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1999
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES AT SEA BILL 1999
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice and Customs,
Senator the Honourable Amanda Vanstone)
ISBN: 0642 410054
Under the new crimes at sea scheme the States and the Northern Territory ('the States') will enact uniform Crimes at Sea Acts applying local criminal laws to their respective offshore adjacent areas from the coastal baseline out to 12 nautical miles ('nm'). This Act then applies the criminal law of each jurisdiction (as Commonwealth law) to their respective offshore adjacent areas from 12 to 200 nm (or the outer limit of the continental shelf, whichever is the greater).
2. Other key elements of the Act are that it:
• applies the criminal laws of the Jervis Bay Territory to criminal conduct beyond the area covered by the new scheme, on Australian ships, and in some cases foreign ships (where there is an appropriate nexus with Australia); and
• applies the criminal laws of the Northern Territory to criminal conduct connected with the exploration and exploitation of petroleum resources in Area A of the Zone of Cooperation.
3. The amendments will not impact on Government expenditure or revenue in any measurable respect.
4. The short title of the Act will be the Crimes at Sea Act 1999.
5. This section provides that the substantive provisions of the Act will commence 12 months after Royal Assent, unless commenced by proclamation on an earlier date. The maximum period of 12 months is necessary to ensure that all jurisdictions have enacted their legislation before the new regime is proclaimed.
6. This section explains that the Acts specified in schedule 2 to this Bill are amended or repealed as set out in each item of the schedule.
7. This section defines a number of terms used in the Bill. The following terms are defined: ‘act’, ‘adjacent area’, ‘Area A of the Zone of Cooperation’, ‘Australian ship’, ‘cooperative scheme’, ‘foreign ship’, ‘intergovernmental agreement’, 'law of criminal investigation, procedure and evidence', ‘petroleum’, ‘police officer’, ‘ship’ and 'substantive criminal law'. Further definitions are found in subsections 6(11) and 7(7), and in clause 1, subsclause 3(1) and clauses 13 and 15 of schedule 1.
8. This section provides that the crimes at sea co-operative scheme, which is at schedule 1, has the force of law to the extent that it lies within the Commonwealth’s legislative competence to give it the force of law. Under the scheme, the States will also give effect to the scheme to the extent of their legislative competence to do so, ensuring that collectively the scheme is fully effective.
9. Schedule 1 sets out the ‘co-operative
scheme’, which operates within the ‘adjacent areas’ of the
States. Outside this adjacent area (which extends to the further of 200 nm from
Australia, or the outer limits of the continental shelf, except where an
international boundary requires otherwise) Australian law still has some
application to crimes at sea, pursuant to this section. The rules laid down in
section 6 are not applicable to Area A of the Zone of Co-operation between
Australia and Indonesia, which is subject to separate rules under section
7.
10. Under the section, the substantive criminal
law of the Jervis Bay Territory applies at sea outside the adjacent area (ie, at
sea anywhere else in the world) where there is an appropriate nexus between the
criminal act and Australia. The term ‘criminal act’ is defined in
subsection (11). The circumstances supplying an appropriate nexus with
Australia are set out in subsections (1) to (3). The substantive criminal law
of the Jervis Bay Territory applies, for example, to a criminal act that occurs
on an Australian ship or to the criminal act of an Australian citizen (other
than a crew member) on a foreign ship or to a criminal act on a foreign ship
where the ship’s next port of call is Australia.
11. Since the criminal law applied by this section
will effectively be Commonwealth law the procedural rules for investigating and
prosecution offences under that law will be the procedural rules that normally
apply when investigating and prosecuting Commonwealth offences, irrespective of
whether the investigation or prosecution is conducted by a Commonwealth or State
authority.
12. Subsection (4) provides that
proceedings for an offence outside the adjacent area cannot be brought without
the consent of the Commonwealth Attorney-General, and, under subsection (7),
such proceedings must be stayed if consent is not granted. Under subsection (5)
the Attorney-General must take into account any views expressed by a foreign
country with jurisdiction over the offence. While consent is a prerequisite to
proceedings, subsection (6) provides that preliminary matters such as arrest and
extradition can proceed without consent.
13. Under subsection (8) an apparently genuine
consent document is to be accepted as proof of such consent in the absence of
proof to the contrary. This is to ensure that the Attorney-General is not
called upon to appear in court to verify consent, unless there is good reason to
question the authenticity of the consent document.
