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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Crimes at Sea Bill 1999
CONTENTS
1. Short title 2
2. Commencement 3
3. Interpretation 3
4. Ratification of cooperative scheme 3
5. Classification of offences 3
6. Publication of intergovernmental agreement 4
7. Regulations 4
8. Crimes (Offences at Sea) Act 1979 repealed 4
9. Off-shore (Application of Laws) Act 1982 amended 4
10 . Transitional and savings 4
Schedule 1 -- The Cooperative Scheme
Part 1 -- Preliminary
1. Definitions 6
Part 2 -- Application of State criminal law in
adjacent area
2. Application of State criminal law in adjacent area 8
page i
69--1
Crimes at Sea Bill 1999
Contents
3. Application of laws of criminal investigation,
procedure and evidence 9
4. Evidentiary presumption about the locus of an
offence 12
Part 3 -- The intergovernmental agreement
5. Intergovernmental agreement 12
6. Effect of the agreement 13
Part 4 -- Limitations and exclusions
7. Commonwealth Attorney-General's consent
required for certain prosecutions 13
8. Non-exclusion of consistent extra-territorial
legislative schemes 14
9. Exclusion of certain laws from ambit of scheme 14
10 . Non-application of scheme to Area A of the Zone of
Cooperation 14
Part 5 -- Miscellaneous
11 . Interpretation 15
12 . Regulations 15
Part 6 -- Adjacent areas
13 . Definitions 15
14 . Adjacent areas 15
15 . Baselines 17
Appendix 1 -- Adjacent areas
page ii
Crimes at Sea Bill 1999
Contents
Schedule 2 -- Off-shore (Application of Laws)
Act 1982 amended
1. Section 2 amended 19
2. Section 3 amended 19
3. Section 3A amended 20
page iii
Western Australia
LEGISLATIVE COUNCIL
Crimes at Sea Bill 1999
A Bill for
An Act to give effect to a cooperative scheme for dealing with crimes
at sea, to repeal the Crimes (Offences at Sea) Act 1979, to amend the
Off-shore (Application of Laws) Act 1982, and for other purposes.
page 1
Crimes at Sea Bill 1999
s. 1
Why this Act needs to be enacted
The Commonwealth and the States have agreed to a cooperative scheme
to apply the criminal law of the States extraterritorially in the areas
adjacent to the coast of Australia.
5 Under the scheme, the criminal law of each State is to apply in the area
adjacent to the State --
(a) for a distance of 12 nautical miles from the baseline for the State --
by force of the law of the State; and
(b) beyond 12 nautical miles up to a distance of 200 nautical miles
10 from the baseline for the State or the outer limit of the continental
shelf (whichever is the greater distance) -- by force of the law of
the Commonwealth.
Responsibility for administering criminal justice in the area covered by
the scheme will be divided between the Commonwealth and the States
15 under the scheme and an intergovernmental agreement.
The purpose of this Act is to give legal force to the scheme (so far as it
depends on the legislative power of the State) and to provide for
consequential vesting of judicial and other powers.
The Parliament of Western Australia enacts as follows:
1. Short title
20 This Act may be cited as the Crimes at Sea Act 1999.
page 2
Crimes at Sea Bill 1999
s. 2
2. Commencement
(1) The provisions of this Act come into operation on a day fixed
by proclamation.
(2) Different days may be fixed under subsection (1) for different
5 provisions.
3. Interpretation
In this Act, unless the contrary intention appears --
"cooperative scheme" means the legislative and administrative
scheme for applying and enforcing criminal law in the
10 areas adjacent to the coast of Australia set out in
Schedule 1;
"intergovernmental agreement" means the agreement entered
into under clause 5 of Schedule 1.
4. Ratification of cooperative scheme
15 To the extent that it lies within the legislative competence of the
State to give the cooperative scheme the force of law, it has the
force of law.
