EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 249

 

 

Issued by the authority of the Attorney-General

 

Foreign States Immunities Act 1985

 

Foreign States Immunities Amendment Regulations 2009 (No. 1)

 

The Foreign States Immunities Act 1985 (the Act) provides a regime for the immunity of foreign States from the civil jurisdiction of Australian courts. Generally, under section 13 of the Act, foreign State immunity does not extend to proceedings concerning the death of, or personal injury to, a person, or loss of or damage to tangible property arising from acts or omissions in Australia.

 

Section 43 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to this Act.

 

Subsection 42A(2) of the Act provides that the Governor‑General may make regulations modifying the application of section 13 of the Act so that a foreign State that assists the Commonwealth or a state or territory in preparing for, preventing or managing emergencies or disasters is immune from proceedings concerning the death of, or personal injury to, a person, or loss of or damage to tangible property arising out of that assistance.

 

The Regulations provide immunity to the Government of the United States of America from proceedings concerning the death of or personal injury to a person, or loss of or damage to tangible property. The immunity only extends to assistance provided by the Government of the United States of America to the Government of Australia, or a state or territory, in the course of preparing for, preventing or managing bushfires in Australia.

 

The purpose of the Regulations is to enable Victoria, on behalf of all Australian states and territories, to finalise an agreement for a cooperative exchange programme for fire suppression resources with the United States of America. Due to its domestic legal requirements, the United States of America cannot finalise the agreement unless immunity from tort proceedings is provided concerning the actions of its fire fighters in the course of their duties.

 

Subsection 42A(1) of the Act provides that before the Governor-General makes regulations excluding or modifying the application of section 13 of the Act, the Attorney-General 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 Commonwealth Government, or a state or territory government, for the purposes of preparing for, preventing or managing emergencies or disasters (whether natural or otherwise) in Australia.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

ATTACHMENT

 

Details of the Foreign States Immunities Amendment Regulations 2009 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Foreign States Immunities Amendment Regulations 2009 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered.

 

Regulation 3 – Amendment of Foreign States Immunities Regulations 1987

 

This regulation provides that the Foreign States Immunities Regulations 1987 (the Principal Regulations) are amended as set out in the Schedule.

 

Schedule – Amendments

 

Item [1] – After regulation 2

 

Item 1 inserts a new regulation 2A into the Principal Regulations. Regulation 2A provides that section 13 of the Foreign States Immunities Act 1985 (the Act) does not apply to acts or omissions of the United States of America if those acts or omissions arise out of assistance or facilities provided to the Government of Australia, or a state or territory, for the purpose of bushfire management or prevention.

 

Section 13 of the Act generally 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.

 

The effect of this regulation is that the United States of America will be immune for acts or omissions of its personnel in the course of preparing for, preventing or managing bushfires in Australia. This means that any negligence by personnel from the United States of America outside of their duties would remain subject to the jurisdiction of Australian courts.