This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer and Copyright Details
Crimes at Sea Bill 1999(1)
Date Introduced: 30 September 1999.
House: House of Representatives.
Portfolio: Justice and Customs.
Commencement: Sections 1 and 2 will commence on Royal Assent.
The remainder will commence on a day to be fixed by Proclamation or
within 12 months and a day.
This Bill seeks to extend the criminal
jurisdiction of the Australian States beyond Australian coastal
waters to the limits of the 'continental shelf' and beyond so as to
provide a legal basis for more effective control over crimes at
sea. It will give effect to:
- a co-operative scheme developed by Commonwealth and
State/Territory Governments over crimes at sea within the 'adjacent
- a complementary regime developed by the Commonwealth Government
over crimes at sea beyond the 'adjacent area'; and
- a regime agreed by the Commonwealth and Indonesian Governments
for dealing with crimes at sea within 'Area A' of the Timor
The Bill has been introduced amid other
legislative changes relevant to coastal surveillance and people
smuggling. The other changes relate to increases in penalties,(2)
restricting the scope of judicial review,(3) and strengthening of
Crimes at Sea
The Commonwealth already has legislation dealing
with crimes at sea. The Crimes at Sea Act 1979, along with
complementary legislation in most States, applies State criminal
law to Australian ships, Australian citizens and foreign ships in
respect of crimes committed at sea. However, the legislative regime
does have defects and was the target of a report by the Australian
Law Reform Commission nearly a decade ago.(5) The defects are
examined below in the context of a discussion of Australia's
jurisdiction over crimes at sea.
Some impetus for this Bill comes from the
apparent increase in 'people smuggling' and the difficulties of
enforcing laws over foreign ships outside Australia's coastal
Domestically, there has been a growing interest
in 'people smuggling' following an apparent increase in the number
of sea landings and 'unauthorised arrivals' into Australia.
Relevant statistics are reflected in the figures in Attachment A.
In March and April 1999, illegal entrants made undetected landings
on the eastern coast of Australia, as far south as Scotts Head, New
South Wales.(6) In response to public concern over the landings, on
12 April 1999 the Prime Minister established a Coastal Surveillance
Task Force, chaired by the Secretary of the Department of Prime
Minister and Cabinet, Mr Max Moore-Wilton.
The Task Force reported in June 1999. It noted
that '[c]urrent maritime enforcement legislation does not implement
fully the powers available under international law'(7) and
recommended that 'comprehensive legislative amendments be
introduced to further strengthen maritime investigatory and
enforcement powers against both Australian and foreign flag
vessels'.(8) On 27 June 1999, the Prime Minister indicated that the
Government would implement all the recommendations and announced a
commitment of $124 million over four years to 'strengthen
Australia's capacity to detect and deter illegal arrivals'.(9)
Internationally, 'people smuggling' has become a
hot topic in the context of pressure to control transnational
organised crime. It has received the attention of the General
Assembly,(10) the Secretary General,(11) the Economic and Social
Council(12) and the International Maritime Organisation.(13) It is
the subject of a proposed protocol to a draft international
convention on the control of transnational organised crime.(14) The
common theme is that Nation States are urged to review their
domestic legislative powers to establish jurisdiction over people
Jurisdiction over Crimes at
There appear to be a number of unanswered
questions raised by this Bill relating to the scope of jurisdiction
claimed over crimes at sea, particularly over foreign ships. These
issues are discussed below in 'Concluding Comments'. But it is
first necessary to provide an overview of various aspects of
jurisdiction both under domestic and international law.
At the outset, a distinction should be drawn
between what may be called Australia's 'prescriptive
jurisdiction' and its 'enforcement
- Prescriptive jurisdiction: the common law gives the
Commonwealth and the States a power to enact laws having an
extraterritorial effect. The Constitution also gives the
Commonwealth a power to enact laws with respect to matters that are
external to Australia. Whether or not these laws can be
enforced is another question.
- Enforcement jurisdiction: international law gives
Australia a physical jurisdiction to enforce its laws
within a prescribed distance of its coast arising out of its
territorial sovereignty and 'sovereign rights' recognised in
international law. It also recognises a personal
jurisdiction to enforce laws upon its own citizens or own ships
arising out of the nexus between a sovereign nation and its
A distinction should also be made among the
various jurisdictional zones recognised under domestic and
international law. A convenient guide is given by the United
Nations Convention on the Law of the Sea (UNCLOS).(17)
- Internal Waters: waters on the landward side of the
- Territorial Sea: waters within 12 nautical miles (nm)
of the 'territorial baseline'.(19)
- Contiguous Zone: waters from 12 to 24 nm.(20)
- Exclusive Economic Zone: waters beyond 12 nm and
within 200 nm of the 'territorial baseline'.(21)
- Continental Shelf: seabed and subsoil up to 350 nm(22)
(or as agreed between two State Parties to UNCLOS with 'opposite or
These regions did not always exist in
international law and were not always reflected in domestic law.
Historically, a key difference was the treatment of the territorial
sea. At common law, it was widely thought that the territorial sea
was limited to 3 nm.(24) It was not until 1990 that Australia
formally incorporated the 12 nm limit into its domestic
The source of Australia's prescriptive
jurisdiction can be found in the admiralty jurisdiction, the common
law and in constitutional law relating to offshore sovereignty.
The original source of power in Australia over
crimes at sea was derived from the British admiralty jurisdiction.
This body of law gave jurisdiction over persons on British ships
anywhere including jurisdiction over foreign subjects on board
British ships. In limited circumstances there was also jurisdiction
over British subjects on board foreign ships. There was no
jurisdiction over foreign subjects aboard foreign ships,(26) until
it was formally conferred by the Territorial Waters
Jurisdiction Act 1878 (Imp.) to the limit of the territorial
sea. The jurisdiction was incorporated into the colonies and it
enabled courts to exercise a range of powers, but it also contained
Another source of power was developed in the
common law. However, there were two divergent views about its
application within Australia. The first view was that the
Australian States have a power to enact laws having an
extraterritorial effect so as to secure 'peace, order and good
government' of the State.(28) This would include a power to control
offshore acts of its citizens,(29) and to control offshore acts of
foreigners where they come within the physical limits of the
State.(30) This power was derived not from sovereignty or property
over the open seas or seabed, but simply by virtue of the nexus
with 'peace, order and good government'.(31) Thus, it has been said
that even since the nineteenth century the power extended beyond
the limit of the territorial sea.(32)
The second view was that the States are
restricted by a 'doctrine of extraterritorial incompetence'.
