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CRIMES (OVERSEAS) AMENDMENT BILL 2003

2002-2003

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA






HOUSE OF REPRESENTATIVES







CRIMES (OVERSEAS) AMENDMENT BILL 2003





EXPLANATORY MEMORANDUM














(Circulated by authority of the Attorney-General,
the Honourable Daryl Williams AM QC MP)

CRIMES (OVERSEAS) AMENDMENT BILL 2003

OUTLINE

This Bill amends the Crimes (Overseas) Act 1964 (the Act).

The Bill would extend the criminal law of the Jervis Bay Territory to:
• Australians working in a foreign country who are granted diplomatic and consular immunities, or who are granted immunity due to their relationship with an international organisation (to the extent of that immunity);
• Australians working in a foreign country under an agreement or arrangement between the Commonwealth and the United Nations (or an organ of the United Nations), or the Commonwealth and a foreign country, and who are granted immunity by the foreign country (to the extent of that immunity);
• Australians working in a foreign country under a prescribed agreement or arrangement between the Commonwealth and the United Nations (or an organ of the United Nations), or the Commonwealth and a foreign country;
• Australians working in a foreign country or a part of a foreign country, where that foreign country, or that part of the foreign country has been declared by regulation to be a ‘declared foreign country’ for the purposes of the Act.

The Bill would also amend the way the criminal law of the Jervis Bay Territory applies to persons covered by the Act, by removing the creation of an offence against the Act and replacing it with the extraterritorial application of the criminal law of the Jervis Bay Territory to persons covered by the Act.

Sections 1 to 3 of the Bill will commence on the day on which it receives Royal Assent.

The Schedule to the Bill will commence on 1 July 2003.

FINANCIAL IMPACT STATEMENT

There are no direct financial impacts from this Bill.

NOTES ON CLAUSES

General

1. Unless otherwise indicated any reference to a ‘section’, ‘subsection’ or ‘paragraph’ in these notes is a reference to a section, subsection or paragraph in the Crimes (Overseas) Act 2003 (the Act).

Clause 1: Short title

2. This clause provides that the Bill when passed may be cited as the Crimes (Overseas) Amendment Act 2003 (the Amendment Act).

Clause 2: Commencement

3. Sections 1 to 3 of the Amendment Act commence on the day it receives Royal Assent. Schedule 1 of the Amendment Act commences on 1 July 2003. This is to enable regulations to be passed declaring Iraq and the Solomon Islands to be ‘declared foreign countries’ with retrospective application to 1 July 2003. Anything in the Amendment Act not covered elsewhere commences on the day on which the Amendment Act receives Royal Assent.

Clause 3: Schedule(s)

4. This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule and that any other item in the Schedule has effect according to its terms.

Schedule 1- Crimes (Overseas) Act 1964

Item 1:

This item inserts a new definition into section 3 of ‘act’ to include an omission.

Item 2:

This item inserts a new definition into section 3 of ‘ASIS’ to have the same meaning as in the Intelligence Services Act 2001.

Item 3:

This item inserts a new definition into section 3 of ‘Australian’ to include citizens and non-citizens who may remain in Australia permanently under the Migration Act 1958.

Item 4:

This item inserts a new definition into section 3 of ‘criminal laws of the Jervis Bay Territory’. This item defines and broadens the scope of the laws that will apply extraterritorially under the amended Act, and ensures that it will not be necessary to amend the Act in the future to add later legislation.

Item 5:

This item inserts a new definition into section 3 of ‘declared agreement or arrangement’. This is necessary due to the changes in new section 3B which allow regulations to be made declaring an agreement or arrangement to be a declared agreement or arrangement for the purposes of the Act.

Item 6:

This item inserts a new definition into section 3 of ‘declared foreign country’. This is necessary due to the changes in new section 3C which allow regulations to be made declaring a country to be a declared foreign country for the purposes of the Act.

Item 7:

This item inserts a new definition into section 3 of ‘declared part of a foreign country’. This is necessary due to the changes in new section 3C which allow regulations to be made declaring part of a country to be a declared part of a foreign country for the purposes of the Act.

