Under Australia’s Diplomatic Privileges and Immunities Act 1967 and Consular Privileges and Immunities Act 1972, diplomatic missions, consular posts, their staff and family members are afforded certain privileges and “diplomatic immunities”.
The Australian government provides some insight into what these immunities are, who they are afforded to, and answers important questions such as whether a diplomat can be prosecuted.
What is diplomatic immunity?
Diplomatic immunity is a form of legal immunity which generally makes diplomats immune from being arrested, searched or prosecuted under a country’s laws.
The Australian government states that the purpose of affording immunities to foreign representatives is not to benefit these individuals, but rather to ensure the efficient performance of their functions.
Who has immunity in Australia?
In Australia, foreign officials accredited to diplomatic missions in Canberra and to consular posts in other capital cities are afforded immunities. Additionally, some immunities are also afforded to other parties including:
- Representatives of international organisations.
- Dependants of foreign officials.
- Honorary Consuls.
Levels of immunity vary according to the status and official functions of the representative.
Immunities may be afforded against:
- Arrest or detention.
- The search of a person, their residence, vehicle or official premises
- Being required to give evidence
- Driving offences – for example, diplomatic agents are not obliged to submit to a breath test, and can’t be arrested for refusing or failing the test.
Levels of immunity
Australia has a graded system for affording different levels of immunity, and each person is issued a colour-coded identity card.
At the highest level, diplomatic agents have a Red ID card which grants them full immunity, including against prosecution in criminal matters. This same level of immunity is also afforded to their dependants.
The diplomatic agents’ support staff have a Blue ID card, which affords much the same level of immunity except against prosecution in civil and administrative matters. However, if the action in question was performed in relation to official functions, immunity does apply.
Consular officers have a Green ID card, which means that they are not immune against prosecution or being required to give evidence (except in relation to official functions), or residential and vehicle searches. While they do have immunity against arrest/detention (except under court warrant for “grave crime”), as well as personal searches and searches of official premises, these immunities are not afforded to their dependants.
Descending colour-coded levels of immunity also exist for consular employees, honorary consuls, service staff, international organisations and overseas missions. At the lowest levels, immunity is generally only afforded in relation to the search of official premises.
Can diplomats be prosecuted?
Despite having immunities, foreign representatives are required to respect Australian laws and the lawful directions of police.
Immunities may be waived by the foreign representative’s government or organisation to allow prosecution, but prosecution may not proceed before a waiver is given.