Bills Digest No. 37 2003-04
Crimes (Overseas) Amendment
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
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Contact Officer & Copyright Details
(Overseas) Amendment Bill 2003
11 September 2003
House: House of Representatives
Formal provisions commence
on Royal Assent. The substantive provisions have a retrospective
commencement date 1 July 2003.
To amend the Crimes (Overseas) Act
1964 to make certain Australians working in foreign countries
subject to Australian criminal law rather than local law for
offences committed in those foreign countries.
To place the amendments proposed by this Bill
in context, this section of the Digest will look at the background
to the Crimes (Overseas) Act 1964, proposals for amendment
made in 1999 by the Joint Standing Committee on Foreign Affairs,
Defence and Trade, and a recent Ministerial news release
foreshadowing changes to the Act.
The Crimes (Overseas) Act was enacted
following Australia s commitment of police to serve in a United
Nations Force on Cyprus. In his Second Reading Speech for the
Crimes (Overseas) Bill 1964, Attorney-General Snedden remarked:
Honourable members will recall that earlier this
year the Commonwealth Government was asked by the United Nations to
furnish some forty policemen for service with the United Nations
Force [in Cyprus]. The Commonwealth and the States have co-operated
in meeting the request of the United Nations.
Under the agreement concluded with the United
Nations, the Republic of Cyprus has made very substantial
concessions in favour of countries that have contributed personnel
to the United Nations Force. The concessions so made, indeed, take
away entirely the right of the Cyprus courts to exercise
jurisdiction in respect of offences committed by members of that
Force. At the same time, all countries contributing personnel have
an obligation, pursuant to their status of forces agreement, to see
to it that their own laws apply, and that the jurisdiction of their
courts is available, in relation to any offences that might be
committed by their personnel. At the moment there is, so to speak,
a legal vacuum insofar as members of the Australian Police Unit are
concerned. They are not subject to the jurisdiction of the Cyprus
courts, and yet, as matters stand, the laws in force in Australia
with respect generally to the commission of offences do not apply
to them. The Bill now before the House is designed to fill that
The wording of the Crimes (Overseas) Act was
designed to be broad enough to cover the deployment of Australian
police to Cyprus and to cover future overseas deployments of
Australian civilians (including police officers) as part of United
Nations peacekeeping forces. It also contains arrest, trial and
evidence provisions. For example, it provides that a Commonwealth
officer may arrest a person outside Australia without a warrant if
he or she believes on reasonable grounds that the person has
committed or is committing an offence against the Act(2)
so that the person can be returned to Australia for trial.
The Crimes (Overseas) Act operates only when
there is an immunity arrangement in place involving the United
Nations and the government of a foreign country.(3) The
jurisdictional gaps that can arise were the subject of comment in a
1999 report by the Joint Standing Committee on Foreign Affairs,
Defence and Trade.
In 1999, the Joint Standing Committee on
Foreign Affairs, Defence and Trade (JSC) presented its report on
Bougainville. Under an agreement signed in 1998, Papua New Guinea
invited a number of countries including Australia, Fiji, New
Zealand and Vanuatu to participate in a Peace Monitoring Group
(PMG) on Bougainville. The Australian contingent included civilians
and Australian Defence Force (ADF) personnel.
Article 10 of the Agreement between Papua
New Guinea, Australia, Fiji, New Zealand and Vanuatu Concerning the
Neutral Truce Monitoring Group for
Bougainville stated that members of the PMG were immune from
PNG laws and subject to the laws of their Participating State for
any criminal or disciplinary offences that they might commit on
In evidence to the JSC, the Attorney-General s
Department commented that while ADF personnel in Bougainville were
subject to Australian jurisdiction because of the operation of the
Defence Force Discipline Act 1982, Australian civilians
fell outside the reach of both Australian and PNG
law.(4) The Crimes (Overseas) Act did not apply to them
because its operation was limited to situations in which there was
an agreement in place involving the United Nations.
