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Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
(a)
to give legal force (so far as it depends on the legislative power of the
State) to a cooperative scheme to apply the criminal law of the States
extraterritorially in the area adjacent to the coast of Australia. and
( b )
to repeal the Crimes (Offences at Sea) Act 1980.
It is anticipated that the Commonwealth and States will enact legislation
containing a Schedule that is identical in all substantial respects that
constitutes the scheme for the extraterritorial application of State criminal
laws in the area surrounding Australia ("the adjacent area"). The adjacent
area extends 200 nautical miles from the baseline of the State or to the outer
limit of the continental shelf (whichever is the greater distance).
The criminal law of the State is to apply of its own force to a distance of 12
nautical miles from the baseline of the State. Beyond 12 nautical miles. the
criminal law of the State is applied with the force of a Commonwealth law.
The boundaries and baselines of the States and the boundaries to the adjacent
areas are described in Part 6 of Schedule 1 to the Bill. The scheme does not
apply to State and Commonwealth laws excluded by regulation from the
ambit of the scheme. This is to cater for presently operating schemes relating
to subjects such as fisheries.
Responsibility for the administration and enforcement of the law relating to
crimes at sea is to be set out in an intergovernmental agreement. The
agreement will also empower State authorities to perform functions and
exercise powers in the investigation of offences as provided for in the
legislation. This is provided for in the preamble and Part 3 of Schedule 1.
It is anticipated that the intergovernmental agreement will be entered into
once the legislation is enacted in all jurisdictions. Clause 5 requires the
Minister administering the proposed Act to have the intergovernmental
agreement published in the Gazette.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 defines certain words and expressions used in the proposed Act.
Clause 4 ratifies the scheme set out in the Schedule to the proposed Act.
Clause 5 states that the intergovernmental agreement (and any amendments)
must be published in the Gazette.
Clause 6 provides for the making of regulations for carrying out. or giving
effect to. the Act.
Clause 7 repeals the Crimes (Offences at Sea) Act 1980.
Clause 8 is a transitional provision.
Clause 9 is a formal provision giving effect to the amendments to the Acts
set out in Schedule 2.
Schedule 1
The Cooperative Scheme
The details of the cooperative scheme are set out in Schedule 1.
Part 1 of Schedule 1 defines various terms used in the cooperative scheme.
Explanatory note page 2
Part 2 of Schedule 1 provides for the application of the substantive criminal
laws of the State in the adjacent area (defined in Part 6). The laws of criminal
investigation, procedure and evidence will apply as follows:
(a)
the law of the Commonwealth applies to investigations, procedures
and acts (other than judicial proceedings) by authorities of the
Commonwealth,
(b)
the law of a State applies to investigations. procedures and acts (other
than judicial proceedings) by authorities of the State operating within
the area of administrative responsibility for the relevant State,
(c)
in a Commonwealth judicial proceeding the law of the Commonwealth
applies and in a State judicial proceeding the law of the State in which
the proceeding was commenced applies (subject to the Commonwealth
Constitution).
This Part also provides an evidentiary presumption in relation to the location
of an offence (ie. whether it occurred in the adjacent area. inner adjacent area.
or outer adjacent area for a particular State).
Part 3 of Schedule 1 deals with the intergovernmental agreement. Basically
this provides for the making of an agreement providing for the division of
responsibility for administering and enforcing the law relating to maritime
offences. A charge of a maritime offence must not be brought in a court
contrary to the intergovernmental agreement. If a charge is brought in
contravention of the agreement. the court will, on application by the
Commonwealth Attorney-General or participating
State Minister.
permanently stay the proceedings. The court is not, however, obliged to
enquire into compliance with the agreement and non-compliance does not
affect its jurisdiction.
Part 3 of Schedule
( a ) outlines circumstances (involving foreign ships) in which the written
consent of the Commonwealth Attorney-General is required before the
prosecution of a maritime offence, and
(b) provides that the scheme does not exclude the extra-territorial
operation of State law to the extent that such a law is capable of
operating extra-territorially consistently with the scheme, and
( c ) provides that the regulations may exclude State and Commonwealth
laws from the scheme, and
( d ) provides that the scheme does not apply to the Australia-Indonesia
Zone of Cooperation (which is defined under Commonwealth law).
Explanatory note page 3
Part 5 of Schedule 1 provides that the Acts Interpretation Act 1901 of the
Commonwealth applies to the scheme and provides for the making of
regulations for the purpose of the scheme.
Part 6 of Schedule 1 defines the adjacent areas.
Schedule 2 makes consequential amendments.
Explanatory note page 4