In the Canberra Times on 11 and 12 April 2016 there have been articles critical of diplomats for committing traffic offenses (speeding and DUI) but refusing to submit to the criminal jurisdiction. According to the newspaper reports they won’t even pay their parking fines.
The Vienna Convention on Diplomatic Relations was adopted by most countries following its passage through the United Nations in 1961. Article 31 of the Convention gives diplomatic agents ‘immunity from the criminal jurisdiction of the receiving state’. The Article also gives immunity from the civil and administrative jurisdiction except in disputes relating to “immoveable property, and succession (estate disputes), as well a disputes relating to professional or commercial activity exercised by the diplomat”.
Over the years I have had a few family law cases in which diplomatic immunity has been invoked. I have been on both sides of that fence. In a parenting dispute the diplomat can remove children from Australia without any prohibition. He/she can commit criminal offences and behave badly towards his spouse without any concern that the jurisdiction of the family law courts could be used against him/her. In a recent case, where the husband had claimed immunity, and where the wife was concerned he would remove the children from Australia using passports in his possession, I advised her to take the children away from Canberra to a place unknown to him until his posting ended and he left the country. That worked.
In a matter several years ago the diplomat submitted to the jurisdiction of the court to determine parenting and property matters but then refused to comply with the orders. Waiver of diplomatic immunity does not automatically mean waiver of “missions of enforcement” – that would have to be the subject of a separate waiver.
In another matter I have acted for the diplomat. That person can successfully object to the Australian Courts exercising any jurisdiction over their parenting dispute, but on the other hand cannot invoke the jurisdiction in aid of her obtaining parenting orders, including, for example, the return of passports held by the non-diplomatic spouse.
That is why I say that the immunity is a two-edged sword. A diplomat can be exempt from the criminal and civil jurisdiction of the receiving state, but on the other hand cannot use that jurisdiction to enforce their legal rights.
Denis Farrar, Farrar Gesini Dunn.