The Attorney-General s Department suggested
that section 3 of the Crimes (Overseas) Act be amended so that it
applied to Australian citizens and residents (other than Defence
Force members) serving overseas under a prescribed arrangement
.(5) It suggested that the expression, prescribed
arrangement be defined to include:
An arrangement made between the Commonwealth and
the United Nations
An arrangement, as specified in Regulations, made
between the Commonwealth and another country;
An arrangement under which the person is serving
as an Australian diplomatic or consular official.(6)
Recommendation 9 of the JSC s report proposed
that the Crimes (Overseas) Act be amended to extend its
jurisdiction to Australian civilians serving overseas in situations
not covered by the agreement of the United Nations .(7)
Additionally, the JSC adopted the suggestion made by the
Attorney-General s Department quoted above as recommendation 10 of
The Government s response to the JSC report
was tabled in November 2000. In relation to recommendation 9 it
Accepted. The Government recognises that there is
an omission in Australian criminal jurisdiction regarding
Australian persons serving overseas in circumstances where they are
exempt from local jurisdiction, and will examine possible
amendments to the Crimes (Overseas) Act.(9)
The Government s response also noted
recommendation 10 and stated that it would examine proposed
The subject of the Crimes (Overseas) Act
re-surfaced on 26 June 2003, when the Attorney-General, the
Minister for Foreign Affairs and the Minister for Justice and
Customs issued a media release in which they said:
The Howard Government is always keenly concerned
to ensure that all Australians deployed overseas to places like
Iraq have the best protections the Government can offer.
In the current security environment, when
Australia is doing so much on the world stage, we want to ensure
that our people have the maximum protection available.
In some cases, this involves the negotiation of
immunity from the jurisdiction of the local courts in the country
Where the Government has negotiated such
immunities, it is important that it has the ability to prosecute in
Australian courts any crimes which may have been committed by
personnel deployed overseas by the Australian Government. This
ensures that there is no jurisdictional gap.
Were Australia unable to exercise its own
jurisdiction in these cases, particularly in the case of serious
crimes, Australia would face pressure to waive immunity, and allow
the overseas local court to prosecute these crimes.
This is an important amendment which will ensure
that Australians deployed overseas by the Australian Government can
in future be covered by the extraterritorial application of
Australia's domestic criminal jurisdiction.
In relation to Iraq, the Act will be stated to
operate from 1 July 2003.(11)
Australian civilians are involved in a number
of overseas deployments at present.(12) The joint
Ministerial news release and the Second Reading Speech identified
Iraq as one site of such deployments. The Solomon Islands, where
Australian police are part of a multinational force to restore law
and order, is another site. The first AFP contingent left for the
Solomon Islands on 24 July 2003.(13) Australian
Protective Service Officers have also been deployed to the Solomon
Islands. In respect of Iraq and the Solomon Islands, it is proposed
that regulations will be made with retrospective operation from 1
July 2003 to ensure that Australian civilians deployed there will
be protected by the extension of Australian criminal jurisdiction
over offences committed [since that date] .(14)
As amended, the Crimes (Overseas) Act will
apply, in specified circumstances, to Australians in foreign
The term, Australians , is defined to mean
Australian citizens and non-citizens who are able to remain in
Australia indefinitely under the Migration Act 1958
The term, foreign country , is defined to exclude
Australia and Australia s external territories and to include a
foreign country s territory, maritime areas and air space
For technical and other reasons, existing
section 4 of the Crimes (Overseas) Act provides that if a person s
conduct in a foreign country would be an offence under Jervis Bay
Territory law and the person is covered by an immunity arrangement
between the United Nations and the foreign country, then the person
can be dealt with under Jervis Bay Territory law.
Section 4 is repealed by item
16 and new categories of exemption from the operation of
foreign laws are provided in new section 3A.
New section 3A also makes anyone covered by the
exemptions liable to prosecution under Australian law.
The first category of persons to whom the
legislation applies are Australians who are immune from criminal
proceedings in a foreign country because of diplomatic or consular
immunity or because they enjoy immunity as a result of their
relationship with an international organisation [new
There are some exceptions to this general rule
in order to provide protection against double jeopardy. Thus, a
person will not be subject to prosecution in an Australian court
under the amendments if:
- criminal proceedings against that person are already underway
in the foreign country or the person will become subject to
criminal proceedings in the future in the foreign country because
their immunity is of limited duration, and
- the person could be prosecuted in the foreign country even if
he or she had already been prosecuted under Australian criminal law
[new subsection 3A(2)].
