I move amendment No. 5: —
To add a new sub-section as follows : —
(5) This section shall not exempt a consular officer or consular employee from any liability for any claim for damages for negligence.
By virtue of this section, neither a consular officer nor a consular employee will be liable in proceedings of any kind to any person in respect of acts performed by him in his official capacity, these acts falling within the functions of a consular official in international law unless his Government requests or assents to the proceedings. One of the effects of the section, in my submission, would be that, if a consular officer, driving from his office in the course of his official business to meet the Minister for External Affairs, were involved in an accident and injured a person, that person could not successfully institute proceedings against the consular officer. The same would apply in the case of a chauffeur, if a chauffeur, instead of a consular officer, were driving the car. If I am right in that, and I think I am, a serious position will have been created. You will then have the position that a person who suffered injury as a result of the negligent driving of a motor car by a consular officer or consular employee, driving in the course of his business, will be penalised to the extent that he will be unable to recover any damages from the employee or the official, unless the appropriate Government requests or assents to the proceedings. The latter, I should say, is extremely unlikely.
We were told by Senator Hartnett a moment ago that we did not seem to know what we were talking about, that we should know that Governments see that their consular employees and their consuls act properly. I do not know whether they do or not, but, no matter how well intentioned Governments may be, a consular employee or a consul may perhaps do something that would not meet with the approval of a Government.
These things having been done, I do not know if Governments would give their consents to proceedings against the consuls. Many years ago in this country a person in a higher post than that of consul pleaded, in respect of a road traffic accident, his diplomatic immunity. By virtue of that plea the person who was injured in the motor accident was unable to take any proceedings against that person. His Government, despite what Senator Hartnett told us, did not seem unduly concerned about the plight of our citizen. It was only when that person left the country in the ordinary way and his immunity lifted in so far as his insurance company was concerned that the person who was injured was able to take any steps to contest the claim.
Even when the gentleman had left and when the person injured brought the proceedings the insurance company which then contested the proceedings sought, if you please, to continue to establish that the immunity of the person concerned continued. However, the courts held otherwise and the person's claim was met. I mention that to show to the House that instead of what Senator Hartnett suggested being the case it would appear that Governments, Ministers or consuls would not be unduly alarmed or concerned over a case of that kind.
I would say, of course, that in the case of gross misconduct a Government might be very worried and would take steps to deal with it but I am not satisfied that the position is, as Senator Hartnett indicated, that we should not have any worry whatever, that immediately a consular employee or a consul does anything that is not quite right his Government will step in and assist us in every way possible. I think that is just plain unadulterated baloney.
There is no reason whatever why we should give to consuls and, if you please, consular employees, the privilege that an Ambassador has. I must be quite clear — the privilege whilst they are engaged on consular work. I do not see why we should give them the privilege which would enable them to say, despite their recklessness, they should not be made amenable for any act which they did in the course of their duty.
I have no doubt that the Minister will tell us that really there is not very much reason to worry for the reason Senator Hartnett gave us and also for the reason that we have a Road Traffic Act, 1933, which obliges most motorists — I think, perhaps, that diplomats would be outside the Act and that they would not be obliged to insure — to insure and that, therefore, third parties would be covered against accidents such as I mention. Then, we may be told that all these people will explain quite clearly to us that they are going to insure their motor vehicles and, therefore, we should have no difficulty. Very well, but suppose an insurance company says: "If the consul does not rely on his privilege I think we will do it," it may then mean that we will have to have another Act to see that other people do not plead privilege of this kind. No. Let the immunity that obtains for Ministers and people of that status by all means prevail, but why in a case of this kind should we extend it to consuls?
Certainly let us preserve the archives of the consuls as we have provided already but I do not see why we should go out of our way merely, apparently, to give our own consuls the same rights abroad, to give this privilege to consuls in this country, and I should be amazed to learn that consuls here have asked for this privilege.