Originally, the British Colonial Office prevented colonial
governments from enacting laws having an extraterritorial effect.
Their power was enlarged to the limit of the territorial sea by an
Act of the United Kingdom.(33) But, there were strong suggestions
that the practice of the Colonial Office had become part of the
common law.(34) Thus, some thought that the common law power only
existed within the territorial sea.
The conflict between these views was resolved
amid growing interest in the exploitation of offshore natural
resources and the exercise of exploration and mining rights
offshore under international law. While international law
recognised sovereignty and sovereign rights,(35) and certain powers
over offshore waters, there was uncertainty as to how the powers
could be exercised in Australia as the issue of sovereignty had not
been resolved as between the Commonwealth and the States.(36)
The issue was tested in two pieces of federal
legislation. The Seas and Submerged Lands Act 1973(37)
asserted for the Commonwealth territorial sovereignty over
the 'territorial sea' and sovereign rights over the
'continental shelf'.(38) The Petroleum (Submerged Lands) Act
1973 specifically extended Commonwealth control over offshore
petroleum exploration and extraction by extending the limits of the
'adjacent areas' (generally, areas of sea adjacent to each State
between 3 nm and the limit of the 'continental shelf') under the
Petroleum (Submerged Lands) Act 1967-68.
The assertions in the former Act were upheld for
the purposes of domestic constitutional law in the Seas and
Submerged Lands Case.(39) The consequence was that, while the
States arguably retained their extra-territorial jurisdiction under
common law,(40) it was considered desirable to effect a
're-ordering and readjustment of powers and responsibilities' to
reflect the underlying sovereignty of the Commonwealth.(41)
Negotiations commenced between the Commonwealth and the States
resulting in the Crimes at Sea Act 1979, the Offshore
Constitutional Settlement and amendments to the Seas and
Submerged Lands Act 1973 and Petroleum (Submerged Lands)
Crimes at Sea Act 1979
The first legislative outcome from the Seas
and Submerged Lands Case was the Crimes at Sea Act
1979.(42) This attempted to repair many of the defects in the
admiralty jurisdiction and resolve the ambiguity surrounding the
common law.(43) Along with complementary State legislation,(44) it
formally applied State criminal law to the limit of the
'territorial sea' and beyond this limit to the limit of the
'adjacent area' in respect of crimes committed on foreign ships
en-route to Australia.(45) The Judiciary Act 1903 allowed
State and Territory courts to administer the jurisdiction created
by the Act.(46)
The Act basically adopted the wide
personal jurisdiction and limited physical
jurisdiction accepted in admiralty and the common law. Thus, it
focused on acts by Australian citizens, acts aboard Australian
ships and acts aboard foreign ships outside the territorial sea
where the offender entered Australia. It was drafted to reflect
Australia's enforcement jurisdiction under international law (see
below). So, for example, where another state had jurisdiction over
a ship a prosecution could not proceed unless it gave its
The Act was flawed in at least two respects.
First, it was drafted in a way that made the task of identifying
jurisdiction both complicated and confusing. The law to be applied
to foreign ships depended on the ship's first port of call in
Australia. The law to be applied to Australian ships depended on
the port of registration regardless of where the offences occurred,
leading to potentially anomalous results.(48) Second, the State
schemes were considered to be invalid because they were
inconsistent with the Territorial Waters Jurisdiction Act
1878 (Imp.).(49) The Colonial Laws Validity Act 1865
(Imp.) gave certain imperial statutes paramount force in the
colonies.(50) States did not acquire a power to enact laws
overriding imperial legislation until the passage of the
Australia Act 1986 (Cth.).(51)
Petroleum (Australia-Indonesia Zone of Cooperation)
Another outcome from the Seas and Submerged
Lands Case was an expansion in Commonwealth program for
offshore petroleum exploration and extraction. It set up joint
control arrangements with the States,(52) and proceeded to
negotiate an agreement with Indonesia regarding the boundary of the
'continental shelf' and joint control arrangements over petroleum
exploration and extraction.(53) The agreement brought about
amendments to the Crimes at Sea Act 1979 regarding
criminal offences committed within 'Area A' of the Zone of
Cooperation (that part of the zone that straddles the border of the
'continental shelf' agreed between Indonesia and Australia).(54)
Thus, criminal jurisdiction of the Northern Territory applied in
relation to offences connected with petroleum exploration or
extraction committed in 'area A' by persons other than those over
which Indonesia had sole personal jurisdiction.(55)
The source of Australia's enforcement
jurisdiction can be found in UNCLOS. Under UNCLOS a state has full
territorial sovereignty to the limit of the 'internal
waters' and has a more restricted sovereignty to the limits of the
'territorial sea'. Beyond the 'territorial sea' it has certain
sovereign rights which it may exercise to the edge of the
'contiguous zone'. A smaller set of rights apply to the edge of the
'exclusive economic zone' which is reduced further within the
'continental shelf' and then almost non existent on the 'High
The key issue for the Bill is the power to
enforce criminal laws.
