Today’s correspondent works

… as a Protective Service Officer (PSO) in the Australian Federal Police (AFP). We are tasked with protecting establishments such as Parliament House, the Prime Minister’s residence, certain Defence bases, foreign embassies, etc.

To most civilians, we look the exact the same as state police. We wear almost identical uniforms and drive cars that say ‘police’ on the side with red and blue flashing lights. However, we have very different powers, including the fact that we are not trained or authorised for urgent duty driving (UDD). This means that if we are called to a priority 1 job, we are not allowed to drive under lights and sirens and are not allowed to exceed the speed limit, go through red lights, etc. This severely limits our ability to respond in a timely manner. We are told that the only time we can activate our red and blue lights is particular situations such as if we are stopped, on scene at a vehicle crash, part of a nuclear convoy to ANSTO, etc.

The Vienna Convention on Diplomatic Relations of 1961 art 22(2) says ‘The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.’

My question is, would it be considered that the AFP and therefore the Australian government are taking ‘all appropriate steps to protect the premises of the mission’ given that the officers whose sole role it is to protect these establishments are not provided the training and authorisation to respond UDD? This is a particular problem in major cities where heavy traffic can severely impact response times for us, whereas state police can respond to the same job several times quicker.

I would argue that the AFP is not taking all appropriate steps, given that Federal Agents, Airport Police and ACT Police all receive this internal training and are authorised. The whole situation is made more confusing because more and more PSOs now carry military-style rifles as part of routine patrols. This would indicate a heightened threat environment, yet if we’re carrying a rifle and receive a call for an active shooter, we technically have to drive normally to the scene.

The Vienna Convention on Diplomatic Relations of 1961 forms part of Australian law.  The ‘receiving state’ is ‘Australia and, where the context so permits, … every State of the Commonwealth and every Territory’ (Diplomatic Privileges and Immunities Act 1967 (Cth) s 7).

The question we have to consider is how could the question arise?  Assume an embassy is attacked and that country wants to take some sort of legal action – under either Australian or international law – and argue that Australia did not take ‘all appropriate steps to protect the premises of the mission’ on the basis that the response by the AFP Protective Services was held up in traffic? 

Just putting it like that I think shows why it would be an impossible argument. What is ‘appropriate’ has to take account local laws, local arrangements. The Protective services staff are not the only way Australia would seek to protect an embassy. If an embassy was attacked state and federal police and in extreme circumstances, the Australian Defence Force (Defence Act 1903 (Cth) s 33(1)(a)(i)), could all be used to defend and recover the embassy.

There are many things that could be done but are not done, but in the event of an attack one would say – that would have stopped it.  We could have sandbags around each embassy, a tank on the street, snipers on the roof and surrounding buildings.  Helicopter gunships on constant patrol over the embassy sector in Canberra etc.  If someone does attack an embassy one could argue ‘if that had been in place, that attack would not have occurred’ but that does not mean those sorts of measures would be ‘appropriate’ or that something less was not appropriate given the threat assessment.

The argument that in any particular case the fail to allow PSOs to drive on urgent duty would be akin to arguing that they failed to put a better ambulance at the bottom of the cliff, rather than a fence at the top. ‘Appropriate steps’ to protect the embassy includes the work of ASIO/ASIS, the Departments of Foreign Affairs and Trade, Defence and Home Affairs as well as the regular work of federal and state police forces. The aim is to prevent rather than respond to an attack. Once the attack has been launched all that work has failed. The argument about failure to take ‘appropriate steps’ would look at the fence – what the intelligence community knew or failed to discover much more than whether a PSO was able to get there in 5 or 8 minutes.  And it would have to be shown that in any particular response the PSO would have got there before the first police got there and that their arrival – a minute or two earlier – would have made a significant difference.

It is an issue that’s been discussed in other contexts and begs the question ‘how much difference does it make to response time to drive with lights and sirens?’  Certainly, we don’t want an emergency vehicle to wait for a full sequence of traffic lights but drivers do have to drive with reasonable care which means not driving at a speed or manner dangerous to the community. And if the PSO officers aren’t at the embassy, but have to get there, the police will also be responding.

Conclusion

There is no chance any court or tribunal would hold that not allowing protective service officers to drive on urgent duty meant the Commonwealth was not taking ‘all appropriate steps to protect the premises of the mission against any intrusion or damage’.  The assessment of the appropriate steps would look at the entire range of steps including intelligence gathering and the role of all the responders including the AFP, state and territory police and the ADF.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.