{"id":"C2004A03235","name":"Foreign States Immunities Act 1985","slug":"foreign-states-immunities-act-1985","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"196 of 1985","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":7437,"registerId":"commonwealth-C2004A03235-current","compilationNumber":null,"startDate":"2026-03-30","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part I","sectionType":"part","heading":"Preliminary","content":"## Part I—Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"#### 1 Short title\n\n  This Act may be cited as the Foreign States Immunities Act 1985.","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n  The provisions of this Act shall come into operation on such day as is, or such respective days as are, fixed by Proclamation.","sortOrder":2},{"sectionNumber":"3","sectionType":"section","heading":"Interpretation","content":"#### 3 Interpretation\n\n  (1) In this Act, unless the contrary intention appears:\n\n> agreement means an agreement in writing and includes:\n\n    (a) a treaty or other international agreement in writing; and\n    (b) a contract or other agreement in writing.\n\n> Australia when used in a geographical sense, includes each of the external Territories.\n\n> bill of exchange includes a promissory note.\n\n> court includes a tribunal or other body (by whatever name called) that has functions, or exercises powers, that are judicial functions or powers or are of a kind similar to judicial functions or powers.\n\n> Department of Foreign Affairs means the Department administered by the Minister who administers the Diplomatic Privileges and Immunities Act 1967.\n\n> diplomatic property means property that, at the relevant time, is in use predominantly for the purpose of establishing or maintaining a diplomatic or consular mission, or a visiting mission, of a foreign State to Australia.\n\n> foreign award means the following:\n\n    (a) an arbitral award within the meaning of Part II of the International Arbitration Act 1974;\n    (b) an award within the meaning of Part IV of that Act.\n\n> foreign judgment means a judgment to which Part 2 of the Foreign Judgments Act 1991 applies.\n\n> foreign State means a country the territory of which is outside Australia, being a country that is:\n\n    (a) an independent sovereign state; or\n    (b) a separate territory (whether or not it is self‑governing) that is not part of an independent sovereign state.\n\n> initiating process means an instrument (including a statement of claim, application, summons, writ, order or third party notice):\n\n    (a) by which a proceeding is commenced; or\n    (b) by reference to which a person becomes a party to a proceeding.\n\n> Note: Examples of an initiating process are:\n\n    (a) a summons for the registration of a foreign judgment; and\n    (b) an application for the recognition or enforcement of a foreign award.\n\n> law of Australia means:\n\n    (a) a law in force throughout Australia; or\n    (b) a law of or in force in a part of Australia;\n  and includes the principles and rules of the common law and of equity as so in force.\n\n> military property means:\n\n    (a) a ship of war, a Government yacht, a patrol vessel, a police or customs vessel, a hospital ship, a defence force supply ship or an auxiliary vessel, being a ship or vessel that, at the relevant time, is operated by the foreign State concerned (whether pursuant to requisition or under a charter by demise or otherwise); or\n    (b) property (not being a ship or vessel) that is:\n    (i) being used in connection with a military activity; or\n    (ii) under the control of a military authority or defence agency for military or defence purposes.\n\n> Minister for Foreign Affairs means the Minister who administers the Diplomatic Privileges and Immunities Act 1967.\n\n> proceeding means a proceeding in a court but does not include a prosecution for an offence or an appeal or other proceeding in the nature of an appeal in relation to such a prosecution.\n\n> property includes a chose in action.\n\n> separate entity, in relation to a foreign State, means a natural person (other than an Australian citizen), or a body corporate or corporation sole (other than a body corporate or corporation sole that has been established by or under a law of Australia), who or that:\n\n    (a) is an agency or instrumentality of the foreign State; and\n    (b) is not a department or organ of the executive government of the foreign State.\n\n> state terrorism means:\n\n    (a) a state terrorist act (within the meaning of the Criminal Code); or\n    (b) a state sponsor of terrorism (within the meaning of the Criminal Code); or\n    (c) a member (within the meaning of subsection 110.1(1) of the Criminal Code) of a state sponsor of terrorism.\n  (2) For the purposes of the definition of separate entity in subsection (1), a natural person who is, or a body corporate or a corporation sole that is, an agency of more than one foreign State shall be taken to be a separate entity of each of the foreign States.\n  (3) Unless the contrary intention appears, a reference in this Act to a foreign State includes a reference to:\n    (a) a province, state, self‑governing territory or other political subdivision (by whatever name known) of a foreign State;\n    (b) the head of a foreign State, or of a political subdivision of a foreign State, in his or her public capacity; and\n    (c) the executive government or part of the executive government of a foreign State or of a political subdivision of a foreign State, including a department or organ of the executive government of a foreign State or subdivision;\n  but does not include a reference to a separate entity of a foreign State.\n  (4) A reference in this Act to a court of Australia includes a reference to a court that has jurisdiction in or for any part of Australia.\n  (5) A reference in this Act to a commercial purpose includes a reference to a trading, a business, a professional and an industrial purpose.\n  (6) A reference in this Act to the entering of appearance or to the entry of judgment in default of appearance includes a reference to any like procedure.","sortOrder":3},{"sectionNumber":"4","sectionType":"section","heading":"External Territories","content":"#### 4 External Territories\n\n  This Act extends to each external Territory.","sortOrder":4},{"sectionNumber":"5","sectionType":"section","heading":"Act to bind Crown","content":"#### 5 Act to bind Crown\n\n  This Act binds the Crown in all its capacities.","sortOrder":5},{"sectionNumber":"6","sectionType":"section","heading":"Savings of other laws","content":"#### 6 Savings of other laws\n\n  This Act does not affect an immunity or privilege that is conferred by or under the Consular Privileges and Immunities Act 1972, the Defence (Visiting Forces) Act 1963, the Diplomatic Privileges and Immunities Act 1967 or any other Act.","sortOrder":6},{"sectionNumber":"7","sectionType":"section","heading":"Application","content":"#### 7 Application\n\n  (1) Part II (other than section 10) does not apply in relation to a proceeding concerning:\n    (a) a contract or other agreement or a bill of exchange that was made or given;\n    (b) a transaction or event that occurred;\n    (c) an act done or omitted to have been done; or\n    (d) a right, liability or obligation that came into existence;\n  before the commencement of this Act.\n  (2) Section 10 does not apply in relation to a submission mentioned in that section that was made before the commencement of this Act.\n  (3) Part III and section 36 do not apply in relation to a proceeding instituted before the commencement of this Act.\n  (4) Part IV only applies where, by virtue of a provision of Part II, the foreign State is not immune from the jurisdiction of the courts of Australia in the proceeding concerned.","sortOrder":7},{"sectionNumber":"8","sectionType":"section","heading":"Application to courts","content":"#### 8 Application to courts\n\n  In the application of this Act to a court, this Act has effect only in relation to the exercise or performance by the court of a judicial power or function or a power or function that is of a like kind.","sortOrder":8},{"sectionNumber":"Part II","sectionType":"part","heading":"Immunity from jurisdiction","content":"## Part II—Immunity from jurisdiction","sortOrder":9},{"sectionNumber":"9","sectionType":"section","heading":"General immunity from jurisdiction","content":"#### 9 General immunity from jurisdiction\n\n  Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.","sortOrder":10},{"sectionNumber":"10","sectionType":"section","heading":"Submission to jurisdiction","content":"#### 10 Submission to jurisdiction\n\n  (1) A foreign State is not immune in a proceeding in which it has submitted to the jurisdiction in accordance with this section.\n  (2) A foreign State may submit to the jurisdiction at any time, whether by agreement or otherwise, but a foreign State shall not be taken to have so submitted by reason only that it is a party to an agreement the proper law of which is the law of Australia.\n  (3) A submission under subsection (2) may be subject to a specified limitation, condition or exclusion (whether in respect of remedies or otherwise).\n  (4) Without limiting any other power of a court to dismiss, stay or otherwise decline to hear and determine a proceeding, the court may dismiss, stay or otherwise decline to hear and determine a proceeding if it is satisfied that, by reason of the nature of a limitation, condition or exclusion to which a submission is subject (not being a limitation, condition or exclusion in respect of remedies), it is appropriate to do so.\n  (5) An agreement by a foreign State to waive its immunity under this Part has effect to waive that immunity and the waiver may not be withdrawn except in accordance with the terms of the agreement.