Bills Digest No. 62 2001-02
Border Protection (Validation and Enforcement Powers) Bill
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 (Validation and
Enforcement Powers) Bill 2001
Date Introduced: 18 September 2001
House: House of Representatives
Portfolio: Immigration and Multicultural Affairs
Commencement: Royal Assent.
- validate actions in relation to
the MV Tampa, Aceng and any other vessel
interdicted for immigration control purposes between 27 August 2001
and Royal Assent
- introduce mandatory minimum sentences for first and repeat
offenders under the people smuggling provisions of the
Migration Act 1958, and
- clarify and expand border protection powers, including search
powers, under the Migration Act 1958 and the Customs
Border Protection #1
In 1999 amendments were passed to the
Migration Act 1958 and the Customs Act 1901 to
deal with people smuggling and some broader issues surrounding
People smuggling was addressed by amendments to
the Migration Act 1958.
The Migration Legislation Amendment Act (No.
1) 1999 makes it an offence for a person to carry non-citizens
to Australia without documentation.(1) 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.(2) 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.(3) 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.(4) And it is an
offence to enter an arrangement in which s/he undertakes for a
reward that a particular decision will be made.(5)
Border protection was addressed by amendments to
the Migration Act 1958 and the Customs Act
The Border Protection Legislation Amendment
Act 1999 permits an Australian ship or a customs vessel to
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 Migration Act 1958 or Customs Act
1901]'.(6) In the contiguous zone, it may be made
in order to identify the ship or if the commander reasonably
suspects that it 'is, will be or has been involved in a
contravention, or an attempted contravention, in Australia of [the
Migration Act 1958 or Customs Act
1901]'.(7) On the high seas a request may only be
made if the commander reasonably suspects 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
1958 or Customs Act 1901]',(8) if it is
registered with a country that has an arrangement with
Australia(9) or if it seems to be unregistered or flying
the flags of two countries (a 'ship without
nationality').(10) A customs vessel may request to board
a 'suspicious ship' within the 'exclusive economic
Where a request to board is ignored, the
commander may pursue the foreign ship to 'any place outside the
territorial sea of a foreign country'.(12) In the
process, the officer 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'.(13)
Having boarded the ship in the 'territorial
sea', an officer may search the ship, any goods found upon the ship
and require any passenger to answer questions or produce documents.
An officer may arrest a person s/he reasonably suspects has
committed, is committing or attempting to commit, or is involved in
the commission of, an offence against the Migration Act
1958 or Customs Act 1901 in Australia.(14)
A similar power exists over the 'contiguous zone' but may only be
exercised in accordance with 'obligations of Australia under
international law, including obligations under any treaty,
convention or other agreement or arrangement between Australia and
another country or other countries'.(15)
The officer may also detain a ship and bring it
or cause it to be brought to a port if s/he reasonably suspects
that the ship is, will be or has been involved in a contravention
of the Migration Act 1958 or Customs Act 1901 in
Australia.(16) S/he may also detain a person aboard a
detained ship and bring them or cause them to be brought within the
'migration zone'.(17) On the high seas, but outside the
territorial sea of other countries, s/he may exercise powers
consistent with any arrangement 'which enables the exercise of
Australian jurisdiction over ships of that country'(18)
and may search 'ships without nationality'.(19)
Generally, these powers must be exercised by the
commander of the ship or vessel. However, the boarding powers may
be exercised by 'officers'. These 'officers' are defined as the
crew of the Australian ship or customs vessel, members of the
Australian Defence Force, and, for customs purposes, police
officers.(20) Thus, there is no legislative power for
these latter 'officers' to make requests to board, to chase and use
force to board, etc.
In the context of the present Bill, it should be
noted that there are few statutory powers to search people aboard
ships(21) and, while there are powers to detain and move
ships, there is no express power to move people other than the
power over persons aboard detained ships to bring them or cause
them to be brought within the migration zone (subsection
On 29 August the Prime Minister tabled the
Border Protection Bill 2001. Essentially the Bill sought to put
beyond doubt the domestic legal basis for actions taken in relation
to foreign ships within the territorial sea of Australia. It sought
to permit an 'officer' to direct the master of a ship or any person
aboard any ship in any circumstance within the territorial sea to
take it outside the territorial sea.(22) It would have
permitted an officer to use reasonable means to issue the direction
and to use reasonable means,(23) including reasonable
force, to detain the ship and to take it or cause it to be taken
outside the territorial sea.(24)
The Bill also sought to confine judicial review
of the direction or enforcement action. It provided that the
directions were not reviewable in any Australian
court,(25) that proceedings may not be commenced in
any court to prevent a ship or a person from being
removed(26) and that civil or criminal proceedings in
relation to any resulting enforcement action may not be brought
per se.(27) In general terms it provided that
the Bill overrides any other law.(28) It also sought to
prevent visa applications from being made while a direction is in
force, subject to a ministerial discretion to accept applications
from specified individuals.(29)
The Bill was rejected in the Senate. During the
parliamentary debate and subsequently, the Opposition argued that
the Bill was 'ill-considered, draconian and
unconstitutional'(30) and would not necessarily resolve
the legal issues surrounding Tampa.(31) Labor
offered to support 'Tampa specific legislation' which
would involve a safe haven for the rescuees.(32) The
Government countered with an offer to introduce a six month sunset
The Tampa and The Federal
On 26 August 2001, a routine surveillance flight
by Coastwatch revealed the presence of a fishing boat approximately
80 nautical miles northwest of Christmas Island. The vessel was
carrying 433 potential asylum seekers en route to Australia before
it broke down. The following day Australian Search and Rescue
(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, Captain Arne Rinnan, had intended to take the
rescuees 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 based on the fact that assistance had not been provided
within 48 hours. On 29 August it proceeded into the territorial
waters surrounding Christmas Island and was interdicted by 45 SAS
members. The same day the Government introduced border protection
legislation into Parliament.