Within internal waters the enforcement
jurisdiction is complete. A State may enforce laws with respect to
any issue within its internal waters including criminal law. It may
arrest any person or investigate any recognised crimes committed
within the internal waters.(56)
Within the territorial sea, enforcement is
subject to the right of 'innocent passage'. Foreign ships generally
have a right to passage through the territorial sea that is 'not
prejudicial to the peace, good order or security of the coastal
State'.(57) While UNCLOS confers some rights over the territorial
sea,(58) it is generally silent about the application of criminal
laws to foreign ships, except in relation to merchant ships and
government ships operated for commercial purposes. A State may
exercise its criminal jurisdiction to arrest persons or investigate
crimes on board these ships passing through the territorial
sea where the consequences of the crime extend to the State,
where the crime is of a kind to disturb the 'peace of the country
or the good order of the territorial sea' or if such measures are
'necessary for the suppression of illicit traffic in narcotic drugs
and psychotropic substances'.(59) It may exercise a complete
criminal jurisdiction over foreign ships passing through the
territorial sea after leaving the internal waters.(60) It
may also exercise a complete jurisdiction over foreign ships in
respect of crimes committed beyond the territorial sea, but
only after the vessel has entered the internal
Within the Contiguous Zone a State may exercise
the control necessary to 'prevent infringement of its customs,
fiscal, immigration or sanitary laws and regulations within its
territory or territorial sea' or to 'punish infringement of the
above laws and regulations committed within its territory or
Exclusive Economic Zone and Continental
Within the 'exclusive economic zone' a State may
exercise a limited criminal jurisdiction whilst exercising its
sovereign rights to 'explore, exploit, conserve and manage the
living resources in the 'exclusive economic zone''.(63) Thus, a
State may exercise powers of arrest and detention of foreign
vessels for violations of fisheries laws and regulations but it may
not imprison persons without specific agreement with the 'flag
Within the 'continental shelf', enforcement is
limited to the exercise of sovereign rights 'for the purpose of
exploring it and exploiting its [non-living] natural
resources'.(65) The status of the above waters is not affected(66)
and there is no reference to any criminal jurisdiction.
On the high seas enforcement is limited to
rights of 'hot pursuit' and 'visit'. The former allows warships to
pursue and arrest a foreign ship beyond the territorial sea or
contiguous zone if they have good reason to believe that the ship
has violated the laws and regulations of that State.(67) The latter
allows warships to board a foreign ship where there is reasonable
ground to suspect that it is a 'ship without nationality',(68) or
is engaged in piracy, slave trading, etc.(69)
UNCLOS adopts the basic principle that each
country has jurisdiction over ships that sail by its flag. Every
country may exercise powers over its own ships anywhere in the
world, except in the territorial sea or internal waters of another
country.(70) UNCLOS does not prescribe any specific rights over
'ships without nationality'.(71) However, there have been
suggestions a 'ship without nationality' is a 'ship without
protection'(72) and that a State may exercise a personal
jurisdiction over such ships as if they were its own.(73)
Government and Non-Government
The Government has signalled a desire to achieve
bi-partisan support for the whole package of legislative reform for
coastal surveillance.(74) The Opposition generally supports the
legislative package but has been critical that it does not address
the underlying issues, for example: legislative and administrative
coordination, coastal surveillance and maritime law enforcement
resources and capacities.(75) The Democrats have not commented
specifically on this Bill. However, they have previously supported
harsher penalties for people smuggling,(76) but have criticised
potential impacts on the rights of asylum seekers.(77)
Proposed Part 2 seeks to give
the cooperative scheme the force of law to the extent that it
lies within the legislative power of the Commonwealth. The
cooperative scheme is contained in Schedule 1.
The Cooperative Scheme
Schedule 1 describes 'the
Clause 2 seeks to apply the
'substantive criminal law'(78) of each State to the 'adjacent area'
for that State. It purports to do this in the 'inner adjacent area'
('internal waters' and 'territorial sea') by force of State law and
in the 'outer adjacent area' (the 'contiguous zone', 'exclusive
economic zone' and/or the 'continental shelf'(79)) by force of
Clause 3 seeks to apply the
'law of criminal investigation, procedure and evidence'(80) of each
State or the Commonwealth to judicial proceedings conducted by its
own authorities, regardless of the substantive criminal law being
applied. Thus, a person may be tried in the New South Wales Supreme
Court for an offence within the 'outer adjacent area' of Victoria
and the New South Wales procedural laws will apply. The
Commonwealth may subsequently assume responsibility for the
proceedings and the Commonwealth procedural laws will apply.
Clause 4 seeks to apply a
general presumption about the area in which offences have been
committed. If a criminal act is proved, an allegation as to where
it was committed will be accepted unless it is actually disproved.
Thus, an allegation that a crime was committed within the 'adjacent
area' will be accepted unless is shown that it occurred on the high
Clauses 5 and
6 provide for an inter-governmental agreement
governing the division of responsibilities for administering and
enforcing crimes at sea legislation.
Clause 7 imposes a limitation
on prosecutions in respect of foreign ships that are registered
under a foreign law. Generally, formal hearings cannot commence for
offences committed on board these ships, unless the
Attorney-General has given his or her written consent.(81) Pending
this consent, a person may lawfully be arrested, charged or
remanded in custody or on bail.(82) If consent is declined the
proceedings will be permanently stayed. In giving his or her
consent, the Attorney-General must take into account the views of
'the country of registration'.
Clause 8 ensures that the Bill
does not limit the extra-territorial operation of State legislation
that is capable of operating consistently with the Bill (for
example, State fisheries laws).
The Complementary Regime
Proposed Part 3 seeks to apply
the substantive criminal law of the Jervis Bay Territory beyond the
'adjacent area', in order to complement State legislation under the
cooperative scheme established under Schedule
Proposed Part 3,
section 6 complements the cooperative regime by
covering crimes within Australian jurisdiction but beyond the reach
of State criminal law. It applies to offences committed by an
Australian citizen on board a foreign ship, offences committed on
or from Australian ships and offences committed on or from foreign
ships which subsequently dock in Australia or where the offender
subsequently lands in Australia. A similar limitation applies as
above regarding consent for prosecution. However, in giving his or
her consent, the Attorney-General must take into account the views
of any other country that has jurisdiction over the
offence under international law.(83) If another country does have
jurisdiction, a person cannot be convicted if there is no
corresponding offence in that jurisdiction or, if a corresponding
offence exists, a defence existed that would have applied in the
The Regime within 'Area A'
Proposed Part 4 seeks to apply
the substantive criminal law of the Northern Territory to 'Area A'
in respect of criminal acts on oil rigs, etc.(84) that are
connected with petroleum exploration and extraction. It does not
apply to acts committed by permanent residents or nationals of
Indonesia who are not also Australian nationals and does not apply
if the acts have already been dealt with under Indonesian law. As
above, prosecution requires the consent of the Attorney-General
although arrests, charges, extradition and remands in custody or on
bail may proceed, pending this consent. Relevant procedural
criminal laws also apply as described above in Schedule
1, clause 3.
