Revised Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Amanda Vanstone)Notes on items
Part 1 - Preliminary
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 This section explains that the Acts specified in schedule 2 to this Bill are amended or repealed as set out in each item of the schedule.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, Australian ship, cooperative scheme, foreign ship, intergovernmental agreement, ship and 'substantive criminal law'. Further definitions are found in subsection 6(11) and in clause 1, subsclause 3(1) and clauses 13 and 15 of schedule 1.
Part 2 - The Cooperative Code
Section 5 Ratification of cooperative scheme
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 Commonwealths 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.
Part 3 - Application of criminal law outside adjacent area
Section 6 Application of Australian criminal law outside the adjacent area
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.
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 ships 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 defendants 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 Australias 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.
Part 5 - Miscellaneous
Section 10 Publication of intergovernmental agreement
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.
Section 11 No effect on Crimes (Aviation) Act 1991
30. Section 15 of the Crimes (Aviation) Act 1991 applies the criminal law of the Jervis Bay Territory and the Crimes Act 1900 of the Australian Capital Territory in its application to the Jervis Bay Territory, to conduct on specified flights, including interstate flights and certain international flights. This section makes it clear that the provisions of this Act and the co-operative scheme do not displace section 15, such as in cases where an aircraft is flying over the adjacent area.
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.
Schedule 1 - The cooperative scheme
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 ).
Part 2 - Application of State criminal law to adjacent area
Clause 2 Application of State criminal law in adjacent area
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).
Clause 3 Application of laws of criminal investigation, procedure and evidence
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 jurisdictions 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 States 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.
Clause 4 Evidentiary presumption about the locus of an offence
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.
Part 3 - The intergovernmental agreement
Clause 5 Intergovernmental agreement
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.
Clause 6 Effect of the agreement
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.
Part 4 - Limitations and exclusions
Clause 7 Commonwealth Attorney-Generals consent required for certain prosecutions
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.
Clause 8 Non-exclusion of consistent extra-territorial legislative schemes
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.
Clause 9 Exclusion of certain laws from ambit of this 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.
Clause 10 Non-application of scheme to Area A of the Zone of Cooperation
53. This clause provides that the scheme does not apply to Area A of the Zone of Cooperation.
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 Australias territorial sea, continental shelf and territorial sea. 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:
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- 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;
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- the adjacent area for Western Australia excludes Area A of the Zone of Cooperation;
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- 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.
Schedule 2 - Consequential Amendments
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.