House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Immigration and Border Protection, the Hon. Peter Dutton MP)

Schedule 8 - Maritime Powers

Maritime Powers Act 2013

Item 1 - Section 40

98. This item changes existing section 40 into new subsection 40(1) by inserting "(1)" at the beginning of the section. This is a technical amendment that is consequential to the addition of new subsections 40(2) and 40(3), below.

Item 2 - At the end of section 40

99. This item inserts new subsections 40(2) and (3) at the end of section 40.

100. Section 8 of the Maritime Powers Act defines a 'country' to include the territorial sea and archipelagic waters of the country. Section 40 as currently drafted prevents the exercise of powers under the Maritime Powers Act at a place in another country except in defined circumstances. Section 40 could be interpreted as preventing the exercise of powers under the Maritime Powers Act in waters within another 'country' in circumstances where, under the United Nations Convention on the Law of the Sea (the Convention), it would be permissible to exercise those powers, for example when a vessel is in the course of 'transit passage' through an international strait. The amendments confirm that powers under the Maritime Powers Act can be exercised in those circumstances.

101. New subsection 40(2) provides that subsection 40(1) does not apply to an exercise of powers if the circumstances in paragraphs 40(2)(a) and (b) exist. These circumstances are that:

(a)

the exercise of powers:

(i)

is part of a continuous exercise of powers that commenced in accordance with any applicable requirements of Part 2 (disregarding new subsection (2)); and

(ii)

occurs in the course of passage of a vessel or aircraft through or above waters that are part of a country; and

(b)

a relevant maritime officer, or the Minister, considers that the passage is in accordance with the Convention.

102. The intention behind section 40 is to ensure that powers are exercised under the Maritime Powers Act in a manner consistent with the principle of territorial sovereignty at international law. Thus, the use of enforcement powers within another country normally would require some form of agreement by that country. However, the section did not explicitly allow for the exercise of powers in the course of passage through and over waters within another country already permitted under international law, as reflected in the Convention. Examples of such passage include a vessel in the course of innocent passage, transit passage or archipelagic sea lanes passage. In those circumstances, under international law, no further agreement or approval by the coastal state is required

103. The purpose of the amendment is to confirm the operation of the Maritime Powers Act in circumstances where vessels and aircraft are considered to be exercising passage rights consistent with the Convention.

104. As outlined above, there are two limbs to new subsection 40(2).

105. The first limb, in paragraph 40(2)(a), has two requirements, namely, that the exercise of powers:

•

is part of a continuous exercise of powers that commenced in accordance with any applicable requirements of Part 2 (disregarding new subsection (2)); and

•

occurs in the course of passage of a vessel or aircraft through or above waters that are part of a country.

106. The second limb in new paragraph 40(2)(b) requires that a relevant maritime officer, or the Minister, considers that the passage is in accordance with the Convention.

107. Under the Maritime Powers Act, a continuous exercise of powers is generally contingent on an authorisation by an authorising officer, and a subsequent exercise of powers by a maritime officer within the appropriate geographical area. An authorisation is spent when the continuous exercise of powers under the authorisation ends. A continuous exercise of powers does not end only because there is a period of time between the exercise of one or more of those powers.

108. The 'continuous exercise of powers' referred to in the first limb of new subsection 40(2), is explained in section 11 of the Maritime Powers Act.

109. Under the second limb in new paragraph 40(2)(b)either a relevant maritime officer or the Minister must consider that the passage is in accordance with the Convention.

110. A "relevant" maritime officer would not be confined to just the commander of the vessel, but could also apply in relation to more senior maritime officers who have knowledge, involvement in, or command over the operations.

111. In order to exercise powers in the course of passage through or above the waters of another country the relevant maritime officer must consider that passage to be in accordance with the Convention.

112. On some occasions, the Minister may provide a direction or guidance in relation to the exercise of powers. In these instances, it may be appropriate that the Minister considers consistency with the Convention. The Minister may reduce this consideration to writing by way of directions issued under section 75F, or through other mechanisms. This is highlighted by Note 2 to subsection 40(2).

113. Two notes are included at the end of subsection 40(2).

114. Note 1 refers to the definition of country in section 8 and highlights that the territorial sea and archipelagic waters of a country form part of that country.

115. Note 2 refers to the fact that the Minister's consideration of the passage of a particular vessel or aircraft through or above waters that are part of a country is in accordance with the Convention may be apparent from the terms of a direction given under section 75F. Section 75F provides for the Minister to give directions about the exercise of powers in sections 69, 69A, 71, 72 and 72A of the Maritime Powers Act.

116. New subsection 40(3) provides that an exercise of powers in reliance (or purported reliance) on subsection (2) is not invalid by reason of a defective consideration of the Convention.

117. Where the operation of subsection 40(2) is dependent on the opinion of a relevant maritime officer by virtue of paragraph 40(2)(b), there is recognition that this opinion will be the bona fide view of the maritime officer that the passage is in accordance with the Convention. Subsection 40(3) reflects a possibility that, on occasion, an officer though giving due consideration to the matter, comes to an incorrect conclusion.

118. Subsection 40(3) therefore preserves the lawfulness of the activity under domestic law in the case where there is a defective consideration of the Convention.

Item 3 - Application provisions

119. This item provides that the amendments made by this Schedule apply in relation to the exercise of powers under the Maritime Powers Act after commencement of the Schedule, even if:

•

the authorisation for the exercise of the powers was given under Division 2 of Part 2 of that Act before that commencement; or

•

the powers are exercised in the course of a continuous exercise of powers that started before that commencement; or

•

the powers are exercised in relation to a person, vessel or aircraft who or that started to be detained, or otherwise held, under Division 7 or 8 of Part 3 of the Maritime Powers Act before that commencement; or

•

the powers are exercised in any other situation in relation to which powers were (or could have been) exercised under that Act before that commencement.

120. The amendments of the Maritime Powers Act made by this Schedule do not, by implication, affect the interpretation of that Act, as in force before the commencement of this Schedule, in relation to the exercise of powers under that Act before that commencement.