Bills Digest No. 79 1999-2000 Crimes at Sea Bill 1999(1)

Numerical Index | Alphabetical Index

WARNING:
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 Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Attachment A
Endnotes
Contact Officer and Copyright Details

Passage History

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.

Purpose

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 area';
• 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 Gap.

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 border protection.(4)

Background

Crimes at Sea Act

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.

People Smuggling

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 waters.

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 smuggling offences.(15)

Jurisdiction over Crimes at Sea

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 jurisdiction'.(16)

• 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 citizens.

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 baseline'.(18)
• 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 adjacent coasts').(23)

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 law.(25)

Prescriptive Jurisdiction

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.

Admiralty Jurisdiction

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 defects.(27)

Common Law

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.

Constitutional Law

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) Act 1967-73.

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 consent.(47)

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) Act 1990

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)

Enforcement Jurisdiction

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 Seas'.

The key issue for the Bill is the power to enforce criminal laws.

Internal Waters

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)

Territorial Sea

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 waters.(61)

Contiguous Zone

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 territorial sea'.(62)

Exclusive Economic Zone and Continental Shelf

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 state'.(64)

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.

High Seas

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)

Personal Jurisdiction

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 Positions

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)

Main Provisions

General

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 cooperative scheme'.

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 Commonwealth law.

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 seas.

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 1.

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 circumstances.

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 Attorney-General.

Proposed section 8 also provides for regulations governing cooperation between Australian and Indonesian law enforcement agencies in relation to offences within Area A.

Miscellaneous

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.

Concluding Comments

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 State.

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 Complementary Regime

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 'continental shelf').(85)

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 protocol.(86)

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 area'.(90)

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 international law'.

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)

Other Concerns

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)

Enforcement Responsibility

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 the States.(106)

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.

Attachment A

Figure 1. Unauthorised Arrivals(107)

Figure 2. Unauthorised Arrival by Country of Origin(108)

Figure 3. Unauthorised Arrivals by State(109)

Figure 4. Unauthorised Sea Landings by State(110)