The legislation will apply to an act falling
within Category 1 if the act occurs after the date of Royal Assent
The second category of Australians to whom the
legislation will apply are Australian civilians working in a
foreign country under a relevant agreement or arrangement
(16) and who have immunity from criminal proceedings in
that foreign country as a result of agreements or arrangements
- Australia and the United Nations
- Australia and another country, or
- the United Nations and the foreign country
[new subsection 3A(3) and item
The legislation will apply to acts committed by
Australians who fall within Category 2 if the act occurs after the
date of Royal Assent [sub-item 25(2)]. The
legislation will not apply where a person commits an act outside
the immunity that has been granted under the agreement or
arrangement [new subsection 3A(3)].
The third category of Australians to which the
legislation will apply are Australians who are working in a foreign
country under a declared agreement or arrangement
[new subsection 3A(4)]. An
agreement or arrangement becomes a declared agreement or
arrangement if it:
- operates between Australia and the United Nations or between
Australia and another country,(17) and
- is prescribed by regulations made under new section
Unlike relevant agreements or arrangements ,
declared agreements or arrangements do not involve a grant of
immunity by the foreign country or the United Nations. However, as
a result of being declared agreements or arrangements , Australian
criminal jurisdiction will apply extraterritorially to Australians
working under those agreements or arrangements.
Before regulations are made under new
section 3B, the Attorney-General must have consulted the
Minister for Foreign Affairs and be satisfied that it would be
appropriate to make the regulations having regard to a number of
factors such as the nature of activities that will be engaged in by
Australians, the duration of those activities, the number of
Australians likely to be affected and whether local criminal laws
would otherwise apply to Australians [new subsection
The following examples are provided by the
Explanatory Memorandum of how subsection 3A(4) might apply:
This subsection may apply where the Commonwealth
has deployed Australians overseas, but where no immunity has been
granted by the receiving country. In such a situation, Australia
may have arranged that if Australia can exercise jurisdiction over
an Australian working under that agreement or arrangement,
Australian jurisdiction will take priority over local jurisdiction.
The subsection may also be used to extend jurisdiction over Air
Security Officers, as Air Security Officer agreements generally
require Australia to have the capacity to exercise jurisdiction
over Air Security Officers while in foreign
The fourth category of Australians to whom the
legislation applies are Australians working in a declared foreign
country or in a declared part of a foreign country on behalf of the
Commonwealth or as a result of Commonwealth commitments or
directions [new subsections 3A(5) and (6)].
There is no requirement that:
- any arrangement or agreement is in place for example, between
Australia and the United Nations
- any immunity has been extended to Australians by the foreign
A country becomes a declared foreign country and
a part of a foreign country becomes a declared part of a foreign
country once it is prescribed by regulation [new
subsections 3C(1) & (2)].
The Attorney-General must consult the Minister
for Foreign Affairs before regulations are made and must be
satisfied that it would be appropriate to make the regulations,
having regard to the same criteria as are set out when regulations
are made for declared agreements or arrangements [new
subsection 3C(4)]. Regulations identifying a country or
part of a country as a declared foreign country or a declared part
of a foreign country must have a start date and a finishing date
[new subsection 3C(3)].
Regulations made under new section
3C can be backdated to 1 July 2003, so long as they are
made within 3 months from the date that the legislation receives
Royal Assent [new subsection 3C(5)].
In relation to categories 2-4 described above,
the legislation applies irrespective of whether the person s acts
are committed while they are off duty or on duty beginning when
they arrive in the foreign country(19) and ending when
they leave the foreign country(20) [new
subsections 3A(7)-(9)]. The Notes to new
subsection 3A(8) give the following example:
If an Australian is sent to the foreign country to
undertake a particular project during a period, this Act applies
not only to acts done while the Australian is actively engaged in
carrying out the project but also to acts done during that period
while the Australian is off duty .
The legislation will not apply to members of
the ADF. Nor will it apply to members of ASIS or DSD (if the act or
omission occurs in the proper performance of their duty)
[new subsection 3A(10)].