Item 8:

This item inserts a new definition into section 3 of ‘DSD’ to have the same meaning as in the Intelligence Services Act 2001.
Item 9:

This item inserts a new definition into section 3 of ‘foreign country’. The definition ensures that the term can be used for a country that is not an independent sovereign State. The definition also extends the term to include all territory and maritime areas over which the country has sovereignty or sovereign rights, and the air space above those areas.

Item 10:

This item inserts a new definition into section 3 of ‘international organisation’ to have the same meaning as in section 5A of the Diplomatic Privileges and Immunities Act 1967.

Item 11:

This item inserts a new definition into section 3 to ensure that it is clear that any reference in this Act to ‘the Minister for Foreign Affairs’ means the Minister who administers the Diplomatic Privileges and Immunities Act 1967. This will ensure that in the case of any future shift of portfolio responsibilities for this matter, the correct Minister would continue to be identified by the Act.

Item 12:

This item repeals the definition of ‘non-citizen’ in section 3. This is necessary due to the insertion of the new definition of ‘Australian’ by item 3 of the Amendment Act.

Item 13:

This section repeals the definition of ‘person to whom this Act applies’ in section 3. The Amendment Act applies Australian jurisdiction in a wider range of situations, so this narrow definition is no longer appropriate.

Item 14:

This item inserts a new definition into section 3 of ‘relevant agreement or arrangement’. The new definition extends the operation of the Act over both formal and informal arrangements, as well as agreements between Australia and the United Nations (or an organ of the United Nations) and Australia and another country.

Item 15:

This item inserts a new definition into section 3 of ‘staff member of ASIS or DSD’ to have the same meaning as in the Intelligence Services Act 2001.

Item 16:

This item repeals section 4, which made it an offence against the Act for a person to whom the Act applied to commit an act that would have been an offence under the laws of the Jervis Bay Territory had it occurred there. Section 4 also required that the person be immune from prosecution for that act under an agreement between the United Nations and the receiving country. The creation of an offence against the Act in this way is technically problematic as a successful conviction would require the prosecution to prove that a person was reckless as to the fact that their offence would have been a breach of the laws of the Jervis Bay Territory. The Amendment Act applies the criminal law of the Jervis Bay Territory extraterritorially, under the proposed section 4 (see below).

This item also inserts the new section 3A, which lists the situations in which the Act will apply to a person for their acts in a foreign country.

The new subsection 3A(1) applies the Act to a person for an act in a foreign country if that person is Australian, and that person has been granted immunity for that act under the Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations, or a similar immunity due to the person’s relationship with an international organisation. The effect of this new subsection will be to extend Australian criminal jurisdiction over Australians working overseas, whether for diplomatic or consular purposes, or for an international organisation, where they are immune from criminal prosecution under the law of that foreign country.

The new subsection 3A(2) limits the new subsection 3A(1) to recognise the unique operation of diplomatic and consular immunities. The new subsection 3A(2) provides that the Act will not apply in two situations. Firstly, the Act will not apply to a person for an act or omission if that person is currently subject to criminal proceedings in the foreign country for that act, and will continue to be subject to criminal proceedings in the foreign country even if that person was prosecuted in Australia for that act, and was acquitted or convicted. Secondly, the Act will not apply to a person for an act, if that person is (a) currently immune to prosecution in the foreign country, but at some time in the future this immunity will end, (b) the person will become subject to criminal proceedings in the foreign country for that act, and (c) would continue to be subject to criminal proceedings in the foreign country even if they were prosecuted in Australia for that act, and were acquitted and convicted. The new subsection 3A(2) envisages the situation where a person’s diplomatic immunity has ended, or will end at some point in the future, but the person would not have the benefit of double jeopardy protections under the laws of the foreign country if they are convicted in Australia. In such a situation, Australia could seek agreement with or an undertaking from the foreign country to the effect that the person would not be subject to criminal proceedings in the foreign country for the act if Australia prosecuted the person under the laws applied by the Act. In the absence of double jeopardy protections, or an agreement or undertaking from the foreign country, Australia will not be able to prosecute the person for offences against laws applied by the Act.

