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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FOREIGN STATES IMMUNITIES AMENDMENT BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
FOREIGN STATES IMMUNITIES AMENDMENT BILL 2009
OUTLINE
The Foreign States Immunities Act 1985 (the Act) provides a regime for the
immunity of foreign States from the civil jurisdiction of Australian
courts. This immunity is subject to various exceptions listed in the Act.
These exceptions include proceedings concerning the death of or personal
injury to a person, or loss of or damage to tangible property, caused by an
act or omission that occurs in Australia.
The purpose of this Bill is to amend the Act to enable a foreign State and
its emergency management personnel to be immune in tort proceedings under
the Act for acts or omissions that occur in the course of the foreign State
providing emergency management assistance to Australia.
The Bill will amend the Act to empower the Governor-General to make
regulations modifying its operation with respect to a foreign State
assisting the Australian Government or a State or Territory Government to
manage domestic emergencies or disasters (whether natural or otherwise).
This amendment would authorise regulations to be made lifting what would
otherwise be an exception to the foreign State's immunity in proceedings
concerning the death of or personal injury to a person, or loss of or
damage to tangible property.
The Bill will facilitate the provision of vital resources to the Australian
Government and State and Territory Governments as it removes a barrier to
the conclusion of agreements with other countries for the exchange of
emergency management resources, including personnel and/or equipment.
While the proposed amendment would limit the ability of individuals to sue
a foreign State or its personnel, the provision of this immunity would not
negate any liability of the Australian Government or State and Territory
Governments. Further, as the immunity will only apply to acts or omissions
of the foreign State in the course of providing emergency management
assistance or facilities, any negligence by a foreign official outside of
their duties would remain subject to the jurisdiction of the Australian
courts. The immunities under the Act also do not apply in any criminal
proceedings.
The existence, or occurrence, of an emergency or disaster will not be a
precondition to the use of the regulation making power. The regulation
making power will cover foreign States that send their personnel and/or
equipment to participate in the ordinary course of emergency management
activities, including preparatory and preventive activities, prior to the
actual occurrence of an emergency or disaster.
This amendment is consistent with the Australian Government's commitment to
strengthen our capacity to withstand disasters and emergencies in order to
protect the safety and security of all Australians.
FINANCIAL IMPACT STATEMENT
The proposed amendments will not have any budgetary implications for the
Australian Government.
NOTES ON CLAUSES
Clause 1: Short title
1. This clause is a formal provision specifying that once enacted the
short title of the Bill will be the Foreign States Immunities
Amendment Act 2009.
Clause 2: Commencement
2. This clause provides that the Bill will commence on the day after it
receives Royal Assent.
Clause 3: Schedule(s)
3. This clause provides that each Act that is specified in a Schedule is
amended or repealed as set out in the applicable items in the Schedule
and that any other item in a Schedule has effect according to its
terms.
Schedule 1 - Foreign States Immunities Act 1985
Item 1 - Subsections 42(1) and (2)
4. Item 1 amends subsections 42(1) and (2) of the Act which permits the
Governor-General to make regulations in certain circumstances. The
amended provision will provide that it is the Minister who is to form
the opinion that an immunity or privilege conferred under the Act
should be modified in relation to a foreign State before the Governor-
General exercises his or her power to make regulations under the Act.
5. The purpose of this amendment is to align the provisions with current
Commonwealth drafting policy.
Item 2 - After section 42
6. This item inserts a new section 42A after section 42 of the Act to be
called 'Extension of immunities - emergency prevention and
management'.
7. Section 13 of the Act currently provides that a foreign State is not
immune in a proceeding in so far as the proceeding concerns the death
of or personal injury to a person, or loss of or damage to tangible
property, caused by an act or omission done or omitted to be done in
Australia.
8. This new section would allow the Governor-General to make regulations
excluding or modifying the operation of section 13 of the Act so that
a foreign State which is providing assistance to Australia in
Australia's management of domestic emergencies or disasters is immune
from the type of proceedings referred to in that section.
9. New subsection 42A(1) provides that before the Governor-General makes
a regulation, the Minister must be satisfied that the foreign State,
or a separate entity of the foreign State, is providing, or is to
provide, assistance or facilities to the Australian Government or any
of the State or Territory Governments for the purposes of preparing
for, preventing or managing emergencies or disasters in Australia.
10. The scope of the regulation making power is limited to emergencies or
disasters which occur, or which may occur, in Australia.
11. The provision is expressed to apply to a foreign State, or a separate
entity of a foreign State. A separate entity of a foreign State is a
person or body corporate (not being an Australian national or
corporation) acting as an agency or instrumentality of the foreign
State. It may include State-owned corporations where these act as
agencies for the State.
12. New subsection 42A applies to a foreign State whether the foreign
State offers assistance in the form of emergency management personnel
and/or equipment in general. An emergency or disaster does not need
to actually exist, or have occurred, in order for the Minister to be
satisfied that a foreign State is providing, or is to provide,
assistance or facilities for the purposes of preparing for, preventing
or managing emergencies or disasters in Australia. For example,
the Governor-General may make regulations to cover foreign States that
send their personnel to participate in emergency prevention and
management activities, for example training activities, prior to any
situation actually becoming a domestic emergency.
13. If the Minister is satisfied that subsection 42A(1) applies, new
subsection 42A(2) will enable the Governor-General to exclude or
modify the application of section 13 of the Act. For example, the
Governor-General may exclude the application of section 13 in whole,
or in part, to a foreign State with respect to personnel assisting in
the prevention or management of bushfires. This regulation making
power would be used, for example, where a reciprocal agreement exists
between the Australian Government, or the Government of a State or
Territory, and a foreign State.