Australia has waived diplomatic immunity for a man accused of an early-morning assault in Wellington CBD.

It comes after new video emerged yesterday of the partner of an Australian diplomat allegedly yelling a homophobic slur at police before loudly claiming he has “diplomatic immunity” during a fight in central Wellington last month.

A man was taken into custody following an “altercation” between three people on Dixon St in Wellington about 3.30am on Sunday, September 29 – just hours after the All Blacks played the Wallabies in the Bledisloe Cup in the capital city.

NZ Police had sought a waiver of diplomatic immunity from Australian authorities in order to press charges against the man.

In a statement this afternoon, a Ministry of Foreign Affairs and Trade spokesperson said: “The Australian Government has provided waivers of immunity, enabling next steps to be taken by police. The matter is now with NZ Police. MFAT won’t be commenting further.”

At 1pm today, Australia’s Department of Foreign Affairs told the Herald it was “engaging with New Zealand authorities in relation to this matter” but did not indicate its position on granting the waiver.

”Posted officials and their dependants are expected to respect the law of the country to which they are posted.”

Australia’s Foreign Affairs Department has been approached again for comment this afternoon.

As of this morning, police said there was no update they could provide. The Herald has lodged a fresh request for comment.

‘I’ve got diplomatic immunity’

In the video, a man was heard yelling “You f***ing stupid fa****t! I’ve got diplomatic immunity! You f**k!” while three police officers restrained him against a wall.

A 19-year-old who was confronted by the man told Three News that the man “flipped a switch” and “just became really aggressive”.

“He just started screaming at all of us,” he said.

“‘I’ll take on all of you. I’m ready to do this.’ He screamed at us at the top of his lungs, ‘I’m ready to die’ and ‘I’ll take on all three of you’.”

The 19-year-old called the diplomat’s partner’s actions “childish”.

“I feel like he just would have walked around town thinking he’s invincible because he has that immunity.”

An MFAT spokesperson said last night they were aware a video had been provided to police.

A police spokesperson said last night: “The investigation into this incident is ongoing and we have no further update at present”.

In a statement last night, Australia’s Department of Foreign Affairs and Trade confirmed it was aware of the incident.

“Posted officials and their dependants are expected to respect the law of the countries to which they are posted.”

The statement did not address whether it would allow the person’s immunity to be waived, saying it wouldn’t comment further because of “privacy obligations”.

What is diplomatic immunity and how can it be waived?

“Immunity” can be granted to diplomats and their families under international law – the Vienna Convention on Diplomatic Relations 1961.

It’s a long-standing principle designed to ensure diplomats and foreign representatives can perform their duties with freedom, independence and security, as the Ministry of Foreign Affairs and Trade (MFAT) explains.

Former British High Commissioner Vicki Treadell told the Herald previously this was particularly useful in countries with poor human rights.

Diplomatic immunity means a person cannot be arrested or detained, prosecuted or subpoenaed as a witness. They can, however, be issued a traffic infringement notice.

MFAT documents set out how the New Zealand Government expects the sending state – the country the diplomat is representing – to waive the immunity of a foreign representative or accredited family member where a serious crime is alleged to allow for legal proceedings against the individual.

The definition of a “serious crime” here is one with a penalty of imprisonment of 12 months or more.

“Serious crimes therefore include offences against persons such as murder, manslaughter, sexual offences, and common assault; certain driving offences such as dangerous driving causing injury; and certain property offences including theft of more than $500,” MFAT documentation says.

An individual who is immune from local jurisdiction cannot waive their own immunity.

Immunity belongs to the sending state, not to the individual, and must be waived by the sending state, MFAT says.

In 2020, then Prime Minister Jacinda Ardern said she had spoken with South Korea’s President over disappointment that diplomatic immunity was not waived during the police investigations facing a South Korean diplomat.

In late August, the South Korean diplomat was given a suspended jail sentence after he was convicted of sexually assaulting a New Zealand staffer at a Wellington embassy.

In 2018, a landlord was left fuming at MFAT which protected a foreign diplomat who owed $20,000 in rent and damage to the property.

The Tenancy Tribunal had ruled in favour of the Wellington landlord – but MFAT intervened, saying the proceeding should never have taken place because the person had diplomatic immunity.

- NZ Herald