On 31 August the Victorian Council for Civil
Liberties Incorporated and Eric Vadarlis filed applications before
North J in the Federal Court of Australia. The applicants sought a
writ of habeas corpus (or an 'application for an order for
release'(34)); an injunction to restrain the expulsion
of the rescuees from Australia; an order for mandamus compelling
the executive to bring the rescuees into the migration zone
pursuant to subsection 245F(9) of the Migration Act 1958;
an order for mandamus compelling the executive to detain the
rescuees pursuant to section 189 of the Migration Act
1958; and an injunction and order for mandamus to allow Mr
Vadarlis to give legal advice to the rescuees.
On 7 September the HMAS Warramanga
intercepted a second vessel bound for Ashmore Reef. It was boarded
'as a stateless vessel without a flag' and warned to turn around.
Subsequently, the vessel was identified as an Indonesian fishing
vessel, the Aceng. It was repeatedly boarded and the
potential asylum seekers were transhipped to the
On 11 September North J handed down his
decision: Victorian Council for Civil Liberties Incorporated v
the Minister for Immigration and Multicultural Affairs. He
found that the applicants did not have standing to bring any of the
applications, except in respect of the application for a writ of
habeas corpus. On this issue he found that the rescuees
had been unlawfully detained on the Tampa and ordered that
they be brought to mainland Australia.
On 17 September the Full Bench of the Federal
Court handed down its decision in relation to an appeal from the
judgment of North J. In Ruddock v Vadarlis,(36)
French J, with whom Beaumont J agreed, found that the Commonwealth
had sufficient executive power to control the movement of the
Tampa and that the rescuees had not been detained for the
purposes of the habeas corpus writ. In dissent Black CJ
found that the Commonwealth required specific legislative authority
and that the actions constituted (unlawful) detention.
A key issue in the circumstances surrounding the
Tampa and the VCCL v MIMA decision was the
possibility that, upon their entry onto the mainland or territorial
sea of Christmas Island, the rescuees might have access to
protection visas and the judicial review system. A related issue
was the need to promptly remove the Tampa from the
territorial sea. Thus, a key issue in the circumstances surrounding
the VCCL v MIMA decision and the Border Protection Bill
2001 was the power to control the movement of the ship and its
The argument regarding the power to control the
movement of the ship and passengers revolves around the issue of
detention. Any power to control the movement of a ship or a person
may, in the circumstances depending upon the level of control,
involve detention. One of the findings made by North J in VCCL
v MIMA was that the control exercised in relation to the
rescuees on the Tampa and, by implication, the
Manoora constituted detention for the purposes of the
'application for an order for release'. In short, North J rejected
the argument that as the rescuees had brought the detention about
by their own acts, or had some choice as to whether to leave the
Tampa for Nauru or New Zealand, the control exercised over
the ship and its passengers did not constitute detention. He stated
that 'the distinction between partial and total restraint of
freedom distracts the focus from the essential
issue'(37) being the 'effect of the restraint on the
liberty of the person'.(38) In the totality of the
circumstances, his Honour found that the control constituted
A related issue, argued by Mr Vadarlis, the
second applicant in VCCL v MIMA, was that the control
exercised over the rescuees constituted 'immigration detention' for
the purposes of the Migration Act 1958 and that, on this
basis, the rescuees were eligible to receive visa application
forms, legal advice, etc. North J held that Mr Vadarlis did not
As indicated above, in the Full Federal Court
decision, Beaumont and French JJ found that the control exercised
in relation to the rescuees did not constitute detention. French J
held that while there were practical constraints on the liberty of
the rescuees, they 'derived from circumstances which did not come
from any action on the part of the Commonwealth'.(41)
That is, the rescuees were unable to 'go elsewhere' from the
Tampa primarily as a result of the circumstances
surrounding their rescue and the seaworthiness of the
Tampa. He noted that 'there is nothing to be gained by the
use of such perjorative terms as
As a matter of domestic law, it might be assumed
that ample power to control the movement of the Tampa and
the rescuees would be available under:
- the powers introduced by the Border Protection Legislation
Amendment Act 1999,
- the powers reflected in section 61 of the Constitution, or
- the measures proposed in the Border Protection Bill 2001.
The first proposition was not argued by the
respondents in VCCL v MIMA. As indicated, the border
protection provisions of 1999 allowed an officer to detain and move
a ship if s/he reasonably suspected that it 'is, will be or has
been involved in' a contravention of the Act. In addition, once the
ship was detained, the provisions allowed the officer to 'detain
any person who is found on the ship' and to 'bring them ... to the
migration zone'. The applicants argued that no reasonable grounds
existed for suspecting that the ship would be involved in a
contravention of the Act (by attempting to offload the rescuees).
Moreover, they argued that the express power to detain persons
aboard a detained boat carried with it a duty to bring them into
the migration zone. Perhaps in light of this argument, the
respondents submitted that no actions were taken under the border
The second proposition on executive power was
rejected by North J. He found that it was a fundamental common law
and constitutional principle that the executive does not have a
free floating power to detain persons, including aliens. However,
the respondents argued that there was a prerogative power to expel
aliens from territorial waters and that this power carried with it
a power to detain (non-resident) aliens for that purpose. This was
rejected by North J on the basis that there was no distinction
between resident and non-resident aliens,(43) that the
prerogative was doubtful(44) and that, in any event, the
prerogative had been overridden by the measures introduced by the
border protection provisions.(45)
As indicated above, on appeal, the majority
found that the Commonwealth did have an executive power to detain
aliens for border protection purposes. French J said '[i]n my
opinion, the executive power of the Commonwealth, absent statutory
extinguishment or abridgement, would extend to a power to prevent
the entry of non-citizens and to do such things as are necessary to
effect such exclusion'.(46) His conclusion was based on
the accepted view that the power in section 61 'enables the Crown
to undertake all executive action which is appropriate to the
position of the Commonwealth under the Constitution'(47)
and his own view that '[t]he power to determine who may come to
Australia is so central to its sovereignty that it is not to be
supposed that the Government of the nation would lack ... the
ability to prevent people not part of the Australian community from
entering'.(48) In expressing this view, he acknowledged
that '[t]he Australian case law does not resolve the question
before this Court'.(49) Broadly, the various authorities
cited by the respondents had been decided in the context of
statutory powers rather than purely executive powers.
