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Thursday, 8 December 1960

Mr WHITLAM (Werriwa) .- This bill is designed to permit the Government to make regulations for conferring upon an international organization, of which Australia, or the Government of the Commonwealth, is a member, juridical personality and such legal capacity as is necessary for the exercise of the functions and the fulfilment of the purposes of the organization. The bill increases, thereby, the powers of the Government to carry out the convention on the privileges and immunities of the United Nations, to which Australia was a signatory in 1946, and which was ratified as a result of this Parliament's passing the principal act in 1948.

It is altogether laudable that the Commonwealth should be exercising its constitutional power to legislate with respect to external affairs, and that it should be carrying out its international obligations and undertakings. We have been too timid in the exercise of our parliamentary power in respect of external affairs, and very often we have been too dilatory in carrying out our full obligations and undertakings ur.der conventions and treaties to which we have been a party.

The legislation will become more and more important as more international bodies, particularly those associated with the United Nations, become established in Australia and send representatives here or set up offices here. The U.N. itself, the International Committee for European Migration and the World Health Organization have already established offices in Australia. It is anticipated that the Antarctic Treaty Organization will have its head-quarters in Australia. In the next decade, furthermore, we can expect that there will be set up a very great number of international bodies, we hope under the auspices of the U.N., having as their task the pooling of the world's resources and the distribution of them among the underdeveloped, emerging countries, particularly the newly liberated peoples on all the shores and islands of the Indian Ocean. Australia would be a natural place in which to have the head-quarters, or at least branches, of such organizations concerned with the countries around the Indian Ocean.

Furthermore, if branches, or, better still, head-quarters, of such organizations are to be established in Australia, one would hope that they would be established in the Australian Capital Territory. There has been some tendency for a number of these international organizations to establish themselves in Sydney or Melbourne, and there are still a few diplomatic missions from other countries in those cities.

Mr Hasluck - Mere provincial towns!

Mr WHITLAM - There are not enough provincial towns in Australia, and there are loo many capital cities. Such international bodies would most properly be established in the Australian capital. Honorable members from time to time have brought up in this chamber the subject of diplomatic immunity. We all realize that without such immunity it is impossible for various countries and international bodies to carry out their functions properly. Nevertheless, the members and employees of diplomatic missions and international bodies have as much susceptibility to those incidents in civil life which give rise to litigation as do other persons who are citizens or residents of Australia. In particular, matters that have been raised in this House show that the employees and members of diplomatic missions are just as likely as other people to participate in incidents such as those which come before the courts as a result of accidents in employment or on the roads. But the diplomatic missions and international bodies are not amenable to the ordinary processes of law.

This problem is of particular concern in Canberra. There is probably a greater proportion of vehicles with diplomatic numberplates in Canberra than there is in any other city in the world. Furthermore, diplomatic missions have larger domestic staffs than one would normally find in Australian or other Atlantic-type communities. I therefore think it proper to consider, when debating this bill, what procedure we should adopt to ensure that persons who are injured by diplomatic vehicles, or who are employed by diplomatic missions, should not be at a disadvantage as compared with other residents or citizens of Australia.

I brought up this matter of running down cases with the immediate past Minister for the Interior two and a half years ago. He told me that from the beginning of 1954 until the date on which he answered my question, 13th May, 1958, there had been eighteen diplomatic cars known to have been involved in accidents in the Australian Capital Territory, and in those accidents one person had been injured. I suggested in my question that the motor traffic ordinance

Mr Osborne - Give certain immunity from injury.

Mr WHITLAM - No, I am suggesting no Utopian condition. Injuries seem to be inevitable in a motorized community. All I am wishing to do is to suggest measures by which persons suffering these injuries in Australia may have the same rights, whoever are the persons who have been negligent. I suggested to the Minister that the

Australian Capital Territory Motor Traffic Ordinance should be amended to give persons bereaved or injured by such accidents the same right to sue the nominal defendant as the ordinance gives to persons bereaved or injured by uninsured or unidentified motor vehicles. He replied -

The present position is that before diplomatic number plates are issued the applicant is required to submit a current third party insurance policy. The question of whether it is necessary to provide additional remedies to injured or bereaved parties will receive consideration.