14. The consent requirement is intended to ensure
that in cases where another country also has jurisdiction over an alleged
offence, the views of the other country will be taken into account before a
decision is made to prosecute under Australian law.
15. Under subsection (9), it is a defence to a
proceeding arising under this section that the defendant’s conduct would
not be an offence or would be subject to a defence under the law of another
country having jurisdiction.
16. Subsection (10)
preserves the existing legal regime in the coastal waters of Australia’s
external Territories so that offences that occur just off shore can be dealt
with under the usual laws that apply within the Territory rather than under this
Act. Accordingly, the new regime will not affect the criminal law that
currently applies in the 12 nm territorial seas of the external Territories.
17. The provisions in this Part accord with Australia's obligations under the Timor Gap Treaty with Indonesia and in all material respects replicate provisions that are currently in the Crimes at Sea Act 1979 and have been in operation since 1991.
18. Subsection (1) provides that the substantive criminal law of the Northern Territory applies to a criminal act done in Area A of the Zone of Co-operation that is connected with petroleum exploration or exploitation. The term ‘criminal act’ is defined in subsection (7). The term ‘Area A of the Zone of Cooperation’ is defined in section 4 to have the same meaning as in the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990. Area A is also shown on the map appended to the Act.
19. Subsection (2) qualifies subsection (1), in providing that the substantive criminal law of the Northern Territory does not apply to an act done from a ship or aircraft or an act by a national or permanent resident of Indonesia who is not also a national of Australia.
20. Subsection (3) is a ‘double jeopardy’ provision under which a person cannot face proceedings in Australia for a criminal act dealt with under Indonesian law or in respect of which a competent Indonesian authority has decided not to prosecute.
21. Subsection (4) requires the Attorney-General's consent to a prosecution for an offence to which this section applies, but subsection (5) makes it clear that steps preliminary to commencement of proceedings can be taken without consent (eg, arrest, charge, remand, bail).
22. Subsection (6) provides that the same arrangements that apply for investigating and prosecuting offences in relation to the co-operative scheme area also apply in relation to offences committed against a law applied by this section. That is, if a State authority investigates or prosecutes the offence, the procedural laws of that State will apply and if a Commonwealth authority investigates the offence or the prosecution is a Commonwealth prosecution, Commonwealth procedural laws will apply. It is appropriate to extend the co-operative scheme arrangements into this area because the enforcement authorities operating in the area will normally be both Commonwealth and State authorities.
23. This section facilitates and regulates the transport in custody through Australia of a person arrested for an offence against Indonesian criminal law that applies in Area A of the Zone of Cooperation. For example, where an aircraft or ship transporting such a person stops in Australia, the person may continue to be detained for up to 24 hours without warrant, and then under warrant for an aggregate maximum of 96 hours, or for a further period under a warrant issued by a magistrate and authorised by the Attorney-General. The Attorney-General may direct the release of such a person held under this section at any time.
24. These provisions accord with Australia's obligations under Article 27 of the Timor Gap Treaty with Indonesia and only apply to persons subject to Indonesian jurisdiction in Area A of the Zone of Cooperation. For example they do not apply to nationals or permanent residents of Australia unless they are also nationals of Indonesia.
25. Subsection (1) allows for the making of arrangements under regulation to give effect to agreements between Australian and Indonesia as to the enforcement of the criminal law in Area A of the Zone of Cooperation.
26. Subsection (2) gives examples of the kinds of matters to which effect might be given under regulation, including arrangements about the taking of evidence and the apprehension, transport and handing over of alleged offenders.
27. Subsection (3) qualifies the regulation making power by providing that the detention of a person can only be authorised until it first becomes practicable to surrender the person to an appropriate authority.
28. Subsection (4) provides that any regulations made pursuant to paragraph 8(2)(c) which allow Australian authorities to apprehend, detain, transport and surrender persons who have allegedly committed offences against Indonesian law in Area A of the Zone of Cooperation, operate to the exclusion of the Extradition Act 1988.
29. This section requires that the intergovernmental agreement and any amendments to the agreement be published in the Commonwealth Gazette. This ensures that enforcement and other arrangements under the agreement will be a matter of public record.
31. This section contains a regulation making power only in respect of the matters under the Commonwealth Act, not including the co-operative scheme. The reason for this distinction is that regulations may be made under section 12 on the advice of the relevant Commonwealth Minister; whereas the regulation making power in relation to the co-operative scheme can only be exercised with the consent of State or States affected by the proposed regulation.
32. This schedule sets out the co-operative scheme. Provisions which are identical in all material respects have been enacted by some States, and are to be enacted by the others.