In addition, Beaumont J expressed the view that
the Federal Court was not invested with the power to issue a writ
of habeas corpus(50) and, as a result,
expressed doubt as to whether North J should have accepted that the
respondents had standing on this issue.(51) He also
questioned the ability of North J to issue an order requiring not
only that the rescuees be released but that they be brought to
Australia.(52) In any event, he queried whether a court
ought to grant any discretionary relief on the basis that the
rescuees had acted in bad faith by 'practically compelling [the]
Tampa to divert from Indonesia to Christmas
The third proposition continues to be argued by
academic and political commentators. On 11 September the Acting
Prime Minister said of the Border Protection Bill in light of North
J's decision '[m]y understanding is that it would have put the
matter beyond doubt'.(54) By contrast, on the same day
the Shadow Attorney-General stated that the Bill 'provided no
lawful authority for the detention of those aboard the
Tampa' and that the movement of the rescuees from the
Tampa to the Manoora 'was not even contemplated
by [it]'.(55) Later that day, two constitutional law
experts publicly endorsed the latter interpretation.(56)
The difference of opinion is the implication from the judgment that
the control exercised over the rescuees constituted detention which
required specific statutory authority and that a statutory power to
detain a ship does not carry a power to detain persons aboard the
On 18 September the Minister for Immigration and
Multicultural Affairs introduced the Border Protection (Validation
and Enforcement Powers) Bill 2001. Broadly, this Bill seeks to
address the issues left outstanding from the above discussion:
- validation of the actions taken in respect of the
Tampa and the Aceng, and any other vessels
interdicted before further border protection legislation is
- the power to search, detain and move persons aboard ships that
have been boarded and detained under the border protection
provisions discussed above,
- the involvement of Australian Defence Force personnel and
others in relation to requests to board ships, chasing, etc.
The Bill also seeks to set mandatory minimum
sentences for people smuggling offences.
Part 2 deals with validation of actions
surrounding the Tampa, Aceng and other
5 and 6 deem to be lawful any
action taken by the Commonwealth, its officers or agents in
relation to the Tampa, Aceng or other vessels
interdicted during the 'validation period', or the period between
27 August 2001 and the date of Royal Assent. The validation applies
to action in respect of the vessels and the persons on board.
Proposed section 7 provides
that civil or criminal proceedings in relation to any resulting
enforcement action may not be brought against the Commonwealth, its
officers or agents. Moreover, it provides that such proceedings,
including proceedings that were instituted before the
measures commence, may not be continued in any court.
The proposed immunity is both wider and narrower
than the immunity contained in the Border Protection Bill 2001. In
the earlier provisions, the immunity extended to officers or agents
but only where they acted 'in good faith'. No such limitation
exists in this Bill. Conversely, the earlier provisions included
'privative'(57) and 'cover the field'
clauses.(58) These clauses have been removed and the
High Court's original jurisdiction is preserved.(59)
8 provides for compensation for acquisition of
property. 'Acquisition of property' has the same meaning as in
paragraph 51(xxxi) of the Constitution. It is worth noting that the
compensation must be 'reasonable' and no reference is made to the
constitutional requirement that compensation be on 'just terms'.
Broadly, this equates with a requirement that the compensation be
timely and objectively fair in the circumstances.(60) It
may be sufficient if the value is equal to a reasonable market
price for the property.(61)
Schedule 1 amends the
Customs Act 1901 to address the issues relating to power
to search, detain and move persons and the use of military
personnel in border protection.
Items 1 and 5 seek to empower
military personnel in relation to the making of requests to board
ships and the movement or destruction of ships that have been
Item 2 extends the areas to
which an officer may move a detained ship. Currently, where a ship
is detained it may be brought 'to a port, airport or other place'.
Item 2 would extend this to encompass the bringing
of boats within the territorial sea or contiguous zone. Where a
foreign ship has been detained after a request to board in the
territorial sea,(62) contiguous zone(63) or
high seas (64) it may be brought from any place,
depending on the circumstances but including the high seas , into
the territorial sea or contiguous zone.
Item 3 repeals and replaces
subsection 185(3A) which deals with the power to detain persons on
board detained ships.
185(3AAA) deals with the issue in VLLC v
MIMA that detention of a ship implicitly involves detention of
persons on board that ship. It deems that any detention of a person
resulting from detention from a ship is 'not unlawful'. It also
confers a civil and criminal immunity on the Commonwealth, its
officers and agents.
185(3A) deals with the argument in VLLC v
MIMA that the express power to detain persons aboard a
detained boat carried with it a duty to bring them into the
migration zone. It permits such persons to be taken to 'a place
outside Australia'. There may be live questions in international
law regarding the authority under which foreign persons may be
removed beyond the territorial sea or contiguous zone of Australia.
In the absence of consent, this might be characterised as the
unlawful exercise of a personal jurisdiction over those persons. In
particular, there may be an issue in relation to persons who are
detained on board ships interdicted in the exclusive economic zone
or high seas . The issue arises due to the disjunction between the
permission or tacit permission that may arise in relation to ships
covered by an arrangement or ships without nationality and the
permission that would arguably be required in relation to the
persons on board those ships.