Proposed Part 4,
section 8 allows for the transit through Australia
of persons who have been arrested for an offence under Indonesian
law. It allows for the cooperation of Australian police officers
and co-opting of Australian magistrates to assist in the transport
of persons in custody and their detention within Australia. For
example, an accused may be detained in custody without a warrant
for up to 24 hours. If a magistrate receives an application made in
accordance with the regulations, and considers it necessary to
facilitate the transport of the accused, s/he must issue a warrant
ordering a person to detain the accused for up to 96 hours. This
period may be further extended by written authorisation from the
Proposed section 8 also
provides for regulations governing cooperation between Australian
and Indonesian law enforcement agencies in relation to offences
within Area A.
Proposed Part 4, section 9
provides for the making of regulations to give effect to agreements
or arrangements between Australia and Indonesia governing the
division of responsibilities for administering and enforcing crimes
at sea laws in Area A.
Proposed Part 5 deals with
miscellaneous matters such as gazettal of the inter-governmental
agreement (clauses 5 and 6 above)
and the making of regulations.
This Bill clearly remedies certain defects in
existing crimes at sea legislation. Along with complementary
legislation in the States, it overcomes arguments regarding
inconsistency with the Territorial Waters Jurisdiction Act
1878 (Imp.). It also overcomes uncertainty regarding the task
of identifying jurisdiction over crimes at sea. It adopts a wide
physical jurisdiction, focussing on the location in which
crimes are committed rather than a ship's port of registration or a
foreign ship's first port of call, to create a seamless application
and enforcement of criminal laws within the adjacent area of each
However, the Bill may contain its own serious
defects. Given the loose connection with 'people smuggling'
identified in the Second Reading Speech, it is useful to begin
examining the possible defects in the context of crimes committed
aboard foreign ships.
The Cooperative Scheme and the
There appear to be significant disparities
between the prescriptive jurisdiction asserted in this Bill and the
enforcement jurisdiction conferred under international law. UNCLOS
confers a plenary criminal jurisdiction to the limit of the
'internal waters' and a wide criminal jurisdiction to the limit of
the 'territorial sea'. Beyond this limit, there is no express
criminal jurisdiction over foreign ships in the 'contiguous zone',
'exclusive economic zone', or the 'continental shelf'. Yet the Bill
appears to assert a plenary jurisdiction within the 'inner adjacent
area' ('internal waters' and 'territorial sea') and 'outer adjacent
area' ('contiguous zone', 'exclusive economic zone' and
It is unclear what these disparities reflect. On
a narrow view, they may reflect an attempt to exercise an orthodox
jurisdiction over crimes at sea in accordance with the limitations
under UNCLOS. Accordingly, the plenary jurisdiction over foreign
ships can be read down so as only to apply to the limit of the
territorial sea. On a wide view, they may reflect an attempt to
exploit potential developments and uncertainties in the
international law of the sea not reflected in UNCLOS. Accordingly,
the plenary jurisdiction might be interpreted in light of a number
of circumstances not canvassed under UNCLOS.
Transnational Organised Crime
The Bill may also have been drafted to capture
cases that may in future be governed by international law.
As indicated above, the international community is moving towards a
protocol dealing with people smuggling in the context of a draft
convention on transnational organized crime. The wide jurisdiction
asserted in the Bill might have been framed so as to accommodate
future developments in this respect. Thus, the legislative reform
has been devised in the context for a concerted effort to finalise
The difficulty with this argument would seem to
be that while the statements and draft protocol encourage States to
exercise their jurisdiction to the fullest extent, they do not
encourage States to exceed their jurisdiction under UNCLOS. Neither
is there any suggestion that their jurisdiction will be enlarged.
States are simply encouraged to exercise a personal
jurisdiction over any of their citizens or ships involved in
'people smuggling' and to exercise a physical jurisdiction
over foreign ships only insofar 'as is recognised under
international law'. The tenor of these developments is that 'flag
States' are urged to take all necessary measures over the owners of
vessels, etc. and 'destination States' are only invited to take
those measures recognised under UNCLOS, etc.(87)
Jurisdiction by Consent
Equally, the Bill may have been drafted to
capture cases that are governed by consent. While international law
restricts the exercise of a physical jurisdiction over
foreign ships it does not prevent the exercise of a
personal jurisdiction conferred on the 'flag State'. The
wide jurisdiction might have been framed to accommodate a situation
in which a 'flag State' consents to the prosecution of persons
under Australian law. Thus, for prosecution of offences committed
on foreign ships within the 'inner adjacent area' and 'outer
adjacent area', over which a State has jurisdiction under
international law, the Commonwealth Attorney-General must
consult with the 'government of the country of
registration'.(88) For prosecution of offences committed on
foreign ships beyond the 'adjacent area' the Attorney General is
required to consult with the 'government of a country whose
jurisdiction over the alleged offence is recognised under
principles of international law'.(89)
There appear to be two difficulties with this
argument. First, the Attorney-General is only required to take the
views of the other government 'into account'. The Bill
does not require him or her to obtain that government's consent.
Second, within the 'adjacent area' the Attorney General is only
required to take into account the views of the 'flag State'. The
Bill does not require him or her to take into account the views of
other countries that may have a jurisdiction 'recognised under
principles of international law'. The absence of such
requirements may prove to be a crucial oversight that stretches
international law to breaking point and undermines the application
of domestic criminal jurisdiction within the 'adjacent
Ships Without Nationality
Alternatively, the Bill may have been drafted to
capture cases that fall outside the limitations imposed by
UNCLOS. As indicated, UNCLOS is generally silent about 'ships
without nationality' and there are suggestions that States may
exercise a personal jurisdiction over such ships. This may
be critical as these ships appear to be the common vehicle for
people smuggling rackets and are a likely to be a clear target of
international law controlling transnational organised crime.(91)
The wide jurisdiction may have been framed to address a situation
like this where, as suggested above, other States do not have any
jurisdiction under international law. Thus, as indicated, beyond
the adjacent area, the Attorney-General may consent to a
prosecution after s/he has consulted with any other government
whose jurisdiction is 'recognised under principles of
The Regime within 'Area A'
The regime within 'area A' appears to be in a
special position vis-à-vis the cooperative scheme
and the complementary regime. As indicated, it does not deal with
crimes committed aboard ships or aircraft. It is not subject to the
limitations governing the exercise of criminal jurisdiction over
foreign ships arising out of the 'right of innocent passage'.
