Questions of public international law do not, alas, arise regularly in the daily legal practice of most Australian lawyers. One must join the Government or an international organisation in order to be served with a sustaining diet of international law. International arbitration for investor-state disputes might be one exception, but the case-load in Australia, or involving Australian counsel and solicitors, is still developing in this field.

Therefore, when a public international law case comes along it is worth noting, the more so when it reaches the doors of the High Court of Australia, as did Australian International Islamic College Board Inc v Kingdom of Saudi Arabia [2014] 2 Qd R 1; (2013) 298 ALR 655; [2013] QCA 129 (International Islamic College).

The case concerned the most commonly occurring of this uncommon species: a question of sovereign immunity. At a high level, the case involved a school suing a foreign government to enforce a promise of funding for its operations.

Australians are used to suing the Government in federal courts, and so we may lose sight of the fact that this is a departure from the historical position at international law that a sovereign is immune from suit in a court in its jurisdiction (unless the sovereign willingly submits). Australia (Queensland, in fact) led the common law world in removing this immunity: Professor Paul Finn has traced the history of the initiative to a newly elected backbencher from Maryborough in 1865 who introduced the first Claims Against the Government Act 1866 (Qld), the progenitor of ss 56-58 and 64 of the  Judiciary Act 1903 (Cth), and state Crown Proceedings Acts (see ‘Claims Against the Government Legislation’ in Finn (ed) Essays on Law and Government (Lawbook, 1996)).

At the domestic level, there are three inter-linked immunities which have been abolished or curtailed by this legislation – the exposure of the Government to substantive claims (so permitting it to be sued in tort or contract etc); procedural immunities (so requiring discovery etc); and immunity from execution or enforcement measures. In addition there are related principles of statutory interpretation which have been modified or removed – whether the Government is bound by statute (see, eg, Bropho v Western Australia [1990] HCA 24) and the separate question of whether a statute evinces an intention of exposing the Government to criminal prosecution and punishment (see Cain v Doyle [1946] HCA 38; Wurridjal v The Commonwealth [2009] HCA 2 at 380-1 [164]).

In the international sphere, analogous forms of immunity were extended to foreign sovereigns as an act of comity or mutual respect. The consistency of this practice at the international level resulted in foreign government immunity in domestic courts emerging as a principle of customary international law (although the International Law Association prepared the Montreal Draft Convention on State Immunity in 1982 and the Institute of International Law and International Law Commission worked on proposals for a treaty in the 1990s). In the Anglo-Australian common law, classical statements of the original doctrine (the absolute theory of sovereign immunity) were expounded in The Cristina [1938] AC 485, Rahimtoola v Nizam of Hyderabad [1958] AC 379 and in the US Supreme Court in The Schooner Exchange v McFaddon 7 Cranch 116 (1812).

With the increasing involvement of states, both directly and through state-owned instrumentalities and organisations, in international trade and activity, the rule of absolute immunity became increasingly questioned during the second half of the twentieth century, commencing in the US and then in the UK (see, eg, Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529).

National legislatures then intervened to establish a restrictive doctrine of sovereign immunity, under which there is no immunity for commercial activities of a state (subject to prescribed exceptions). The legislation is broadly similar: see, for example, Foreign Sovereign Immunities Act 1976 (US), State Immunities Act 1978 (UK), State Immunity Act Cap 313 1979 (Singapore) and State Immunity Act 1985 (Canada).

Australia followed suit with the Foreign States Immunities Act 1985 (Cth) (the Act), adopting the recommendations of the Australian Law Reform Commission Report No. 24 (ALRC Report 24) prepared by Professor James Crawford. It was this Act, aided by reference to the ALRC Report, which fell to be construed in International Islamic College. As with many such cases, the outcome turns on a nice question of characterisation of the underlying transaction: was it a commercial transaction, for which there is no immunity, or was it one of the exceptions for which immunity is preserved?

A commercial transaction is defined in s 11(3) of the Act to mean ‘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.’ Without limitation, it expressly includes a contract for the supply of goods or services; an agreement for a loan or some other transaction for or in respect of the provision of finance; and a guarantee or indemnity in respect of a financial obligation. On the other hand, a commercial transaction does not include a contract of employment (dealt with in s 12) or a bill of exchange (dealt with in s 19) and, critically, immunity is not waived ‘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’(s 11(2)(b)).