5. Classification of offences
Offences (other than offences arising under the law of the State)
20 are classified for the purposes of the cooperative scheme as
follows --
(a) if the maximum penalty for the offence is a fine or
imprisonment for not more than 2 years, the offence is
classified as a summary offence;
25 (b) if the maximum penalty for the offence is (or includes)
imprisonment for more than 2 years but not more than
5 years, the offence is classified as a misdemeanour;
page 3
Crimes at Sea Bill 1999
s. 6
(c) if the maximum penalty for the offence is (or includes)
imprisonment for more than 5 years or for an indefinite
term, the offence is classified as a crime.
6. Publication of intergovernmental agreement
5 The Minister must have the intergovernmental agreement, and
any amendment to the intergovernmental agreement, published
in the Gazette.
7. Regulations
(1) The Governor may make regulations prescribing any matter that
10 is necessary or convenient to be prescribed for giving effect to
the purposes of this Act.
(2) Subsection (1) does not authorize the making of regulations for
the purposes of the cooperative scheme.
8. Crimes (Offences at Sea) Act 1979 repealed
15 The Crimes (Offences at Sea) Act 1979 is repealed.
9. Off-shore (Application of Laws) Act 1982 amended
Amendments are made to the Off-Shore (Application of Laws)
Act 1982* as set out in Schedule 2.
[* Act No. 21 of 1982.
20 For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, p. 166.]
10. Transitional and savings
(1) This Act extends to give force of law to the cooperative scheme
in its application to an offence committed, or alleged to have
25 been committed, before the commencement of section 4 unless
proceedings are pending in respect of that offence when that
section commences.
page 4
Crimes at Sea Bill 1999
s. 10
(2) The repeal effected by section 8 does not affect any proceedings
in respect of an offence that are pending when that section
commences.
page 5
Crimes at Sea Bill 1999
Schedule 1 The Cooperative Scheme
Schedule 1 -- The Cooperative Scheme
[s. 3]
Part 1 -- Preliminary
1. Definitions
5 (1) In this scheme --
"adjacent area" for a State has the meaning given by clause 14 of
this Schedule;
"Area A of the Zone of Cooperation" has the same meaning as in
the Petroleum (Australia-Indonesia Zone of Cooperation)
10 Act 1990 (Commonwealth);
"Australian ship" means --
(a) a ship registered in Australia; or
(b) a ship that operates, or is controlled, from a base in Australia
and is not registered under the law of another country; or
15 (c) a ship that belongs to an arm of the Defence Force;
"baseline" for a State has the meaning given by clause 15 of this
Schedule;
"foreign ship" means a ship other than an Australian ship;
"inner adjacent area" for a State means the parts of the adjacent area
20 for the State that are --
(a) on the landward side of the baseline for the State; and
(b) on the seaward side, but within 12 nautical miles from, the
baseline for the State;
"intergovernmental agreement" means the agreement entered into
25 under clause 5 of this Schedule;
"law of criminal investigation, procedure and evidence" means
law (including unwritten law) about --
(a) the investigation of offences (including coronial inquiry); or
page 6
Crimes at Sea Bill 1999
The Cooperative Scheme Schedule 1
(b) immunity from prosecution and undertakings about the
use of evidence; or
(c) the arrest and custody of offenders or suspected offenders;
or
5 (d) bail; or
(e) the laying of charges; or
(f) the capacity to plead to a charge, or to stand trial on a
charge; or
(g) the classification of offences as indictable or summary
10 offences (and sub-classification within those classes); or
(h) procedures for dealing with a charge of a summary
offence; or
(i) procedures for dealing with a charge of an indictable
offence (including preliminary examination of the charge);
15 or
(j) procedures for sentencing offenders and the punishment of
offenders; or
(k) the hearing and determination of appeals in criminal
proceedings; or
20 (l) the rules of evidence; or
(m) other subjects declared by regulation to be within the
ambit of the law of criminal investigation, procedure and
evidence; or
(n) the interpretation of laws of the kind mentioned above;
25 "maritime offence" means an offence against a law that applies in
the adjacent area for a State under this scheme;
"offence" means an indictable or summary offence;
"outer adjacent area" for a State, means the part of the adjacent area
for the State that is outside the inner adjacent area for the State;
30 "participating State Minister" means a Minister responsible for
administering a State Act that gives effect to this scheme;
page 7
Crimes at Sea Bill 1999