Indeed, it may be unlimited provided it deals only with the seabed
and subsoil of the continental shelf, or installations thereupon,
and not the waters or airspace above.(92)
One live question may be the relationship
between 'Area A' and the boundary of the 'continental shelf'. As
indicated, the relevant part of the boundary was determined by an
agreement between Indonesia and Australia in 1989. The validity of
this agreement would seem to be in question following the formal
acceptance by Indonesia of East Timor's independence.(93)
A Uniform Legislative Scheme
Arguably, the 'cooperative scheme' is a
uniform legislative scheme among the Commonwealth and the
States. Such schemes involve the development of a single
legislative regime that is adopted in the respective jurisdictions
according to their legislative powers. While the constitutional
validity of these schemes has been accepted,(94) there has been
concern regarding their potential to weaken responsible
government.(95) The key concern is the level of parliamentary
scrutiny.(96) It arises out of the fact that uniform schemes are
developed at ministerial council level in which the Commonwealth is
only one of seven players. One issue is the limited publicity that
surrounds the development of the legislative regimes. Another issue
is the capacity to make changes in response to concerns raised by
parliamentary committees.(97) Both of these issues would seem to
apply to the 'cooperative scheme'.(98)
Transit of Accused through Australia
A more specific concern may be the involvement
of Australian magistrates in the transit through Australia of
persons in Indonesian custody. As indicated, proposed
section 8 would require magistrates to issue detention
warrants on the basis of applications made on behalf of Indonesia.
While the Commonwealth may confer judicial functions on State
magistrates it does not have a general power to confer
administrative functions.(99) As the issuing of warrants is
arguably an administrative function,(100) the requirement may be
invalid without consent from the States.(101) Past practice in this
area suggests that it should be the subject of a separate
'cooperative scheme',(102) or a formal arrangement between the
Governor-General and the respective State Governors.(103) While
proposed Part 5, section 12 will confer a power on
the Governor-General to make regulations prescribing matters that
are 'necessary or convenient' for the operation of the Act, it does
not contain any express power to enter into arrangements with State
Governors regarding the functions of magistrates.(104)
A practical concern may be the ultimate
responsibility for administering crimes at sea legislation. The
Explanatory Memorandum states that the responsibility for
administering the regime within the 'adjacent area' will be
'divided between the Commonwealth and the States under the scheme
and an inter-governmental agreement'.(105) Figures 3 and 4 suggest
that the greatest burden will be borne by Western Australia and the
Northern Territory. It is unclear at this stage how the financial
and administration arrangements will reflect this burden, although
discussions would appear to be under way between the Commonwealth
Department of Prime Minister and Cabinet and its counterparts in
Coordination of Regimes
A wider concern could be the relationship
between crimes at sea legislation and other regimes regarding
customs and migration. As indicated, 'people smuggling' has been
targeted by a range of other legislative amendments relating to
coastal surveillance, etc. and there is only a loose nexus between
'people smuggling' and crimes at sea legislation. There is at least
the potential for overlap between customs, migration and crimes at
sea regimes and therefore a tendency towards confusion in the
application of these regimes to a given case.
Figure 1. Unauthorised
Figure 2. Unauthorised Arrival by Country of Origin(108)
Figure 3. Unauthorised Arrivals by State(109)
Figure 4. Unauthorised Sea Landings by
- The author would like to thank Professor Ivan Shearer for his
helpful comments on aspects of international law relating to
Australia's jurisdiction over crimes at sea.
- Migration Legislation Amendment Act (No. 1) 1999. See
generally Bills Digest No. 44, 1998-99.
- Migration Legislation Amendment (Judicial Review) Bill 1998.
See generally Bills Digest No. 90, 1998-99.
- Border Protection Legislation Amendment Bill 1999. See
generally Bills Digest No. 70, 1999-2000.
- Law Reform Commission of Australia, Criminal Admiralty
Jurisdiction and Prize, Report No. 48, 1990.
- L. Kennedy, 'Call to stop the people smugglers', Sydney
Morning Herald, 12 April 1999, p 36.
- Prime Minister's Coastal Surveillance Task Force, Report of
the Prime Minister's Coastal Surveillance Task Force, June
1999, Paragraph 34.
- Ibid, Recommendation 17. 'Foreign flag vessels' are vessels
registered under the law of a foreign country.
- Prime Ministerial Media Release, $124 million Boost
for the Fight against Illegal Immigration, 27 June 1999
- Measures for prevention of the smuggling of aliens,
Resolution 51/62 of 12 December 1996.
- Oceans and the law of the sea, Report of the
Secretary-General, Document A/52/487, 20 October 1997;
Oceans and the law of the sea, Report of the
Secretary-General, Document A/53/456 5 October 1998; Unedited,
advance text of the report of the Secretary-General to the 54th
General Assembly on "Oceans and the law of the sea" (agenda item
40), United Nations A/54/... General Assembly Dist. General ...
- Official Records of the Economic and Social Council,
1998, Supplement No. 10 (E/1998/30), annex III.
- International Maritime Organisation Assembly, Resolution
A.867(20); Report of the 76th session of the IMO Legal Committee,
October 1997, LEG 76/12
- Draft Protocol against the Smuggling of Migrants by Land, Air
and Sea, Supplementing the United Nations Convention against
Transnational Organized Crime, 13 May 1999,
- Ibid, Article 6.
- See generally D. O'Connell, The International Law of the
Sea Vol. II, Clarendon Press, Oxford, 1984, Chapter 24.
- 10 December 1982, UN Doc A/Conf 62/122; 21 ILM 1261 (1982). the
convention came into force on 16 November 1994.
- Article 2(1). In general, the territorial baseline is the
low-water line along the coast.
- Article 3.
- Article 33.
- Articles 55 and 57.