Members of the Australian Defence Force are
subject to the Defence Force Discipline Act 1982, which
has extraterritorial operation.
Members of ASIS and DSD are immune from
criminal or civil liability under Australian law for acts done
outside Australia in the proper performance of their agency s
If a person s acts or omissions would have
contravened the criminal laws of the Jervis Bay Territory (had
their conduct occurred there instead of in the foreign country),
then the criminal laws of Jervis Bay Territory will apply to them.
This expression is defined to include offences, principles of
criminal responsibility, defences and principles of statutory
interpretation as set down in statutes or by the common law
[new section 3].
As a general matter, laws in force in the
Jervis Bay Territory include Commonwealth laws, ACT laws such as
the Crimes Act 1900 (ACT) and Ordinances made by the
Other Commonwealth Acts that adopt criminal
laws of the Jervis Bay Territory include the Defence Force
Discipline Act 1982(23) and the Crimes at Sea
Prosecutions can only be commenced with the
consent of the Attorney-General following consultations with the
Minister for Foreign Affairs (new section 4).
At present, section 8 of the Crimes (Overseas)
Act provides that the Attorney-General can issue a certificate that
the Act applies to a specified person. Such a certificate is
evidence of what it contains.
Section 8 is repealed and replaced
(item 24). As a result, the Attorney-General will
be empowered to authorise the Secretary of the Attorney-General s
Department or an SES officer or acting SES officer in that
Department to issue certificates. A certificate can certify to any
matter relevant to determining whether a person is a person to whom
the Act applies. A certificate is prima facie evidence of what it
states and, unless the contrary is proved, is taken to have been
New section 8 will also
contain procedural requirements. For instance, a certificate cannot
be used in criminal proceedings unless the defendant or their legal
representative has been given a copy. Further, if the certificate
is admitted as evidence, the issuer of the certificate can be
called by the defendant as a witness for the prosecution and
cross-examined by the defendant.
The Bill does three quite distinct things.
First, it plugs jurisdictional gaps that may be created when
certain Australian civilians working overseas are given immunity
because of their diplomatic status or an arrangement with the
United Nations or another country which may place them beyond the
reach of any criminal law if they commit offences overseas. It
plugs those jurisdictional gaps by giving Australian criminal law
an extraterritorial operation.
Second, it covers the situation where there is
an agreement between the United Nations and Australia or between
Australia and a foreign country that does not incorporate an
immunity arrangement [see new subsection 3A(4) and new
section 3B].(25) An example given by the
Explanatory Memorandum is where there is an arrangement with a
foreign country that gives priority to Australian criminal laws,
necessitating Australian criminal law being given extraterritorial
effect in order to avoid exposure of Australian civilian personnel
to prosecution in local courts.
Third, it operates, in relation to a declared
foreign country where Australia applies Australian law to certain
Australian civilians working in that country even though there may
be no agreement or arrangement in place [see new
subsections 3A(5) and (6) and new section
3C].(26) This category, in particular, appears
designed to ensure that Australians are not vulnerable to
prosecution by criminal justice systems that fall short of
Australian standards. (27)
The exercise of criminal jurisdiction has
traditionally been based on the principle of territoriality a
notion reinforced by the (rebuttable) presumption against
extraterritoriality and the idea of national
sovereignty.(28) This is not to say that extended forms
of criminal jurisdiction for instance, based on the nationality of
the offender do not exist.
The Commonwealth Criminal Code allows for
extended geographical jurisdiction. Issues surrounding the
extension of Australian criminal jurisdiction led the
Attorney-General to say, when introducing the relevant amendments
to the Criminal Code, that:
Naturally, it is intended that extended forms of
jurisdiction will only be applied where there is justification for
this, having regard to considerations of international law, comity
In considering the amendments relating to
'declared foreign countries', Members and Senators may be
interested to note that where Commonwealth criminal law has
previously extended extraterritorially it has generally done so in
relation to crimes that are recognised as having 'universal
jurisdiction' and crimes involving human rights
violations.(30) The 'declared foreign country'
amendments extend much more generally than this and involve an
assertion of Australian jurisdiction without, necessarily, the
consent of the foreign country or the agreement of the United
A number of questions might arise about the
declared foreign country amendments, including:
- how the amendments will work in practice if the foreign country
has not consented to the assertion of Australian jurisdiction,
- whether the matters that need to be taken into account by the
Minister before regulations are made under new section
3C should be different to those that are taken into
account when regulations are made under new section
3B. In the latter case, there must be an arrangement of
some sort in place with either the United Nations or the foreign
country. In contrast, a regulation made under new section
3C may involve a unilateral decision by Australia to
assert its criminal jurisdiction extraterritorially.
