representative.

The premises of each foreign mission is inviolable, by virtue of Article 22 of the Convention. This means Australian officials, including police, cannot enter the premises without the permission of the head of the mission.

Duty to Respect Australia’s Laws

The Convention also places obligations on foreign representatives. Article 41 provides that it is the duty all persons enjoying these privileges to respect the laws and regulations of the receiving State.

There are very good reasons for affording foreign missions certain privileges and immunities, particularly in countries where there is a real risk of action by the host nation that could be oppressive or inappropriate. Whether this immunity should extend to simple road rules, drink driving or parking tickets in Australia is another question.

Photo by August Richelieu