\n  (6) Subject to subsections (7), (8) and (9), a foreign State may submit to the jurisdiction in a proceeding by:\n    (a) instituting the proceeding; or\n    (b) intervening in, or taking a step as a party to, the proceeding.\n  (7) A foreign State shall not be taken to have submitted to the jurisdiction in a proceeding by reason only that:\n    (a) it has made an application for costs; or\n    (b) it has intervened, or has taken a step, in the proceeding for the purpose or in the course of asserting immunity.\n  (8) Where the foreign State is not a party to a proceeding, it shall not be taken to have submitted to the jurisdiction by reason only that it has intervened in the proceeding for the purpose or in the course of asserting an interest in property involved in or affected by the proceeding.\n  (9) Where:\n    (a) the intervention or step was taken by a person who did not know and could not reasonably have been expected to know of the immunity; and\n    (b) the immunity is asserted without unreasonable delay;\n  the foreign State shall not be taken to have submitted to the jurisdiction in the proceeding by reason only of that intervention or step.\n  (10) Where a foreign State has submitted to the jurisdiction in a proceeding, then, subject to the operation of subsection (3), it is not immune in relation to a claim made in the proceeding by some other party against it (whether by way of set‑off, counter‑claim or otherwise), being a claim that arises out of and relates to the transactions or events to which the proceeding relates.\n  (11) In addition to any other person who has authority to submit, on behalf of a foreign State, to the jurisdiction:\n    (a) the person for the time being performing the functions of the head of the State’s diplomatic mission in Australia has that authority; and\n    (b) a person who has entered into a contract on behalf of and with the authority of the State has authority to submit in that contract, on behalf of the State, to the jurisdiction in respect of a proceeding arising out of the contract.","sortOrder":11},{"sectionNumber":"11","sectionType":"section","heading":"Commercial transactions","content":"#### 11 Commercial transactions\n\n  (1) A foreign State is not immune in a proceeding in so far as the proceeding concerns a commercial transaction.\n  (2) Subsection (1) does not apply:\n    (a) if all the parties to the proceeding:\n    (i) are foreign States or are the Commonwealth and one or more foreign States; or\n    (ii) have otherwise agreed in writing; or\n    (b) in so far as the proceeding concerns a payment in respect of a grant, a scholarship, a pension or a payment of a like kind.\n  (3) In this section, commercial transaction means a commercial, trading, business, professional or industrial or like transaction into which the foreign State has entered or a like activity in which the State has engaged and, without limiting the generality of the foregoing, includes:\n    (a) a contract for the supply of goods or services;\n    (b) an agreement for a loan or some other transaction for or in respect of the provision of finance; and\n    (c) a guarantee or indemnity in respect of a financial obligation; but does not include a contract of employment or a bill of exchange.","sortOrder":12},{"sectionNumber":"12","sectionType":"section","heading":"Contracts of employment","content":"#### 12 Contracts of employment\n\n  (1) A foreign State, as employer, is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia.\n  (2) A reference in subsection (1) to a proceeding includes a reference to a proceeding concerning:\n    (a) a right or obligation conferred or imposed by a law of Australia on a person as employer or employee; or\n    (b) a payment the entitlement to which arises under a contract of employment.\n  (3) Where, at the time when the contract of employment was made, the person employed was:\n    (a) a national of the foreign State but not a permanent resident of Australia; or\n    (b) an habitual resident of the foreign State;\n  subsection (1) does not apply.\n  (4) Subsection (1) does not apply where:\n    (a) an inconsistent provision is included in the contract of employment; and\n    (b) a law of Australia does not avoid the operation of, or prohibit or render unlawful the inclusion of, the provision.\n  (5) Subsection (1) does not apply in relation to the employment of:\n    (a) a member of the diplomatic staff of a mission as defined by the Vienna Convention on Diplomatic Relations, being the Convention the English text of which is set out in the Schedule to the Diplomatic Privileges and Immunities Act 1967; or\n    (b) a consular officer as defined by the Vienna Convention on Consular Relations, being the Convention the English text of which is set out in the Schedule to the Consular Privileges and Immunities Act 1972.\n  (6) Subsection (1) does not apply in relation to the employment of:\n    (a) a member of the administrative and technical staff of a mission as defined by the Convention referred to in paragraph (5)(a); or\n    (b) a consular employee as defined by the Convention referred to in paragraph (5)(b);\n  unless the member or employee was, at the time when the contract of employment was made, a permanent resident of Australia.\n  (7) In this section, permanent resident of Australia means:\n    (a) an Australian citizen; or\n    (b) a person resident in Australia whose continued presence in Australia is not subject to a limitation as to time imposed by or under a law of Australia.","sortOrder":13},{"sectionNumber":"13","sectionType":"section","heading":"Personal injury and damage to property","content":"#### 13 Personal injury and damage to property\n\n  A foreign State is not immune in a proceeding in so far as the proceeding concerns:\n    (a) the death of, or personal injury to, a person; or\n    (b) loss of or damage to tangible property;\n  caused by an act or omission done or omitted to be done in Australia.","sortOrder":14},{"sectionNumber":"13A","sectionType":"section","heading":"State terrorism","content":"#### 13A State terrorism\n\n  A foreign state is not immune in a proceeding in so far as the proceeding concerns state terrorism.","sortOrder":15},{"sectionNumber":"14","sectionType":"section","heading":"Ownership, possession and use of property etc.","content":"#### 14 Ownership, possession and use of property etc.\n\n  (1) A foreign State is not immune in a proceeding in so far as the proceeding concerns:\n    (a) an interest of the State in, or the possession or use by the State of, immovable property in Australia; or\n    (b) an obligation of the State that arises out of its interest in, or its possession or use of, property of that kind.\n  (2) A foreign State is not immune in a proceeding in so far as the proceeding concerns an interest of the State in property that arose by way of gift made in Australia or by succession.\n  (3) A foreign State is not immune in a proceeding in so far as the proceeding concerns:\n    (a) bankruptcy, insolvency or the winding up of a body corporate; or\n    (b) the administration of a trust, of the estate of a deceased person or of the estate of a person of unsound mind.","sortOrder":16},{"sectionNumber":"15","sectionType":"section","heading":"Copyright, patents, trade marks etc.","content":"#### 15 Copyright, patents, trade marks etc.\n\n  (1) A foreign State is not immune in a proceeding in so far as the proceeding concerns:\n    (a) the ownership of a copyright or the ownership, or the registration or protection in Australia, of an invention, a design or a trade mark;\n    (b) an alleged infringement by the foreign State in Australia of copyright, a patent for an invention, a registered trade mark or a registered design; or\n    (c) the use in Australia of a trade name or a business name.\n  (2) Subsection (1) does not apply in relation to the importation into Australia, or the use in Australia, of property otherwise than in the course of or for the purposes of a commercial transaction as defined by subsection 11(3).","sortOrder":17},{"sectionNumber":"16","sectionType":"section","heading":"Membership of bodies corporate etc.","content":"#### 16 Membership of bodies corporate etc.\n\n  (1) A foreign State is not immune in a proceeding in so far as the proceeding concerns its membership, or a right or obligation that relates to its membership, of a body corporate, an unincorporated body or a partnership that:\n    (a) has a member that is not a foreign State or the Commonwealth; and\n    (b) is incorporated or has been established under the law of Australia or is controlled from, or has its principal place of business in, Australia;\n  being a proceeding arising between the foreign State and the body or other members of the body or between the foreign State and one or more of the other partners.\n  (2) Where a provision included in:\n    (a) the constitution or other instrument establishing or regulating the body or partnership; or\n    (b) an agreement between the parties to the proceeding;\n  is inconsistent with subsection (1), that subsection has effect subject to that provision.","sortOrder":18},{"sectionNumber":"17","sectionType":"section","heading":"Arbitrations","content":"#### 17 Arbitrations\n\n  (1) Where a foreign State is a party to an agreement to submit a dispute to arbitration, then, subject to any inconsistent provision in the agreement, the foreign State is not immune in a proceeding for the exercise of the supervisory jurisdiction of a court in respect of the arbitration, including a proceeding:\n    (a) by way of a case stated for the opinion of a court;\n    (b) to determine a question as to the validity or operation of the agreement or as to the arbitration procedure; or\n    (c) to set aside the award.