Sunday, 20 November 2016

Powerless to rein in diplomats' excesses the Australian Government decides to name and shame

News media have been reporting on the flagrant disregard of Australian law by members of the diplomatic community for decades and finally in the Australian Capital Territory they are trying a new approach to traffic violations by diplomats.

ABC News, 17 November 2016:

Foreign diplomats who disregard Australian law will be named and shamed by the Department of Foreign Affairs and Trade amid a crack-down on reckless driving.

The department has struck a deal with the ACT Government to ensure diplomats are no longer immune to having their licences suspended for serious offences that endanger the public.

Freedom of Information documents reveal the crack-down was prompted by concerns about a litany of offences on Canberra roads involving excessive speed and, on occasion, drink-driving.

One Saudi diplomat received a $1,811 fine after being caught travelling at 135 kilometres per hour near Parliament House at 2:00am on a Tuesday.

Another told police he had not had anything to drink despite returning a blood alcohol reading of 0.15, triple the legal limit.

DFAT's chief of protocol briefed 90 diplomats on the new rules in August and "strongly reiterated the message of compliance with Australia's laws".

Internal documents showed the department would no longer be redacting the names of diplomats who broke the law and refused to pay fines.

"[It is] DFAT's view the embassies/high commissions should face the reputational consequences if their officers disrespect the road rules or drive recklessly," the document said.

"This is a fundamental issue of safety. We expect diplomats not only to obey the law, but also to pay fines without delay."

The department has battled to get foreign diplomats to pay their fines for years causing frustration for staff, the police and the ACT Government…..

The documents revealed the department would not disclose a small number of offences because they "had the potential to damage Australia's international relations with some countries".

"In addition, the information released on this occasion includes advice on the new demerit point system for diplomats to be implemented in the ACT under which diplomats will no longer be immune from having their licenses subject to suspension for three months if they incur a total of 12 demerit points or more within a three-year period," one document said.

In the case of serious traffic infringements, DFAT's chief of protocol can request that ambassadors or high commissioners "express concern" to their diplomats or ultimately, cancel a diplomatic visa…..


The Canberra Times, 16 November 2016:

A Russian diplomat in Canberra has agreed to apologise over an incident where he allegedly went into a road rage against a young female motorist in the capital last month.

The apology comes after MP Gai Brodtmann alleged two Russian diplomats threatened and bullied the motorist after one of the embassy staffers drove his car into hers at the Coles supermarket car park in Manuka.

The Labor MP says "consular staff from the Russian Embassy allegedly flouting local laws and threatening residents are the latest shocking example of diplomats putting the safety of the Canberra community at risk."

The diplomat in question Edward Shakirov said he and his colleagues found Ms Brodtmann's allegations "surprising" but he would try to resolve the matter with an apology to the other motorist.

Russian diplomats in Canberra have a well established record for racking up speeding and other traffic offences on the city's roads and then refusing to pay the fines, citing diplomatic immunity.

At the last count, the Embassy had more than 250 fines for speeding, illegal parking, running red lights and other offences around Canberra with local authorities powerless to to anything but send "courtesy letters".

In the latest incident diplomat Sergei Letiagin​ is alleged to have driven into the car belonging to young public servant Erika Bacon in a minor car park bingle.

According to Ms Brodtmann's letter of complaint to the Russian Ambassador, Mr Letiagin was unable to speak to Ms Bacon in English, so he summoned a colleague, Edward Shakirov, from the nearby Embassy.

Ms Bacon's account, backed up by witnesses at the scene, is that the two Russians then tried to bully her into accepting liability for the damage to her car.

Ms Bacon, a former employee of Fairfax Media, called police after, she alleges, the Russians became aggressive and threatening to her and to the passers-by who tried to help.

Canberra police and federal agents arrived to calm the situation down…..

Sydney Criminal Lawyers, excerpt, 7 October 2016:

Get Out of Gaol Free

One foreign official was caught driving at 135km/h at 2am, triggering a high speed police chase when he failed to pull over. After eventually stopping, the man failed to produce a driver licence of any description and blamed the incident on forgetting to take his antibiotics. A driver would ordinarily be charged with 'police pursuit' – or 'Skye's law' – a serious offence which can lead to full time imprisonment. However, he could not be charged due to his status as a diplomat.

Other examples include a diplomat who drove with a high range blood alcohol concentration of 0.15, and a Mexican Embassy staffer who refused to comply with a breath test, telling police:
"I don't want to, so I don't have to. I'm here with my family … I'll complain If I hear anything about this".

In another case, a Saudi Arabian diplomat was caught speeding through an intersection at 107km/h in an 80km/h zone. He refused to stop for police sparking a chase, which police ultimately discontinued due to safety concerns. Again, he could not be charged.

Diplomatic Relations and Immunity

Diplomatic immunity arises from the Vienna Convention on Diplomatic Relations of 1961, which was adopted into Australian law by section 7 of the Diplomatic Privileges and Immunities Act of 1967.

The section essentially protects diplomatic agents from being criminally prosecuted in foreign states. That immunity extends to family members, servants, administrative and technical staff.

The section is intended to promote relations between nations, but has in some cases had the opposite effect. Importantly, the immunity is not absolute as it can be waived by the diplomat's home country.

Waiving Immunity

A waiver of diplomatic immunity normally occurs when the government of the country where the alleged offence took place asks the diplomat's country of origin to waive immunity, and the latter agrees.

Cases of waiver are relatively rare. In the United States, a former Republic of Georgia diplomat who lost control of a car while driving drunk and killed a person resulted in such a waiver.

The diplomat was charged with one count of involuntary manslaughter and four counts of aggravated assault, and ultimately convicted and sentenced to 7 years' imprisonment.

In a case which occurred in Canada, senior Russian diplomat Andrei Knyazev lost control of his car, killing one person and seriously injuring another. He denied being intoxicated but refused a sobriety or breath test. In that case, Russia declined to waive immunity, instead prosecuting Knyazev when he returned home.

So while diplomatic immunity can enhance relations between countries, it should be used responsibly rather than as a licence to commit offences with impunity – which can result in animosity between sovereign states.

No comments: