Bills Digest No. 41 2001-02
Border Protection Bill 2001
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 & Copyright Details
Border Protection Bill
Date Introduced: 29 August 2001
House: House of Representatives
Portfolio: Immigration and Multicultural Affairs
Commencement: Retrospectively from 9.00
a.m. on 29 August 2001.
To put beyond
doubt the domestic legal basis for actions taken in relation to
foreign ships within the territorial sea of Australia.
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.(1) 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.(2) 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'(3) and recommended that 'comprehensive legislative
amendments be introduced to further strengthen maritime
investigatory and enforcement powers against both Australian and
foreign flag vessels'.(4) The Border Protection
Legislation Amendment Act 1999 and the Crimes at Sea Act
1999 emerged following this process.
On 26 August 2001, a routine surveillance flight
by Coastwatch revealed the presence of a wooden fishing boat
approximately 80 nautical miles northwest of Christmas Island. The
vessel was carrying 438 would be asylum seekers en route to
Australia before it broke down. The following day AUSSAR broadcast
a call to any merchant ships in the vicinity to render assistance
to the stricken vessel. A Norwegian freighter the Tampa
responded to the call, intercepting the vessel and bringing its
passengers aboard. The master of the Tampa reportedly, Mr
Arne Rinnan, had intended to proceed to a port in Indonesia but was
requested by the passengers to proceed to Christmas Island. Before
the Tampa reached Australia's territorial waters it was
instructed to remain in the contiguous zone.
On 28 August the Tampa issued a
distress signal seeking urgent assistance. On 29 August it
proceeded into the territorial sea where it was interdicted by
Special Air Service officers.
People Smuggling, Asylum Seekers and
People smuggling operations are transnational.
They may involve structured, hierarchical and disciplined criminal
groups or simply diverse criminal units whose alliances stretch
across borders and jurisdictions. They are also likely to come into
contact with and utilise other aspects of international crime such
as drug trafficking, money laundering and fraud. As such they pose
significant problems for law enforcement in Australia.
An overview of the global size and nature of
people smuggling has been provided in a Parliamentary Library
Current Issues Brief entitled 'Boat People, Illegal Migration and
Asylum Seekers: in Perspective'.(5) However, the
following graph is illustrative:
Unauthorised Arrivals to 28
The Global Response
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,(7) the Secretary General,(8) the
Economic and Social Council(9) and the International
Maritime Organisation.(10) Countries are being urged to
review their domestic legislative powers to deal with people
smuggling offences.(11) In recognition of the connection
between people smuggling and transnational crime, it is now the
subject of a proposed protocol to a draft international convention
on transnational organised crime.(12)
The United States
In the United States, 'people smuggling' has
long been an issue of concern and has been addressed by
presidential directives and specific legislative amendments. As
early as 1953 President Truman instructed the government to adopt a
coordinated response to illegal immigration.(13) In 1981
President Reagan directed government agencies to interdict on the
high seas vessels carrying would be illegal
immigrants.(14) President Bush gave a similar direction
in 1992,(15) as did President Clinton in
1993.(16) In 1996 amendments were made to the
Immigration and Nationality Act to increase penalties for people
smuggling and to the Racketeer Influenced Corrupt Organizations Act
to prescribe people smuggling and related offences as organised
crime offences.(17) In 1998 legislation was introduced
to authorise the forfeiture of alien smuggling
proceeds.(18) The International Crime Control Strategy
of 1998 suggests that the government is increasing its commitment
to the issue.(19)
The Presidential Directive of 1993 heralded a
stern response to people smuggling:
[We] will take the necessary measures to
preempt, interdict and deter alien smuggling into the U.S. Our
efforts will focus on disrupting and dismantling the criminal
networks which traffic in illegal aliens. We will deal with the
problem at its source, in transit, at our borders and within the
U.S. We will attempt to interdict and hold smuggled aliens as far
as possible from the U.S. border and to repatriate them when
appropriate. We will seek tougher criminal penalties both at home
and abroad for alien smugglers. We will seek to process smuggled
aliens as quickly as possible.(20)
In Australia, 'people smuggling' has recently
been addressed by amendments to the Migration Act 1958. In
July 1999 the Migration Legislation Amendment Act (No. 1)
1999 was passed to create people smuggling and related
offences. In November the Border Protection Legislation
Amendment Act 1999 was passed to expand Australia's capacity
to board, search and detain ships and to detain persons aboard
foreign vessels at sea.
The Migration Legislation Amendment Act (No.