The new subsection 3A(3) applies the Act to a person for an act in a foreign country if that person is an Australian who is undertaking a task or project, or performing a function, in the foreign country under an agreement or arrangement between Australia and the United Nations (or an organ of the United Nations), or Australia and a foreign country, and that person is immune from criminal proceedings in that foreign country for that act. This subsection may apply where the Commonwealth has deployed Australians as part of a United Nations peace-keeping force, and those Australians are immune from criminal proceedings in the foreign country for that act. The Act will not apply to a person under this section where he or she commits an act outside his or her immunity.

The new subsection 3A(4) applies the Act to a person for an act in a foreign country if the person is an Australian who is undertaking a task or project, or performing a function, in a foreign country under a prescribed agreement or arrangement between Australia and the United Nations (or an organ of the United Nations), or between Australia and a foreign country. The regulations may also limit the prescription of the agreement or arrangement as a declared agreement or arrangement to a certain category of persons only. This subsection may apply where the Commonwealth has deployed Australians overseas, but where no immunity has been granted by the receiving country. In such a situation, Australia may have arranged that if Australia can exercise jurisdiction over an Australian working under that agreement or arrangement, Australian jurisdiction will take priority over local jurisdiction. The subsection may also be used to extend jurisdiction over Air Security Officers, as Air Security Officer agreements generally require Australia to have the capacity to exercise jurisdiction over Air Security Officers while in foreign countries. In these situations, it is not appropriate to require persons working under the agreement to be immune from criminal proceedings in the foreign country as a prerequisite to the application of the Act.

The new subsection 3A(5) applies the Act to a person for an act in a foreign country if the person is an Australian who is undertaking a task or project, or performing a function either on behalf of the Commonwealth, or pursuant to commitments or directions given by, or on terms directed by, the Commonwealth, in a country that has been prescribed by regulation to be a ‘declared foreign country’. The regulations may provide that the entire country is a declared foreign country, or may specify a category or categories of persons who are covered by the Act’s operation. The new subsection 3A(5) may apply in situations where Australia has not entered into an agreement or arrangement either with the United Nations (or an organ of the United Nations) or with a foreign country. Alternatively, it may apply where there is a relevant agreement or arrangement in place, but there is an incentive to extend Australian jurisdiction to Australians who are not working directly under that relevant agreement or arrangement, but who are working in connection with the Commonwealth. This may include officers of international organisations or local bodies. The new subsection 3A(5) does not require immunity as a prerequisite for the application of the Act.

The new subsection 3A(6) will operate in the same manner as the new subsection 3A(5), but allows the regulations to declare that only part of a foreign country is a declared part of a foreign country for the purposes of the Act. This may apply in situations where part of a country becomes unstable, and there is the incentive to cover only those Australians who are in that part of the country. This may occur when there is an agreement or arrangement in place between Australia and the United Nations (or an organ of the United Nations), or between Australia and a foreign state, but where there is no intention to extend jurisdiction over officers working in other parts of the country. Alternatively, it may be used when Australia has no relevant agreement or arrangement in place, but Australians are deployed to a part of a foreign country, and there is an incentive to extend Australian jurisdiction over them in a defined operational area. The new subsection 3A(6) also does not require immunity as a prerequisite to the application of the Act.

The purpose of the new subsections 3A(7), (8) and (9) is to ensure that if a person is covered by the Act under the new subsections 3A(3) to (6), he or she is covered from the time when he or she arrives in the foreign country to the time when he or she leaves. This is regardless of when he or she commences undertaking the task or project or performing the function in that foreign country.

The new subsection 3A(10) provides that the Act does not apply to a person for an act if the person is a member of the Defence Force, or is a staff member of ASIS or DSD (where the act is done in the proper performance of a function of ASIS or DSD). Jurisdiction over members of the Defence Force is addressed by the Defence Force Discipline Act 1982, while jurisdiction over members of ASIS and DSD is addressed by the Intelligence Services Act 2001.

