Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. State immunity is a similar, stronger doctrine, that applies to foreign courts.
History Sovereign immunity is the original forebear of state immunity based on the classical concept of sovereignty in the sense that a sovereign could not be subjected without their approval to the jurisdiction of another. 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 them as they were created by the sovereign for the protection of their subjects. This rule was commonly expressed by the popular legal maxim rex non potest peccare, meaning "the king can do no wrong".
Forms There are two forms of sovereign immunity:
immunity from suit (also known as immunity from jurisdiction or adjudication) immunity from enforcement.
Immunity from suit means that neither a sovereign/head of state in person nor any in absentia or representative form (nor to a lesser extent the state) can be a defendant or subject of court proceedings, nor in most equivalent forums such as under arbitration awards and tribunal awards/damages.
Immunity from enforcement means that even if a person succeeds in any way against their sovereign or state, they and the judgment may find themselves without means of enforcement. Separation of powers or natural justice coupled with a political status other than a totalitarian state dictates there be broad exceptions to immunity such as statutes which expressly bind the state (a prime example being constitutional laws) and judicial review.
Waiver Sovereign immunity of a state entity may be waived. A state entity may waive its immunity by:
prior written agreement instituting proceedings without claiming immunity submitting to jurisdiction as a defendant in a suit intervening in or taking any steps in any suit (other than for the purpose of claiming immunity).
By country
Australia 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 matters on which the states and the Commonwealth legislate independently of each other; in practice this means the states legislate on some things and the Commonwealth legislates 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, declare 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.
Many Acts passed in Australia, both at the state and at the federal level, contain a section declaring whether the Act binds the Crown, and, if so, in what respect:
Commonwealth Acts may contain wording similar to: "This Act binds the Crown in each of its capacities", or specify a more restricted application. State acts may contain wording similar to: "This Act binds the Crown in right of [the state] and, in so far as the legislative power of the Parliament of [the state] permits, the Crown in all its other capacities."
While there is no ambiguity about the first aspect of this declaration about binding the Crown with respect to the state in question, there have been several cases about the interpretation of the second aspect extending it to the Crown in its other capacities. Rulings by the High Court of Australia on specific matters of conflict between the application of states laws on Commonwealth agencies have provided the interpretation that the Crown in all of its other capacities includes the Commonwealth, therefore if a state Act contains this text then the Act may bind the Commonwealth, subject to the s. 109 test of inconsistency.
A landmark case which set a precedent for challenging broad Crown immunity and established tests for the applicability of state laws on the Commonwealth was Henderson v Defence Housing Authority in 1997., discussed in This case involved the arbitration of a dispute between Mr. Henderson and the Defence Housing Authority (DHA). Mr. Henderson owned a house which the DHA had leased to provide housing to members of the Australian Defence Force (ADF). Under the NSW Residential Tenancies Act 1997,, since replaced by the Mr. Henderson sought orders from the Residential Tenancies Tribunal to enter the premises for the purposes of conducting inspections. In response, DHA claimed that as a Commonwealth agency the legislation of NSW did not apply to it and further sought writs of prohibition attempting to restrain Mr. Henderson from pursuing the matter further. Up until this point the Commonwealth and its agencies claimed an unfettered immunity from state legislation and had used s. 109 to justify this position, specifically that the NSW Act was in conflict with the Act which created the DHA and s. 109 of the constitution applied. Mr. Henderson took the case to the High Court and a panel of seven justices to arbitrate the matter. By a majority decision of six to one the court ruled that the DHA was bound by the NSW Act on the basis that the NSW Act did not limit, deny or restrict the activities of the DHA but sought to regulate them, an important distinction which was further explained in the rulings of several of the justices. It was ruled that the NSW Act was one of general application and therefore the Crown (in respect of the Commonwealth) could not be immune from it, citing other cases in which the same ruling had been made and that it was contrary to the rule of law. As a result of this case, the Commonwealth cannot claim a broad constitutional immunity from state legislation.
In practice, three tests have been developed to determine whether a state law applies to the Commonwealth and vice versa:
Does the law seek to merely regulate the activities of the Commonwealth as opposed to deny, restrict or limit them? Is the state law constructed such that the act binds the Crown in respect of all of its capacities? Is there no inconsistency between a state law and a Commonwealth law on the same matter?