Endnotes

1. 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.
2. Migration Legislation Amendment Act (No. 1) 1999. See generally Bills Digest No. 44, 1998-99.
3. Migration Legislation Amendment (Judicial Review) Bill 1998. See generally Bills Digest No. 90, 1998-99.
4. Border Protection Legislation Amendment Bill 1999. See generally Bills Digest No. 70, 1999-2000.
5. Law Reform Commission of Australia, Criminal Admiralty Jurisdiction and Prize, Report No. 48, 1990.
6. L. Kennedy, 'Call to stop the people smugglers', Sydney Morning Herald, 12 April 1999, p 36.
7. Prime Minister's Coastal Surveillance Task Force, Report of the Prime Minister's Coastal Surveillance Task Force, June 1999, Paragraph 34.
8. Ibid, Recommendation 17. 'Foreign flag vessels' are vessels registered under the law of a foreign country.
9. Prime Ministerial Media Release, $124 million Boost for the Fight against Illegal Immigration, 27 June 1999
10. Measures for prevention of the smuggling of aliens, Resolution 51/62 of 12 December 1996.
11. 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 ... October 1999.
12. Official Records of the Economic and Social Council, 1998, Supplement No. 10 (E/1998/30), annex III.
13. International Maritime Organisation Assembly, Resolution A.867(20); Report of the 76th session of the IMO Legal Committee, October 1997, LEG 76/12
14. Draft Protocol against the Smuggling of Migrants by Land, Air and Sea, Supplementing the United Nations Convention against Transnational Organized Crime, 13 May 1999, A/AC.254/4/Add.1/Rev.1.
15. Ibid, Article 6.
16. See generally D. O'Connell, The International Law of the Sea Vol. II, Clarendon Press, Oxford, 1984, Chapter 24.
17. 10 December 1982, UN Doc A/Conf 62/122; 21 ILM 1261 (1982). the convention came into force on 16 November 1994.
18. Article 2(1). In general, the territorial baseline is the low-water line along the coast.
19. Article 3.
20. Article 33.
21. Articles 55 and 57.
22. Article 76.
23. Article 83.
24. Richard Cullen, Federalism in Action: The Australian and Canadian Offshore Disputes, The Federation Press, Sydney, 1990, p 14.
25. 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).
26. R v Keyn (1876) 2 Ex. D. 63.
27. 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 [1948] Tas. SR 11 and Oteri v R [1975] WAR 120; [1976] 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 167-168.
28. Croft v Dunphy [1933] AC 156.
29. Bonser v La Macchia, per Windeyer J at 226.
30. Broken Hill South Ltd v Commissioner of Taxation (NSW) (1936) 56 CLR 337, per Dixon J at 375.
31. Bonser v La Macchia (1969) 122 CLR 177; The Queen v Bull (1973) 131 CLR 203 per Stephen J at 271.
32. Bonser, per Barwick CJ at 189; Wacando v Commonwealth (1981) 37 ALR 317, per Mason J at 331-332.
33. Territorial Waters Jurisdiction Act 1878 (Imp.).
34. British Coal Corporation v The King [1935] AC 508.
35. 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 1964).
36. D. O'Connell, 'The Australian Maritime Domain', Australian Law Journal, Vol. 44, 1970, pp 192-208.
37. 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.
38. 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.
39. New South Wales v The Commonwealth (1975) 135 CLR 337.
40. 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.
41. Offshore Constitutional Settlement: A milestone in co-operative federalism, Commonwealth of Australia, Attorney-General's Department, AGPS, Canberra, 1980, p 4.
42. 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.
43. 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': at 235.
44. 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.
45. The Act also extended the jurisdiction to crimes of piracy and crimes pertaining to exploration and exploitation of the 'continental shelf'.
46. Section 68(2), (5) and (5C).
47. 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.
48. 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 in Perth).
49. See Law Reform Commission, op. cit., pp 16-20.
50. Section 2.
51. Section 3.
52. 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.
53. 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.
54. Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990, Part 2.
55. 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).
56. See generally Halsbury's Laws of Australia, 'Title 215 - Foreign Relations' [215-175].
57. Article 19(1).
58. A State Party may make laws with respect to 'the prevention of infringement of customs, fiscal, immigration or sanitary laws and regulations': Article 21.
59. Article 19(2).
60. Article 27(2).
61. Article 27(5).
62. Article 33.
63. Article 73(1).
64. Article 73(3). A 'flag State' is a ship's country of registration.
65. Article 77(1).
66. Article 78(1).
67. Article 111.
68. That is, it is not registered under the laws of another country.
69. Article 110.
70. Article 92.
71. That is, ships that do not fly under the flag of any State.
72. O'Connell, Vol. II, op. cit., pp 754-755, discussing Naim Molvan v Attorney-General for Palestine [1948] AC 351.
73. 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.
74. 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.
75. The Hon. Duncan Kerr, MP, Border Protection Legislation Amendment Bill 1999, Second Reading Debate, Parliamentary Debates, Thursday, 21 October 1999, p 9061.
76. 'Harsher penalties for people trafficking approved', AAP Newswire, 30 June 1999, Story No. 8024.
77. Ibid; 'Democrats seek to disallow Ruddock's new Immigration plans', Media Release, Senator Andrew Bartlett, 28 October 1999.
78. Under clause 1 of Schedule 1, this includes the law relating to offences and criminal liability, capacity, defences, confiscation of property and criminal compensation.
79. 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 'continental shelf'.
80. 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.
81. 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, etc.
82. S/he may also be extradited to Australia if he or she lands in another country following the offence.
83. That is, a flag state or any other state having a personal jurisdiction over the persons charged with the offence.
84. The criminal law will not apply to acts done 'on or from a ship or aircraft': Sub-Clause 7(2)(a).
85. 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)).
86. 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.
87. '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.
88. Schedule 1, clause 7(2).
89. Proposed section 6(5).
90. 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 Journal 3.
91. '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.
92. '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.
93. 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.
94. 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.
95. Leslie Zines, The High Court and the Constitution, 3^rd 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.
96. 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.
97. 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.
98. 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 scheme.
99. The power is derived from s 77 of the Constitution.
100. 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.
101. 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.
102. 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 390.
103. 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).
104. 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).
105. Crimes at Sea Bill 1999 (WA), preamble.
106. 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 1.
107. Source: Prime Minister's Coastal Surveillance Task Force, op. cit., Attachment B-1.
108. 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 [28/10/99].
109. ibid. This is the number of people who arrive within the 'adjacent area' of a State.
110. ibid. This is the number of boats that land within the 'adjacent area' of a State.

Contact Officer and Copyright Details

Nathan Hancock
10 November 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1999

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1999.

Back to top