The High Court of Australia’s Constructional Choice in Greylag Goose Leasing 1410 Designated Activity Co v PT Garuda Indonesia Ltd

Abstract

In Greylag Goose Leasing 1410 Designated Activity Co v PT Garuda Indonesia Ltd, the High Court of Australia made a five to two split decision that the Foreign States Immunities Act 1985 (Cth) (‘FSI Act’) s 14(3) — an exception to foreign State jurisdictional immunity in proceedings relating to the bankruptcy, insolvency or winding up of a body corporate — operated in a confined way and did not apply to ‘separate entities’ of a foreign State. The majority further considered s 22 of the Act to substantively confer jurisdictional immunity upon State separate entities. This decision demonstrates the role of extrinsic material in informing the constructional choice presented by generally worded statutory provisions and affirms the importance of the Australian Law Reform Commission’s 1984 Foreign State Immunity report in interpreting the FSI Act. In this case note, I examine the majority and dissenting approaches to the statutory construction of s 14(3) and comment on the potential uncertainty left for creditors of State ‘separate entities’ in light of the decision.