33. Subclause (1) defines a number of terms used in the provisions governing the co-operative scheme: ‘adjacent area’. ‘Area A of the Zone of Cooperation’, ‘Australian ship’, ‘baseline’, ‘foreign ship’, ‘inner adjacent area’, ‘intergovernmental agreement’, ‘law of criminal investigation, procedure and evidence’, ‘maritime offence’, ‘offence’, ‘outer adjacent area’, ‘participating State Minister’, ‘ship’, ‘State’ (‘includes the Northern Territory’), ‘substantive criminal law’ and ‘summary offence’.
34. Subclause (2) further defines the term ‘law of criminal investigation, procedure and evidence’ as it relates to Commonwealth matters (to include State laws applied to Commonwealth matters by virtue of the Judiciary Act 1903).
35. This clause provides that the substantive criminal law of a State applies in the adjacent area of the State. The ‘adjacent area’ is defined in clause 14, and further defined in the Petroleum (Submerged Lands) Act 1967. In general terms, and subject to a number of exceptions, it extends out to 200 nm from the Australian coastline. In essence ‘substantive criminal law’ is made up of offences, penalties and compensation provisions.
36. The result is, for example, that offences against NSW law are also applicable to conduct occurring within 200 nm from the NSW coast in the area that constitutes the adjacent area for NSW.
37. For reasons concerning the scope of the legislative authority of the Commonwealth and the States, the 'substantive criminal law' of a State is applicable by force of the law of that State in its ‘inner adjacent area’ (broadly speaking and subject to exceptions, the area to 12 nm); whereas the 'substantive criminal law' of a State is applicable by force of Commonwealth law in the ‘outer adjacent area’ of the State (broadly speaking and subject to exceptions, the area from 12 to 200 nm).
38. The rationale for applying the laws of the adjacent State between 12 and 200 nm is to avoid an unnecessary jurisdictional divide at the 12 mile point. It follows that enforcement of the law offshore must depend to a large degree on the State authorities. Although the law that applies between 12 and 200 nm is technically Commonwealth law, the content is State law, much of which will relate to matters outside the Commonwealth's normal responsibility (such as murder and sexual offences).
39. Subclause (1) defines a number of terms used in this clause: ‘act’, ‘areas of administrative responsibility’, ‘authority’, ‘Commonwealth judicial proceeding’, ‘judicial proceeding’, ‘preliminary examination’, ‘State judicial proceeding’.
40. Subclause (2) governs which jurisdiction’s ‘law of criminal investigation, procedure and evidence’ applies to the investigation and/or trial of an alleged offence in the adjacent area. Commonwealth law applies to Commonwealth investigations, procedures and judicial proceedings. State law applies to investigations, procedures and acts by authorities of the State operating within the State’s area of administrative responsibility and to State judicial proceedings.
41. The essential purpose of these provisions is to reduce the uncertainty that characterises the current scheme by simplifying the rules for determining the applicable criminal law in a particular case and to improve the effectiveness of the law by allowing the enforcement and judicial authorities of each jurisdiction to operate under the regime that is familiar to them.
42. The Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision taken under State law that is applicable by force of this Bill once enacted. This is because the Commonwealth is merely seeking to ensure the legal effectiveness of State laws, not to impose Commonwealth judicial review rules which were never intended to apply to State authorities.
43. This clause creates a presumption that an element of an offence alleged in an information or complaint to have occurred in the adjacent area, inner adjacent area or outer adjacent area of a particular State is presumed to have occurred in that area. The purpose of this provision is to ensure that a defendant cannot avoid conviction by merely asserting that the conduct did not occur in the area alleged, in circumstances where only he or she is in a position to accurately identify the location of that conduct.
44. This clause allows the Commonwealth and States to enter an intergovernmental agreement to govern administration and enforcement of the criminal law applied under the new regime.
45. The primary purpose of the intergovernmental agreement will be to delineate the respective responsibilities for enforcement by each jurisdiction. The agreement will also enable the Commonwealth to confer powers, duties and functions on State authorities under this Act.
46. This clause lays down a mechanism for enforcing the intergovernmental agreement. The clause provides for the Attorney-General or a relevant State Minister to apply to a court to stay proceedings brought contrary to the agreement. The court must then permanently stay the proceedings. The purpose of this provision is to ensure that the executive has control of the enforcement of the agreement.
47. This clause requires the consent of the Commonwealth
Attorney-General for criminal proceedings arising under the co-operative scheme
in cases where the matter also falls within a foreign countries'
jurisdiction.