1) 1999 makes it an offence for a person to carry non-citizens
to Australia without documentation.(21) It also makes it
an offence for a person to organise or facilitate the bringing or
coming to Australia of a group of 5 or more persons where s/he
knows they would become illegal immigrants.(22) It is
also an offence to present false or forged documents, to make false
or misleading statements or to pass documents to help a group gain
illegal entry into Australia.(23) In addition, it is an
offence for a person to make a false or misleading statement about
his or her ability or power to influence a decision or to make a
false or misleading statement about the effect of his or her
actions on a particular decision.(24) And it is an
offence to enter an arrangement in which s/he undertakes for a
reward that a particular decision will be made.(25)
In introducing the Border Protection
Legislation Amendment Bill 1999, the Minister for Immigration
and Multicultural Affairs drew a strong correlation between
domestic and international responses to people smuggling,
particularly the response of the United States:
Australia is not alone in adopting a more active
approach to people smuggling. The United States ... has announced
its intention to broaden the scope of its border enforcement powers
beyond its territorial waters... The fact is that if we are not at
the forefront in dealing with these issues through legislation of
the sort that I am proposing, and other measures, we will be seen
as a more attractive destination to the people smugglers who are
arranging this sort of trafficking.(26)
Australia's Maritime Zones
At the outset, a distinction should be made
among the various maritime zones recognised under domestic and
international law. A convenient guide is given by the United
Nations Convention on the Law of the Sea
- Internal Waters: sea on the landward side of the
- Territorial Sea: sea within 12 nautical miles
(nm)(29) of the 'territorial
- Contiguous Zone: sea to 24 nm.(31)
- Exclusive Economic Zone: sea to 200 nm of the
- Continental Shelf: seabed and subsoil up to 350
nm(33) (or as agreed between two state parties to UNCLOS
with 'opposite or adjacent coasts').(34)
For completeness it is worth mentioning various
zones created under domestic law.
- Adjacent Areas: areas of sea adjacent to each State
and the Northern Territory. The outer limits are prescribed in
regulations under the Seas and Submerged Lands Act 1973.
- Migration Zone: includes land above the low watermark
and sea within the limits of a port in a State or Territory but
does not include the sea within a State or Territory or the
'territorial sea' of Australia.(36) The zone includes
Christmas Island and Ashmore Reef.(37)
The relevant zones are represented in the
following diagram and indicative map.
Figure 1: Maritime Zones Recognised under International
Figure 2: Key Maritime Zones Recognised under Domestic
In describing Australia's maritime jurisdiction,
a distinction can be drawn among what may be called
'prescriptive, 'enforcement and
'adjudicative' powers and between 'physical' and
- prescriptive powers: The common law gives the
Commonwealth 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
- enforcement powers: International law gives Australia
a 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 ('physical
jurisdiction'). It also recognises a jurisdiction to enforce
laws upon its own citizens or own ships arising out of the nexus
between a sovereign nation and its citizens ('personal
- adjudicative powers: International law generally
recognises a jurisdiction to prosecute offenders located within
Australia where there is a sufficient link between Australia and
the alleged criminal conduct. The principles are generally
recognised in common law.
These distinctions are not always rigidly
followed in international law or constitutional law. However, they
do provide a useful template for considering jurisdictional
At common law, it is generally accepted that the
States and the Commonwealth may enact laws having an
extraterritorial effect so as to secure 'peace, order and good
government'.(41) Thus, the Commonwealth has a power to
control overseas acts of its citizens,(42) and the
States and the Commonwealth have the power to control overseas acts
of foreigners where they come within the physical limits of
Australia.(43) There need only be a link between the
subject matter of a statutory offence and the enacting
government.(44) Similarly, under the Australian
Constitution, the Commonwealth has the power to enact legislation
dealing with matters, things, circumstances and persons outside
Australia, provided there is sufficient connexion between Australia
and the matters, etc to which the law relates.(45) The
power is not confined to laws that are consistent with the
requirements of international law,(46) or with the
legislative competence recognised by international
law.(47) There may be a presumption that a statute will
not interfere with the sovereignty of other
The United Nations Convention on the Law of
the Sea ('UNCLOS') gives Australia certain rights over foreign
ships that enter into the maritime zones:
- Internal Waters: a country may enforce laws with
respect to any issue within its internal waters. It may arrest any
person or investigate any crimes committed within the internal
waters (except vessels and persons subject to sovereign
- Territorial Sea: foreign ships generally have a right
of 'innocent passage' through the territorial sea. Equally, a
criminal jurisdiction 'should not be exercised on board a foreign
ship passing through the territorial sea to arrest any person or to
conduct any investigation in connection with any crime' committed
during passage through the territorial sea.(50) However,