- Article 76.
- Article 83.
- Richard Cullen, Federalism in Action: The Australian and
Canadian Offshore Disputes, The Federation Press, Sydney,
1990, p 14.
- The Seas and Submerged Lands Act 1973 provides for the
inner limits (baselines) and outer limits (breadth) of the
territorial sea to be determined by proclamation in accordance with
international law (s 7). The inner limits of the territorial sea
were proclaimed as early as 1974 (Proclamation in Gazette S 89A,
Thursday, 24 October 1974, and Proclamations in Gazette No. S 29,
Wednesday, 9 February 1983 and Gazette No. S 57, Tuesday, 31 March
1987). The outer limit of territorial sea was left to be determined
according to common law until the full 12 nm limit was proclaimed
in 1990 (Proclamation in Gazette No. S 297, Tuesday,
13 November 1990).
- R v Keyn (1876) 2 Ex. D. 63.
- The defects in it were: (a) the jurisdiction was attached to
the concept of "British ship" which all Australian ships were until
a separate Australian nationality and registration scheme was
implemented under the Shipping Registration Act 1981
(Cth); (b) the substantive criminal law applicable under the
admiralty jurisdiction was English law, with the curious result
that offences committed off the shores of the Australian States had
to be laid under British legislation, not the criminal laws of the
relevant States: Holyman v Eyles  Tas. SR 11 and
Oteri v R  WAR 120;  1 WLR 1272 (PC). See
generally Ivan Shearer in S. Blay, R. Piotrowicz and B.M. Tsamenyi,
Public International Law: An Australian Perspective,
Oxford University Press, Melbourne, 1997, 161-192, at p
- Croft v Dunphy  AC 156.
- Bonser v La Macchia, per Windeyer J at 226.
- Broken Hill South Ltd v Commissioner of Taxation (NSW)
(1936) 56 CLR 337, per Dixon J at 375.
- Bonser v La Macchia (1969) 122 CLR 177; The Queen
v Bull (1973) 131 CLR 203 per Stephen J at 271.
- Bonser, per Barwick CJ at 189; Wacando v
Commonwealth (1981) 37 ALR 317, per Mason J at 331-332.
- Territorial Waters Jurisdiction Act 1878 (Imp.).
- British Coal Corporation v The King  AC
- At the time, international law recognised Australian
sovereignty over 'internal waters' and 'territorial seas'
(Convention on the Territorial Sea and the Contiguous
Zone, 29 April 1958, U.N.T.S. No. 7477, vol. 516, pp. 205-225.
The Convention came into force on 10 September 1964) and sovereign
rights over the 'continental shelf' (Convention on the
Continental Shelf, 29 April 1958, U.N.T.S. No. 7302, vol. 499,
pp. 312-321. The Convention came into force on 10 September
- D. O'Connell, 'The Australian Maritime Domain', Australian
Law Journal, Vol. 44, 1970, pp 192-208.
- In fact, the issue was first tested in 1970 with the
Territorial Sea and Continental Shelf Bill 1970, but the Bill never
proceeded. The Seas and Submerged Lands Bill 1973 followed a report
by the Senate Select Committee on Offshore Petroleum Resources that
recommended the issue be resolved by Commonwealth legislation.
- These terms reflected the terminology in the Convention on
the Territorial Sea and the Contiguous Zone and Convention
on the Continental Shelf, op. cit. note 35.
- New South Wales v The Commonwealth (1975) 135 CLR
- For example, the High Court held that the States retained a
power over fisheries in the territorial sea: Pearce v
Florenca (1976) 135 CLR 507.
- Offshore Constitutional Settlement: A milestone in
co-operative federalism, Commonwealth of Australia,
Attorney-General's Department, AGPS, Canberra, 1980, p 4.
- This was the first legislative outcome from the consultations
following the Seas and Submerged Lands Case. It preceded
the offshore settlement but was prompted by the same motivations:
'[t]he object of this exercise which we have been engaged in since
last year has been to endeavour, on the basis of federalism, to
restore to the States powers, many of which were thrown in great
doubt as a result of the High Court decision': Second Reading
Speech Senator the Hon. Peter Durack QC, Parliamentary
Debates, 22 August 1978, p 241.
- The Commonwealth was also prompted by judicial comments
regarding the source of the power (the fact that a State had to
rely on Imperial legislation was considered 'inappropriate' by the
High Court (Reg. v. Bull (1974) 131 CLR 203, per Barwick
CJ at 235) and 'surprising' by the Privy Council (Oteri v
R (op. cit.)) and the potential for Commonwealth involvement.
In Reg. v Bull Barwick CJ acknowledged that there was
'room for a more specific investiture of State courts with a
jurisdiction to try federal offences committed on the high seas':
- Complementary legislation was enacted in all States except
Queensland: '[w]ith characteristic audacity (and arguably
imprudence) Queensland preferred mainly to rely on general
principles of extraterritorial legislative competence and the
operation of s 14A of the Criminal Code 1889 (Qld.). This section
purports to give extraterritorial effect of the provisions of the
Queensland Criminal Code' Cullen, op. cit., p 107, note 131.
- The Act also extended the jurisdiction to crimes of piracy and
crimes pertaining to exploration and exploitation of the
- Section 68(2), (5) and (5C).
- Consent was not required in relation to crimes of piracy,
because there is a universal jurisdiction under international law,
or in relation to crimes pertaining to exploration and exploitation
of the 'continental shelf' because jurisdiction was given to
Australia under the convention.
- For example, an offence committed on an Australian ship
registered in New South Wales would have to be tried under the law
of New South Wales, regardless of whether it occurred elsewhere (eg
- See Law Reform Commission, op. cit., pp 16-20.
- Section 2.
- Section 3.
- In 1980 the Commonwealth and the States enacted a regime for
joint management arrangements over petroleum exploration and
extraction: Petroleum (Submerged Lands) Amendment Act
1980. This involved the establishment of joint authorities and
the extension of civil jurisdiction of State Supreme Courts in
respect of petroleum exploration and extraction.