185(3AA) complements proposed
subsection 185(3A). It provides an
express power to move persons for the purposes of proposed
subsection 185(3A). The power has an
unlimited geographical jurisdiction. That is, it may be exercised
'within or outside Australia'. As above, this may create a live
issue at international law.
185(3AB) confers civil and criminal immunity on
the Commonwealth, its officers and agents in relation to action
taken under proposed subsection
185(3AA). Significantly, the immunity is limited
by a requirement that the action must be taken 'in good faith' and
must involve 'no more force that [is necessary and
185AA deals with searches of persons on board
ships detained under subsection 185(3) or persons moved pursuant to
proposed subsection 185(3A). The
amendments allow what is sometimes called an ordinary search to be
carried out. That is, strip searching is not permitted
(proposed section 185AA(4)).
Personal searches can be carried out by officers and other
185AA(2) spells out the purposes for which a new
section 185AA search can be carried out-that is, to discover
whether the person has a weapon or thing that might be used to
inflict injury or assist in an escape. Such items, if found, can be
removed by the officer (proposed section
185AA contains some safeguards for the person
being searched. For instance, the person conducting the search must
be of the same sex as the detainee, and an officer or other person
who conducts such a search 'must not use more force, or subject a
person to greater indignity, than is reasonably necessary in order
to conduct the search'.
The search regime in proposed
section 185AAA is akin to that in section
252 of the Migration Act 1958. However, it lacks some of
the safeguards present in the other similar regime under section
219L of the Customs Act 1901. For example, there is no
requirement that an officer have reasonable grounds for suspecting
that a person is carrying a weapon.
185AB provides for the return of persons to
detained ships, provided the relevant officer or agent 'is
satisfied that it is safe to return the person to the ship'. As
with proposed subsection 185(3AA)
there is an unlimited geographical jurisdiction.
Schedule 2 amends the Migration
Act 1958 to canvass the issues discussed above, along with other
issues arising out of VLLC v MIMA.
Item 1 addresses the argument
in VLLC v MIMA that detention under the border control
provisions amounts to 'immigration detention' for the purposes of
the Migration Act 1958.
Item 2 inserts proposed
section 7A to expressly preserve any
aspects of powers reflected in section 61 of the Constitution that
may be affected by the new measures. Thus, the Commonwealth retains
its inherent executive power to expel foreign ships and
Item 5 inserts proposed
section 233B which prohibits a court from
making an order under section 19B of the Crimes Act 1914
except in relation to minors. Section 19B permits a court to
dismiss charges or discharge an offender without conviction where
the personal attributes or background of the offender, the
seriousness of the offence or the existence of extenuating
circumstances make it 'inexpedient to inflict any punishment [or]
any nominal punishment', or 'expedient to release the offender on
Item 5 inserts proposed
section 233C, a related provision, which
introduces minimum mandatory custodial sentences for (adult) people
smuggling offenders. A first offence is subject to a minimum prison
term of 5 years. The minimum for repeat offenders is 8 years.
Significantly, there are no comparable provisions in any other
The remaining provisions broadly duplicate the
proposed amendments to the Customs Act 1901.
It was suggested in the Main Provisions section
of this Digest that there may be live issues in international law
relating to the proposed powers with respect to persons on board
In describing Australia's maritime jurisdiction,
a distinction can be drawn among what may be called
prescriptive, enforcement and
adjudicative powers. Within this distinction a further
distinction can be drawn 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'.(66) Thus, the Commonwealth has a power to
control overseas acts of its citizens,(67) and the
States and the Commonwealth have the power to control overseas acts
of foreigners where they come within the physical limits of
Australia.(68) There need only be a link between the
subject matter of a statutory offence and the enacting
government.(69) Similarly, under the 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.(70) The power is
not confined to laws that are consistent with the general
requirements of international law,(71) or with the
legislative competence recognised by international
law.(72) Although, there may be a presumption that a
statute will not interfere with the sovereignty of other
The 1982 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.(75) 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'.(76) It may arrest persons or
investigate crimes aboard foreign ships passing through the
territorial sea after leaving internal waters.(77) 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.(78) 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'.(79) 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.(80)
- 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'.(81)
- 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''.(82)
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'.(83)
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'.(84) It may establish safety zones around
these installations up to 500m and exercise a limited jurisdiction
to ensure the safety of structures and navigation.
- Continental Shelf: enforcement is limited to the
exercise of sovereign rights 'for the purpose of exploring it and
exploiting its [non-living] natural resources'.(85) The
status of the waters above the shelf is unaffected(86)
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.(87) The latter allows warships to board a foreign
ship where there is reasonable ground to suspect that it is a 'ship
without nationality',(88) 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.(90) These powers are closely related to the
enforcement powers above which deal with the 'territorial
principle',(91) the 'extra-territorial
principle'(92) 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'(94) and 'extra-territorial
jurisdiction'.(95) Except in relation to the
Commonwealth, it would not ordinarily recognise the 'passive
personality principle'.(96) 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'.(97) 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(98)
and has recently been endorsed in Australia in relation to
interstate offences.(99) (But there may be doubt as to
whether this approach would or should apply to international
Clearly, most of the powers contained in the
Border Protection Legislation Amendment Act 1999, the
Border Protection Bill 2001 and the Border Protection (Validation
and Enforcement Powers) Bill 2001 are drafted to be consistent with
the above principles.
