[s. 3]
(1) In this scheme
—
adjacent area for a State has the meaning given by
clause 14 of this Schedule;
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
(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;
indictable offence means an offence for which a
charge may be laid by indictment or an equivalent process (whether that is the
only, or an optional, way to lay a charge of the offence);
inner adjacent area for a State means the parts of
the adjacent area 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 under clause 5 of this Schedule;
Joint Petroleum Development Area has the same
meaning as in the Petroleum (Timor Sea Treaty) Act 2003 (Commonwealth);
law of criminal investigation, procedure and
evidence means law (including unwritten law) about —
(a) the
investigation of offences (including coronial inquiry); or
(b)
immunity from prosecution and undertakings about the use of evidence; or
(c) the
arrest and custody of offenders or suspected offenders; or
(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 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); or
(j)
procedures for sentencing offenders and the punishment of offenders; or
(k) the
hearing and determination of appeals in criminal proceedings; or
(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 kinds mentioned above;
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;
participating State Minister means a Minister
responsible for administering a State Act that gives effect to this 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;
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
(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 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;
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).
[Clause 1 amended: No. 42 of 2010 s. 183(2) and
(3).]
Part 2 — Application of State criminal law in adjacent area
2 . State criminal law, application of 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.
(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 —
(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 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.
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.
3 . Laws of criminal investigation, procedure and
evidence, application of to maritime offences
(1) In this clause
—
act includes an omission;
area of administrative responsibility for a
particular State is —
(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 administering criminal justice;
authority includes an agent or official;
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 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;
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
(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 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 or trial;
State judicial proceeding means —
(a) a
judicial proceeding related to a maritime offence —
(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 act by an authority
of a State in relation to a maritime offence.
(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, 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 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 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 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 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 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 Commonwealth Constitution — see Cheatle v
The Queen (1993) 177 CLR 541).
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, 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.
(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 that applies to investigations,
procedures and acts by authorities of the State under paragraph (b) of
subclause (2).
4 . Place of maritime offence, rebuttable
presumption as to
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 allegation in the information or
complaint 2 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
5 . Intergovernmental agreement, content of etc.
(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.
(2) The
intergovernmental agreement may provide for concurrent responsibility in
specified parts of the adjacent area.
6 . Breaches of intergovernmental agreement,
effect of
(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 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 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.
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 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 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 country of registration.
(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 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 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 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 . Extraterritorial application of State law,
scheme does not exclude if it is consistent
This scheme does not
exclude the extraterritorial operation of State law to the extent that the
State law is capable of operating extraterritorially consistently with the
scheme.
9 . Prescribed laws, scheme does not apply to
This scheme does not
apply to State and Commonwealth laws excluded by regulation from the ambit of
the scheme.
10 . Joint Petroleum Development Area, scheme does
not apply to
This scheme does not
apply to the Joint Petroleum Development Area.
[Clause 10 amended: No. 42 of 2010 s. 183(4).]
11 . Acts Interpretation Act 1901 (Cwlth) applies
to scheme
The
Acts Interpretation Act 1901 (Commonwealth) applies to this scheme in the same
way as to a Commonwealth Act.
(1) The
Governor-General may make regulations prescribing matters —
(a)
required or permitted by this scheme to be prescribed; or
(b)
necessary or convenient to be prescribed 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 the agreement of the
participating State Minister for the relevant State.
In this Part —
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 Submerged Lands Act 1973 (Commonwealth);
territorial sea has the same meaning as in the
Seas and Submerged Lands Act 1973 (Commonwealth).
(1) The adjacent area
for New South Wales, Victoria, South Australia or Tasmania is so much of the
area described in Schedule 1 to the
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (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.
(2) The adjacent area
for Queensland is —
(a) so
much of the area described in Schedule 1 to the Offshore Petroleum and
Greenhouse Gas Storage Act 2006 (Commonwealth) in relation to Queensland as is
within the outer limits of the continental shelf; and
(b) the
Coral Sea area (within the meaning of section 7(2) of the
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Commonwealth)) other
than the territorial sea within the Coral Sea area; and
(c) the
areas within the outer limits of the territorial sea adjacent 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).
(3) The adjacent area
for Western Australia is so much of the area described in Schedule 1 to the
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Commonwealth) in
relation to Western Australia as —
(a) is
within the outer limits of the continental shelf; and
(b) is
not within the Joint Petroleum Development Area,
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 1 to the Offshore Petroleum and
Greenhouse Gas Storage Act 2006 (Commonwealth) in relation to the Northern
Territory as —
(i)
is within the outer limits of the continental shelf; and
(ii)
is not within the Joint Petroleum Development Area;
and
(b) the
offshore area for the Territory of Ashmore and Cartier Islands (within the
meaning of section 7(1) of the Offshore Petroleum and Greenhouse Gas Storage
Act 2006 (Commonwealth)) other than the territorial sea within that area; and
(c) the
space above and below the areas described in paragraphs (a) and (b).
(5) However, the
adjacent area for a State does not include any area inside the limits of any
State or Territory.
(6) A reference in
this clause to the area described in Schedule 1 to the
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Commonwealth) in
relation to a State or Territory is a reference to the scheduled area for that
State or Territory within the meaning given in that Schedule.
[Clause 14 amended: No. 42 of 2010 s. 183(5)-(9).]
The baseline for a
State is the part of the baseline of Australia’s territorial sea from
which the part of the territorial sea that is within the adjacent area for
that State is measured.
(1) A map showing the
various areas that are relevant to this scheme appears in Appendix 1 to this
scheme.
(2) The map is
intended to be indicative only. The provisions of this scheme and of the body
of this Act prevail over the map if there is any inconsistency.
[Appendix 1 amended: No. 42 of 2010 s. 183(10).]