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Home / New Zealand

Papers show disappointment with US following refusal to waive immunity after allegations of 'serious crime' by Embassy staffer in NZ

Claire Trevett
By Claire Trevett
Political Editor, NZ Herald·NZ Herald·
22 May, 2017 05:00 PM5 mins to read

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Former Foreign Minister Murray McCully was disappointed at the US decision not to waive immunity. Photo / Mark Mitchell.

Former Foreign Minister Murray McCully was disappointed at the US decision not to waive immunity. Photo / Mark Mitchell.

Papers about a failed attempt to get the US to waive immunity for a US Embassy attache facing police investigation show officials tried to get the waiver by asking the US what it would do if a New Zealand diplomat was involved in a similar incident in the US.

US Embassy technical attache Chris White returned to the US after the March 12 incident after the US refused to waive the immunity granted to diplomats to allow him to be interviewed by Police.

White reportedly got a broken nose in the incident which a source told the Herald related to an alleged assault on a neighbour who attempted to intervene after overhearing a domestic incident at White's Lower Hutt house.

The papers released under the Official Information Act show that in seeking the waiver, MFAT asked the US Embassy to consider what it would do if a similar allegation was made about a New Zealand diplomat in the United States.

"Would the US be seeking a limited waiver for evidence and potentially a waiver to allow prosecution in similar circumstances involving a New Zealand diplomat in the US?"

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It included a copy of the US policy which stated the US "requests waivers of immunity in every case where the prosecutor advises that but for the immunity, charges would be pursued."

The papers also state that New Zealand had waived immunity for Government employees to be interviewed by overseas authorities in recent times, saying New Zealand's position was that its own diplomats were expected to follow the law of the country they were based in.

They include response by MFAT's chief of protocol Michael Swain to US diplomat Candy Green after the waiver request was declined.

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"We are very disappointed at the United States' decision. New Zealand has made our policy and expectations in relation to diplomatic immunity very clear to the United States.

"There is also a public expectation that allegations of criminal conduct ... will be investigated and pursued as appropriate by the New Zealand Police."

The United States decision in this case prevents the proper New Zealand investigation and potential prosecution of this incident."

Swain also said if the incident became public, MFAT would make it clear it had sought a waiver and the US had declined it.

In declining the waiver, the US Embassy said it had initiated its own investigation into the matter "in the spirit of co-operation" and that White had permanently departed New Zealand.

The papers show MFAT's policy is to seek an immunity waiver for cases where police wanted to investigate a serious crime with a maximum imprisonment term of 12 months or more.

They show police were called out after the event on the morning of Sunday March 12 and then approached MFAT about seeking a waiver from the US Embassy to interview White.

Swain sought the waiver on Monday March 13 and MFAT asked its Embassy in Washington to pass the request on to the State Department "and lobby strongly for a waiver".

MFAT also went to lengths to state that from its point of view, the issue would not impact on the "close relationship" between the two countries.

An aide memoire said New Zealand "reaffirms that, from its perspective, this issue does not impact the wider relationship."

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"New Zealand appreciates that this is a serious and sensitive issue which inevitably raises reputational issues and appreciates the constructive engagement with the United States Embassy."

The formal request for a waiver was coached in diplomatic-speak, saying MFAT "has the honour to refer to an incident that took place on 12 March 2017."

"The ministry has the honour to advise that the New Zealand Police wish to progress an investigation into the incident."

The papers show staff in PM Bill English's office and then-Foreign Minister Murray McCully's office were told of the incident on the day it happened and that police were likely to seek a waiver. An email stated the US Embassy had been told of the policy to seek a waiver for serious offences "and expectations (that no precipitate decision will be taken to withdraw staff from NZ.)

"They are however in info gathering mode and will be reverting to Washington."

It was noted that it had been made clear the ultimate decision would be made in Washington. "We have reiterated to the United States the seriousness with which the New Zealand Government views these allegations and the expectations of the New Zealand public which underpin New Zealand's policy."

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A media strategy was also worked out in case the news broke. TVNZ broke the story on March 17 - the same day the US declined to waive immunity.

The papers also showed McCully had made a "conscious decision" that he would not be the decision-maker when asking a foreign government to waive immunity, although he was responsible on deciding in cases of New Zealand waiving immunity for its diplomats.

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