Schedule 1 The Cooperative Scheme
"ship" means a vessel or boat of any description and includes --
(a) a floating structure; and
(b) a hovercraft or similar craft;
"State" includes the Northern Territory and Norfolk Island;
5 "substantive criminal law" means law (including unwritten law) --
(a) creating offences or imposing criminal liability for offences; or
(b) dealing with capacity to incur criminal liability; or
(c) providing a defence or for reduction of the degree of
criminal liability; or
10 (d) providing for the confiscation of property used in, or
derived from, the commission of an offence; or
(e) providing for the payment of compensation for injury, loss
or damage resulting from the commission of an offence, or
the restitution of property obtained through the
15 commission of an offence; or
(f) dealing with other subjects declared by regulation to be within
the ambit of the substantive criminal law of a State; or
(g) providing for the interpretation of laws of the kinds
mentioned above;
20 "summary offence" means any offence other than an indictable offence.
(2) The law of criminal investigation, procedure and evidence of the
Commonwealth includes provisions of State law on the relevant
subjects applied under the Judiciary Act 1903 (Commonwealth).
Part 2 -- Application of State criminal law in
25 adjacent area
2. Application of State criminal law in adjacent area
(1) The substantive criminal law of a State, as in force from time to time,
applies, by force of the law of the State, throughout the inner adjacent
area for the State.
page 8
Crimes at Sea Bill 1999
The Cooperative Scheme Schedule 1
(2) The provisions of the substantive criminal law of a State, as in force
from time to time, apply, by force of the law of the Commonwealth,
throughout the outer adjacent area for the State.
(3) However, this clause does not --
5 (a) apply to a substantive criminal law that is incapable of
applying in an adjacent area or is limited by its express terms
to a place within the area of a State; or
Example. A law making it an offence to drive a motor vehicle at a speed
exceeding a prescribed limit on a road could not apply in an adjacent area
10 because of the inherent localizing elements of the offence. The scheme
does not therefore purport to extend the application of such a law to the
adjacent area.
(b) give a legal effect to a provision of a substantive criminal law
that the provision does not have within the area of the State.
15 Example. If the effect of a provision of the substantive criminal law of a
State is limited under section 109 of the Constitution within the area of the
State, the effect is similarly limited in the outer adjacent area for the State
even though the provision applies in the outer adjacent area under the
legislative authority of the Commonwealth.
20 3. Application of laws of criminal investigation, procedure and
evidence
(1) In this clause --
"act" includes an omission;
"area of administrative responsibility" for a particular State is --
25 (a) the area of the State; and
(b) the inner adjacent area for the State; and
(c)
other parts of the adjacent area in which the State has,
under the intergovernmental agreement, responsibility
(which may be either exclusive or concurrent) for
30 administering criminal justice;
"authority" includes an agent or official;
page 9
Crimes at Sea Bill 1999
Schedule 1 The Cooperative Scheme
"Commonwealth judicial proceeding" means --
(a) a judicial proceeding related to a maritime offence --
(i) initiated by an authority of the Commonwealth; or
(ii) for the conduct of which an authority of the
5 Commonwealth has assumed responsibility;
or
(b) a judicial proceeding about an investigation, procedure or
act by an authority of the Commonwealth in relation to a
maritime offence;
10 "judicial proceeding" means --
(a) a proceeding in a court (whether between parties or not) or
a proceeding incidental to or connected with a proceeding
in court; or
(b) the laying of a charge; or
15 (c) the preliminary examination of a charge of an indictable
offence or a proceeding incidental to or connected with the
preliminary examination of a charge of an indictable
offence;
"preliminary examination" of a charge of an indictable offence
20 means a proceeding to decide whether the defendant should be
committed for trial or, if the defendant pleads guilty to the
charge, to commit the defendant for sentence;
"State judicial proceeding" means --
(a) a judicial proceeding related to a maritime offence --
25 (i) initiated by an authority of a State; or
(ii) for the conduct of which an authority of a State
has assumed responsibility;
or
(b) a judicial proceeding about an investigation, procedure or
30 act by an authority of a State in relation to a maritime
offence.
