Sovereign immunity

Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution. It is a principle of international law which exempts a sovereign state from the jurisdiction of foreign national courts. Sovereign immunity is based on the concept of sovereignty in the sense that a sovereign may not be subjected without its approval to the jurisdiction of another sovereign. As Lord Atkin observed,

The courts of a country will not impede a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.

The law of sovereign immunity connotes that a state, unless it chooses to waive its immunity, is immune to the jurisdiction of foreign courts and the enforcement of court orders. It also precludes the assertion of jurisdiction by the national courts of a foreign country over a sovereign or state, without the latter’s consent. There are two forms of sovereign immunity:

Immunity from suit means a state is immune from the jurisdiction of another state in its courts. Immunity from enforcement means that even if a state successfully brings another state to court and wins in the case, the judgment cannot be enforced.

However, sovereign immunity of a state entity may be waived. A state entity may waive its immunity by:

In constitutional monarchies the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects. This principle is commonly expressed by the popular legal maxim rex non potest peccare, meaning "the king can do no wrong."

There is no automatic Crown immunity in Australia and the Australian Constitution does not establish a state of unfettered immunity of the Crown in respect of the States and the Commonwealth. The Constitution of Australia establishes items which the States and the Commonwealth legislate on independently of each other, in practice resulting in the States legislating on some things and the Commonwealth legislating on others. In some circumstances this can create ambiguity as to the applicability of legislation where there is no clearly established Crown immunity. The Australian Constitution does however, in s. 109, declares that, "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." Based on this, depending on the context of application and whether a particular statute infringes on the executive powers of the State or the Commonwealth the Crown may or may not be immune from any particular statute.

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