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Thursday, 8 December 1960


Mr WHITLAM (Werriwa) . - I stated on the motion for the second reading that I know of no case in which a complaint has been made in this place about the conduct of representatives of the United Nations or any of its bodies. Nevertheless, it is quite plain that, in the convention which forms the schedule to the principal act, the force of which is now being greatly spread, it is possible for the United Nations and its bodies, and for its representatives, to claim immunity in the very matters which have been aired in this place on earlier occasions and which have been associated with diplomats in the traditional sense as representatives of foreign powers in this place. Article II., section 2, of that convention reads -

The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.

Again, Article IV., section 11, provides -

Representatives of members of the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations shall, while exercising their functions and during their journey to and from the place of meeting enjoy . . . immunity from legal processes of every kind. I will concede that if a United Nations representative in Australia were to drive a motor car negligently and were to injure another person, that person could sue the United Nations representative if he could show that the United Nations representative was not in fact exercising his functions as a representative of the United Nations and was not on a journey to or from the place of meeting, or if he could show that, in driving his motor car, the United Nations representative was not doing an act in his capacity as United Nations representative. That has always been the position with respect to Commonwealth car drivers until about a year ago. It was always possible for a person to secure damages against the driver of a Commonwealth car as an individual. It was also possible for him to secure damages against the Commonwealth itself if he could show that the driver was acting in the course of his employment. We knew, however, how difficult it was in that remaining field of the old doctrine of respondeat superior to prove the fact that the driver was acting in the course of his employment. Until a few years ago, that difficulty confronted everybody who was suing a person who was not, in fact, the owner of the vehicle which caused the injury. Until last year, the same difficulty confronted every body injured by a Commonwealth car.

All we have suggested is that the general question which arises under this bill in a particular set of circumstances should be resolved. We certainly do not believe that diplomatic immunity should be abridged. At the same time, we do not think it is satisfactory that residents and citizens of Australia should depend for remedies on either the country or the international organization concerned - in this case, the United Nations - waiving its immunity. We do not think the remedies of Australian residents and citizens should depend upon their being able to prove that the employer or the driver was not, in fact, doing his job as a representative of the United Nations when the injury occurred on the road, or during the course of his employment. All we have suggested is that in cases such as those to which we have referred our own law should be amended to provide that where a diplomat would be the respondent or defendant the Australian resident or citizen may take proceedings against the nominal insurer or nominal defendant in the same way as he can take proceedings against the nominal insurer or the nominal defendant where he does not know who has hurt him, or where the person who has hurt him is, in fact, uninsured. We are not suggesting that the matter be corrected under the International Organizations (Privileges and Immunities) Act itself, because this question affects other persons who are given immunity by ordinary custom as well as under that act. But we do think this is the time to mention necessary improvements to the law to overcome this difficulty, which is well known to every resident of the Australian Capital Territory, and which also is not without significance to residents of the State capitals where a certain number of these international bodies and diplomats have their headquarters or branches.







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