a state has a right of visit over ships entering the
territorial sea (see below). It may also adopt laws and regulations
to prevent infringement of its 'customs, fiscal, immigration or
sanitary laws and regulations'.(51) It may arrest
persons or investigate crimes aboard foreign ships passing
through the territorial sea after leaving internal
waters.(52) It may even exercise these powers in
respect of crimes committed before the ship entered the
territorial sea but only if it has entered the internal
waters.(53) It may arrest persons or investigate
crimes on board merchant ships and government ships operated for
commercial purposes passing through the territorial sea where the
consequences of the crime extend to the state or where the
crime disturbs the 'peace of the country or the good order of
the territorial sea'.(54) Acts that disturb the
'peace, etc.' of the coastal state include 'the loading or
unloading of any commodity, currency or person' contrary to
its immigration laws and regulations.(55)
- Contiguous Zone: a state may exercise the control
necessary to punish or prevent 'infringement of its
customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea'.(56)
- Exclusive Economic Zone: a state may exercise a
limited jurisdiction over foreign ships whilst exercising its
sovereign rights to 'explore, exploit, conserve and manage the
living resources in the 'exclusive economic zone''.(57)
A state may arrest and detain foreign vessels for violations of
fisheries laws and regulations but it may not imprison persons
without a specific agreement with the 'flag state'.(58)
A state may also exercise a jurisdiction over artificial islands
(eg offshore installations) with respect to 'customs, fiscal,
health, safety and immigration laws and
regulations'.(59) It may establish safety zones
around these installations up to 500m and exercise a limited
jurisdiction to ensure the safety of structures and
- Continental Shelf: enforcement is limited to the
exercise of sovereign rights 'for the purpose of exploring it and
exploiting its [non-living] natural resources'.(60) The
status of the waters above the shelf is unaffected(61)
and there is no reference to criminal jurisdiction.
- High Seas: enforcement is limited to rights of 'hot
pursuit' and 'visit'. The former allows warships to pursue and
detain a foreign ship beyond the territorial sea or contiguous zone
if they reasonably believe that it has violated the laws of the
state.(62) The latter allows warships to board a foreign
ship where there is reasonable ground to suspect that it is a 'ship
without nationality',(63) or is engaged in piracy or
International law recognises a jurisdiction
where a valid nexus exists between the alleged criminal conduct and
the state. The nexus will exist if the offence occurs or the
offender is present within the territory ('territorial principle')
and where the results of the conduct are felt within the territory
('extra-territorial principle'). It may also recognise a
jurisdiction based on the offender's nationality ('nationality
principle'), the victim's nationality ('passive personality
principle') and the need to protect the interests of the state (the
'protective principle'), but there is a degree of
uncertainty.(65) These powers are closely related to the
enforcement powers above which deal with the 'territorial
principle',(66) the 'extra-territorial
principle'(67) and, to a limited extent, the 'protective
These principles are generally recognised in
domestic jurisprudence, within the limits outlined above. So, for
example, the common law explicitly recognises the categories of
'territorial jurisdiction'(69) and 'extra-territorial
jurisdiction'.(70) Except in relation to the
Commonwealth, it would not ordinarily recognise the 'passive
personality principle'.(71) Neither would it ordinarily
recognise the 'protective principle', although there have been
cases in which, having recognised an extraterritorial jurisdiction
over a principal offence, it has recognised a jurisdiction over
inchoate offences, such as attempt and conspiracy. This has
occurred on the basis that intended results or the intended victim
were within the territory and it was necessary to protect 'peace,
order and good government'.(72) More recently it has
recognised a wider extraterritorial jurisdiction over ordinary and
inchoate offences where there is a 'real and substantial link'
between the offence and the territory. This approach has been
adopted in Canada in relation to overseas offences(73)
and has recently been endorsed in Australia in relation to
interstate offences.(74) (But there may be doubt as to
whether this approach would or should apply to international
The concept of 'innocent passage' is difficult
to pin down. Under UNCLOS, 'innocent passage' must be
innocent in the sense that it must be 'not prejudicial to
the peace, good order or security of the coastal
state'.(76) It must also be passage in the
sense that it must be 'continuous and expeditious',(77)
although stopping and anchoring is accepted if they are 'incidental
to ordinary navigation or are rendered necessary by force
majeure or distress or for the purpose of rendering assistance
to persons, ships or aircraft in danger or
However, this simplified description belies more
complex views regarding the meaning of 'innocence' in international
customary law. O'Connell gives four theories of 'innocence':
- passage is innocent if no act is done which threatens the
- passage is innocent if no act is done which threatens the
interests of the coastal state
- passage is not innocent if a ship carries persons or goods
dangerous to the coastal state, and
- passage is not innocent if acts are done which arouse the
concern of the coastal state
