Foreign state immunity

This inquiry considered the common law and statutory rules dealing with foreign state immunity and whether there was a need for Commonwealth legislation on the issue.

The Final Report identified that there were good arguments both for extending a degree of immunity to foreign states before Australian courts, and for limiting the scope of that immunity.

The considerations supporting local jurisdiction (or immunity from it) reflect a variety of rules, principles and policies. On one hand, in favour of local jurisdiction, there is the forum’s nexus with the dispute, its interest in applying its own rule, the likelihood that the dispute will be susceptible to local judicial determination, the principle of consent, and the principle of forum conveniens (convenience of the forum). On the other hand, notions of comity and reciprocity, respect for other sovereignties and for established principles of international law (such as the immunity of foreign public ships) and an assessment of the risk to foreign relations of excessive claims to jurisdiction come into play.

The ALRC’s preferred approach was to deal with the various categories or classes of cases that could arise and to fashion specific rules for each category, taking into account the reasons for according immunity or for asserting jurisdiction in the specific context.

Key recommendations

Comprehensive legislation dealing with the question of foreign state immunities should be enacted, including the following:

• ‘foreign state’ should be defined expansively;
• foreign states which would otherwise be immune should be able to submit to the jurisdiction expressly;
• certain types of cases (including those in relation to commercial transactions, contracts of employment, local personal injury, local immovable property and taxes) should be excepted from the normal principle of foreign state immunity; and
• service on foreign states should be delivered to the Department of Foreign Affairs for service by the Department on the foreign state.

Implementation

The Foreign States Immunities Act 1985 (Cth) implemented the Commission’s recommendations with only minor amendments. The Act came into operation on 1 April 1986.