CRIMES (OVERSEAS) ACT 1964 - SECT 3A When this Act applies to a person in relation to an act of the person in a foreign country

CRIMES (OVERSEAS) ACT 1964 - SECT 3A

Australians given diplomatic, consular or similar immunity

  (1)   Subject to subsection   ( 2), this Act applies to a person in relation to an act of the person in a foreign country if:

  (a)   the person is an Australian at the time the act occurs (the relevant time ); and

  (b)   the person is, at the relevant time, not subject to criminal proceedings in the courts of the foreign country in respect of the act because of:

  (i)   an immunity granted by the foreign country in accordance with the Vienna Convention on Diplomatic Relations (a copy of the English text of which is set out in the Schedule to the Diplomatic Privileges and Immunities Act 1967 ); or

  (ii)   an immunity granted by the foreign country in accordance with the Vienna Convention on Consular Relations (a copy of the English text of which is set out in the Schedule to the Consular Privileges and Immunities Act 1972 ); or

  (iii)   an immunity granted by the foreign country because of the person's relationship with an international organisation.

  (2)   This Act does not apply to the person in relation to the act at a particular time after the act occurs if:

  (a)   the person:

  (i)   is, at that time, subject to criminal proceedings in the courts of the foreign country in respect of the act; or

  (ii)   will, at some future time, become subject to criminal proceedings in the courts of the foreign country in respect of the act because of the limited duration of the immunity granted to the person; and

  (b)   the person would continue to be subject to criminal proceedings in the courts of the foreign country in respect of the act even if the person were to be prosecuted under the laws of the Commonwealth in relation to that act and acquitted or convicted.

In determining whether the person would continue to be subject to criminal proceedings in the courts of the foreign country in respect of the act, have regard not only to the laws in force in the foreign country but also to any agreement entered into, or undertaking given, by the foreign country.

Australians undertaking tasks etc. under relevant agreement or arrangement

  (3)   This Act also applies to a person in relation to an act of the person in a foreign country if:

  (a)   the person is an Australian at the time the act occurs (the relevant time ); and

  (b)   the person is, at the relevant time, undertaking a task or project, or performing a function, in the foreign country under a relevant agreement or arrangement; and

  (c)   under, or because of:

  (i)   a relevant agreement or arrangement; or

  (ii)   an agreement or arrangement (whether formal or informal) between the United Nations, or an organ of the United Nations, and the foreign country;

    the person is, at the relevant time, not subject to criminal proceedings in the courts of the foreign country in respect of the act.

  (4)   This Act also applies to a person in relation to an act of the person in a foreign country if:

  (a)   the person is an Australian at the time the act occurs (the relevant time ); and

  (b)   the person is, at the relevant time, undertaking a task or project, or performing a function, in the foreign country under a relevant agreement or arrangement; and

  (c)   the relevant agreement or arrangement is, at the relevant time, a declared agreement or arrangement; and

  (d)   if, at the relevant time, the regulations provide that the relevant agreement or arrangement is a declared agreement or arrangement only in relation to people who fall within a specified category--the person falls within that category at the relevant time.

Australians undertaking tasks etc. in declared foreign country etc.

  (5)   This Act also applies to a person in respect of an act of the person in a foreign country if:

  (a)   the person is an Australian at the time the act occurs (the relevant time ); and

  (b)   the person is, at the relevant time, undertaking a task or project, or performing a function, in the foreign country:

  (i)   on behalf of the Commonwealth; or

  (ii)   pursuant to commitments or directions given by, or on terms determined by, the Commonwealth; and

  (c)   the foreign country is, at the relevant time, a declared foreign country; and

  (d)   if, at the relevant time, the regulations provide that the foreign country is a declared foreign country only in relation to people who fall within a specified category--the person falls within that category at the relevant time.

  (6)   This Act also applies to a person in respect of an act of the person in a part of a foreign country if:

  (a)   the person is an Australian at the time the act occurs (the relevant time ); and

  (b)   the person is, at the relevant time, undertaking a task or project, or performing a function, in that part of the foreign country:

  (i)   on behalf of the Commonwealth; or

  (ii)   pursuant to commitments or directions given by, or on terms determined by, the Commonwealth; and

  (c)   that part of the foreign country is, at the relevant time, a declared part of a foreign country; and

  (d)   if, at the relevant time, the regulations provide that that part of the foreign country is a declared part of a foreign country only in relation to people who fall within a specified category--the person falls within that category at the relevant time.

Acts done while undertaking tasks etc.

  (7)   Subsections   ( 8) and (9) apply if a person undertakes a task or project, or performs a function, in a foreign country (or a part of a foreign country) from time to time during a particular period (the relevant period ).

  (8)   The person is taken, for the purposes of subsections   ( 3) to (6), to be undertaking the task or project, or performing the function, at all times during the relevant period.

Note:   This means that this Act may apply to the person in relation to an act that occurs during the relevant period even if the act does not occur in the course of undertaking the task or project or performing the function.

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".

  (9)   If the person is sent to the foreign country (or that part of the foreign country) to undertake the task or project, or to perform the function, the person is taken, for the purposes of subsections   ( 3) to (6), to be undertaking the task or project, or performing the function, at all times:

  (a)   during the period that:

  (i)   starts when the person arrives in the foreign country (or that part of the foreign country); and

  (ii)   ends when the relevant period starts; and

  (b)   during the period that:

  (i)   starts when the relevant period ends; and

  (ii)   ends when the person leaves the foreign country (or that part of the foreign country).

Defence Force members and ASIS, AGO and ASD staff not covered

  (10)   Despite subsections   ( 1) to (6), this Act does not apply to a person in respect of an act of the person if:

  (a)   the person is a member of the Defence Force at the time the act occurs; or

  (b)   the person is a staff member of ASIS , AGO or ASD at the time the act occurs and the act is done in the proper performance of a function of ASIS , AGO or ASD .

Note:   Section   14 of the Intelligence Services Act 2001 :

(a)   authorises the Inspector - General of Intelligence and Security to give a certificate certifying any fact relevant to the question whether an act was done in the proper performance of a function of ASIS , AGO or ASD ; and

(b)   provides for such a certificate to be prima facie evidence of the facts certified in any proceedings.