The Australian Government’s tough response to the incident in Canberra where a diplomat’s son used immunity to prevent police action after an assault against a Canberra boy was the right approach. Australia made it clear that unless the diplomat’s son co-operated with the police investigation to the extent of being dealt with by the courts if necessary, then the diplomat would be declared persona non grata and would have to return home. As it happened, the diplomat’s sending state – Papua New Guinea – saw the writing on the wall and withdrew him before Australia had to take any action.
Diplomatic immunity is an important principle. There is an over-riding international public interest in ensuring accredited diplomats cannot be prosecuted under local law. If nations states were able to intimidate diplomats with trumped up criminal charges, diplomacy could not be undertaken. Messenger-shooting would make diplomacy impossible, and without diplomacy, peace and international co-operation for the benefit of the world’s citizens would also be impossible. And immunity cannot be a half-way house. It has to be total to be effective.
Diplomatic immunity is laid down in the Vienna Convention which has been enacted into Australian law. And it is important that Australia respects the treaty.
But the treaty also says that those enjoying immunity should also respect the laws and regulations of the receiving state. So the logical consequence to a claim of immunity for a serious breach of Australian law, is that the diplomat must leave. The actions of the Australian Government with respect to the PNG case set important standards and sent important messages to the Australian and diplomatic community – that diplomats can have immunity, but they cannot have immunity with impunity. There are adverse consequences.
Australia and Canberra in particular have been blessed with an excellent diplomatic community. Events like the PNG case are rare indeed. Canberra gets extraordinary benefits from its diplomatic community. Every nation and organisation with a diplomatic post here contributes significantly to community life. They help charities, often opening diplomatic facilities to functions. They interact with the Canberra community socially, culturally and in sport. They engage with each other in a way that helps international understanding. They contribute significantly to the diversity and multi-culturalism of Australian society. Not a day goes by in Canberra without an example of the contribution.
The city of Canberra lends itself to greater mixing between the diplomatic community and residents of the city to a greater extent, perhaps, than most world capitals. Canberra is smaller, safer, easier to move about in, has excellent sport and recreational facilities which facilitate the interaction in a way not possible in larger places.
Canberra is also blessed by the fact that the diplomatic community over the years has been extremely well-behaved. Even examples of diplomats abusing the DC plate with traffic breaches are rare. ACT authorities say that traffic and parking fines are routinely paid by all missions.
In this climate it would have been better if PNG had not exercised the immunity. The assault caused a fractured nose and chipped teeth, but it was not at the high end of the offence. Canberra courts are not noted for severity. The most likely outcome would have been a bond or fine, certainly not jail and it would have been in the Children’s Court which would most likely be closed. The claims of immunity and the resulting recall of the diplomat and his family has been a far greater punishment than would have been imposed by the court. And submitting to the court would have reflected better on PNG than going for immunity. It would have allowed the diplomat’s son to put any mitigating factors and would have given the alleged victim a chance to see justice done.