48. Under subclause (4), such
proceedings must be permanently stayed if consent is not granted. Under
subclause (2) the Attorney-General must take into account any views expressed by
a foreign country with jurisdiction over the offence. While consent is a
prerequisite to proceedings, subclause (3) provides that preliminary matters
such as arrest and extradition can proceed without consent.
49. Under subclause (5) an apparently genuine consent document
is to be accepted as proof of such consent in the absence of proof to the
contrary. This is to ensure that the Attorney-General is not called upon to
appear in court and verify consent, unless there is some genuine reason to
question the genuineness of the consent document.
50. The consent requirement reflects the intention
that, in cases where another country also has jurisdiction over an alleged
offence, the views of the other country will be taken into account before a
decision is made to prosecute under Australian law.
51. This clause makes it clear that the scheme does not limit the extra-territorial operation of State law to the extent that the State law is capable of operating consistently with the scheme.
52. This clause, when read with clause 12, allows for the making of regulations to exclude specified Commonwealth or State laws from the ambit of the scheme. This power is intended to cater for presently operating schemes relating to subjects such as fisheries and for overcoming anomalies in the operation of the scheme.
53. This clause provides that the scheme does not apply to Area A of the Zone of Cooperations. Criminal acts in this zone are subject to section 7 of the Act.
54. This clause provides that the Acts Interpretation Act 1901 (Cth) applies to the scheme in the same way as to a Commonwealth Act. This is to avoid a situation in which the co-operative scheme was to be read according to different interpretive rules under the law of the Commonwealth and each State.
55. This clause allows the Governor-General to make regulations for the purposes of the co-operative scheme, subject to a requirement that a regulation affecting the inner adjacent area of a State can only be made with the agreement of the relevant Minister of that State. The rationale for this provision is that since the States are to have primary responsibility for enforcing the criminal law in their respective inner adjacent areas it would not be appropriate for the Commonwealth or another State to unilaterally make regulations that may affect a State's area of primary responsibility.
56. This clause defines terms used in this Part, in the description of adjacent areas: ‘baseline of Australia’s territorial sea’, ‘continental shelf’, ‘territorial sea’ and ‘ the Petroleum Act’. Clause 1 defines additional terms for the purposes of the cooperative scheme generally.
57. This clause defines the adjacent area for each State. These definitions are based on those in schedule 2 to the Petroleum (Submerged Lands) Act 1967, subject to specified modifications. Among the major modifications are the following:
• the adjacent area for Queensland includes the Coral Sea area and the areas within the territorial sea of certain other Queensland Islands but excludes the territorial sea within the Coral Sea area;
• the adjacent area for Western Australia excludes Area A of the Zone of Cooperation;
• the adjacent area for the Northern Territory includes the adjacent area for the Ashmore and Cartier Islands but excludes Area A of the Zone of Cooperation and the territorial sea of the Ashmore and Cartier Islands.
58. In accordance with subsection 6(10) of this Act, the territorial seas of the Coral Sea area and Ashmore and Cartier Islands are expressly excluded from the adjacent areas of Queensland and the Northern Territory respectively because the new regime is not intended to affect the criminal law that currently applies in the 12 nm territorial seas of the external Territories.
59. The ‘adjacent area’ for each State does not include any area inside the limits of any State or Territory but does extend to the area above and below the areas specified in schedule 2 of the Petroleum (Submerged Lands) Act 1967 as modified by this clause. However, in accordance with section 11 of this Act, the co-operative scheme does not extend to offences alleged to have been committed during an aircraft flight that comes within the terms of section 15 of the Crimes (Aviation) Act 1991.
60. This clause explains the meaning of a ‘baseline for a State’, which is the line from which the adjacent area is measured.
61. Clause 16 contains a map showing the adjacent area for
each State. The map is included as an aid to those reading the legislation, and
the text of the Act that describes the cooperative scheme prevails in the event
of any conflict.
62. This schedule repeals the Crimes at Sea Act 1979 and makes consequential amendments to other Commonwealth Acts. However, the repeal and consequential amendments will not take effect until this Bill, when enacted, comes into force in accordance with section 2. Item 11 also provides that the Crimes at Sea Act 1979 will continue to apply to acts and omissions that take place before the schedule commences, even after that Act has been repealed. These provisions ensure that there is no break in the law with the repeal of the old Act and commencement of the new and also clarify which regime will apply during transition from the old regime to the new.