\n  (2) Where:\n    (a) apart from the operation of subparagraph 11(2)(a)(ii), subsection 12(4) or subsection 16(2), a foreign State would not be immune in a proceeding concerning a transaction or event; and\n    (b) the foreign State is a party to an agreement to submit to arbitration a dispute about the transaction or event;\n  then, subject to any inconsistent provision in the agreement, the foreign State is not immune in a proceeding concerning the recognition as binding for any purpose, or for the enforcement, of an award made pursuant to the arbitration, wherever the award was made.\n  (3) Subsection (1) does not apply where the only parties to the agreement are any 2 or more of the following:\n    (a) a foreign State;\n    (b) the Commonwealth;\n    (c) an organisation the members of which are only foreign States or the Commonwealth and one or more foreign States.","sortOrder":19},{"sectionNumber":"18","sectionType":"section","heading":"Actions in rem","content":"#### 18 Actions in rem\n\n  (1) A foreign State is not immune in a proceeding commenced as an action in rem against a ship concerning a claim in connection with the ship if, at the time when the cause of action arose, the ship was in use for commercial purposes.\n  (2) A foreign State is not immune in a proceeding commenced as an action in rem against a ship concerning a claim against another ship if:\n    (a) at the time when the proceeding was instituted, the ship that is the subject of the action in rem was in use for commercial purposes; and\n    (b) at the time when the cause of action arose, the other ship was in use for commercial purposes.\n  (3) A foreign State is not immune in a proceeding commenced as an action in rem against cargo that was, at the time when the cause of action arose, a commercial cargo.\n  (4) The preceding provisions of this section do not apply in relation to the arrest, detention or sale of a ship or cargo.\n  (5) A reference in this section to a ship in use for commercial purposes or to a commercial cargo is a reference to a ship or a cargo that is commercial property as defined by subsection 32(3).","sortOrder":20},{"sectionNumber":"19","sectionType":"section","heading":"Bills of exchange","content":"#### 19 Bills of exchange\n\n  Where:\n    (a) a bill of exchange has been drawn, made, issued or indorsed by a foreign State in connection with a transaction or event; and\n    (b) the foreign State would not be immune in a proceeding in so far as the proceeding concerns the transaction or event;\n  the foreign State is not immune in a proceeding in so far as the proceeding concerns the bill of exchange.","sortOrder":21},{"sectionNumber":"20","sectionType":"section","heading":"Taxes","content":"#### 20 Taxes\n\n  A foreign State is not immune in a proceeding in so far as the proceeding concerns an obligation imposed on it by or under a provision of a law of Australia with respect to taxation, being a provision that is prescribed, or is included in a class of provisions that is prescribed, for the purposes of this section.","sortOrder":22},{"sectionNumber":"21","sectionType":"section","heading":"Related proceedings","content":"#### 21 Related proceedings\n\n  Where, by virtue of the operation of the preceding provisions of this Part, a foreign State is not immune in a proceeding in so far as the proceeding concerns a matter, it is not immune in any other proceeding (including an appeal) that arises out of and relates to the first‑mentioned proceeding in so far as that other proceeding concerns that matter.","sortOrder":23},{"sectionNumber":"22","sectionType":"section","heading":"Application of Part to separate entities","content":"#### 22 Application of Part to separate entities\n\n  The preceding provisions of this Part (other than subparagraph 11(2)(a)(i), paragraph 16(1)(a) and subsection 17(3)) apply in relation to a separate entity of a foreign State as they apply in relation to the foreign State.","sortOrder":24},{"sectionNumber":"Part III","sectionType":"part","heading":"Service and judgments","content":"## Part III—Service and judgments","sortOrder":25},{"sectionNumber":"23","sectionType":"section","heading":"Service of initiating process by agreement","content":"#### 23 Service of initiating process by agreement\n\n  Service of initiating process on a foreign State or on a separate entity of a foreign State may be effected in accordance with an agreement (wherever made and whether made before or after the commencement of this Act) to which the State or entity is a party.","sortOrder":26},{"sectionNumber":"24","sectionType":"section","heading":"Service through the diplomatic channel","content":"#### 24 Service through the diplomatic channel\n\n  (1) Initiating process that is to be served on a foreign State may be delivered to the Attorney‑General for transmission by the Department of Foreign Affairs to the department or organ of the foreign State that is equivalent to that Department.\n  (2) The initiating process shall be accompanied by:\n    (a) a request in accordance with Form 1 in the Schedule;\n    (b) a statutory declaration of the plaintiff or applicant in the proceeding stating that the rules of court or other laws (if any) in respect of service outside the jurisdiction of the court concerned have been complied with; and\n    (c) if English is not an official language of the foreign State:\n    (i) a translation of the initiating process into an official language of the foreign State; and\n    (ii) a certificate in that language, signed by the translator, setting out particulars of his or her qualifications as a translator and stating that the translation is an accurate translation of the initiating process.\n  (3) Where the process and documents are delivered to the equivalent department or organ of the foreign State in the foreign State, service shall be taken to have been effected when they are so delivered.\n  (4) Where the process and documents are delivered to some other person on behalf of and with the authority of the foreign State, service shall be taken to have been effected when they are so delivered.\n  (5) Subsections (1) to (4) (inclusive) do not exclude the operation of any rule of court or other law under which the leave of a court is required in relation to service of the initiating process outside the jurisdiction.\n  (6) Service of initiating process under this section shall be taken to have been effected outside the jurisdiction and in the foreign State concerned, wherever the service is actually effected.\n  (7) The time for entering an appearance begins to run at the expiration of 2 months after the date on which service of the initiating process was effected.\n  (8) This section does not apply to service of initiating process in a proceeding commenced as an action in rem.","sortOrder":27},{"sectionNumber":"25","sectionType":"section","heading":"Other service ineffective","content":"#### 25 Other service ineffective\n\n  Purported service of an initiating process upon a foreign State in Australia otherwise than as allowed or provided by section 23 or 24 is ineffective.","sortOrder":28},{"sectionNumber":"26","sectionType":"section","heading":"Waiver of objection to service","content":"#### 26 Waiver of objection to service\n\n  Where a foreign State enters an appearance in a proceeding without making an objection in relation to the service of the initiating process, the provisions of this Act in relation to that service shall be taken to have been complied with.","sortOrder":29},{"sectionNumber":"26A","sectionType":"section","heading":"Judgments and orders in ex parte proceedings","content":"#### 26A Judgments and orders in ex parte proceedings\n\n  Judgments\n  (1) A judgment (other than an interlocutory judgment) must not be entered against a foreign State in ex parte proceedings.\n  (2) A judgment (other than an interlocutory judgment) must not be entered against a separate entity of a foreign State in ex parte proceedings unless the court is satisfied that, in the proceedings, the separate entity is not immune.\n  Orders\n  (3) An order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, must not be made against a foreign State in ex parte proceedings.\n  (4) An order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, must not be made against a separate entity of a foreign State in ex parte proceedings unless the court is satisfied that, in the proceedings, the separate entity is not immune.","sortOrder":30},{"sectionNumber":"27","sectionType":"section","heading":"Judgments or orders in default of appearance","content":"#### 27 Judgments or orders in default of appearance\n\n  (1) A judgment in default of appearance must not be entered against a foreign State, or an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance must not be made against a foreign State, unless:\n    (a) it is proved that service of the initiating process was effected in accordance with this Act and that the time for appearance has expired; and\n    (b) the court is satisfied that, in the proceeding, the foreign State is not immune.\n  (2) A judgment in default of appearance must not be entered against a separate entity of a foreign State, or an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance must not be made against a separate entity of a foreign State, unless the court is satisfied that, in the proceeding, the separate entity is not immune.","sortOrder":31},{"sectionNumber":"28","sectionType":"section","heading":"Enforcement of judgments and orders in default of appearance","content":"#### 28 Enforcement of judgments and orders in default of appearance\n\n  (1) Subject to subsection (6), a judgment in default of appearance, or an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance, is not capable of being enforced against a foreign State until the expiration of 2 months after the date on which service of:\n    (a) a copy of the judgment or order, sealed with the seal of the court or, if there is no seal, certified by an officer of the court to be a true copy of the judgment or order; and\n    (b) if English is not an official language of the foreign State:\n    (i) a translation of the judgment or order into an official language of the foreign State; and\n    (ii) a certificate in that language, signed by the translator, setting out particulars of his or her qualifications as a translator and stating that the translation is an accurate translation of the judgment or order;\n  has been effected in accordance with this section on the department or organ of the foreign State that is equivalent to the Department of Foreign Affairs.