Rather than resolve these four theories, UNLCOS
simply adopts the above formulation, requires that passage must
'take place in conformity with this Convention and with other rules
of international law' and lists certain activities that do not
constitute innocent passage. O'Connell suggests that the composite
definition 'is a gloss which conceals the doctrinal differences,
which are nonetheless imported into the text by the reference to
passage taking place in conformity with "other rules of
international law"'.(79) Moreover, the reference to
'peace, good order or security' makes jurisdiction and innocence
'the reverse and obverse of each other' such that 'the way is
opened to enlarge the control exercised by the coastal state over
passing shipping beyond that allowed in customary
UNCLOS provides that a coastal state may 'take
the necessary steps in its territorial sea to prevent passage which
is not innocent'.(81) Churchill and Lowe indicate that
while there is no express right to exclude foreign ships
'this right undoubtedly exists in customary
A key issue in the present context is the range
of circumstances that may be considered to constitute a disturbance
of the 'peace and good order' and the interpretation given to the
relevant jurisdictional limitations in UNCLOS. UNCLOS states that a
criminal jurisdiction 'should not be exercised on board a
foreign ship passing through the territorial sea'.(83)
The history of the relevant provision in the convention suggests
that it is not intended to be a prohibition but an appeal for
caution, given the uncertainty that may surround the nature of
crimes that disturb the 'peace' and 'good order' of the territorial
sea or the coastal state.(84) This view seems to have
been adopted in the United States and the United
As indicated, UNLCOS appears to permit stopping
and anchoring within the territorial sea where that is 'rendered
necessary by force majeure or distress' or 'for the
purpose of rendering assistance to persons ... in danger or
distress'. State practice appears to support a right of entry to
designated international ports for foreign ships in distress
seeking safety. It is generally presumed that 'the ports of every
State must be open to foreign vessels and can only be closed when
the vital interests of the State so require'. But it may be 'very
doubtful whether this presumption has acquired the status of a
right in customary law'.(86) Moreover, it is unclear how
this presumption sits with the apparently enlarged control given to
states in the exercise of jurisdiction over foreign ships within
the territorial sea.
Over time various international conventions have
addressed the obligation to rescue persons and ships in distress at
sea.(87) However, while they tend to support the
existence of the general presumption above, they have not addressed
the issue of disembarkation. Moreover, they have not given any
guidance as to how the obligation to rescue is to be balanced
against territorial sovereignty particularly in relation to asylum
seekers. This situation has led the United Nations High Commission
for Human Rights to admit that:
While ... there is a clear duty for ship's
masters, their owners and their Governments to rescue
asylum-seekers at sea, there is no obligation under international
law for the flag State of a rescuing vessel to grant durable asylum
to rescued refugees. It is, of course, correct that by boarding a
vessel, the refugee comes under the jurisdiction of the flag State
which is considered to exercise jurisdiction over the ship on the
high seas. There is, however, no valid legal basis for considering
that by boarding a vessel a refugee has entered the territory of
the State exercising jurisdiction over the ship.(88)
Border Protection Powers
As indicated the Border Protection
Legislation Amendment Act 1999 amended the Migration Act
1958 to provide for the boarding, chasing or use of force
against foreign ships and the detention and arrest of persons at
sea for customs and migration purposes.
Under the new Division 12A, the commander of a
Commonwealth ship may request to board a foreign ship within the
'territorial sea', 'contiguous zone' and, in limited circumstances,
the 'high seas'. In the territorial sea the request may be made
'for the purposes of the Act'.(89) In the contiguous
zone, it may be made if s/he wishes to identify the ship or if s/he
reasonably suspects that it 'is, will be or has been involved in a
contravention, or an attempted contravention, in Australia
of [the Migration Act]'.(90) In the exclusive economic
zone and the high seas it may only be made if s/he reasonably
suspects that it is a 'mother-ship' that 'is being or was used in
direct support of, or in preparation for, a contravention in
Australia of [the Migration Act]',(91) if it is
registered with a country that has a relevant agreement or
arrangement with Australia(92) or if it seems to be
unregistered or flying the flags of two countries (ie a 'ship
Where the request is ignored, the Commonwealth
ship may pursue the foreign ship to 'any place outside the
territorial sea of a foreign country'.(94) In the
process, it may use any reasonable means, consistent with
international law, including the use of necessary and reasonable
force and, 'where necessary and after firing a gun as a signal,
firing at or into the chased ship to disable it or compel it to be
brought to for boarding'.(95)
Having boarded a ship, an 'officer', which
includes any person who is in command, or a member of the crew, of
the relevant ship or a member of the Australian Defence
Force,(96) may exercise a range of powers over it and
- in Australia: The officer may search the ship and
inquire regarding 'a contravention, an attempted contravention or
involvement in a contravention or attempted contravention of [the