- The boundary of the 'continental shelf' was first addressed by
the 'International Sea-bed Agreement' defined in Petroleum
(Submerged Lands) Act 1967-73, s 156A. When this agreement was
negotiated, East Timor was still a Portuguese colony, which
'resulted in a gap in the Australia-Indonesia seabed boundary south
of East Timor': Senate Foreign Affairs, Defence and Trade
References Committee, East Timor: Interim Report, September 1999, p
21. It was finalised in the 'Treaty between Australia and the
Republic of Indonesia on the Zone of Cooperation in an Area between
the Indonesian Province of East Timor and Northern Australia'
contained in the Schedule to the Petroleum (Australia-Indonesia
Zone of Cooperation) Act 1990. This treaty (the 'Timor Gap'
Treaty) ostensibly 'sealed the gap' in the seabed boundary.
- Petroleum (Australia-Indonesia Zone of Cooperation)
(Consequential Provisions) Act 1990, Part 2.
- That is, nationals or permanent residents of Indonesia who were
not also nationals of Australia: Petroleum (Australia-Indonesia
Zone of Cooperation) Act 1990, s 9A(2).
- See generally Halsbury's Laws of Australia, 'Title 215
- Foreign Relations' [215-175].
- Article 19(1).
- A State Party may make laws with respect to 'the prevention of
infringement of customs, fiscal, immigration or sanitary laws and
regulations': Article 21.
- Article 19(2).
- Article 27(2).
- Article 27(5).
- Article 33.
- Article 73(1).
- Article 73(3). A 'flag State' is a ship's country of
- Article 77(1).
- Article 78(1).
- Article 111.
- That is, it is not registered under the laws of another
- Article 110.
- Article 92.
- That is, ships that do not fly under the flag of any
- O'Connell, Vol. II, op. cit., pp 754-755, discussing Naim
Molvan v Attorney-General for Palestine  AC 351.
- Article 17(2) of the United Nations Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances
19 December 1988 provides that '[a] Party which has reasonable
grounds to suspect that a vessel flying its flag or not displaying
a flag or marks of registry is engaged in illicit traffic may
request the assistance of other Parties in suppressing its use for
that purpose'. This has been interpreted as placing a 'ship without
nationality' 'in the same category as a ship in respect of which a
State exercises jurisdiction by virtue of the fact that it sails
under its flag, thereby implying that that flag State can take the
same enforcement measures with respect to ships without nationality
as it can with respect to ships flying its flag': Roy Lee and
Moritaka Hayashi (Ed), 'Piracy, Drug Trafficking, and Other Crimes
at Sea', Title 15.B(1) in New Directions in the Law of the Sea:
Global Developments, Oceania Publications, Dobs Ferry, New
York, 1996. Whether or not this applies beyond this convention is
open to question - it is generally the case that in the absence of
a flag a ship is deemed to have the nationality of its owner:
O'connell, Vol. II, op. cit., p 735.
- Prime Ministerial Media Release, 'Transcript of the
Prime Minister and the Minister for Immigration and Ethnic Affairs
The Hon. John Howard MP and The Hon. Philip Ruddock MP: Joint Press
Conference - Sydney', 27 June 1999.
- The Hon. Duncan Kerr, MP, Border Protection Legislation
Amendment Bill 1999, Second Reading Debate, Parliamentary
Debates, Thursday, 21 October 1999, p 9061.
- 'Harsher penalties for people trafficking approved', AAP
Newswire, 30 June 1999, Story No. 8024.
- Ibid; 'Democrats seek to disallow Ruddock's new Immigration
plans', Media Release, Senator Andrew Bartlett, 28 October
- Under clause 1 of Schedule 1,
this includes the law relating to offences and criminal liability,
capacity, defences, confiscation of property and criminal
- The Explanatory Memorandum describes the 'outer adjacent area'
as 'broadly speaking and subject to exceptions, the area from 12 to
200 nm [the 'exclusive economic zone']': Crimes at Sea Bill 1999,
Explanatory Memorandum, p 6. Compare this with the
definition in the Explanatory Memorandum for the Maritime
Legislation Amendment Bill 1993, op. cit. which refers to the
- Under clause 1 this includes the law relating
to investigation of offences, arrest and custody, bail, the laying
of charges, summary and indictable offences, immunities, evidence,
sentencing and punishment, and appeals.
- Consent is only required where the jurisdiction of the other
country is recognised under international law. It would not be
required for offences committed within the 'internal waters' or
within the 'territorial sea' that disturb the peace of the State,
- S/he may also be extradited to Australia if he or she lands in
another country following the offence.
- That is, a flag state or any other state having a personal
jurisdiction over the persons charged with the offence.
- The criminal law will not apply to acts done 'on or from a ship
or aircraft': Sub-Clause 7(2)(a).
- The Cooperative Scheme simply purports to apply substantive
criminal law of a State within the 'inner adjacent area'
(Schedule 1, clause 2(1)) and 'outer adjacent
area' (clause 2(2)).
- The measures announced by the Prime Minister include: 'strong
support for the conclusion as soon as possible of a protocol on
people smuggling to the proposed UN Convention on Transnational
Organised Crime', Prime Ministerial Media Release, 27 June
1999, op. cit. p 2.
- 'The measures which coastal States can take under the
Convention to suppress this type of criminal activity include:
exercising criminal jurisdiction on board a foreign ship passing
through the territorial sea (article 27); punishing in the
contiguous zone the infringement of immigration laws and
regulations committed within a State's territory or territorial
waters (article 33); exercising the right of hot pursuit of a
foreign ship which has violated the immigration laws and
regulations of the State (article 111); exercising the right of
visit where a ship is without nationality or conceals its true
nationality (article 110); and enforcing the relevant provisions of
the Convention in respect of seaworthiness': Oceans and the law
of the sea, Report of the Secretary-General, Document A/53/456
5 October 1998, para 136.
- Schedule 1, clause 7(2).
- Proposed section 6(5).
- The key issue appears to be the capacity of a 'flag State' to
confer a personal jurisdiction over foreigners aboard a ship
registered under its flag: 'in international law it is doubtful if
the consent of the flag State could validate the jurisdiction of
another State except in respect of the nationals of the flag State.