\n  (2) Where a document is to be served as mentioned in subsection (1), the person in whose favour the judgment was given, or the order made, must give the document, together with a request in accordance with Form 2 in the Schedule, to the Attorney‑General for transmission by the Department of Foreign Affairs to the department or organ of the foreign State that is equivalent to that Department.\n  (3) Where the document is delivered to the equivalent department or organ of the foreign State in the foreign State, service shall be taken to have been effected when it is so delivered.\n  (4) Where the document is delivered to some other person on behalf of and with the authority of the foreign State, service shall be taken to have been effected when it is so delivered.\n  (5) The time, if any, for applying to have the judgment or order set aside shall be at least 2 months after the date on which the document is delivered to or received on behalf of that department or organ of the foreign State.\n  (6) Where a judgment in default of appearance has been given, or an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance has been made, by a court against a foreign State, the court may, on the application of the person in whose favour the judgment was given or order was made, permit, on such terms and conditions as it thinks fit, the judgment or order to be enforced in accordance with this Act against the foreign State before the expiration of the period mentioned in subsection (1).","sortOrder":32},{"sectionNumber":"29","sectionType":"section","heading":"Power to grant relief","content":"#### 29 Power to grant relief\n\n  (1) Subject to subsection (2), a court may make any order (including an order for interim or final relief) against a foreign State that it may otherwise lawfully make unless the order would be inconsistent with an immunity under this Act.\n  (2) A court may not make an order that a foreign State employ a person or re‑instate a person in employment.","sortOrder":33},{"sectionNumber":"Part IV","sectionType":"part","heading":"Enforcement","content":"## Part IV—Enforcement","sortOrder":34},{"sectionNumber":"30","sectionType":"section","heading":"Immunity from execution","content":"#### 30 Immunity from execution\n\n  Except as provided by this Part, the property of a foreign State is not subject to any process or order (whether interim or final) of the courts of Australia for the satisfaction or enforcement of a judgment, order or arbitration award or, in Admiralty proceedings, for the arrest, detention or sale of the property.","sortOrder":35},{"sectionNumber":"31","sectionType":"section","heading":"Waiver of immunity from execution","content":"#### 31 Waiver of immunity from execution\n\n  (1) A foreign State may at any time by agreement waive the application of section 30 in relation to property, but it shall not be taken to have done so by reason only that it has submitted to the jurisdiction.\n  (2) The waiver may be subject to specified limitations.\n  (3) An agreement by a foreign State to waive its immunity under section 30 has effect to waive that immunity and the waiver may not be withdrawn except in accordance with the terms of the agreement.\n  (4) A waiver does not apply in relation to property that is diplomatic property or military property unless a provision in the agreement expressly designates the property as property to which the waiver applies.\n  (5) In addition to any other person who has authority to waive the application of section 30 on behalf of a foreign State or a separate entity of the foreign State, the person for the time being performing the functions of the head of the State’s diplomatic mission in Australia has that authority.","sortOrder":36},{"sectionNumber":"32","sectionType":"section","heading":"Execution against commercial property","content":"#### 32 Execution against commercial property\n\n  (1) Subject to the operation of any submission that is effective by reason of section 10, section 30 does not apply in relation to commercial property.\n  (2) Where a foreign State is not immune in a proceeding against or in connection with a ship or cargo, section 30 does not prevent the arrest, detention or sale of the ship or cargo if, at the time of the arrest or detention:\n    (a) the ship or cargo was commercial property; and\n    (b) in the case of a cargo that was then being carried by a ship belonging to the same or to some other foreign State—the ship was commercial property.\n  (3) For the purposes of this section:\n    (a) commercial property is property, other than diplomatic property or military property, that is in use by the foreign State concerned substantially for commercial purposes; and\n    (b) property that is apparently vacant or apparently not in use shall be taken to be being used for commercial purposes unless the court is satisfied that it has been set aside otherwise than for commercial purposes.","sortOrder":37},{"sectionNumber":"33","sectionType":"section","heading":"Execution against immovable property etc.","content":"#### 33 Execution against immovable property etc.\n\n  Where:\n    (a) property:\n    (i) has been acquired by succession or gift; or\n    (ii) is immovable property; and\n    (b) a right in respect of the property has been established as against a foreign State by a judgment or order in a proceeding as mentioned in section 14;\n  then, for the purpose of enforcing that judgment or order, section 30 does not apply to the property.","sortOrder":38},{"sectionNumber":"33A","sectionType":"section","heading":"Execution in so far as proceeding etc. concerns state terrorism","content":"#### 33A Execution in so far as proceeding etc. concerns state terrorism\n\n  Section 30 does not apply in relation to:\n    (a) a judgment or order in a proceeding in so far as the proceeding concerns state terrorism; or\n    (b) an arbitration award in so far as the arbitration concerns state terrorism; or\n    (c) the arrest, detention or sale of the property in Admiralty proceedings in so far as the proceedings concern state terrorism.","sortOrder":39},{"sectionNumber":"34","sectionType":"section","heading":"Restrictions on certain other relief","content":"#### 34 Restrictions on certain other relief\n\n  A penalty by way of fine or committal shall not be imposed in relation to a failure by a foreign State or by a person on behalf of a foreign State to comply with an order made against the foreign State by a court.","sortOrder":40},{"sectionNumber":"35","sectionType":"section","heading":"Application of Part to separate entities","content":"#### 35 Application of Part to separate entities\n\n  (1) This Part applies in relation to a separate entity of a foreign State that is the central bank or monetary authority of the foreign State as it applies in relation to the foreign State.\n  (2) Subject to subsection (1), this Part applies in relation to a separate entity of the foreign State as it applies in relation to the foreign State if, in the proceeding concerned:\n    (a) the separate entity would, apart from the operation of section 10, have been immune from the jurisdiction; and\n    (b) it has submitted to the jurisdiction.","sortOrder":41},{"sectionNumber":"Part V","sectionType":"part","heading":"Miscellaneous","content":"## Part V—Miscellaneous","sortOrder":42},{"sectionNumber":"36","sectionType":"section","heading":"Heads of foreign States","content":"#### 36 Heads of foreign States\n\n  (1) Subject to the succeeding provisions of this section, the Diplomatic Privileges and Immunities Act 1967 extends, with such modifications as are necessary, in relation to the person who is for the time being:\n    (a) the head of a foreign State; or\n    (b) a spouse of the head of a foreign State;\n  as that Act applies in relation to a person at a time when he or she is the head of a diplomatic mission.\n  (2) This section does not affect the application of any law of Australia with respect to taxation.\n  (3) This section does not affect the application of any other provision of this Act in relation to a head of a foreign State in his or her public capacity.\n  (4) Part III extends in relation to the head of a foreign State in his or her private capacity as it applies in relation to the foreign State and, for the purpose of the application of Part III as it so extends, a reference in that Part to a foreign State shall be read as a reference to the head of the foreign State in his or her private capacity.","sortOrder":43},{"sectionNumber":"37","sectionType":"section","heading":"Effect of agreements on separate entities","content":"#### 37 Effect of agreements on separate entities\n\n  An agreement made by a foreign State and applicable to a separate entity of that State has effect, for the purposes of this Act, as though the separate entity were a party to the agreement.","sortOrder":44},{"sectionNumber":"38","sectionType":"section","heading":"Power to set aside process etc.","content":"#### 38 Power to set aside process etc.\n\n  Where, on the application of a foreign State or a separate entity of a foreign State, a court is satisfied that a judgment, order or process of the court made or issued in a proceeding with respect to the foreign State or entity is inconsistent with an immunity conferred by or under this Act, the court shall set aside the judgment, order or process so far as it is so inconsistent.","sortOrder":45},{"sectionNumber":"39","sectionType":"section","heading":"Discovery","content":"#### 39 Discovery\n\n  (1) A penalty by way of fine or committal shall not be imposed in relation to a failure or refusal by a foreign State or by a person on behalf of a foreign State to disclose or produce a document or to furnish information for the purposes of a proceeding.