The new section 3B provides that regulations may prescribe an agreement or arrangement to be a declared agreement or arrangement for the purposes of the Act. This prescription may apply to all Australians who are undertaking a task or project, or performing a function in the foreign country under the relevant agreement or arrangement. The prescription may be limited to a specified category of persons, or may be limited to persons who undertake specified tasks or projects, or perform specified functions under the declared agreement or arrangement. The new section 3B is intended to operate with the new subsection 3A(4). The purpose of new section 3B is to enable regulations to be made that specify the extent to which Australians serving overseas under a declared arrangement or agreement are covered by Australian criminal jurisdiction. It also ensures that contractors and other non-public service staff will not be unintentionally excluded from the application of the Act, as the regulations can specify that the Act extends to such persons. The new subsection 3B(3) ensures that the Minister for Foreign Affairs will be consulted by the Attorney-General, prior to the Governor-General making regulations which would declare a relevant agreement or arrangement. This recognises the possible foreign policy considerations which may play a part in the decision to make such a declaration.

The new section 3C provides that a foreign country (or part of a foreign country) may be declared by regulation to be a declared foreign country (or declared part of a foreign country) for the purposes of the Act. This prescription may apply to all or some Australians who are undertaking a task or project, or performing a function in the foreign country (or part of the foreign country) on behalf of the Commonwealth, or pursuant to commitments or directions given by, or on terms determined by the Commonwealth. This provision is intended to be very broad and flexible, to allow regulations to be made which apply to any Australians working in connection with the activities of the Commonwealth. The regulations may limit the declaration to a specified category of persons, or to persons who undertake specified tasks or projects, or perform specified functions in the foreign country or the part of the foreign country. When regulations are made for this section, they must define a specific time period for which the foreign country (or part of a foreign country) is a declared foreign country (or declared part of a foreign country).

The new subsection 3C(4) ensures that the Minister for Foreign Affairs is consulted by the Attorney-General, prior to regulations being made by the Governor-General to declare a country or a part of a country under the Act. The subsection also lists a number of factors the Attorney-General should be satisfied of before proposing to make regulations declaring a foreign country (or part of a foreign country) to be a declared foreign country (or declared part of a foreign country) for the purposes of the Act. This section aims to avoid the situation where a foreign country (or part of a foreign country) is declared to be a declared foreign country (or declared part of a foreign country) in situations where it is inappropriate to do so. For example where the Act would already apply in the absence of regulations, or where the nature of the activities in the foreign country render it inappropriate for Australia to exercise jurisdiction. If the duration of Australian presence in the foreign country is excessively long or very short, or if the number of Australians present in the foreign country is very large, or very small, the Attorney-General may decide that declaring the foreign country (or part of the foreign country) to be a declared foreign country (or declared part of a foreign country) is inappropriate. The Attorney-General must also consider whether the Australians engaging in those activities are immune under the criminal laws of the receiving country. If Australians are not immune, then declaring the foreign country to be a declared foreign country (or declared part of a foreign country) may be undesirable given the conflict of laws issues that may arise and Australia’s relationship with that foreign country. The Attorney-General could also consider any other relevant matter in making this decision. However, none of these considerations are intended to be decisive.

The new subsection 3C(5) allows regulations to be made within 3 months of the Amendment Act’s Royal Assent to have retrospective effect to 1 July 2003. The new subsection 3C(5) is intended to allow the retrospective application of Australian criminal law to Australians deployed on Commonwealth operations to Iraq and the Solomon Islands.

The new subsection 4(1) replaces section 4. The operation of section 4 means that prosecutions are currently very difficult under the Act. This is because section 4 provides that an offence against the Act is created if any of the laws applying in the Jervis Bay Territory are breached by a person covered by the Act. The prosecution would need to prove that the accused person had intent for the physical element of the offence in paragraph 4(a), and was reckless about the physical elements in paragraphs 4(b) and (c). It would need to be proved that the accused person was reckless as to whether he or she was immune to prosecution under the law of the receiving country, and was reckless as to whether the act or omission was a crime against the law of the Jervis Bay territory. The new subsection 4(1) applies the law of the Jervis Bay Territory extraterritorially to a person to whom the Act applies in relation to an act. The application of Jervis Bay Territory laws will apply as in force at the time the act occurred. The Jervis Bay Territory laws that apply under the Act will apply as laws of the Commonwealth. The replacement of section 4 in this way ensures consistency with other legislation that applies criminal laws extraterritorially (for example the Crimes at Sea Act 2000), and avoids the technical problems of section 4.