However, at least one academic commentator has
implicitly suggested that the power to detain and remove foreign
ships to places beyond Australia may be inconsistent with
international law. In relation to the Tampa incident,
Jean-Pierre Fonteyne, Senior Lecturer in International Law at the
Australian National University, stated that '[f]orcibly sailing the
Tampa back to international waters is not a feasible nor a
legal proposition, as Australian officials would lose any basis of
authority over the vessel the moment it left Australian waters,
when control over the vessel would have to be returned to the
This proposition is reflected in the
requirements in UNCLOS and the Border Protection Legislation
Amendment Act 1999 that the power to board and detain foreign
ships beyond the territorial sea and contiguous zone generally only
arises in respect of 'mother-ships', ships covered by agreements or
arrangements and 'ships without nationality'. In the first
instance, it is a case of a general physical jurisdiction. In the
second and third instances it is a case of a specific personal
jurisdiction, which is an exception to general principles.
Moreover, may be arguable that the power to
detain and move persons to places beyond Australia is also
inconsistent with international law. While a physical jurisdiction
may be exercised over ships within the territorial sea and
contiguous zone (and mother-ships on the high seas), the
limitations described by Jean-Pierre Fonteyne which apply to the
ship would seem to apply to the passengers. Moreover, while a
personal jurisdiction may be exercised over ships covered by
agreements or arrangements or ships without nationality, that
personal jurisdiction would not seem to extend to the passengers.
For example, while Australia may be given a personal jurisdiction
over ships by agreement with Indonesia, it would also need a
jurisdiction over the passengers by agreement with their
It is worth noting that in the Tampa
litigation, the parties agreed that no arguments would be made on
the basis that 'the status of any alleged detention ... on board
the ... Manoora is different to the status of any alleged
detention on board the ... Tampa'.(102) Thus,
the parties effectively ignored any issues surrounding executive
power beyond the territorial sea and the nature of the control
exercised over persons removed to places outside Australia. In
Ruddock v Vadarlis, French J acknowledged that his finding
on the executive power to exclude did not address the wider issues
associated with detention and movement of foreign persons
offshore.(103) He also acknowledged that detention is a
question of fact. Arguably, the judges may have decided differently
if the focus had been on the Manoora. During the journey
of the Manoora to Nauru, it might be argued, the
Commonwealth acted beyond any executive power to expel aliens and
unlawfully detained the rescuees. Clearly, this argument would be
negated if this Bill becomes law.
Emerging International Law
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,(104) the Secretary General,(105)
the Economic and Social Council(106) and the
International Maritime Organisation.(107) Countries have
been urged to review their domestic legislative powers to deal with
people smuggling offences.(108) 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.(109)
However, 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'.(110)
Ships Without Nationality
As indicated above, UNCLOS confers a right to
board 'ships without nationality' on the high seas . However,
UNCLOS is otherwise generally silent on these ships. 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 likely to be targeted by any emerging international law on
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.(112) In
1981 President Reagan directed government agencies to interdict on
the high seas vessels carrying would be illegal
immigrants.(113) President Bush gave a similar direction
in 1992,(114) as did President Clinton in
1993.(115) 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.(116) In 1998 legislation was introduced
to authorise the forfeiture of alien smuggling
proceeds.(117) The International Crime Control Strategy
of 1998 suggests that the government is increasing its commitment
to the issue.(118)
The Immigration and Nationality Act makes it an
offence for a person to bring an illegal immigrant into the United
States(119) or to assist another person in doing
so.(120) It is an offence to prepare or present false or
forged documents for the purpose of assisting an illegal immigrant
to enter the United States.(121) The Illegal Immigration
Reform and Immigration Responsibility Act includes both types of
offences as 'racketeer offences' (organised crime offences) within
the Racketeer Influenced Corrupt Organizations
As indicated, in 1981 President Reagan issued
directions, in accordance with the Immigration and Nationality
Act,(123) allowing the US Coast Guard to interdict
'people smuggling' vessels on the high seas. The authority
specifically targeted US ships, ships of foreign nations with whom
previous arrangements had been made for boarding and 'ships without
nationality'.(124) Also, as indicated, President Bush
issued similar directions in 1992. They targeted also US ships,
foreign ships subject to previous arrangements and 'ships without
nationality'.(125) Also, as indicated, in 1993 President
Clinton issued directions providing for the offshore processing of
illegal immigrants.(126) Following these directions a
significant number of illegal migrants were interdicted at sea (see
Illegal Migrants Interdicted at Sea (US Coast Guard
Onshore and Offshore Asylum Seekers
There is a distinction between illegal
immigrants who are interdicted offshore and those who apply within
the territory of the United States. The distinction is between
immigrants who are 'seeking admission' and those who are 'in and
admitted to the United States'.
Originally, the Immigration and Nationality
Act provided for a single process which applied to persons who
were 'in the United States'. Under amendments made in
1996,(128) a person who is not 'in and admitted to the
United States' is treated as an 'applicant for admission'. An
'applicant for admission' is a person who arrives at a
port-of-entry without proper entry documents or is interdicted at
sea. The Act also allows the Attorney-General to designate
particular aliens as 'applicants' in some circumstances even if
they are in the United States. All such applicants are liable to
If applicants do not indicate that they intend
to apply for asylum, they are removed 'without further hearing or
review'. Otherwise, they interviewed as to whether they have a
'credible fear of persecution'. If they fail they must be removed
'without further hearing or review'.(129) If they
succeed they must be detained pending a final determination
regarding their 'credible fear of persecution'. In theory, most if
not all illegal immigrants, whether interdicted offshore or
apprehended within the United States, could be deemed to be
'applicants for admission'. However, in practice all illegal
immigrants who make it to United States territory are processed
under the regular refugee determination system.
Illegal immigrants who are interdicted offshore
are taken to a third country or a United States 'trust territory'
for processing. These places include Guantanamo in Cuba, the
Mariana Islands and Midway, but not Guam or the Virgin Islands
which form part of the United States.(130) As at 1998,
the United States was negotiating with Mexico to reach an agreement
allowing assessment within Mexican waters and repatriation via
It is difficult to get accurate information on
agreements between the United States and processing countries or
countries of origin. However, it is understood that in several
cases, 'jurisdiction' over foreign ships in international waters
has been exercised under the Safety of Life at Sea (SOLAS)
regulations established by the International Maritime Organisation.