\n  (2) Such a failure or refusal is not of itself sufficient ground to strike out a pleading or part of a pleading.","sortOrder":46},{"sectionNumber":"40","sectionType":"section","heading":"Certificate as to foreign State etc.","content":"#### 40 Certificate as to foreign State etc.\n\n  (1) The Minister for Foreign Affairs may certify in writing that, for the purposes of this Act:\n    (a) a specified country is, or was on a specified day, a foreign State;\n    (b) a specified territory is or is not, or was or was not on a specified day, part of a foreign State;\n    (c) a specified person is, or was at a specified time, the head of, or the government or part of the government of, a foreign State or a former foreign State; or\n    (d) service of a specified document as mentioned in section 24 or 28 was effected on a specified day.\n  (2) The Minister for Foreign Affairs may, either generally or as otherwise provided by the instrument of delegation, delegate by instrument in writing to a person his or her powers under subsection (1) in relation to the service of documents.\n  (3) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Minister.\n  (4) A delegation under subsection (2) does not prevent the exercise of the power by the Minister.\n  (5) A certificate under this section is admissible as evidence of the facts and matters stated in it and is conclusive as to those facts and matters.","sortOrder":47},{"sectionNumber":"41","sectionType":"section","heading":"Certificate as to use","content":"#### 41 Certificate as to use\n\n  For the purposes of this Act, a certificate in writing given by the person for the time being performing the functions of the head of a foreign State’s diplomatic mission in Australia to the effect that property specified in the certificate, being property:\n    (a) in which the foreign State or a separate entity of the foreign State has an interest; or\n    (b) that is in the possession or under the control of the foreign State or of a separate entity of the foreign State;\n  is or was at a specified time in use for purposes specified in the certificate is admissible as prima facie evidence of the facts stated in the certificate.","sortOrder":48},{"sectionNumber":"42","sectionType":"section","heading":"Restrictions and extensions of immunities and privileges—general","content":"#### 42 Restrictions and extensions of immunities and privileges—general\n\n  (1) Where the Minister is satisfied that an immunity or privilege conferred by this Act in relation to a foreign State is not accorded by the law of the foreign State in relation to Australia, the Governor‑General may make regulations modifying the operation of this Act with respect to those immunities and privileges in relation to the foreign State.\n  (2) Where the Minister is satisfied that the immunities and privileges conferred by this Act in relation to a foreign State differ from those required by a treaty, convention or other agreement to which the foreign State and Australia are parties, the Governor‑General may make regulations modifying the operation of this Act with respect to those immunities and privileges in relation to the foreign State so that this Act as so modified conforms with the treaty, convention or agreement.\n  (3) Regulations made under subsection (1) or (2) that are expressed to extend or restrict an immunity from the jurisdiction may be expressed to extend to a proceeding that was instituted before the commencement of the regulations and has not been finally disposed of.\n  (4) Regulations made under subsection (1) or (2) that are expressed to extend or restrict an immunity from execution or other relief may be expressed to extend to a proceeding that was instituted before the commencement of the regulations and in which procedures to give effect to orders for execution or other relief have not been completed.\n  (5) Regulations in relation to which subsection (3) or (4) applies may make provision with respect to the keeping of property, or for the keeping of the proceeds of the sale of property, with which a proceeding specified in the regulations is concerned, including provision authorising an officer of a court to manage, control or preserve the property or, if, by reason of the condition of the property, it is necessary to do so, to sell or otherwise dispose of the property.\n  (6) Regulations under this section have effect notwithstanding that they are inconsistent with an Act (other than this Act) as in force at the time when the regulations came into operation.\n  (7) Jurisdiction is conferred on the Federal Court of Australia and, to the extent that the Constitution permits, on the courts of the Territories, and the courts of the States are invested with federal jurisdiction, in respect of matters arising under the regulations but a court of a Territory shall not exercise any jurisdiction so conferred in respect of property that is not within that Territory or a Territory in which the court may exercise jurisdiction and a court of a State shall not exercise any jurisdiction so invested in respect of property that is not within that State.","sortOrder":49},{"sectionNumber":"42A","sectionType":"section","heading":"Extension of immunities—emergency prevention and management","content":"#### 42A Extension of immunities—emergency prevention and management\n\n  (1) This section applies if the Minister is satisfied that a foreign State (or a separate entity of a foreign State) is providing, or is to provide, assistance or facilities:\n    (a) to the Australian Government, or the government of a State or Territory; and\n    (b) for the purposes of preparing for, preventing or managing emergencies or disasters (whether natural or otherwise) in Australia.\n  (2) The Governor‑General may make regulations excluding or modifying the application of section 13 (personal injury and damage to property) with respect to the foreign State (or the separate entity of the foreign State) in relation to acts or omissions done or omitted to be done by the foreign State (or the entity) in the course of the provision of the assistance or facilities.\n\n> Note: Section 22 applies section 13 to a separate entity of a foreign State.","sortOrder":50},{"sectionNumber":"43","sectionType":"section","heading":"Regulations","content":"#### 43 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:\n    (a) required or permitted by this Act to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":51},{"sectionNumber":"Form 1","sectionType":"part","heading":"Form 1","content":"## Form 1\n\nSection 24\n\nRequest For Service Of Originating Process On A Foreign State\n\nTO: The Attorney‑General of the Commonwealth\n\nA proceeding has been commenced in (name of court, tribunal, etc.) against (here insert name of foreign State).\n\nThe proceeding concerns (short particulars of the claim against the foreign State).\n\nIn accordance with section 24 of the Foreign States Immunities Act 1985, enclosed are:\n\n    (a) the initiating process in the proceeding;\n    (b) a statutory declaration;\n    (c) \\*a translation of the initiating process into (name of language), an official language of the foreign State; and\n    (d) \\*a certificate signed by the translator,\n  and it is requested that this Form, the initiating process, the statutory declaration, \\*the translation and the certificate be transmitted by the Department of Foreign Affairs to the department or organ of the foreign State that is equivalent to that Department.\n\nIt is further requested that, when service of the initiating process and other documents has been effected on the foreign State in accordance with that Act, the Minister for Foreign Affairs certify accordingly under section 40 of that Act, and forward the certificate to (name and address of person to whom certificate of service should be forwarded).\n\nDATED this day of 19\n\n(signature of plaintiff or applicant)\n\n\\* delete if not applicable.","sortOrder":52},{"sectionNumber":"Form 2","sectionType":"part","heading":"Form 2","content":"## Form 2\n\nSection 28\n\nRequest For Service Of Default Judgment Or Order On A Foreign State\n\nTO: The Attorney‑General of the Commonwealth\n\nIn a proceeding in (name of court, tribunal, etc.), a judgment in default of appearance has been given, or an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance has been made, against (name of foreign State).\n\nThe proceeding concerns (short particulars of the claim against the foreign State).\n\nIn accordance with section 28 of the Foreign States Immunities Act 1985, enclosed are:\n\n    (a) a copy of the judgment or order, authenticated as required by that Act;\n    (b) \\*a translation of the judgment or order into (name of language), an official language of the foreign State; and\n    (c) \\*a certificate signed by the translator,\n  and it is requested that the judgment or order, \\*the translation and the certificate be transmitted by the Department of Foreign Affairs to the department or organ of the foreign State that is equivalent to that Department.\n\nIt is further requested that, when service of the judgment or order and other documents has been effected on the foreign State in accordance with that Act, the Minister for Foreign Affairs certify accordingly under section 40 of that Act, and forward the certificate to (name and address of person to whom certificate of service should be forwarded).