House of Representatives

Second Reading Speech

Dr STONE (Parliamentary Secretary to the Minister for the Environment and Heritage)

I move:

That the bill be now read a second time.

This is a bill to give Australia a modern crimes at sea scheme. The increasing incidence of people smuggling in the last year has highlighted the importance of having an effective legal regime to govern the seas around Australia's coastline. This bill complements the important measures that the government has announced in the coastal surveillance context.

The new crimes at sea scheme will be simpler to understand and apply, and will result in more effective law enforcement.

The bill implements a new national, uniform, cooperative scheme to apply Australian criminal law offshore. The scheme was developed by the Special Committee of Solicitors-General and has been endorsed by the Standing Committee of Attorneys-General.

The existing crimes at sea scheme under Commonwealth, state and Northern Territory legislation is seriously flawed. In many situations, it is a complicated and confusing task to identify the law that applies in connec tion with a suspected offence. This creates difficulties for law enforcement and prosecution authorities and could mean that an offender escapes conviction because of a technical error.

Under the current scheme, the criminal law applicable to a vessel is determined by reference to whether it is registered in Australia or overseas, and, if registered in Australia, to the state or territory in which it is registered and whether it is engaged in an interstate or intrastate voyage.

This mishmash of rules is not only difficult to understand and apply, it can also give rise to an overlapping application of laws, adding to the confusion. The uncertainty relates not only to determining which body of law applies but also to determining who is responsible for enforcing those laws and which set of procedural rules apply to their enforcement.

Even when the applicable law is clear under the existing scheme, the results are not always sound. For example, the scheme contemplates the possibility that investigators from one state would be obliged to operate according to the investigatory laws of another state.

That is why the Special Committee of Solicitors-General devised a clearer and simpler scheme, which has been approved by the Standing Committee of Attorneys-General and has Australasian Police Ministers' Council support.

Under the new cooperative scheme the states and the Northern Territory have agreed to enact uniform crimes at sea acts that will apply their criminal laws in their respective offshore adjacent areas out to 12 nautical miles. The Commonwealth bill will, in turn, apply the criminal law of each jurisdiction, as Commonwealth law, to the respective offshore adjacent area of each State and the Northern Territory from 12 to 200 nautical miles or the outer limit of the continental shelf, whichever is the greater.

The adjacent area of each jurisdiction is defined in part 6 of schedule 1 of the bill. For ease of reference, a map showing the adjacent area of each state and other legally significant boundaries has been incorporated with the bill. The scheme will not apply to Common wealth, state and Northern Territory laws excluded by regulation from the ambit of the scheme. This is to cater for currently operating schemes applying in the offshore zone relating to subjects such as fisheries.

Under the new scheme the authority that is investigating an offence will do so in accordance with its own procedures. For example, Victorian police investigating an offence which under the scheme is an offence under New South Wales law will investigate according to Victorian investigative procedures. When a state offence and a Commonwealth offence are being investigated simultaneously the investigating authority will, as at present, follow the procedural requirements which are the more stringent.

Prosecutions under the new scheme will be conducted on a similar basis. Commonwealth proceedings will be run according to the law of the Commonwealth. State and Northern Territory proceedings will be run according to the law of the jurisdiction in which the proceedings started. In the example I have just given the New South Wales offence would be tried in a Victorian court according to Victorian procedural law.

Under the new scheme, a single body of law will apply in the adjacent area of each jurisdiction, regardless of whether a vessel is 'connected' with another jurisdiction or is on an interstate or intrastate voyage or is an Australian or foreign vessel. These archaic and unnecessary distinctions will simply have no place in the scheme.

Greater simplicity is a central aim of the scheme so that crimes do not go unpunished because of legal technicalities. The bill will eliminate the situation in which determining which body of law applies depends upon facts unrelated to the offence itself such as the state with which a vessel is connected. It will also put an end to the situation where the applicable law depends upon facts which may be particularly difficult to establish like the vessel's intended destination before an event occurs.

The new scheme will also be more effective because all jurisdictions will enter into an intergovernmental agreement to enforce the criminal law under the scheme. These agree ments will also enable the Commonwealth to confer powers, duties and functions on state and Northern Territory authorities under the new Commonwealth Act.

The agreement has been endorsed by both the Standing Committee of Attorneys-General and the Australasian Police Ministers Council.

A significant feature of the agreement is that the states and the Northern Territory will have primary responsibility for investigating and prosecuting crimes committed in their respective adjacent areas. However, where practicable, the jurisdictions will provide assistance to one another in the investigation of offences arising under the scheme. The agreement will also provide that where more than one jurisdiction is empowered to prosecute they should consult to determine the jurisdiction most convenient for prosecution.

The agreement will provide that the Commonwealth also has the primary enforcement responsibility for criminal conduct on or from a Defence Force ship when it is outside the limits of a state or the Northern Territory.

As well as the uniform provisions that I have outlined, the Commonwealth bill also applies the Jervis Bay Territory's criminal law to certain criminal acts committed outside the new scheme's coverage area.

Jervis Bay Territory law will apply on Australian ships, to Australian citizens on foreign ships who are not members of the crew and on a foreign ship that first lands in Australia after an offence is committed.

In these cases, the procedural rules for investigating and prosecuting offences will be the same as those applying to any other offence under Commonwealth law.

Further, in accordance with Australia's Timor Gap Treaty obligations, the Commonwealth bill also includes special provisions to apply the Northern Territory's criminal laws to criminal acts connected with the exploration and exploitation of petroleum resources in Area A of the Zone of Cooperation. On the other hand, the investigation and prosecution rules for offences applied by this bill in Area A of the Zone of Cooperation will be the same as the rules applying in the cooperative scheme area. Put simply, that means if North ern Territory authorities are investigating or prosecuting an offence Northern Territory procedural laws will apply. If Commonwealth authorities are investigating or prosecuting, then Commonwealth procedural laws will apply.

The new regime will not affect the substantive criminal and procedural laws that currently apply in the 12 nautical mile territorial seas of the external territories. The criminal law of Norfolk Island, for example, will apply in the territorial seas around the island and Western Australian criminal law will apply in the territorial seas around Christmas Island and Cocos (Keeling) Islands.

Finally, the Commonwealth, state and Northern Territory bills all provide that the Commonwealth Attorney-General's written consent must be obtained before a prosecution can proceed in cases in which the alleged offence also falls within a foreign country's jurisdiction. This requirement is necessary to promote compliance with Australia's international obligations. Before granting approval the Commonwealth Attorney-General must take into account any views expressed by the country concerned. The absence of consent, however, will not prevent preliminary steps such as arrest, charges being laid, or extradition proceedings beginning.

In accordance with the agreement reached by the Standing Committee of Attorneys-General, New South Wales, South Australia and Tasmania have enacted the uniform state model bills required for the new regime. After the Commonwealth and the remaining jurisdictions have done the same, the new scheme will be uniformly proclaimed by all the jurisdictions.

The new scheme is, as I said in my introduction, simpler to understand and easier to apply, making it more effective and convenient for law enforcement. Although policing offences at sea still present operational and logistical challenges, this scheme will give Australian authorities the legislative basis they need to enforce the criminal law off Australia's coastline.

I commend this bill to the House and present the explanatory memorandum.

Debate (on motion by Mr Swan) adjourned.