If these three tests are satisfied, then the Act binds the Crown in respect of the Commonwealth. In Australia, there is no clear automatic Crown immunity or lack of it; as such there is a rebuttable presumption that the Crown is not bound by a statute, as noted in Bropho v State of Western Australia. The Crown's immunity may also apply to other parties in certain circumstances, as held in Australian Competition and Consumer Commission v Baxter Healthcare.
Belgium Article 88 of the Constitution of Belgium states: "The King's person is inviolable; his ministers are accountable."
Bhutan According to the constitution of Bhutan, the monarch is not answerable in a court of law for their actions.
Canada Canada inherited the common law version of Crown immunity from British law. However, over time, the scope of Crown immunity has been steadily reduced by statute law. As of 1994,The law was passed during the reign of Elizabeth II, but now uses male pronouns after amendment by the Demise of the Crown (Statutes) Amendment Regulation, AR 217/2022 , to reflect the accession of Charles III as King of Canada in 2022. section 14 of Alberta's Interpretation Act states, "no enactment is binding on His Majesty or affects His Majesty or His Majesty's rights or prerogatives in any manner, unless the enactment expressly states that it binds His Majesty." However, in more recent times "all Canadian provinces ... and the federal government (the Crown Liability Act) have now rectified this anomaly by passing legislation which leaves the Crown liable in tort as a normal person would be. Thus, the tort liability of the government is a relatively new development in Canada, statute-based, and is not a fruit of common law."
Since 1918, it has been held that provincial legislatures cannot bind the federal Crown, as Charles Fitzpatrick noted in Gauthier v The King: "Provincial legislation cannot [i.e., of its own force] take away or abridge any privilege of the Crown in right of the Dominion."
It has also been a constitutional convention that the Crown in right of each province is immune from the jurisdiction of the courts in other provinces. However, this is now in question.
Lieutenant governors do not enjoy the same immunity as the sovereign in matters not relating to the powers of the office. In 2013, the Supreme Court refused to hear the request of former Lieutenant Governor of Quebec Lise Thibault to have charges against her dropped. She was being prosecuted by the Attorney General of Quebec for misappropriation of public funds, but invoked royal immunity on the basis that "the Queen can do no wrong". As per convention, the court did not disclose its reasons for not considering the matter. Thibault later petitioned the Court of Quebec for the same motives. Judge St-Cyr again rejected her demand, noting that constitutional law does not grant a lieutenant governor the same benefits as the monarch and that, in her case, royal immunity would only apply to actions involving official state functions, not personal ones. She was eventually found guilty and sentenced to 18 months in jail, but was granted conditional release after serving six months.
China China historically adhered to the doctrine of absolute sovereign immunity, under which states and their property enjoy immunity from the jurisdiction of foreign courts regardless of the nature of the act. This position was based on the principle that all states are equal and therefore cannot exercise jurisdiction over one another. Chinese state-owned enterprises considered instrumental to the state, such as the Aviation Industry Corporation of China (AVIC) and China National Building Material, have claimed sovereign immunity in lawsuits brought against them in foreign courts, with the support of the Chinese government.
On September 1, 2023, China's Standing Committee of the National People's Congress passed the Foreign State Immunity Law, marking a fundamental shift from absolute to restrictive sovereign immunity. The law came into effect on January 1, 2024. Under the new legal framework, foreign states no longer enjoy immunity in proceedings arising from commercial activities, and the law establishes exceptions for torts, employment contracts, and arbitration-related matters.
Hong Kong In 2011, the Hong Kong Court of Final Appeal ruled that absolute sovereign immunity applies in Hong Kong, as the Court found that Hong Kong, as a Special Administrative Region of China, could not have policies on state immunity that were inconsistent with China. The ruling was an outcome of the Democratic Republic of the Congo v FG Hemisphere Associates case in 2011.
Following the enactment of the Foreign State Immunity Law in 2023, the same restrictive immunity regime now applies in Hong Kong. The Hong Kong Court of Final Appeal's decision in Congo was predicated on China's absolute immunity stance, and the subsequent national legislation supersedes that position. As such, restrictive immunity applies in Hong Kong.
Democratic Republic of the Congo v FG Hemisphere Associates (2011)