Foreign immunity is an important factor to consider in cases of international law, and refers to the general entitlement of one country to be granted immunity from prosecution for violating the domestic laws of another country.
Foreign states are granted immunity from jurisdiction in Australian courts under the Foreign States Immunities Act 1985 (FSI Act).
The Attorney-General is responsible for the administration of the FSI Act, which applies in relation to all civil litigation in Australian courts involving foreign states. ‘Foreign state’ in the context of the FSI Act can include foreign government officials, ministers, heads of state or diplomatic missions.
Service of initiating process on a foreign state
Any service of initiating process against a foreign state in Australia must be made in accordance with the provisions of the FSI Act.
In accordance with the Act, foreign states will not be granted immunity in certain cases. These include cases involving:
- commercial transactions
- contracts of employment
- personal injury and possession
- use of property
The Attorney-General’s department is responsible for transmitting the request for service to the Department of Foreign Affairs and Trade (DFAT), who then transmits the request to the equivalent body in the foreign state (service through the ‘diplomatic channel’).
Once the initiating process has been served through the diplomatic channel:
- DFAT will issue a certificate confirming the date on which service was effected
- The certificate will be forwarded to the plaintiff/applicant, and a copy sent to the relevant court
Documentation required for service
The initiating process must be accompanied by:
(a) a request in accordance with Form 1 in the Schedule to the FSI Act
(b) a statutory declaration of the plaintiff or applicant in the proceeding stating that the rules of court or other applicable laws in respect of service outside the jurisdiction of the court concerned have been complied with, and
(c) If English is not an official language of the foreign state:
(i) a translation of the initiating process into the official language of the foreign State, and
(ii) a certificate in that language, signed by the translator, setting out particulars of his/her qualifications as a translator and stating that the translation of the initiating process is an accurate translation.
An inevitable delay
The time for the foreign State to enter an appearance under the relevant court rules does not begin to run until two months after service was effected. This effectively creates a two month delay in proceedings.
For example, if the court rules provide that a defendant has 28 days to enter an appearance, then the 28 day period does not begin to run until two months after the date that the initiating process was served.
Failure to enter an appearance
If the time limit for the foreign state to enter an appearance has expired, a default judgment cannot be entered unless:
- it is proved that service of initiating process was effected in accordance with the FSI Act, and
- the court is satisfied that the foreign state is not immune in the proceeding
A judgment obtained against a foreign State under the Act can only be enforced in accordance with the relevant provisions of the Act.