Bills Digest no. 23 2009–10
Foreign States Immunities Amendment Bill
2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Date
introduced: 19 August
2009
House: House of Representatives
Portfolio: Attorney-General
Commencement:
The day after the Royal
Assent
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Foreign States
Immunities Amendment Bill 2009 (the Bill) is to amend the
Foreign States Immunities Act 1985 (FSIA) so that a
foreign State and its emergency management personnel are immune in
tort proceedings for acts or omissions that occur in the course of
the foreign state providing emergency management assistance to
Australia.
According to a general principle of public international law,
foreign states are entitled to be granted immunity from
the jurisdiction of another state. This is known as the principle
of foreign state immunity or sovereign immunity . The doctrine of
foreign state immunity grew, in part, out of the protection granted
to diplomatic agents and consuls from foreign prosecution.[1]
Foreign states are granted immunity from jurisdiction in
Australian courts under the FSIA which commenced operation on 1
April 1986. The FSIA implemented the recommendations of the
Australian Law Reform Commission (ALRC).[2] Pointing out the importance of such
legislation to Australia, the ALRC stated:
The topic of state immunity seems to be
becoming a contentious issue at the United Nations, in part because
of the issues raised by the work of the International Law
Commission There are, it seems, three distinct factors to be
considered. The first is that a considerable number of countries
have already legislated in this field. To legislate now would not
involve Australia stepping out of line with other common law
jurisdictions similarly situated. Secondly the enactment of
moderate well-drafted Australian legislation, adopted now on the
basis that it could if necessary be modified to bring it into line
with any emerging international consensus, may well be a better
position for Australia than the present situation. Thirdly, such
legislation, adopted after careful consultation with experienced
lawyers from other jurisdictions, may in some respects at least
contribute to the development of the law in desirable ways. As
things stand, the Commission does not believe that international
considerations require Australian legislation to be delayed or
deferred.[3]
As the Attorney-General s information paper on the operation of
the FSIA explains:
The Attorney-General is responsible for the
administration of the Foreign States Immunities Act 1985
(Cth), which applies in relation to all litigation in
Australian courts involving foreign states as defined in the Act.
The Act provides a general immunity for foreign states from the
jurisdiction of the courts of Australia in civil proceedings
(section 9), with limited and generally accepted exceptions
(sections 10‑21) (notes omitted).[4]
Foreign States are defined in the FSIA to include a reference to
the executive government; or part of the executive government or a
political subdivision of a foreign state.[5] Thus it can include the heads of state,
heads of government, ministers and certain government officials at
both the national and sub-national level .[6]
The FSIA contains a number of exceptions to the general
principle of immunity.
The general rule is that Foreign
States are immune from the jurisdiction of Australian courts
except in proceedings concerning transactions,
tort resulting in death, physical injury or damage to tangible
property, employment contracts with locally recruited staff, real
property disputes, the supervisory jurisdiction of a court where
the parties have agreed to submit a dispute to arbitration, and
membership of a Body Corporate.[7]
The ALRC, in recommending that the proposed legislation contain
a provision removing immunity for actions in tort stated:
Where a foreign state wrongfully causes death
or personal injury or damages property within the forum state, the
forum s interest in asserting jurisdiction over the wrongful act
seems clear. There is no merit in such cases in requiring the
plaintiff to litigate in the defendant state s courts when the
forum s courts provide the obvious and convenient local remedy.
This argument applies to all torts properly within the jurisdiction
[8]
The Explanatory Memorandum to the FSIA stated that the
immunity:
Extends to motor vehicle accidents (where the
foreign State is vicariously liable for the negligent driver s
acts) and other torts. It does not cover purely economic torts or
torts such as defamation.[9]
In November 2000, Australia, New Zealand and the United States
of America (USA) entered into an international agreement to
facilitate mutual assistance in wildland firefighting in each of
those countries.[10] Since signing that agreement, Australia has sent
firefighters and managers to the USA in 2002, 2003, 2006 and 2008.
