Lessons from an Australian court’s decision against a former Indian diplomat

Now that a former diplomat is the external affairs minister, one would hope that cross-ministerial communications can be facilitated and that the ministry of finance agrees to bear the cost of private workers working for Indian diplomats abroad, writes Aman Kumar.

—

IN a recent judgment, Shergill versus Singh, an Australian federal court has asked former Indian Ambassador Navdeep Suri Singh to pay about A $136,277, plus interest, to Seema Shergill.

The fine is to be paid for violation of the Fair Works Act, 2009 of Australia. Singh did not appear before the court in the proceedings. The case pertains to a domestic help whose services were taken by Singh, but who was not paid as per the domestic laws of Australia.

Background

In 2013, when Singh was working as India's ambassador to Egypt, he offered the job of a domestic worker to Shergill. She accepted the job and moved from India to Egypt. Upon arrival, her passport was taken away from her by Singh.

She worked for Singh during his time in Egypt. In 2015, when Singh was nominated as India's ambassador to Australia, he asked Shergill if she would be willing to continue working for him as a domestic worker in Australia too for three years.

Shergill agreed and came to Australia to work at Singh's house. Her visa application was taken care of by Singh. She arrived in Australia on April 17, 2015, with Singh. Her passport remained in his possession the whole time, and even after landing in Australia

From the time of their arrival in Australia till May 26, 2016, Shergill lived exclusively on the premises of Singh's residence. The only time she used to move out of the house was when she was to take the ambassador's dog for a walk.

Also read: The case for 'diplomatic' intervention in Afghanistan under international law

It was on May 26, 2016 that she ran away from the ambassadors' house and subsequently found her way to the office of the fair work ombudsman. With the help of the Salvation Army, she filed a case against Singh for failing to pay her wages as per local laws.

Classification of Shergill

The primary issue in the case was whether Singh has immunity as an Indian diplomat. In this regard, the court had to deal with two challenges to its jurisdiction. Firstly, the foreign State immunity and secondly, the diplomatic immunity of Singh. The court ruled in the negative on both these challenges.

Foreign State immunity

Under Australian laws, 'foreign States are generally entitled to be granted immunity from the jurisdiction of another State'. This immunity is covered under the Foreign States Immunities Act, 1985.

Since the case pertained to an Indian ambassador, it involved the Indian government by extension. Hence, the application of this law and the subsequent question of India being immune from the domestic jurisdiction of an Australian domestic court.

The immunity is provided under Section 9 of the Act which states that "(e)xcept as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding."

The exception envisaged in Section 9 and relevant for the case is Section 12.1 which states that: "A foreign State, as employer, is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia."

(Readers are encouraged to peruse Section 12 in its entirety to get a wholesome understanding of the case as it is difficult to reproduce the entire Section in this short piece.)

Section 12, titled 'Contracts of employment', makes a foreign State responsible in cases of employment contracts made in Australia or if the employment was to be performed in Australia.

Also read: Nijjar killing: Accusations and their implications under international law

Section 12.3 also provides an exception to the waiver of immunity. It says that if, at the time of contract, the employee was either a national of the foreign State but not a permanent resident of Australia; or an habitual resident of the foreign State; then the foreign State will still have immunity.

By extension, this means that since Shergill was a national of a foreign State (India), and she was not a permanent resident of Australia at the time of the contract, her case against Singh should fail.

However, the judge said that the Indian government, aka the 'foreign State', in this case was never her employer, thereby making moot the question of the applicability of Section 12 to the proceedings.

Based on the evidence provided by Shergill, the court noted that she was an employee of Singh who had employed her in his personal capacity. Since Singh did not participate in the proceedings, we do not have his version of this narrative.

Nonetheless, the court went into details to ascertain the status of Shergill. It noted that she was granted diplomatic visa subclass 995P. Shergill was granted a visa "to join the high commission of India as a staff member 'accredited' as service staff". But the judge goes on to note that no contract of employment was ever entered into with the high commission of India.

As per her visa, Shergill was classified as a "member of the service staff". The Vienna Convention on Diplomatic Relations, 1961 provides for three categories of staff— members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission (Article 1.c) and a private servant (Article 1.h).

Shergill was accredited as a service staff of the mission. Interestingly, Section 12.6 of the Foreign States Immunities Act, 1985 referred above says that the waiver of immunity "does not apply in relation to the employment of … a member of the administrative and technical staff of a mission" as defined by the Vienna Convention.

But since Shergill was accredited as a service staff, and not as an administrative and technical staff, her employment contract is not immune from proceedings.

Diplomatic immunity

After rejecting the foreign State immunity, the judge then proceeded to ascertain whether Singh had any personal immunity against the proceedings.

Also read: Export of Indian workers to Israel has no legality, say major trade unions

Singh was the Indian ambassador to Australia and in terms of the Vienna Convention, he was the 'head of the mission'. The Vienna Convention provides certain immunities to heads of missions. In Articles 29 and 31, it provides that the diplomatic agent "shall not be liable to any form of arrest or detention" and shall be immune from criminal jurisdiction of the receiving State (which is Australia in the present case).