\n\nDATED this day of 19\n\n(signature of person in whose favour the judgment was given or the order was made)\n\n\\* delete if not applicable.","sortOrder":53}],"analysis":{"flash_summary":{"complexity_score":8,"scope_assessment":{"changed":true,"description":"The original purpose of the Act was to codify the restrictive theory of sovereign immunity – granting immunity for governmental acts but not for commercial ones. Over time, amendments have expanded the exceptions significantly. Notably, the insertion of section 13A (state terrorism) in 2002 removed immunity for certain terrorism‑related claims, and section 42A (emergency prevention and management) later allowed the government to further restrict immunity for foreign states providing emergency assistance. These additions go beyond the original commercial‑ exception framework, broadening the scope of when foreign states can be sued and their property seized in Australia."},"complexity_factors":["Extensive interpretation section (section 3) with over 20 defined terms, including complex definitions like 'separate entity' and 'commercial transaction'","Multiple exceptions to the general immunity (sections 10–21), each with sub‑exceptions and conditions (e.g., section 12 on employment contracts has five subsections carving out different scenarios)","Cross‑references between Parts and sections (e.g., section 22 applies Part II to separate entities but excludes certain paragraphs; section 32 references section 10)","Nested conditional logic regarding service and enforcement (Part III – service must follow specific methods; default judgments require proof of service and non‑immunity)","Provisions allowing executive modification by regulation (sections 42 and 42A), which can alter immunities retroactively","Addition of state terrorism provisions (sections 13A and 33A) that interact with multiple other sections and definitions from the Criminal Code"],"plain_english_summary":"The Foreign States Immunities Act 1985 sets out when a foreign government can be sued in Australian courts and when its property can be seized. It is built on the principle that foreign states are generally immune from court proceedings (section 9), but lists several situations where that immunity is lifted. Key exceptions include:\n\n- **Agreeing to be sued** (submission to jurisdiction, section 10)\n- **Engaging in commercial activities** (selling goods, lending money, etc., section 11)\n- **Employing someone in Australia** (with some conditions on nationality and residence, section 12)\n- **Causing personal injury or property damage in Australia** (section 13)\n- **Involvement in certain property matters** (real estate, gifts, bankruptcy, etc., section 14)\n- **Intellectual property disputes** (copyright, trademarks, etc., section 15)\n- **Membership of companies or partnerships in Australia** (section 16)\n- **Arbitration agreements** (section 17)\n- **Shipping and cargo used for commercial purposes** (section 18)\n\nA special exception also exists for **state terrorism** (section 13A).\n\nThe Act also covers:\n- How legal documents must be served on foreign states (usually through the diplomatic channel, sections 23–25)\n- Restrictions on entering default judgments (sections 26A–28)\n- Limits on enforcing court orders against foreign state property – generally, property used for diplomatic or military purposes is protected, but commercial property can be seized (Part IV).\n- The ability for the government to modify immunities by regulation, for example to match treaty obligations or to manage emergencies (sections 42, 42A).\n\nThis law matters for anyone who deals with foreign governments or their agencies, such as businesses with government contracts, employees of foreign embassies, or victims of state‑sponsored harm. It balances the sovereignty of foreign states with the right to seek legal remedies in Australia."},"issue_detection":{"absurdities":[{"type":"other","section":"3(1) - definition of 'foreign State', para (b)","severity":"medium","reasoning":"Sovereign immunity is a doctrine premised on reciprocal respect between sovereign entities. Extending it to territories that are not self-governing and not part of any sovereign state severs the immunity from any recognisable sovereign foundation. No such territory could plausibly have a diplomatic mission, executive government, or the institutional apparatus the Act elsewhere assumes foreign States possess.","confidence":0.72,"description":"A 'foreign State' includes 'a separate territory (whether or not it is self-governing) that is not part of an independent sovereign state.' This creates a category of territory that is neither self-governing nor part of any sovereign state — a legally orphaned entity with no clear real-world referent that could coherently claim or exercise state immunity."},{"type":"circular_definition","section":"3(1) - definition of 'state terrorism', para (c)","severity":"medium","reasoning":"Section 13A removes immunity where a proceeding 'concerns state terrorism.' If 'state terrorism' includes any individual member of a state sponsor of terrorism, then virtually any proceeding touching such a person would strip the foreign State of immunity — an extraordinarily broad result that collapses the distinction between individual and state responsibility that the entire Act is built upon.","confidence":0.78,"description":"The definition of 'state terrorism' in the Act includes 'a member (within the meaning of subsection 110.1(1) of the Criminal Code) of a state sponsor of terrorism.' This means that an individual natural person can constitute 'state terrorism' for the purposes of an Act conferring immunity on States. The concept of a natural person being equivalent to an act of state terrorism is conceptually incoherent in the context of a statute about foreign State immunity."},{"type":"other","section":"3(3) and 3(1) - definition of 'separate entity'","severity":"low","reasoning":"The tension is real but courts have managed it through contextual interpretation. The conceptual gap between 'agency/instrumentality' and 'department/organ' is not defined, leaving an indeterminate boundary that the Act itself never resolves.","confidence":0.62,"description":"Section 3(3) states that references to a 'foreign State' include the executive government and its departments/organs, but expressly exclude 'a separate entity.' A 'separate entity' under s3(1) must be an agency or instrumentality that is NOT a department or organ of the executive government. However, s3(2) provides that a natural person who is an agency of more than one foreign State is a 'separate entity' of each. A natural person cannot simultaneously be an agency of a foreign State without being in some sense part of its governmental apparatus, yet the definition excludes them from being a 'department or organ' — creating an irresolvable classification problem."},{"type":"other","section":"32(3)(b)","severity":"medium","reasoning":"The practical effect is that a foreign State must affirmatively prove the purpose for which property with no observable use has been reserved. This is difficult to discharge and creates an almost irrebuttable presumption that vacant State property is available for execution — an outcome at odds with the general protective purpose of sovereign immunity in relation to State assets.","confidence":0.75,"description":"Section 32(3)(b) provides that property that is 'apparently vacant or apparently not in use' shall be presumed to be commercial property unless the court is satisfied it has been 'set aside otherwise than for commercial purposes.' This reverses the usual burden in a logically problematic way: vacant property has no use at all, yet the Act deems absence of use to be commercial use, placing the evidential burden on the foreign State to disprove a use that by definition is not occurring."},{"type":"impossible_compliance","section":"34 and 39(1)","severity":"high","reasoning":"While the policy rationale (comity, reciprocity) is understandable, the Act creates a logical paradox: courts are empowered to make binding orders against foreign States (s29) but stripped of the primary coercive mechanisms (fines, committal) that give orders practical force. The enforcement regime of Part IV addresses property execution but not behavioural compliance, leaving a structural gap.","confidence":0.82,"description":"Sections 34 and 39(1) prohibit fines and committal for failure to comply with court orders (s34) and for failure to disclose documents (s39). Together these provisions make court orders against foreign States substantially unenforceable through contempt, yet Part IV creates an elaborate enforcement regime. A foreign State can ignore court orders and discovery obligations with no coercive sanction — rendering the enforcement machinery largely illusory."},{"type":"retroactive_impossibility","section":"Form 1 and Form 2 — date format","severity":"low","reasoning":"While courts would likely treat this as a minor formal defect, it is a genuine absurdity in the text: formal statutory instruments are required by the Act to use a date format that has been factually impossible to complete correctly for over two decades.","confidence":0.95,"description":"Both Form 1 and Form 2 in the Schedule contain the date format 'DATED this day of 19' — referencing the 20th century year prefix '19'. The Act was enacted in 1985 and these forms have not been updated, meaning every document executed under these forms since 1 January 2000 has technically contained an incorrect and potentially invalid date field, as no year in the 21st century begins with '19'."},{"type":"other","section":"7(1) and 9","severity":"medium","reasoning":"While transitional provisions are common, the permanent nature of this exclusion (there is no sunset) means the anomaly is structural rather than temporary. Courts must maintain parallel immunity analysis depending on when underlying conduct occurred, with no mechanism for the distinction to ever collapse.","confidence":0.68,"description":"Section 7(1) provides that Part II (except s10) does not apply to proceedings concerning contracts, transactions, events or obligations arising before commencement. This means that for pre-commencement matters, the general immunity in s9 applies without any of the exceptions in ss11-21. The combined effect is that a foreign State has absolute immunity for all pre-commencement commercial transactions — a result potentially more protective than the common law it replaced and creating a permanent two-tiered immunity regime."