The critical question framed by the parties was whether the transactions concerned a payment ‘in respect of a scholarship.’

The College alleged that Saudi Arabia entered into two agreements with the College: first, to pay it the fees of recipients of Saudi scholarships; and secondly, to provide the school with funds necessary to repay the Australian Government for grants wrongly received.

Saudi Arabia brought an application for orders that, for want of jurisdiction under the Act, the proceeding had not been properly started, or alternatively, that the plaintiff’s claim had not been properly served in accordance with the requirements of the Act. At first instance, Martin J ([2012] QSC 259) upheld the primary application on the ground that the first contract fell within the exclusion, as ‘a payment in respect of a grant, a scholarship or a payment of a like kind.’

With respect to the second alleged agreement, Saudi Arabia disputed whether it was an agreement at all and argued that, if made, it was not commercial in character but was to avoid diplomatic embarrassment. After considering the High Court’s discussion of the meaning of a ‘commercial transaction’ in P T Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240, [2012] HCA 33 at [37] – [42], Martin J could not exclude the agreement from being a commercial transaction, but again he found the transaction as falling within the scholarships exception (relying on the breadth of the introductory words of the exclusion ‘in respect of’).

The Queensland Court of Appeal (Holmes, White JJA and Atkinson J) reversed the decision: [2013] QCA 129. In her leading judgment, Holmes JA limited the scholarship exception to cases between a foreign state as grantor and individual award recipients. She characterised the first transaction as a payment in respect of the provision of a service by the College to Saudi Arabia (the service being the education of scholarship holders), not a payment in respect of a scholarship or grant to a selected scholar.

By a notice of contention, Saudi Arabia brought forward additional three additional grounds to uphold Martin J’s decision. It was pleaded that the first agreement was ambiguously drafted (which seems, to this commentator, a fair description) and was too vague to be commercial. It was further submitted that the second agreement was a policy decision in which there was no commercial element. This is a tension inherent in the ‘nature’ of a transaction that goes back to the first great case on restrictive immunity, the Primero Congresso del Partido [1983] 1 AC 244 (Congresso del Partido). In that case, the Cuban government diverted a shipload of sugar from Chile to Vietnam in retribution for a coup in Chile which removed the friendly Allende government. This raised a question which divided the Court, namely whether the diversion was an immune diplomatic decision or an actionable breach of a commercial contract. The second ground was that there was no agreement. The third ground was that what was needed to attract immunity was an arguable case. This was based on the contention that ‘it would destroy the effect of the statutory immunity to require the State claiming it to disprove the existence of a commercial transaction’.

While these were compelling arguments, they found no favour with the Court. As to the first contention, the vagueness of the pleaded agreement was held to be not relevant to its character, while the commercial ‘nature’ of the second alleged transaction trumped the motivation for it (following the verdict in Congresso del Partido). The Court also brushed aside the second contention, holding that ‘the focus must be on whether the proceeding concerned commercial transactions, not whether the terms of the transactions pleaded were such as to give rise to enforceable rights.’ The definition of ‘commercial transaction’ in the Act was wide enough to capture what was alleged to have occurred in the present case. The Court provided that the Act ‘deals with the nature of the transaction which is the subject matter of the proceeding, rather than whether that transaction can be proved’ and if the pleading was truly deficient, the sovereign could move to have it struck out. On the last contention, authority requires that the claimant of immunity must produce sufficient evidence to show that its claim is not merely illusory, without proving the case. This threshold was not met in the present case.

Sadly for international law scholars, the High Court dismissed Saudi Arabia’s application for special leave to appeal on the papers: [2014] HCASL 37 (Kiefel and Keane JJ). Reciting the most common bases for refusing special leave to appeal, the Court ruled that the case did not raise a question of law of general importance sufficient to require consideration by the High Court. It was also held that the appeal did not enjoy sufficient prospects of success.

Peter Willis is a barrister practising in Melbourne. He is also an Executive Committee member of ILA (Victoria) and Australian representative on the ILA’s International Securities Regulation Committee of experts. Prior to coming to the Bar, Peter was a partner of Mallesons Stephen Jaques.