The new subsection 4(2) requires the Attorney-General to provide written consent before proceedings are commenced for an offence against the laws of the Jervis Bay Territory, applied extraterritorially by the Act. This protection ensures that persons who were not intended to be covered by the Act will not be subject to prosecution in Australia. It also serves as a safeguard against double jeopardy issues. The new subsection 4(3) provides that the Attorney-General must consult with the Minister for Foreign Affairs before giving his consent under subsection 4(2). The new subsection 4(4) ensures that a person may be arrested for, charged with, or remanded in custody or released on bail in connection with an offence against the laws applied by the Act before the Attorney-General is required to give this consent.

The new subsection 4(5) applies to the situation where a person has been convicted of an offence under a law applied by the Act at a time when they were immune under the laws of a foreign country due to diplomatic or consular arrangements, or because of their relationship with a international organisation as provided in the new subsection 3A(1). The new subsection 4(5) ensures that if that person later loses this immunity, and thereby ceases to be a person to whom the Act applies due to the operation of the new subsection 3A(2), the validity of their conviction or sentence will not be affected.

Items 17, 19, 20, 21, 22 and 23:

These items are technical amendments that are required due to the replacement of section 4 with the new subsection 4(1).

Item 18:

The new definition of ‘act’ in section 3 removes the need for the phrase ‘or omission’ in this context.

Item 24:

This item repeals section 8, as the Amendment Act removes the requirement of immunity as a prerequisite to the application of the Act in every situation.

The new section 8 ensures that persons to whom the Act applied prior to amendment will not be subject to the amended Act (unless retrospective regulations are made under subsection 3C(5)).

The new subsection 8(1) allows the Attorney-General to authorise the Secretary of the Attorney-General’s Department or a Senior Executive Service employee of the Attorney-General’s Department to issue evidentiary certificates under the new section 8.

The new subsections 8(2) and 8(3) allow a certifying person to certify a number of formal matters which determine whether a person is ‘a person to whom the Act applies’.

The new subsection 8(4) provides that such a certificate is admissible as prima facie evidence of the matter stated in the certificate. This provision will streamline the criminal process, reducing the need for a number of formal matters to be proved separately by the prosecution.

The new subsection 8(6) provides that such a certificate must not be admitted in evidence unless either the person charged with the offence, or their barrister or solicitor has been given a copy of the certificate at least 14 days before the certificate is sought to be admitted. This is a safeguard for the accused person and allows adequate time for review of the document, prior to any proceedings.

The new subsection 8(7) allows that should such a certificate be admitted into evidence, the certificate issuer may be called as a witness for the prosecution and cross-examined as if the certificate issuer had given the evidence of the matters stated in the certificate. This is another procedural safeguard for the accused, allowing the certificate and its contents to be tested, should there be contrary evidence.

The new subsection 8(8) provides for notice of at least 4 days to be given to the prosecutor of the person’s intention to require the certificate issuer to be called.

The new subsection 8(9) allows evidence given in rebuttal or support of a matter stated in the certificate to be considered on its merits by the court.

The new section 9 inserts a regulation-making power into the Act. The new section 9 allows regulations to be made prescribing matters that are required or permitted by the Act to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Item 25:

This item ensures that the amended Act will not apply to persons retrospectively to persons who are already covered by the Act (unless retrospective regulations are made under subsection 3C(5)).

Item 26:

This item ensures that certificates made by the Attorney-General prior to the amendments remain in force and are treated as if they were a certificates issued by the Secretary of the Attorney-General’s Department, as appropriate following the amendment of the Act, and that they are acceptable as evidence for court proceedings.

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