- the retrospective operation of regulations (to 1 July 2003)
provided for in new subsection 3C(5), and
- whether double jeopardy protections need to be included to
protect Australians who may have been convicted or acquitted of
offences in a declared foreign country or declared part of a
foreign country so that they cannot be prosecuted under Australian
criminal law for offences arising from the same
House of Representatives, Hansard, 29 October 1964, pp.
Section 6, Crimes (Overseas) Act.
See, in particular, the definition of person to whom this Act
applies in section 3 and paragraph 4(b), Crimes (Overseas) Act.
See Joint Standing Committee on Foreign Affairs, Defence and
Bougainville: The Peace Process and Beyond, 1999, p.
Ibid, p. 114.
Ibid, recommendation 9.
Ibid, p. 115.
Government Response to the Joint Committee on Foreign Affairs,
Defence and Trade Report, Bougainville: The Peace Process and
Beyond , November 2000, p. 4.
Ibid, pp. 4 5.
Joint News Release, Protecting Australian personnel
deployed overseas , 26 June 2003.
House of Representatives, Hansard, Second Reading
Speech, Crimes (Overseas) Amendment Bill 2003 , 11 September 2003,
Australian Federal Police, Media Release, AFP to lead a
law enforcement operation to the Solomons , 22 July 2003.
In contrast, the Principal Act referred to Australian citizens
and to non-citizens ordinarily resident in Australia. Its
definitions of non-citizen and person to whom this Act applies are
repealed by items 12 and 13.
This expression is defined by item 14 as an
agreement or arrangement between Australia and the United Nations
or between Australia and another country.
See the definition of relevant agreement or arrangement
Explanatory Memorandum, p. 6.
Or part of the foreign country.
Or part of the foreign country.
Section 14, Intelligence Services Act 2001. The
Inspector-General of Intelligence and Security can certify any fact
relevant to the question of whether an act was done in the proper
performance of a function of an agency and that certificate is
prima facie evidence of what it states [subsections 14(2B) &
Such as the Administration Ordinance 1990 and the Leases
Section 61 of the Defence Force Discipline Act 1982
provides that a defence member or defence civilian is guilty of an
offence if he or she commits what would be an offence in the Jervis
Bay Territory, irrespective of whether that offence is committed
inside or outside the Jervis Bay Territory.
Section 6 adopts the criminal laws of the Jervis Bay
See the discussion of Category 3 above.
A wide range of Australian civilians might be covered by
regulations declaring foreign countries or parts of foreign
countries extending from Australians working on behalf of the
Commonwealth to Australians working pursuant to commitments or
directions given by, or on terms determined by, the Commonwealth.
See the discussion of Category 4 .
House of Representatives, Hansard, Second Reading
Speech, Crimes (Overseas) Amendment Bill 2003 , 11 September 2003,
Simon Bronitt & Bernadette McSherry, Principles of
Criminal Law, 2001.
House of Representatives, Hansard, Second Reading
Speech, Criminal Code Amendment (Theft, Fraud, Bribery and Related
Offences) Bill 1999, 24 November 1999, p. 12465.
Bronitt & McSherry, op. cit.
Query whether double jeopardy protections are also needed in
relation to Australians whose conduct is covered by declared
agreements or arrangements . The Bill gives double jeopardy
protections to Australian diplomats and consular officials
[new subsection 3A(2)]. Other Commonwealth laws
with extraterritorial reach that include double jeopardy
protections include the Crimes At Sea Act 2000 (section
6A), the Crimes (Aviation) Act 1991 (section 50) and the
Crimes Act 1914 (section 50AD).
17 September 2003
Bills Digest Service
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