page 10
Crimes at Sea Bill 1999
The Cooperative Scheme Schedule 1
(2) The laws of criminal investigation, procedure and evidence of the
Commonwealth and the States apply to maritime offences as
follows --
(a) the law of the Commonwealth applies to investigations,
5 procedures and acts (other than judicial proceedings) by
authorities of the Commonwealth; and
(b) the law of a State applies to investigations, procedures and
acts (other than judicial proceedings) by authorities of the
State operating within the area of administrative
10 responsibility for the relevant State; and
(c) in a Commonwealth judicial proceeding the law of the
Commonwealth applies and in a State judicial proceeding the
law of the State in which the proceeding was commenced
applies (subject to the Constitution) irrespective of
15 whether --
(i) the maritime offence arises under the law of the State
in which the proceeding was commenced or another
State; or
(ii) the substantive criminal law against which the
20 offence was committed applies in the relevant part of
the adjacent area under the law of the State in which
the proceeding was commenced, another State or the
Commonwealth.
Example 1. Suppose that a person is charged by a State authority with a
25 maritime offence on the assumption that the offence was committed in the
inner adjacent area for the State but the court is satisfied in the course of
proceedings that the acts alleged against the defendant took place in the
outer adjacent area for the State. In this case, the court could continue with
the proceedings under the procedural laws of the State. However, the court
30 could not (for example) convict the defendant on the basis of a majority
verdict of a jury (because to do so would be contrary to the constitutional
principle stated in Cheatle v The Queen (1993) 177 CLR 541).
page 11
Crimes at Sea Bill 1999
Schedule 1 The Cooperative Scheme
Example 2. Suppose that a person is charged by a State authority in a
South Australian court with a maritime offence alleged to have been
committed in the adjacent area for Western Australia. For the purposes of
the proceedings, the offence would be classified as a major indictable,
5 minor indictable or summary offence according to the South Australian
rules and not by reference to its classification under the law of Western
Australia or the Commonwealth.
(3) This clause operates to the exclusion of any Commonwealth or State
law that is inconsistent with it.
10 (4) A Commonwealth or State law enacted or made after the
commencement of this clause is to be construed as having effect
subject to this clause, unless the law expressly overrides this clause.
(5) The Administrative Decisions (Judicial Review) Act 1977
(Commonwealth) does not apply to a decision taken under a State law
15 that applies to investigations, procedures and acts by authorities of the
State under subclause (2)(b).
4. Evidentiary presumption about the locus of an offence
If, in proceedings for a maritime offence, an alleged act, omission or
state of affairs, that is an element of the offence, is proved, an
20 allegation in the information or complaint that the act, omission or
state of affairs happened in the adjacent area, inner adjacent area or
outer adjacent area for a particular State is taken to be proved in the
absence of proof to the contrary.
Part 3 -- The intergovernmental agreement
25 5. Intergovernmental agreement
(1) The Commonwealth Attorney-General, on behalf of the
Commonwealth, and the participating State Ministers may enter into
an agreement providing for the division of responsibility for
administering and enforcing the law relating to maritime offences.
30 (2) The intergovernmental agreement may provide for concurrent
responsibility in specified parts of the adjacent area.
page 12
Crimes at Sea Bill 1999
The Cooperative Scheme Schedule 1
6. Effect of the agreement
(1) A charge of a maritime offence must not be brought in a court
contrary to the intergovernmental agreement.