As far as I have been able rapidly to check, there has been no amendment of the ordinance and I know of no amendment in procedure. I realize quite well that one cannot sue persons with diplomatic immunity. I am not suggesting that one should be able to do so. At the same time, the procedure of requiring a current third party insurance policy to be produced before a diplomatic number plate is issued does not alter the position, because the insurance company is under no more obligation to meet any claim made upon it by a person injured by a diplomatic car than it would be to meet automatically any claim made by a person injured by some other motor car.

I think the position can be properly covered, as regards residents and citizens of Australia, and no embarrassment need be caused the diplomatic persons concerned if the Australian Capital Territory Motor Traffic Ordinance is amended to provide that the nominal defendant can be sued by persons bereaved or injured by uninsured, unidentified or diplomatic motor vehicles.

The other matter that arises is in respect of workers' compensation. Here again, employees who are injured at their work in embassies or other places cannot sue their employers. I am not suggesting that they should be able to sue their employers, but I do suggest that the Australian Capital Territory Workmen's Compensation Ordinance should be amended to provide that such persons can make claims upon and prove their claims against the nominal insurer in the same way as workmen can make such claims where their employer is not insured or is not fully insured. This need cause no embarrassment to the diplomatic mission or the international body concerned; but it would avoid these incidents which have arisen in Can berra more than in any other part of Australia and which have been aired in this place. I am not to be taken as underwriting all that has been said on these matters in this place. Diplomats, of course, are like judges; they cannot engage in controversy on these matters. They cannot present their side of any of these disputed matters to the public through the press or through a member of Parliament. They are at a disadvantage in that if the employee's side is brought up, it cannot be answered.

It is true that although citizens may be without remedy, the Australian community can assert its own view if a diplomatic mission has been responsible for some breach of the code in these matters. If the country itself proves obdurate in our view, we can sever diplomatic relations with it. If a diplomat proves obdurate, we can declare him persona non grata. However, these are all matters which provoke some scandal and provide the person injured with no remedy other than to apply for some social service benefit. If the person concerned has not lived in Australia for the requisite time, it very frequently means that the social service benefit is a special benefit awarded by the Department of Social Services at discretion. Here again, the amendment which I suggest would provide that any such person would have the same remedy as other residents and citizens of this country.

It is true that I have only suggested the amendment of Australian Capital Territory ordinances. That would, in fact, cover most of the workers' compensation and running down cases that occur in Australia. It would moreover provide a pattern for similar legislation in all the States. I believe that all the States provide for proceedings to be taken against nominal defendants or nominal insurers under their third party insurance and workers' compensation legislation. That I would suggest might well be extended to cover diplomatic defendants, as they may be called, if we were to show in the Australian Capital Territory, where these cases mostly arise, what can and should be done.

I should point out that there have been no complaints in this place, as far as I remember, concerning the conduct of employees of international bodies, which are expressly granted immunity under the principal act and this amending bill. With the United Nations, Australia is an equal participant with all other powers. Indeed, regulations can only be made under this bill and the principal act in relation to international organizations to which Australia has acceded or of which it is a member. One would imagine, therefore, that such incidents as I have quoted are not likely to cause any injustice or scandal because Australia, as one of the joint employers, would ensure that proper compensation was forthcoming. Nevertheless, this seems to be one of the few occasions upon which one can make a comment on this general question of diplomatic immunity without referring to some matter which is the subject of contemporary heat, and which therefore cannot be the subject of dispassionate comment.

The Opposition supports the bill and hopes that the relevance of it will become more and more apparent as other diplomatic missions and international bodies set up representation in Australia and, in particular, in the Australian Capital Territory.

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