Migration Act], either in or outside
Australia'.(97) S/he may arrest a person who s/he
reasonably suspects has committed, is committing or attempting to
commit, or is involved in the commission of, an offence in or
- outside Australia: The officer may search and inquire
as above. However, where the ship is 'outside Australia' s/he may
only arrest a person that s/he reasonably suspects has committed,
is committing or attempting to commit, or is involved in the
commission of, an offence in Australia'.(99)
Likewise the officer may also detain a ship and a person aboard a
detained ship but only if s/he reasonably suspects that the ship
'is, will be or has been involved in a contravention in
Australia'.(100) The officer may also detain a
ship and bring it or cause it to be brought to a port or
other place if s/he reasonably suspects that the ship 'is, will be
or has been involved in a contravention in or outside
Australia'. In addition s/he may detain a person aboard a
detained ship, separate them from the vessel, and bring
them or cause them to be brought within the 'migration
- on the high seas: On the high seas, but outside the
territorial sea of other countries, there are few powers, although
an officer may exercise powers consistent with any agreement or
arrangement(102) and may at least search 'ships without
Australia's Refugee Obligations
Practically, once a ship enters the migration
zone, or indeed, the territorial sea, it might be expected that the
passengers will claim refugee status. Australia is obliged not to
expel or return persons who have a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion to a place in
which their life or freedom would be threatened on account of these
reasons.(104) Australia is also obliged not to expel a
refugee lawfully in its territory 'save on the grounds of
national security or public order',(105) and only in
accordance with 'due process of law'.(106)
With respect to the Tampa incident,
these obligations seem to have a peculiar operation. Under the
Migration Act 1958 it is an offence to 'enter Australia'
without a valid visa. Under the Act to 'enter Australia' is to
'enter the Migration Zone'. The 'Migration Zone' only includes the
physical territory of Australia and seas within a State or
Territory port. However, under the Act, a criterion for a
protection visa is that 'the applicant for the visa is a
non-citizen in Australia to whom Australia has protection
obligations under the Refugees Convention as amended by the
Refugees Protocol'.(107) The Migration Act 1958
does not define 'in Australia' but it expressly provides that the
expression 'enter Australia' is not intended to confine the
ordinary meaning of 'in Australia'. Under the Acts
Interpretation Act 1901 'Australia' is taken to mean 'the
Commonwealth of Australia and, when used in a geographical sense,
includes the Territory of Christmas Island'.(108)
References to 'Australia' include the 'coastal sea' of
Australia(109) and 'coastal sea' includes the
Thus, arguably, a person within the territorial
sea is 'lawfully' in Australia, in the sense that 'Australia' is
defined under domestic law. As such, the person is a person to whom
Australia owes protection obligations 'under the Refugees
Convention as amended by the Refugees Protocol'. As such, the
person meets the key criteria for a protection visa. This leads to
the curious proposition that a person meets the key criteria for a
protection visa if they are within the territorial sea, but they
have committed no offence by being there, and may not intend to
commit any offence, as they have not entered Australia.
Clearly, there is some ambiguity surrounding the
meaning of 'territory' and the issue of precisely when our
international refugee obligations arise. In addition, there are
issues associated with the question of whether anchorage within the
territorial sea (for the alleged purpose of allowing asylum claims)
is consistent with innocent passage and therefore lawful presence
within Australia. Moreover, there are obvious procedural
difficulties associated with making valid applications for
protection visas under the Migration Act 1958 whilst in
the territorial sea.
Aside from these considerations there is the
question of whether our international refugee obligations can be
dissected in such detail. Moreover, there is the issue of whether
our sovereignty and maritime jurisdiction necessarily override our
refugee obligations. It is significant to note that the Joint
Committee of Public Accounts and Audit in its recent review of
Coastwatch concluded that '"pushing boat people back to sea" is not
a viable option. Australia cannot ignore its international
responsibilities. Instead Australia must work within the
conventions and contribute to solving the problem at its
The Border Protection Bill 2001 stands as a
separate piece of legislation. It does not amend the border
protection provisions in the Migration Act 1958 or
Customs Act 1901.
Proposed subsection 4(1) allows
an 'officer' to direct the master of a ship or any person aboard a
ship within the territorial sea to take the ship outside the
territorial sea. Reasonable means may be used to give such a
direction (proposed subsection 4(3)). Where a
direction has been given, an 'officer' may detain the ship and take
it or cause it to be taken, including by reasonable means or force,
outside the territorial sea (proposed section
5). An 'officer' may also return persons to the
ship (proposed section 6).
It is significant that this power extends to
any ship within the territorial sea, regardless of whether
it is carrying persons seeking asylum or is otherwise engaged in
any activity which is 'prejudicial to the peace, good order or
security' of Australia.