The idea that the flag State can do more than apply its own law to
aliens is an innovation': O'connell, Vol. II, op. cit., p 935. For
this reason the author noted: '[i]t is anticipated that the
Australian Act will be sparingly administered, but it could be a
precedent for countries less discriminating': note 97 at p 935. See
also Gibbs H, 'Criminal Law on the High Seas', (1989) 6 MLAANZ
- 'Usually the ships, many of them converted fishing vessels,
that are used for illegally transporting migrants are not
seaworthy, dangerously overcrowded and otherwise unsafe. Many of
these vessels are without nationality': Oceans and the law of the
sea, Report of the Secretary-General, Document A/53/456 5 October
1998, para 135.
- 'There is little theoretical limit to the practical application
of [a State's] laws to cover virtually every conceivable activity
on [the seabed or subsoil of] the continental shelf':
O'Connell, Vol. 1, p 484. For example, a number of State Parties to
the convention have applied their criminal laws 'in toto'
to the limits of the 'continental shelf': see generally O'Connell,
Vol. 1, pp 484-488.
- The Senate Foreign Affairs, Defence and Trade References
Committee was still taking evidence on this issue when it reported
in September 1999: op. cit., p 22.
- Deputy Federal Commissioner of Taxation (NSW) v WR Moran
Pty Ltd (1939) 61 CLR 735 at 774; R v Duncan; Ex parte
Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 589;
Re Cram; Ex parte NSW Colliery Proprietors' Association
Ltd (1987) 163 CLR 117; Egan v Willis (1998) 158 CLR
527; Senate Standing Committee on Regulations and Ordinances,
Eighty-seventh Report (Journals of the Senate),
No 47, 29 November 1990, p 494.
- Leslie Zines, The High Court and the Constitution,
3rd Ed, Butterworths, Sydney, 1992, p 232; Cranston,
'From Cooperative to Coercive Federalism and Back?' (1979), 10
Federal Law Review, 121 at 141; Final Report of the
Constitutional Commission (1988) Vol. 1, pp 95-97.
- In 1998 the Regulations and Ordinances Committee made a
statement: '[t]hese schemes present particular challenges for
scrutiny committees because they usually deal with important
matters and follow complex making procedures involving
Commonwealth, State and Territory governments. These procedures are
sometimes used as a reason to attempt to lessen or exclude
parliamentary oversight. The Committee, however, does not accept
this dilution of the role of Parliament and applies its usual
strict standards to these instruments': Statement on Scrutiny of
National Uniform Legislative Schemes, Parliamentary
Debates, Senator Bill O'Chee, 12 March 1998, p 892.
- In 1995 the Regulations Committee made the following statement:
'while the Committee accepts undertakings from Ministers, who are
answerable in Parliament for their actions, the Ministerial
Council, which under the uniform national scheme must approve the
amendments, is not directly answerable in this way': Statement on
Scrutiny by the Committee of Regulations Implementing a National
Uniform Legislative Scheme, Parliamentary Debates, Senator
Mal Colston, 19 September 1995, p 976.
- The 'cooperative scheme' was developed by the Special Committee
of Solicitors-General (approved by the Standing Committee of
Attorneys-General and supported by the Australasian Police
Ministers' Council). This committee has not published any
documentation regarding the background or basis for the legislative
regime and the only context for the regime in public domain remains
the press releases and reports described above. The Commonwealth
could not unilaterally change the 'cooperative scheme' and could
not reasonably alter the complementary arrangements (for example in
respect of the Jervis Bay Territory) without undermining the whole
- The power is derived from s 77 of the Constitution.
- The issuing of warrants has been interpreted as an
administrative function in a number of cases: Electric Rentals
v Anderson (1971) 124 CLR 27 at 39; Love v
Attorney-General (NSW) (1990) 169 CLR 307 at 320-321; Coco
v The Queen (1994) 179 CLR 427 at 444; Grollo v
Palmer (1995) 184 CLR 348 at 359-360.
- Effectively the requirement compels State instrumentalities to
administer Commonwealth legislation. In theory, this may interfere
with the independent operation of these instrumentalities and may
be invalid in the absence of consent from the State involved: Gary
Rumble, 'The Commonwealth/State Co-operative Basis for the
Australian Wheat Board and the National Companies and Securities
Commission: Some constitutional issues', Adelaide Law
Review, Vol. 7, 1980, 348-375, at pp 351-352; Patrick Lane,
Lane's Commentary on The Australian Constitution: Second
Edition, LBC, North Ryde, 1997, p 390; R v Humby; Ex parte
Rooney (1974) 129 CLR 231 at 240.
- For example, in response to a decision which restricted the
application of State law to Commonwealth Places (Worthing v
Rowell & Muston Pty Ltd (1970) 123 CLR 89), the
Commonwealth enacted legislation to give force to State law in
those areas (Commonwealth Places (Application of Laws) Act
1970) and the States enacted legislation to allow State
instrumentalities to administer the federal law (Commonwealth
Places (Administration of Laws) Acts): Lane, op. cit., p
- The Extradition Act 1988 (Cth) contains a similar
requirement regarding transit through Australia of persons accused
under foreign law (section 48), however, it expressly empowers the
Governor-General to make arrangements with State Governors for the
performance of functions by magistrates (section 46).
- It might be noted that the Crimes at Sea Act 1979
already contains a requirement to issue warrants (s 17A). This Act
also contains a provision allowing the Governor-General to enter
into arrangements with the Governor of a State regarding 'the
exercise or performance of a power, duty or function by an
authority of the State' (s 4).
- Crimes at Sea Bill 1999 (WA), preamble.
- The Prime Minister has requested Mr Moore-Wilton to brief State
and Territory counterparts on implementation issues: Prime
Ministerial Media Release, 27 June 1999, op. cit. p
- Source: Prime Minister's Coastal Surveillance Task Force, op.
cit., Attachment B-1.
- Source: Department of Immigration and Ethnic Affairs,
'Unauthorised Arrivals by Air and Sea', Fact Sheet No. 81, 31
August 1999 at http://www.immi.gov.au/facts/81boats.htm
- ibid. This is the number of people who arrive within the
'adjacent area' of a State.
- ibid. This is the number of boats that land within the
'adjacent area' of a State.
10 November 1999
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