Otherwise, jurisdiction has been obtained by consent in individual
A number of types of personal search are
provided for in Commonwealth statutes. In ascending level of
intrusiveness, these include ordinary searches, frisk searches
(also known as pat down searches), strip searches (also known as
external searches) and internal searches (also known as body cavity
searches).(131) In general, the greater the level of
intrusiveness the greater the amount of protection afforded the
person who is to be searched.
An 'ordinary search' is defined in the Crimes
Act as a search of a person or items in their possession which may
include requiring the person to remove outer garments and then
examining those garments.(132)
A 'frisk search' is defined in the Crimes Act as
a search of the person that involves running hands over the
person's outer garments and examining anything worn or carried by
the person that is easily and voluntarily removed by that
A 'strip search' is defined in the Crimes Act as
a search of a person or items in their possession which may include
requiring the person to remove all or some of their clothing and
examining the person's body (but not body cavities) and
garments.(134) The expression 'external search' is used
in the Customs Act 1901 instead of the expression 'strip
search' for a search of the body of, or anything worn or possessed
by a person.(135)
An 'internal search' is defined in the Customs
Act as 'an examination (including an internal examination) of the
person's body to determine whether the person is internally
concealing a substance or thing, and includes the recovery of any
substance or thing suspected on reasonable grounds to be so
The ultimate object of criminal law is to
protect the community from crime. But there are many other relevant
considerations. Community protection is a primary consideration in
sentencing,(137) but it will be weighed against the
personal characteristics and circumstances of the offence and the
offender.(138) The common law does not sanction
arbitrary detention. It requires proportionality between the period
of detention and the gravity of the crime.(139) Neither
does it sanction preventative detention. It does not accept
excessive periods of detention for the sole purpose of protecting
the community from repeat offenders.(140) Indeed,
imprisonment is generally considered a sentence of last
resort(141) and a court will generally strive to impose
the minimum sentence necessary to protect the
The common law principles are underscored by a
number of international instruments. For example, the
International Covenant on Civil and Political Rights
(ICCPR)(143) prohibits arbitrary
detention(144) and require that sentences must be
reviewable by appellate courts.(145)
It has been argued that mandatory detention laws
offend the separation of powers. The argument is that by
prescribing sentences, parliament is interfering with the judicial
discretion and thereby undermining the independence and integrity
of the judiciary. The separation of powers doctrine is not
enshrined in State and Territory constitutions and, while there has
been some recent speculation, has no real application to State
courts.(146) However, the argument has been raised in
relation to the Northern Territory Supreme Court on the basis that
it operates under some constitutional
peculiarities.(147) To date, the High Court refused to
hear the argument(148) and its strength has recently
been undermined in Re The Governor, Goulburn Correctional
Centre; Ex parte Eastman .(149)
- Section 229.
- Section 232A.
- Section 233A. Also sections 22, 23 and 234.
- Section 334.
- Section 335.
- Migration Act 1958, subsection 245B(2); Customs
Act 1901, subsection 184A(2). If the request is made by the
commander of a customs vessel, the request 'may be made for the
purposes of an Act prescribed by the regulations consistently with
[the 1982 United Nations Convention on the Law of the
Sea]': subsection 184A(2). The Fisheries Management Act
1991 is prescribed for the purpose of this provision. It is
prescribed under reg. 167 the Customs Regulations 1926, which was
inserted by item 1 of the Customs Amendment Regulations 1999 (No.
5), No. 323 of 1999, of 15 December 1999.
- Migration Act 1958, subsection 245B(4), Customs
Act 1901, subsection 184A(4). Again, the request 'may be made
for the purposes of an Act prescribed by the regulations
consistently with [the 1982 United Nations Convention on the
Law of the Sea]'.
- Migration Act 1958, section 245B(5); Customs Act
1901, section 184A(5).
- Migration Act 1958, section 245B(6); Customs Act
1901, section 184A(8).
- Migration Act, proposed s 245B(7); Customs Act 1901,
- That is, ships which the master reasonably suspects 'is, will
be or has been involved in a contravention, or an attempted
contravention, in Australia's exclusive economic zone of an Act
prescribed by the regulations consistently with UNCLOS':
Customs Act 1901, subsection 184A(6).
- Migration Act 1958, subsection 245C(1), Customs
Act 1901, subsection 184B(1).
- Migration Act 1958, subsection 245C(6); Customs
Act 1901, subsection 184B(6).
- Migration Act 1958, paragraph 245F(3)(f); Customs
Act 1901, paragraph 185(2)(d). Again, the request 'may be made
for the purposes of an Act prescribed by the regulations
consistently with [the 1982 United Nations Convention on the
Law of the Sea]'.
- Migration Act 1958, subsection 245F(4); Customs
Act 1901, subsection 185(2A).
- Migration Act 1958, paragraph 245F(8)(c); Customs
Act 1901, subsection 185(3).
- Migration Act 1958, subsection 245F(9); Customs
Act 1901, subsection 185(3A).
- Migration Act 1958, subsection 245G(4); Customs
Act 1901, subsection 185A(4).
- Migration Act 1958, subsection 245G(6); Customs
Act 1901, subsection 185A(6).
- Migration Act 1958, subsection 245F(18); Customs
Act 1901, subsection 185(5).
- Section 252 of the Migration Act 1958 permits searches
of a person's clothing and possessions where they have been
detained aboard a detained vessel within the territorial sea. Such
searches may only be done for the purposes of finding out whether
s/he has a weapon or a document or thing that may be evidence for
grounds for cancelling the person's visa. Section 219L of the
Customs Act 1901 permits frisk searches of persons who
have been detained aboard a detained vessel within the territorial
sea where an officer reasonably suspects that the person is
carrying prohibited goods or weapons: subsections 219L(1A) and
- Proposed subsection 4(1).