Proposed subsection 4(2)
provides that directions are not reviewable in any
Australian court. Proposed section
8 provides that proceedings may not be commenced
in any court to prevent a ship or a person from being
removed. Proposed section 7 provides that civil or
criminal proceedings in relation to any resulting enforcement
action may not be brought per se. Proposed section
10 provides that the Bill overrides any other law.
It is worth noting that, whatever the effect of
these provisions, it is undeniable that a person with sufficient
standing could bring a challenge under the constitutionally
entrenched judicial review jurisdiction of the High
Court.(112) The issue for the High Court however may be
whether the jurisdiction has been indirectly bypassed.
Specifically, the provisions above may effectively widen the
definition of what is a valid decision or valid conduct under the
Bill, thereby frustrating the practical effect of the
9 provides that protection visa applications
cannot be made while a direction is in force, with the caveat that
the Minister may personally permit applications to be made from
An 'officer' includes the following when
authorised by the Prime Minister or the Minister:
- the Secretary or an employee of the Department
- an officer under the Customs Act 1901
- a member of the Australian Federal Police, and
- a member of the Australian Defence Force (proposed
The international law rules applying to the
situation surrounding the Tampa are unclear. Clearly, the
stricken fishing vessel would qualify as a ship in distress for the
purposes of international law. As at 28 August 2001 the
Tampa would not seem to have qualified as a ship in
distress, although this would arguably have been contended by the
ship's master. Moreover, as one commentator has pointed out on 29
August, the Tampa would qualify 'should ... the conditions
on board the vessel eventually deteriorate to such an extent that
it could reasonably be regarded as itself being in
distress'.(114) Whether those conditions could be
alleviated by in situ assistance whilst the Tampa
is beyond the territorial sea is unclear.
The Prime Minister has indicated that the
boarding of the Tampa and the request that it proceed back
to international waters (the contiguous zone) 'uphold international
law', implying that clear rules apply.(115) However, at
least one academic commentator has stated that the Prime Minister's
assertion is a 'gross over-simplification of the legal
- L. Kennedy, 'Call to stop the people smugglers', Sydney
Morning Herald, 12 April 1999, p 36.
- The Task Force also included the Chief of the Defence Force
(Admiral Chris Barrie), the Secretary Department of Defence (then
Paul Barratt), the Secretary Department of Immigration and
Multicultural Affairs (Bill Farmer), the Chief Executive Officer
Australian Customs Service (Lionel Woodward) and the Director
General Office of National Assessments (Kim Jones).
- 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.
- Current Issues Brief, No. 13 1999-2000.
- Source: Department of Immigration and Ethnic Affairs, 'Fact
Sheet No. 81' [20/04/00] at http://www.immi.gov.au/facts/81boats.htm#2,
updated by personal communication with officers in the Department
of Immigration and Multicultural Affairs and media reports
including Editorial, 'Island relief as boat people turned away',
The Age, 28/08/01. The figures for 'unauthorised air
arrivals' appear in Fact Sheet No. 81 which is updated as at 29
August 2001. However, it seems clear that the figures for boat
arrivals are not up to date, so it may be assumed that the figures
for air arrivals are also dated to some extent.
- 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
- Ibid, Article 6.
- Draft Protocol against the Smuggling of Migrants by Land, Air
and Sea, Supplementing the United Nations Draft Convention against
Transnational Organized Crime, 13 May 1999, A/AC.254/4/Add.1/Rev.1.
- Proclamation 3004, 'Control of persons leaving or entering the
United States', January 17, 1953, 18 FR 489, 3 CFR, 1949-1953
Comp., p. 180.
- Proclamation 4865, 'High seas interdiction of illegal aliens',
September 29, 1981, 46 FR 48107, 3 CFR, 1981 Comp., p 50. Executive
Order 12324, 'Interdiction of illegal aliens', September 29, 1981,
46 FR 48109, 3 CFR, 1981 Comp., p. 180.
- Executive Order No.12807, 'Interdiction of Illegal Aliens', May
24 1992, http://www.uscg.mil/hq/g-o/g-opl/mle/eo12807.pdf
[03/03/00]. This Executive Order replaced Executive Order 12324. It
appears to be current as at 30 March 2000.
- Presidential Decision Directive No. 9, June 18, 1993, op cit.
- Illegal Immigration Reform and Immigration Responsibility Act,
Title II: Enhanced Enforcement And Penalties Against Alien
Smuggling; Document Fraud.
- International Crime Control Act.
- 'The Administration plans to enhance border law enforcement
through deployment of advanced detection and monitoring
capabilities and investment of greater resources': International
Crime Control Strategy - June 1998, Chapter 1 Introduction and
Overview, at http://www.fas.org/irp/offdocs/iccs/iccstoc.html.