However, the courts can still have jurisdiction in certain civil and administrative matters.

Further, Article 39 provides for when the immunity ceases. It states that: "When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist."

The questions in this case were:

1. a) Did Singh enjoy immunity after he had left Australia? 
2. b) Did he enjoy immunity during the course of Shergill's employment?

Article 39, quoted above, clarifies that when a diplomats' function comes to an end, so does his immunity. So, upon leaving Australia, Singh lost immunity. This answers the first question.

Regarding the second question, the judge noted that Shergill's appointment by Singh was done in his personal capacity and is not protected by the "acts performed by such a person in the exercise of his functions as a member of the mission". The judge observed that in appointing Shergill, Singh was not exercising a function as a member of the mission. Hence, the immunity available under Article 39 of Vienna Convention was not applicable in this case.

Analysis

The judge's observation on both the points of foreign immunity and diplomatic immunity are debatable. I argue that the Indian government was the employer of Shergill and even if that was not acceptable to the court, Singh still had immunity as per the Immunities of Foreign Representatives document of the Australian government. Let me elaborate.

Also read: International Equal Pay Day: It will take India decades to bridge the gender pay gap

The visa application of Shergill was filled and applied for by Singh who did so in his official capacity as the nominated Indian ambassador to Australia. Shergill's categorisation and subsequent accreditation as a member of the service staff was done by the Indian government.

She was not employed by Singh in his personal capacity. This is true with the practice followed by the Indian government since the Devyani Khobragade incident in the US.

Shergill was not accredited as a "private servant" (a person who is in the domestic service of a member of the mission and who is not an employee of the sending State) as per Article 1.e of the Vienna Convention. Rather, she was classified as a "member of the service staff" as per Article 1.g of the Vienna Convention.

Further, the Australian government's document titled Information for Private Domestic Workers working for Heads of Diplomatic Missions or Consular Posts in Australia itself accepts that a head of a diplomatic mission can be an employer.

In one of the points, it mentions that the cost of the travel to and from Australia is to be "fully paid for by the diplomat, consular official or other eligible foreign official (foreign official) who is (the) employer".

Arguably, Singh still had immunity. I say this on two grounds— firstly, the judgment does not conclusively prove how Shergill's appointment is not an act in exercise of the function of a diplomat.

Secondly, the Australian government's document titled Immunities of Foreign Representatives clarifies that a diplomatic agent (which Singh was during the course of the case) is immune not just from arrest or detention, but also from jurisdiction and prosecution.

This immunity is different from the immunity of an administrative and technical staff who are not immune from the civil and administrative jurisdiction, except in relation to official functions. So, the rider of 'official function' is only applicable to administrative and technical staff and not to diplomatic staff, who enjoy absolute immunity.

Conclusion

Does this mean that no wrong was committed against Shergill. Absolutely not. Then who is to be blamed? Some people have pointed out that "India-based diplomats and staff are paid salaries as per Indian scales".

Also read: Money for the dead but none for the living, the Indian Community Welfare Fund in Gulf countries

As such, it will become extremely difficult for Indian diplomats to pay even fair wages as per the domestic laws of Australia. My reading of the situation is that the fault lies with the Indian government. I will explain my reasons below.

The Australian government has been very clear about the rights of the private domestic workers of diplomats. Their document titled Information for Private Domestic Workers working for Heads of Diplomatic Missions or Consular Posts in Australia lays out the workplace rights and conditions for the private domestic workers who are employed by heads of diplomatic missions.

The rules are clear. The maximum working hours for a full time employee are 38 hours per week. The salary is to be paid into an Australian bank account. The employee is allowed to leave the place of work outside of the work hours.

Now, a diplomat cannot be expected to open a bank account for the private domestic worker they want to employ. That is something the government has to take care of.

Also, if a head of mission violates any law, as was the case here regarding work hours and leave policies, it should be the responsibility of the Indian government to take action against such a diplomat.

Alternatively, the government can waive off the immunity of the said diplomat and let them fight the case in an Australian court of law. This waiver of immunity is provided in Article 32 of the Vienna Convention.

Moreover, the diplomat might not be in a position to pay the fair wages out of their own pocket if they themselves are getting a salary on the Indian scale. Also, if the private domestic worker is being employed by the government of India, it is obvious that their salary is to be paid by the government of India and not the diplomat.

All over India, in judicial, armed and civil services, at the houses of members of Parliament (MPs) and members of legislative assemblies (MLAs), domestic workers are employed and their salary is paid by the government.

As such, one fails to understand why a diplomat should be expected to pay the salary of their domestic worker.

Sadly, this is not the first such episode and it certainly won't be the last. Unless the government decides to make a uniform policy in this regard.

Now that a former diplomat is the external affairs minister, one would hope that cross-ministerial communications can be facilitated and that the ministry of finance agrees to bear the cost of private workers working for Indian diplomats abroad.

Imputing intentions on Shergill or crying foul play by the Australian authorities, as was done in the ministry of external affairs briefing, cannot be a solution.

At the end of the day, the Indian government failed to uphold a domestic law in Australia which has resulted in this judgment. That is the fact, no matter how strongly we want to disagree with it.