(2) If a charge of a maritime offence is brought in a court in
5 contravention of subclause (1), the court must, on application by the
Commonwealth Attorney-General or a participating State Minister,
permanently stay the proceedings in that court.
(3) However --
(a) a contravention of subclause (1) does not affect a court's
10 jurisdiction; and
(b) if a charge of a maritime offence is brought in a court, the
court will not (except on an application under subclause (2))
be concerned to enquire into whether the intergovernmental
agreement has been complied with.
15 Part 4 -- Limitations and exclusions
7. Commonwealth Attorney-General's consent required for certain
prosecutions
(1) The Commonwealth Attorney-General's written consent is required
before a charge of a maritime offence can proceed to hearing or
20 determination or, if the offence is an indictable offence, to a
preliminary examination in committal proceedings, if --
(a) the offence is alleged to have been committed on or from a
foreign ship; and
(b) the ship is registered under the law of a country other than
25 Australia; and
(c) the country of registration has, under international law,
jurisdiction over the alleged offence.
(2) Before granting such a consent, the Commonwealth Attorney-General
must take into account any views expressed by the government of the
30 country of registration.
page 13
Crimes at Sea Bill 1999
Schedule 1 The Cooperative Scheme
(3) Even though the Commonwealth Attorney-General has not granted
such a consent, the absence of consent is not to prevent or delay --
(a) the arrest of the suspected offender or proceedings related to
arrest (such as proceedings for the issue and execution of a
5 warrant); or
(b) the laying of a charge against the suspected offender; or
(c) proceedings for the extradition to Australia of the suspected
offender; or
(d) proceedings for remanding the suspected offender in custody
10 or on bail.
(4) If the Commonwealth Attorney-General declines to grant consent, the
court in which the suspected offender has been charged with the
offence must permanently stay the proceedings.
(5) In any proceedings, an apparently genuine document purporting
15 to be a copy of a written consent granted by the Commonwealth
Attorney-General in accordance with this clause will be accepted,
in the absence of proof to the contrary, as proof of such consent.
8. Non-exclusion of consistent extra-territorial legislative schemes
This scheme does not exclude the extra-territorial operation of
20 State law to the extent that the State law is capable of operating
extra-territorially consistently with the scheme.
9. Exclusion of certain laws from ambit of scheme
This scheme does not apply to State and Commonwealth laws
excluded by regulation from the ambit of the scheme.
25 10. Non-application of scheme to Area A of the Zone of Cooperation
This scheme does not apply to Area A of the Zone of Cooperation.
page 14
Crimes at Sea Bill 1999
The Cooperative Scheme Schedule 1
Part 5 -- Miscellaneous
11. Interpretation
The Acts Interpretation Act 1901 (Commonwealth) applies to this
scheme in the same way as to a Commonwealth Act.
5 12. Regulations
(1) The Governor-General may make regulations for carrying out, or
giving effect to, this scheme.
(2) However, a regulation affecting the operation of this scheme in
relation to the inner adjacent area for a State may only be made with
10 the agreement of the participating State Minister for the relevant
State.
Part 6 -- Adjacent areas
13. Definitions
In this Part --
15 "baseline of Australia's territorial sea" means the baseline from
which the breadth of the territorial sea is to be measured under
section 7 of the Seas and Submerged Lands Act 1973
(Commonwealth);
"continental shelf" has the same meaning as in the Seas and
20 Submerged Lands Act 1973 (Commonwealth);
"territorial sea" has the same meaning as in the Seas and Submerged
Lands Act 1973 (Commonwealth).