},{"type":"other","section":"40(5)","severity":"high","reasoning":"Conclusive Ministerial certificates on jurisdictional facts oust curial scrutiny entirely. A court cannot question whether the certified 'foreign State' meets the definition in s3(1). This is particularly acute given that s3(1) defines 'foreign State' by reference to objective criteria (independent sovereign state) that the Minister's certificate can override.","confidence":0.85,"description":"Section 40(5) provides that a Ministerial certificate 'is conclusive as to those facts and matters' including whether a country is a foreign State. This means that if the Minister certifies that a particular entity is a foreign State, no court can find otherwise — even if the certification is factually incorrect, politically motivated, or inconsistent with international law. Courts are thus bound by executive fiat on a jurisdictional fact, creating a potential for abuse and conflicting with the rule of law principles underpinning the judicial function."}],"contradictions":[{"severity":"medium","section_a":"9 — General immunity from jurisdiction","section_b":"6 — Savings of other laws","confidence":0.7,"description":"Section 9 provides that a foreign State is immune from jurisdiction 'except as provided by or under this Act.' Section 6 saves immunities conferred by other Acts (Consular, Defence, Diplomatic Acts). If those other Acts confer greater immunity than this Act allows, s6 preserves them. But if those Acts confer lesser immunity or are silent, s9's 'except as provided by or under this Act' could be read to displace them. The interaction between s6's savings clause and s9's exclusive framing is unresolved and creates uncertainty about which regime governs when the Acts overlap."},{"severity":"medium","section_a":"10(5) — Waiver of immunity irrevocable per agreement terms","section_b":"31(3) — Waiver of immunity from execution irrevocable per agreement terms","confidence":0.72,"description":"Both sections provide that a waiver 'may not be withdrawn except in accordance with the terms of the agreement.' Read together with s10(2) (which allows submission 'at any time, whether by agreement or otherwise') and s31(1) (which allows waiver of execution immunity 'at any time by agreement'), there is a contradiction: a State can waive at any time, but once waived cannot withdraw the waiver except per agreement terms. If the original waiver was not 'by agreement' (e.g., by unilateral conduct under s10(2)), there are no 'agreement terms' governing withdrawal — yet the sections suggest the waiver is still irrevocable, leaving the withdrawal mechanism undefined."},{"severity":"medium","section_a":"11(3) — Commercial transaction excludes bills of exchange","section_b":"19 — Bills of exchange","confidence":0.78,"description":"Section 11(3) explicitly excludes 'a bill of exchange' from the definition of 'commercial transaction,' meaning s11(1) immunity removal does not apply to bills of exchange. Section 19 provides a separate mechanism removing immunity for bills of exchange, but only where the underlying transaction or event would itself remove immunity. The combined effect is that if the underlying transaction IS a commercial transaction under s11, immunity is removed via s19, but if the bill of exchange IS the primary claim, s11 expressly excludes it. This creates an asymmetry: a foreign State may be immune on the bill but not on the underlying contract, producing different litigation outcomes for economically identical claims depending on the instrument used."},{"severity":"high","section_a":"29(1) — Court may make any order not inconsistent with Act","section_b":"34 — No fines or committal for non-compliance","confidence":0.88,"description":"Section 29(1) empowers courts to make 'any order (including an order for interim or final relief)' against a foreign State unless inconsistent with an immunity. Section 34 prohibits imposing fines or committal for failure to comply with such orders. This creates a direct contradiction: s29 confers broad order-making power, while s34 strips courts of their primary coercive enforcement tools to give those orders effect. An order that cannot be enforced through contempt is not truly an order in any meaningful judicial sense."},{"severity":"low","section_a":"3(3) — 'Foreign State' includes political subdivisions and executive government","section_b":"3(3) — 'Foreign State' expressly excludes separate entities","confidence":0.65,"description":"Section 3(3) defines 'foreign State' to include the executive government and its departments/organs but expressly excludes 'a separate entity.' Section 22 then applies Part II immunities to separate entities 'as they apply in relation to the foreign State.' If a separate entity is excluded from the definition of 'foreign State' for all purposes but then treated as a foreign State for immunity purposes under s22, the definitional exclusion is functionally nullified in the most important operational context of the Act, creating an internal circularity."},{"severity":"medium","section_a":"36(3) — Section 36 does not affect other provisions of the Act as to heads of State in public capacity","section_b":"36(4) — Part III applies to heads of State in private capacity","confidence":0.8,"description":"Section 36(3) preserves the application of the rest of the Act to a head of State in his or her 'public capacity.' Section 36(4) separately extends Part III (service and judgments) to a head of State in 'private capacity.' The Act thus treats the public/private distinction as jurisdictionally significant, but provides no definition of or mechanism for distinguishing public from private capacity acts by a head of State — a distinction notoriously contested in international law and unresolved on the face of the legislation."},{"severity":"high","section_a":"18(4) — Actions in rem: arrest/detention/sale excluded","section_b":"32(2) — Commercial property: arrest/detention/sale permitted","confidence":0.82,"description":"Section 18(4) provides that ss18(1)-(3) (removing immunity in actions in rem) 'do not apply in relation to the arrest, detention or sale of a ship or cargo.' However, s32(2) provides that s30 (general immunity from execution) does not prevent arrest, detention or sale of commercial ships or cargo where the foreign State is not immune in the proceeding. These two provisions appear to conflict: s18(4) removes the arrest/detention/sale right granted by s18, while s32(2) restores it via the execution immunity pathway — but s32(2)'s operation is conditioned on the State not being immune 'in a proceeding against or in connection with a ship or cargo,' which loops back to s18. The interplay creates a circular dependency on whether s18's removal of substantive immunity (without the arrest remedy) triggers s32(2)'s restoration of the arrest remedy."},{"severity":"low","section_a":"42(6) — Regulations override inconsistent Acts","section_b":"43 — Regulations must not be inconsistent with this Act","confidence":0.6,"description":"Section 42(6) provides that regulations made under s42 'have effect notwithstanding that they are inconsistent with an Act (other than this Act).' Section 43 provides that regulations made thereunder must not be 'inconsistent with this Act.' Read together, s42 regulations can override other Acts, while s43 regulations cannot override this Act. However, both sets of regulations are made by the Governor-General and there is no hierarchy between them on the face of the Act — creating potential conflict if a s42 regulation and a s43 regulation address the same subject matter inconsistently."}]},"summary":{"complexity_score":8,"scope_assessment":{"changed":true,"description":"The Act's core scope — codifying foreign state immunity in Australian courts — remains consistent with its original intent. However, scope has meaningfully expanded over time through amendments. Most notably, section 13A and section 33A (state terrorism) remove immunity entirely for state-sponsored terrorism, a significant departure from the original framework which focused on private law commercial interactions. The emergency assistance exception (section 42A) also represents a new policy direction, extending immunity beyond its original scope to protect foreign humanitarian responders. These additions reflect evolving foreign policy priorities and international security concerns that went beyond the original 1985 design."