- Proposed subsection 4(3).
- Proposed section 5.
- Proposed subsection 4(2).
- Proposed section 8.
- Proposed section 7.
- Proposed section 10.
- Proposed section 9.
- Robert McClelland, MP, 'Government Declares Own Bill
Unconstitutional', Press Release, 31 August 2001.
- Robert McClelland, MP, 'Ministers Wrong on Border Protection
Bill', Press Release, 2 September 2001; Robert McClelland,
MP, 'Border Protection Bill Would Not Have Stopped Court Action',
Press Release, 4 September 2001; Kim Beazley, MP,
Transcript of Doorstop Interview, South Perth, 4 September
- Kim Beazley, MP, Transcript of Doorstop Interview,
Parliament House, 30 August 2001.
- Kim Beazley, MP, Transcript of Doorstop Interview,
Parliament House, 30 August 2001.
- Victorian Council for Civil Liberties Incorporated v the
Minister for Immigration and Multicultural Affairs  FCA
1297, para 50.
- John Howard, MP, Transcript of Doorstop Interview, Sydney
Airport, 8 September 2001.
-  FCA 1329.
- VCCL v MIMA, per North J, at para. 63.
- VCCL v MIMA, per North J, at para. 83.
- The key finding was contained in the body of the judgment and
repeated in the covering statement: 'In my view the evidence of the
respondents' actions in the week following 26 August demonstrate
that they were committed to retaining control of the fate of the
rescuees in all respects. The respondents directed where the MV
Tampa was allowed to go and not to go. They procured the closing of
the harbour so that the rescuees would be isolated. They did not
allow communication with the rescuees. They did not consult with
them about the arrangements being made for their physical
relocation or future plans. After the arrangements were made the
fact was announced to them, apparently not in their native
language, but no effort was made to determine whether the rescuees
desired to accept the arrangements. The respondents took to
themselves the complete control over the bodies and destinies of
the rescuees. The extent of the control is underscored by the fact
that when the arrangements were made with Nauru, there had been no
decision as to who was to process the asylum applications there or
under what legal regime they were to be processed. Where complete
control over people and their destiny is exercised by others it
cannot be said that the opportunity offered by those others is a
reasonable escape from the custody in which they were held. The
custody simply continues in the form chosen by those detaining the
people restrained': VCCL v MIMA, per North J, at para. 81.
- VCCL v MIMA, per North J, at para. 161.
- Ruddock v Vadarlis, per French J, at para. 213.
- Ruddock v Vadarlis, per French J, at para. 212.
- VCCL v MIMA, per North J, at para. 117.
- VCCL v MIMA. North J referred to a statement by Barton
J in Robetelmes v Brenan (1906) 4 CLR 395 that '[t]he
question today is one of statutory authority' (at p. 415); a
similar statement by Davies J in Mayer v Minister for
Immigration and Ethnic Affairs (1984) 4 FCR 312; and by a
statement in Harry Street and Rodney Brazier, de Smith
Constitutional and Amdinistrative Law, 5th Edition,
Penguin 1985 that '[w]hether the exclusion or expulsion of friendly
aliens was permissible under the prerogative is doubtful' (at pp.
- VCCL v MIMA, per North J, at para. 122. . The basic
rule is that 'where a statute, expressly or by necessary
implication, purports to regulate wholly the area of a particular
prerogative power or right, such power or right is, as to its
exercise, governed by the provisions of the statute, which are to
prevail in that respect' John Goldring, 'The Impact of Statutes on
the Royal Prerogative; Australasian Attitudes as to the Rule in
Attorney General v De Keyser's Royal Hotel Ltd', Australian Law
Journal, Vol 48, p. 434 at p. 437. See also Attorney
General v De Keyser's Royal Hotel Ltd  AC 508;
Barton v Commonwealth (1974) 131 CLR 477.
- Ruddock v Vadarlis, per French J, at para. 193.
- Barton v The Commonwealth (1974) 131 CLR 477, per
Mason J, at p 498.
- Ruddock v Vadarlis, per French J, at para. 193.
- Ruddock v Vadarlis, per French J, at para. 194.
- Ruddock v Vadarlis, per Beaumont J, at para. 101.
- Ruddock v Vadarlis, per Beaumont J, at para. 107.
- Ruddock v Vadarlis, per Beaumont J, at para. 104.
- His Honour said: 'in order to persuade a court to grant any
form of discretionary relief, the occupants would need to confront
the principle, as Lord Scarman has explained, that it is wrong that
a person should rely on his or her own unlawful act (here, in
practically compelling MV Tampa to divert from Indonesia to
Christmas Island) to secure an advantage which could not have been
obtained if the person had acted lawfully (see Shah and
Akbarali v Brent London Borough Council  2 AC 309 at
344)': Ruddock v Vadarlis, at para. 107.
- John Anderson, MP, 'Anderson defends the Tampa case',
Transcript of Interview, 7.30 Report, 11/09/01 at http://www.abc.net.au/7.30/s363818.htm.
- Robert McClelland MP, 'Tampa Decision: Government Needs Lawful
Basis For Holding Of Tampa Asylum Seekers', Media Release,
- 'I think George [Williams] and I make a principle of never
agreeing on anything, but we certainly agree on this. It just
doesn't seem that the Border Protection Act anticipated this
particular problem. Whatever else it legalised, it didn't legalise
detention, and therefore, going back to it on its own terms is not
going to solve that particular problem' Professor Greg Craven,
Transcript of Interview, Lateline, 11/09/01.