- Presidential Decision Directive 9, June 18, 1993 at http://www.fas.org/irp/offdocs/pdd9.txt.
- Section 229.
- Section 232A.
- Section 233A. Also ss 22, 23 and 234.
- Section 334.
- Section 335.
- Border Protection Legislation Amendment Bill 1999, Second
Reading Speech, House of Representatives, Debates, 22
September 1999, pp 10149-10151.
- 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.
- A nautical mile is equal to 1,852 metres: Schedule 1.(1) of the
Seas and Submerged Lands Act 1973 and see Australian
Surveying and Land Information Group, 'Maritime Boundaries', at
- Article 3.
- Article 33.
- Articles 55 and 57.
- Article 76.
- Article 83.
- 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).
- Section 5(1).
- Section 7.
- In the diagram 'coastal waters' corresponds to 'internal
waters'. Map courtesy Australian Surveying and Land Information
Group, Department of Industry, Science and Resources, Canberra,
Australia. Crown Copyright © www.auslig.gov.au.
- Map courtesy Australian Surveying and Land Information Group,
Department of Industry, Science and Resources, Canberra, Australia.
Crown Copyright © www.auslig.gov.au.
- See generally D. O'Connell, The International Law of the
Sea Vol. II, Clarendon Press, Oxford, 1984, Chapter 24 and
Ivan Shearer in S. Blay, R. Piotrowicz and B.M. Tsamenyi,
Public International Law: An Australian Perspective,
Oxford University Press, Melbourne, 1997, pp 162-164.
- Croft v Dunphy  AC 156.
- Bonser v La Macchia (1969) 122 CLR 177, per Windeyer J
- Broken Hill South Ltd v Commissioner of Taxation (NSW)
(1936) 56 CLR 337, per Dixon J at 375.
- Pearce v Florenca (1976) 135 CLR 507 at 518.
- This power draws from the external affairs power in s 51(xxix)
of the Australian Constitution which was discussed in
Polyukovich v The Commonwealth (1991) 172 CLR 501.
- Polities v The Commonwealth (1945) 70 CLR 60 and
Fishwick v Cleland (1960) 106 CLR 186.
- Horta v The Commonwealth (1994) 181 CLR 183 at 195.
- R v Treacy  AC 537, per Diplock LJ at p 561;
Libman v The Queen  2 SCR 178, per La Forest J at
- See generally Halsbury's Laws of Australia, 'Title 215
- Foreign Relations' [215-175].
- Article 27(1).
- Article 21.
- Article 27(2).
- Article 27(5).
- Article 19(2).
- Article 19(2)(g).
- Article 33.
- Article 73(1).
- Article 73(3). A 'flag state' is a ship's country of
- Article 60(2).
- Article 77(1).
- Article 78(1).
- Article 111.
- That is, it is not registered under the laws of another
- Article 110.
- See generally Shearer, op cit, pp 165-179; Matthew Goode, 'The
Tortured Tale of Criminal Jurisdiction', Melbourne University
Law Review, vol. 21(2), pp 411-459 at pp 413-414 ['Goode,
1997(b)']; and Halsbury's Laws of Australia, 'Title 215 -
Foreign Relations' [215-380 and 215-385].
- The power to arrest persons and investigate crimes within the
'internal waters' and 'territorial sea' (relating to the loading
and unloading of commodities) are examples of the 'territorial
- The power to arrest persons and investigate crimes within the
'territorial sea' (relating to disturbing the peace) is an example
of the 'extra-territorial principle'.
- The powers to prevent the infringement of immigration laws
within the 'contiguous zone' and the 'exclusive economic zone' are
examples of the 'protective principle'.
- Broken Hill South Ltd (Public Officer) v Commissioner of
Taxation (NSW) (1937) 56 CLR 337 per Dixon J at 375;
Mynott v Barnard (1939) 62 CLR 68 per Latham CJ at 75 and
Starke J at 89; Helmers v Coppins (1961) 106 CLR 156. See
also Union Steamship Co of Australia Pty Ltd v King (1988)
166 CLR 1.
- Ward v R (1980) 142 CLR 308.
- Lipohar v The Queen; Winfield v The Queen  HCA
65 (9 December 1999), per Kirby J, at para 178. This is because
individuals do not have any particular status as residents of a
State or Territory in contrast to the Commonwealth of Australia
which is a unique legal entity having its own criminal jurisdiction
and being recognised in international law.