},"complexity_factors":["Multiple overlapping immunity regimes requiring careful sequential analysis — first check if immune, then check which exception applies, then check if enforcement is possible","Separate rules for 'foreign States' versus 'separate entities' (government agencies/instrumentalities) with different immunity thresholds","Enforcement immunity is an entirely separate legal question from jurisdictional immunity, with its own exceptions and conditions","Service of process rules involve multi-step diplomatic procedures with strict timing requirements and translation obligations","Cross-referencing with multiple other Acts (Diplomatic Privileges and Immunities Act, Consular Privileges and Immunities Act, International Arbitration Act, Foreign Judgments Act, Criminal Code) is required to apply many provisions","Submissions to jurisdiction can be express, implied, or constructive — with numerous carve-outs specifying what does NOT constitute submission","The 'commercial transaction' and 'commercial property' concepts are defined differently in different parts of the Act","Ministerial certificates are conclusive evidence on certain facts, creating unusual evidential dynamics","Regulation-making powers can override other Acts and apply retrospectively to pending proceedings, creating unpredictable legal landscape","Waivers of immunity (both jurisdictional and enforcement) have complex rules about validity, withdrawal, and scope","Action in rem (ship/cargo) provisions interact with admiralty law in a specialised and technical way","Employment exception contains layered carve-outs based on nationality, residency status, and diplomatic classification of the employee"],"plain_english_summary":"## Foreign States Immunities Act 1985 — What It Does and Why It Matters\n\n### The Big Picture\nThis law sets the rules for when a **foreign government** (like France, China, or the USA) can be **sued in an Australian court**. Without this law, foreign governments could claim they are completely above Australian law — a concept lawyers call 'sovereign immunity' (the idea that a sovereign power cannot be challenged in another country's courts). This Act strikes a balance: foreign governments get significant legal protection, but not unlimited protection.\n\n### The General Rule\nA foreign government **cannot normally be sued** in Australia. This is the default starting position. But the Act then carves out a long list of important exceptions.\n\n### When CAN You Sue a Foreign Government?\nYou can take a foreign government to an Australian court when the dispute involves:\n\n- **Business and commercial dealings** — if a foreign government entered into a commercial contract (e.g., buying goods, taking out a loan, giving a guarantee), they can be sued over it. Governments acting like businesses don't get to hide behind immunity.\n- **Employment** — if you have a work contract with a foreign government that was made or performed in Australia, you can sue them over it (with some exceptions, mainly for diplomatic staff).\n- **Personal injury or property damage** — if a foreign government's actions in Australia killed or injured someone, or damaged property, they can be sued.\n- **State terrorism** — if a foreign government is involved in terrorist acts (as defined in Australia's Criminal Code), they get **no immunity at all**.\n- **Property in Australia** — disputes over land, buildings, inheritances, gifts, or business assets located in Australia.\n- **Intellectual property** — disputes over copyright, patents, trademarks or trade names in Australia.\n- **Arbitration** — if the foreign government agreed to resolve disputes through arbitration (a private dispute resolution process), Australian courts can supervise that process and enforce the outcome.\n- **Ships and cargo** — if a foreign government's ship or cargo is being used for commercial purposes, it can be subject to certain legal actions.\n- **Taxes** — for specific tax obligations set out in the regulations.\n\n### What About Actually Collecting Money?\nWinning a lawsuit is one thing — getting paid is another. The Act also sets rules on **enforcing judgments** (actually seizing a foreign government's assets to satisfy a court order). The default rule is that you **cannot** seize a foreign government's property. But exceptions exist for:\n- **Commercial property** (property being used for business purposes)\n- **Immovable property** like land and buildings, in certain cases\n- **State terrorism cases** — no immunity from enforcement at all\n- Cases where the foreign government has **voluntarily agreed** to waive (give up) its enforcement immunity\n\nCritically, **diplomatic property** (embassy buildings and the like) and **military property** are almost always protected from seizure.\n\n### How Do You Even Serve Legal Papers on a Foreign Government?\nYou can't just knock on the embassy door. The Act sets a formal process:\n1. You deliver the legal papers to the **Australian Attorney-General**\n2. The Department of Foreign Affairs transmits them through official diplomatic channels to the equivalent ministry in the foreign country\n3. There are strict rules about translations, waiting periods (at least 2 months), and certified copies\n\n### Who Else Does This Cover?\n- **Agencies and instrumentalities** of foreign governments (like government-owned companies) — they get similar but slightly different treatment\n- **Heads of State** — they receive diplomatic-style immunity in their personal capacity\n- **Sub-national governments** — provinces, states, and territories of foreign countries are also covered\n\n### The Reciprocity Lever\nIf a foreign country doesn't give Australia the same courtesies, the Australian Government can issue regulations **reducing** the immunity that country enjoys here. The Government can also **expand** immunity to match treaty obligations.\n\n### Emergency Assistance Exception\nIf a foreign government sends personnel to help Australia manage a natural disaster or emergency, regulations can protect them from being sued for personal injury or property damage caused during that assistance.\n\n### What This Means for Ordinary Australians\n- **Businesses** dealing with foreign governments have clearer rights to sue over commercial disputes\n- **Workers** employed by foreign embassies or missions have some (limited) rights to take employment disputes to court\n- **Victims of foreign government actions** on Australian soil can potentially seek compensation in Australian courts\n- **Terrorism victims** have the strongest rights — foreign state sponsors of terrorism have essentially no immunity"},"kimi_summary":{"_metrics":{"source":"grok-batch-everything"},"content_quality":"ok","complexity_score":8,"scope_assessment":{"changed":true,"description":"The original 1985 Act gave effect to the restrictive theory of state immunity focused on commercial and territorial exceptions. Subsequent amendments have materially expanded its scope by inserting s 13A and s 33A to remove immunity and execution protection where proceedings concern 'state terrorism' (as defined by reference to the Criminal Code), and by adding s 42A to allow regulations extending immunity for foreign states assisting in Australian emergency or disaster management. These changes broaden both the categories of conduct that pierce immunity and the circumstances in which additional immunities may be conferred by regulation."},"complexity_factors":["Over 15 densely drafted defined terms in s 3(1) including 'separate entity', 'commercial property', 'diplomatic property', 'military property' and 'state terrorism' that feed into multiple operative sections","Layered exceptions to the default immunity rule in Part II (ss 10–21) each carrying their own carve-outs, cross-references and 'unless' conditions","Distinct procedural regimes in Parts III and IV for service, default judgments, ex parte orders and execution, with separate rules for foreign states versus separate entities","Frequent cross-references to other statutes (Diplomatic Privileges and Immunities Act 1967, International Arbitration Act 1974, Foreign Judgments Act 1991, Criminal Code)","Conditional logic around waivers, submissions to jurisdiction, certificates issued by the Minister or diplomatic head, and retrospective effect of regulations (s 42)","Nested savings, application and non-application clauses (ss 6, 7, 8, 22, 35) that limit temporal and subject-matter scope"],"plain_english_summary":"**The Foreign States Immunities Act 1985** sets out when foreign countries (and their government agencies) can be sued in Australian courts and when their assets can be used to enforce court orders or arbitration awards.\n\nIn plain terms, it starts from the rule that a foreign state is generally **immune** (legally protected) from Australian court proceedings. This means you usually cannot start a lawsuit against another country in Australia without special permission under the Act. However, the Act lists many practical exceptions where immunity does **not** apply. These include:\n\n- Business or commercial deals the foreign state has entered into (s 11)\n- Employment contracts made or performed in Australia, with some exceptions for diplomats or nationals of that country (s 12)\n- Death, personal injury, or property damage caused by an act or omission in Australia (s 13)\n- Cases involving state terrorism as defined in the Criminal Code (s 13A)\n- Disputes over land or property in Australia, bankruptcies, or certain intellectual property rights (ss 14–16)\n- Arbitration agreements and awards (s 17)\n- Certain shipping and cargo claims where the vessel or goods are used commercially (s 18)\n\nThe Act also spells out **how** legal documents must be served on a foreign state (usually through diplomatic channels via the Department of Foreign Affairs – ss 23–25), strict rules preventing default judgments unless the court is satisfied immunity does not apply (ss 26A–28), and limits on what property can be seized to enforce a judgment. Diplomatic premises, military assets, and central bank property receive strong protection from enforcement (Part IV).\n\nIt matters because it strikes a balance: Australia respects the sovereignty of other nations while ensuring Australian individuals and businesses can seek justice in clear cases like commercial contracts or local harm. Separate entities of foreign states (such as state-owned corporations that are not core government departments) are treated similarly but with some differences. The law binds the Crown and applies across Australia including external territories."}},"importantCases":[],"_links":{"self":"/api/acts/foreign-states-immunities-act-1985","history":"/api/acts/foreign-states-immunities-act-1985/history","analysis":"/api/acts/foreign-states-immunities-act-1985/analysis","conflicts":"/api/acts/foreign-states-immunities-act-1985/conflicts","importantCases":"/api/acts/foreign-states-immunities-act-1985/important-cases","documents":"/api/acts/foreign-states-immunities-act-1985/documents"}}