- Proposed subsection 4(2) of
the Border Protection Bill 2001 provided that '[a] direction ...
must not be called into question, or challenged, in any proceedings
in any court in Australia'.
- Proposed section 10 Border
Protection Bill 2001 provided that '[t]his Act has effect in spite
of any other law'.
- Proposed section 9 provides
that nothing in Part 2 'is intended to affect the jurisdiction of
the High Court under section 75 of the Constitution'.
- Peverill v Health Insurance Commission (1991) 104 ALR
- Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495.
- That is, 'for the purposes of [the Migration Act 1958
or Customs Act 1901]': Migration Act 1958,
subsection 245B(2); Customs Act 1901, subsection 184A(2).
- That is, in order to identify the ship or if the commander
reasonably suspects that it 'is, will be or has been involved in a
contravention, or an attempted contravention, in Australia of [the
Migration Act 1958 or Customs Act 1901]':
Migration Act 1958, subsection 245B(4), Customs Act
1901, subsection 184A(4).
- If the commander reasonably suspects 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 1958 or
Customs Act 1901]' (Migration Act 1958, section
245B(5); Customs Act 1901, section 184A(5)), if it is
registered with a country that has an arrangement with Australia
(Migration Act 1958, section 245B(6); Customs Act
1901, section 184A(8)) or if it seems to be unregistered or
flying the flags of two countries (a 'ship without nationality')
(Migration Act 1958, proposed s 245B(7); Customs Act
1901, section 184A(9)).
- 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
- Jean-Pierre Fonteyne, 'Australia's obligations quite clear ',
The Canberra Times, 31/08/01.
- See paragraph 6 of the agreement contained in Ruddock v
Vadarlis, per French J at para. 145.
- His Honour said that the finding as to the power to exclude
'does not involve any conclusion about whether the Executive would
in the absence of statutory authority have a power to expel
non-citizens other than as an incident of the power to exclude':
Ruddock v Vadarlis, at para. 193.
- 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.
- '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.
- '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.
- 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.
- Section 273 (8 USC 1323).
- Section 274 (8 USC 1324). The offence of aiding and abetting
was inserted by the Illegal Immigration Reform and Immigration
- Section 274C (8 USC 1324c). Increased penalties were inserted
by the Illegal Immigration Reform and Immigration Responsibility
- Section 202 (18 USC 1961(1)).
- Sections 212(f) and 215(a)(1) of the Immigration and
Nationality Act 1952 (8 U.S.C. 1182(f) and 1185(a)(1)) give
the President authority, if s/he thinks it is in the national
interest, to prescribe conditions or limitations or exceptions on
the entry of aliens into the United States. The United States Code
can be searched at: http://www4.law.cornell.edu/uscode/.
- Executive Order 12324, section 2(b).
- Executive Order 12807, section 2(b).
- Presidential Decision Directive 9, June 18, 1993, op cit. The
practice under these directions has been to interdict 'people
smuggling' vessels at sea and process illegal immigrants outside
the United States in places such as Guam or the island of Tinian in
the Commonwealth of the Northern Mariana Islands: 'Statement of Bo
Cooper, Acting General Counsel Immigration and Naturalization
Service Department of Justice before the House Subcommittee on
Immigration and Claims Committee on the Judiciary, on a hearing
regarding Hr 1745, Hr 238 and Hr 945, Tuesday, May 18, 1999 at
- Source: United States Coast Guard Office of Law Enforcement,
'Various Statistics', at http://www.uscg.mil/hq/g-o/g-opl/mle/amiostats1.htm#cy
- Illegal Immigration Reform and Immigrant Responsibility
Act of 1996: http://www4.law.cornell.edu/uscode/8/1225.text.html
- Although there is provision for review on application by an
immigration judge within 7 days.
- For the purposes of the Immigration and Nationality
- There are also provisions the Crimes Act for forensic
- Section 3C.
- Section 3C.
- Section 3C.
- While the relevant provisions in the Customs Act do not refer
to a person being required to remove some or all of their clothing,
the power to conduct an external search is said to be equivalent to
a power to strip search.
- Section 4.
- See generally Halsbury's Laws of Australia, 'Title 130
- Criminal Law' [130-17000].
- Lowe v R (1984) 154 CLR 606 at 612.
- Veen v R (1979) 143 CLR 458; Veen v R (No 2)
(1988) 164 CLR 465; Hoare v R (1989) 167 CLR 348.
- Veen v R at 468 per Mason J, at 482-3 per Jacobs J;
Veen v R (No 2) at 473; Chester v R (1988) 165
CLR 611, at 618.
- See generally Halsbury's Laws of Australia, 'Title 130
- Criminal Law' [130-17050].
- ibid., [130-17000].
- The ICCPR was adopted by the UN General Assembly in 1966 and
came into operation in 1976. Australia signed it on 18 December
1972 and ratified it on 13 August 1980. Australia signed the First
Optional Protocol on 25 September 1991. The First Optional Protocol
came into effect on 1 December 1991.
- ICCPR, Article 9(1).
- ICCPR, Article 14(5).
- The issue of separation of powers and the need for public
confidence in the independence of State courts was discussed in
Kable v DPP (NSW) (1996) 189 CLR 51. See also Peter
Johnson and Hardcastle, 'State Courts: The Limits of Kable', 1998,
Sydney Law Review 214.
- The argument suggests that the doctrine is either implicit in
the Self Government Act or that judicial power in the
Northern Territory is exercised subject to the Commonwealth
Constitution: See Wynbyne v Marshall (1997) 117
NTR 11 and the discussion in Martin Flynn, 'Fixing a sentence: Are
there any constitutional limits?', University of New South
Wales Law Journal, 22(1), 1999, pp 280-285, at p 283.
- See the transcript of Wynbyne v Marshall D174/1997
13 September, 1999.
-  HCA 44, 2 September, 1999.
20 September 2001
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