- Liangsiriprasert v United States  1 AC 225 at
251; R v Manning  QB 980 at 1000; Lipohar,
op cit, per Gleeson CJ at para 35; per Gaudron, Gummow and Hayne JJ
at para 123; per Callinan J at para 269. Although the approach in
Liangsiriprasert was criticised in Goode, 1997(b), p 436
and Lipohar, op cit, per Kirby J, paras 175-176. The
previous cases were Board of Trade v Owen per Tucker LJ,
at 625-626 (conspiracy to defraud); Department of Public
Prosecutions v Doot  AC 807, per Wilberforce LJ at pp
817-818 and Salmon LJ at p 832-833 (conspiracy to defraud); DPP
v Stonehouse  2 All ER 909 (attempt). See also comments
in R v Hansford (1974) 8 SASR 164, per Wells J at p 195;
McNeilly v The Queen (1981) 4 A Crim R 46; R v
Millar  2 QB 54; R v El-Hakkaoui  2 All
ER 146 discussed in Goode, 1997(b), op cit, at pp 433-436. Aside
from Liangsiriprasert all of these cases
could be viewed as examples of crimes where some element of the
principal offence occurred within the territory.
- Libman v The Queen  2 SCR 178.
- Lipohar, op cit, per Gleeson CJ at para 35; per
Gaudron, Gummow and Hayne JJ at para 123; per Callinan J at para
- For example, in a recent discussion paper, the Model Criminal
Code Officers Committee of the Standing Committee of
Attorneys-General called for submissions on this issue on the basis
that 'it can be argued that the quite extensive geographical
extension to the criminal jurisdiction of a State and Territory
advocated in this Discussion Paper are more clearly appropriate to
intra Australian cases and not international cases': MCCOC,
Chapter 4: Damage and Computer Offences - Discussion
Paper, January 2000, p. 177: http://law.gov.au/publications/Model_Criminal_Code/damage.pdf
- Article 19(1).
- Article 18(1).
- Article 18(2).
- O'Connell, op. cit., p. 271.
- Ibid, p. 274.
- Article 25(1).
- R Churchill and A. Lowe, The Law of the Sea,
Manchester University Press, Manchester, 1988, p. 73.
- Article 27(1).
- See O'Connell, Vol. II, op. cit., p 960.
- Ibid and see Pianka v R  AC 107.
- Churchill and Lowe, op. cit., p. 52.
- Convention for the Unification of Certain Rules of Law relating
to Assistance and Salvage at Sea signed in Brussels on 23 September
1910 (Article 10); 1958 Geneva Convention on the High Seas (Article
12); International Convention on Maritime Search and Rescue by the
Inter-Governmental Maritime Consultative Organization in 1979;
UNCLOS (Article 98).
- High Commissioner for Refugees, 'Problems Related to the Rescue
of Asylum-Seekers in Distress at Sea', EC/SCP/18, 26 August 1981 at
- Subsection 245B(2).
- Subsection 245B(4).
- Subsection 245B(5).
- Subsection 245B(6).
- Subsection 245B(7).
- Subsection 245C(1).
- Subsection 245C(6).
- Subsection 245F(18).
- Paragraph 245F(3)(f)(3)(d)(iii).
- Paragraph 245F(3)(f)(i).
- Paragraph 245F(3)(f). Arrests within the 'contiguous zone' must
be made in accordance with Australia's international obligations:
- Paragraph 245F(8)(c).
- Subsection 245F(9).
- Subsection 245G(4).
- Subsection 245G(6).
- Australia's obligations to refugees are contained in the
Convention relating to the Status of Refugees of 28 July
1951 and the Protocol relating to the Status of Refugees
of 31 January 1967. This specific obligation (against 'refoulment')
is contained in the Convention relating to the Status of
Refugees, Article 33(1).
- Ibid, Article 32(1).
- Ibid, Article 32(2).
- Section 36.
- Section 17.
- Section 15B(1)(b).
- Section 15B(4).
- Parliament of Australia. Joint Committee of Public Accounts and
Audit, Review of Coastwatch, Report No. 384, August 2001,
para. 6.24, p. 92.
- Significantly, this issue is acknowledged by the Government:
Senator Chris Ellison, Border Protection Bill 2001, Second Reading
Debate, Senate, Hansard, 30/08/01, p. 26595.
- The issue of 'privative' or 'ouster' clauses, and the potential
restraints on these provisions, is discussed more fully in Krysti
Guest, 'Migration Legislation Amendment (Judicial Review) Bill
1998', Bills Digest No. 90 1998-99 at http://www.aph.gov.au/library/pubs/bd/1998-99/99bd090.htm.
- Dr Jean-Pierre Fonteyne (Senior Lecturer in Law, the Australian
National University), 'Asylum-seekers afloat in uncertainty',
The Canberra Times, 29/08/01.
- The Hon. John Howard, MP, 'Illegal Immigration: MV Tampa',
Ministerial Statement, House of Representatives, Debates, 29/08/01,
- Fonteyne, op. cit..
30 August 2001
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