The USA sent firefighters and managers to Australia in 2003 and
2007 .[11]
According to the Second Reading speech of the Bill:
Negotiations are currently underway to finalise
a new agreement with the USA to ensure the continued success of the
exchange program
One aspect of the new agreement which remains
outstanding is the status of the United States and its fire
fighters in legal proceedings that may be brought in Australia. Due
to their domestic legal requirements, the United States cannot
finalise the agreement unless immunity from tort proceedings is
provided concerning the actions of their fire fighters in the
course of their duties.[12]
The Attorney-General has been reported as stating that the
agreement under negotiation provides for reciprocal immunity to be
granted to Australia and its firefighters under US law .[13]
At its meeting of 20 August 2009, the
Selection of Bills Committee resolved that the Bill not be referred
to Committee.[14]
According to the Explanatory Memorandum, the proposed amendments
will not have any budgetary implications for the
Government.[15]
Extension of immunities emergency prevention
and management
Existing section 9 of the FSIA provides a general immunity to
foreign States from the jurisdiction of Australian courts in
proceedings.[16]
An exception to that general rule is contained in existing
section 13 of the FSIA, so that the immunity does not
extend to a proceeding which concerns the death of, or
personal injury to, a person; or loss of or damage to tangible
property which has been caused by an act or omission done or
omitted to be done in Australia. Under existing section 22 of the
FSIA, the exception in section 13 is extended to include a
separate entity of a foreign State. This
term is defined in section 3 of the FSIA to include a person or
body corporate (not being an Australia national or corporation)
acting as an agency or instrumentality of the foreign State and
which is not part of the executive of the foreign state.
Item 2 inserts proposed section
42A into the FSIA. Under proposed subsection
42A(1), proposed section 42A applies only
if the Minister is satisfied that:
- a foreign State (or a separate entity of a foreign State) is to
provide assistance or facilities to the Australian Government, or
the government of a State or Territory, and
- the assistance or facilities are provided for the purpose of
preparing for, preventing or managing emergencies or disasters
(whether natural or otherwise) in Australia.
If the Minister is so satisfied, proposed subsection
42A(2) enables the Governor-General to make regulations
which will exclude or modify the application of the exemption in
section 13 of the FSIA (as discussed above) in relation to
acts or omissions done or omitted to be done by the foreign State
(or the separate entity thereof) in the course of providing the
emergency assistance or facilities.
The regulation making power applies only to acts or omissions
done or omitted to be done by the foreign state (or the separate
entity thereof) in the course of providing assistance or facilities
whilst preparing for, preventing or managing emergencies or
disasters (whether natural or otherwise) in Australia. However, as
the term emergencies is not expressly defined in the FSIA, it is
arguable that this regulatory making power could have a broad
application as it could potentially apply to non-natural
emergencies, such as circumstances involving civil unrest. Of
course, a regulation made by the Governor-General would be
disallowable by Parliament in the normal manner.
Item 1 makes a minor amendment to existing
subsections 42(1) and (2) to align the provisions with current
Commonwealth drafting policy .[17] It proposes to substitute the first reference to
the Governor-General in each of those subsections with a reference
to the Minister . The effect of the proposed amendment is that:
- the Minister must form the view that an immunity or privilege
conferred by the FSIA in relation to a foreign State is to be
modified in particular circumstances, and
- the Governor-General may then exercise the power to make
regulations under the FSIA reflecting that modification.
Under subsection 19A(1) of the Acts Interpretation Act
1901, a reference to the Minister in the Bill may be
interpreted as a reference to the Attorney-General.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library by telephoning Paula
Pyburne on (02) 6277 2434 or Elibritt Karlsen on (02) 6277
2759.
[16]. The term foreign State
is defined in section 3 of the Foreign States Immunities Act
1985 as a country the territory of which is outside Australia,
being a country that is either an independent sovereign state, or a
separate territory (whether or not it is self-governing) that is
not part of an independent sovereign state.
Paula Pyburne
Elibritt Karlsen
31 August 2009
Bills Digest Service
Parliamentary Library
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