14. Adjacent areas
(1) The "adjacent area" for New South Wales, Victoria, South Australia
25 or Tasmania is so much of the area described in Schedule 2 to the
Petroleum (Submerged Lands) Act 1967 (Commonwealth) in relation
to that State as is within the outer limits of the continental shelf and
includes the space above and below that area.
page 15
Crimes at Sea Bill 1999
Schedule 1 The Cooperative Scheme
(2) The "adjacent area" for Queensland is --
(a) so much of the area described in Schedule 2 to the Petroleum
(Submerged Lands) Act 1967 (Commonwealth) in relation to
Queensland as is within the outer limits of the continental
5 shelf; and
(b) the Coral Sea area (within the meaning of section 5A(7) of the
Petroleum (Submerged Lands) Act 1967 (Commonwealth) other
than the territorial sea within the Coral Sea area; and
(c) the areas within the outer limits of the territorial sea adjacent
10 to certain islands of Queensland as determined by
proclamation on 4 February 1983 under section 7 of the Seas
and Submerged Lands Act 1973 (Commonwealth); and
(d) the space above and below the areas described in
paragraphs (a), (b) and (c).
15 (3) The "adjacent area" for Western Australia is so much of the area
described in Schedule 2 to the Petroleum (Submerged Lands)
Act 1967 (Commonwealth) in relation to Western Australia as --
(a) is within the outer limits of the continental shelf; and
(b) is not within Area A of the Zone of Cooperation,
20 and includes the space above and below that area.
(4) The "adjacent area" for the Northern Territory is --
(a) so much of the area described in Schedule 2 to the Petroleum
(Submerged Lands) Act 1967 (Commonwealth) in relation to
the Northern Territory as --
25 (i) is within the outer limits of the continental shelf; and
(ii) is not within Area A of the Zone of Cooperation;
and
(b) the adjacent area for the Territory of Ashmore and Cartier
Islands (within the meaning of section 5A(3) of the
30 Petroleum (Submerged Lands) Act 1967 (Commonwealth))
other than the territorial sea within that area; and
page 16
Crimes at Sea Bill 1999
The Cooperative Scheme Schedule 1
(c) the space above and below the areas described in
paragraphs (a) and (b).
(5) The "adjacent area" for Norfolk Island is the area the boundaries of
which are --
5 (a) the baseline for Norfolk Island; and
(b) the outer limit of the continental shelf adjacent to the coast of
Norfolk Island,
and includes the space above and below that area, but does not
include any area in the adjacent area for any other State.
10 (6) However, the adjacent area for a State does not include any area
inside the limits of any State or Territory.
15. Baselines
(1) The "baseline" for a State (other than Norfolk Island) is the part of
the baseline of Australia's territorial sea from which the part of the
15 territorial sea that is within the adjacent area for that State is
measured.
(2) The "baseline" for Norfolk Island is the coastline of Norfolk Island at
mean low water.
page 17
Crimes at Sea Bill 1999
Schedule 1 The Cooperative Scheme
Appendix 1 -- Adjacent areas
5
page 18
Crimes at Sea Bill 1999
Off-shore (Application of Laws) Act 1982 amended Schedule 2
Schedule 2 -- Off-shore (Application of
Laws) Act 1982 amended
[s. 9]
1. Section 2 amended
5 In section 2, before the definition of "law of the State", the following
definitions are inserted --
"
"cooperative scheme" has the same meaning as that
expression has in the Crimes at Sea Act 1999;
10 "criminal laws" means the substantive criminal law,
and the law of criminal investigation, procedure
and evidence, within the meaning of the
cooperative scheme;
".
15 2. Section 3 amended
Section 3(2)(b) is deleted and the following paragraph is inserted
instead --
"
(b) to apply the provisions of the criminal laws of
20 the State to or in relation to the coastal waters
of the State or the sea-bed or subsoil beneath or
the airspace above those waters.
".
page 19
Crimes at Sea Bill 1999
Schedule 2 Off-shore (Application of Laws) Act 1982 amended
3. Section 3A amended
Section 3A(2)(b) is deleted and the following paragraph is inserted
instead --
"
5 (b) to apply the provisions of the criminal laws of the
State to or in relation to the adjacent area in respect
of the State or the sea-bed or subsoil beneath or the
airspace above that adjacent area.
".
10
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