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Crimes at Sea
CRIMES AT SEA BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The objective of the legislation is to enact Queensland's component of a
new national scheme of legislation that will simplify the law dealing with
criminal offences committed in the waters surrounding Australia.
Under the proposed scheme, the substantive criminal law of the States
and the Northern Territory will apply out to 200 nautical miles or the outer
limit of the continental shelf, whichever is the greater distance. Within 12
nautical miles, the law of the various States and the Northern Territory will
apply by force of their own law. For the rest of the adjacent area, the law of
the various States and the Northern Territory will apply by force of
Commonwealth law. Generally, the laws of criminal investigation,
procedure and evidence of the Commonwealth and States will apply to
investigations and in judicial proceedings conducted by the police or in the
courts of those jurisdictions. This will permit, for example, South
Australian procedural and evidentiary provisions to apply in proceedings
conducted in a South Australian court for an offence against Western
Australian law. There will be special rules for offences committed beyond
the limit of the adjacent area for Australia, generally 200 nautical miles, or
on or from a foreign ship. The consent of the Commonwealth
Attorney-General is required in relation to such offences. There will also be
an Intergovernmental Agreement between the Commonwealth, the States
and the Northern Territory.
Reasons for the objectives and how they will be achieved
The criminal law applicable to an offence committed at sea is currently
determined by reference to matters that include: the ship's location; its
intended destination; the domicile of the persons on the ship; the citizenship
of the persons on the ship; and other matters. The laws that apply to an
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Crimes at Sea
offence may overlap and the laws of the various States are sometimes
inconsistent. There are also problems with enforcement. The scheme set out
above will simplify the present situation in a straightforward and uniform
way.
The proposed national cooperative scheme was an initiative of the
Standing Committee of Attorneys-General (SCAG). The initial impetus for
the matter being considered by this body was the Australian Law Reform
Commission's 1990 report, Criminal Admiralty Jurisdiction and Prize
(Report No. 48).
It is noted that the subject matter of this legislation, the coastal waters
surrounding Australia, is inherently well suited to the approach of a national
legislative scheme. The Commonwealth, New South Wales, Victoria, South
Australia, Tasmania and Western Australia have all now enacted their parts
of that scheme. The Western Australian and Commonwealth Acts were
passed this year.
Administrative cost to Government of implementation
No significant additional administrative cost to Government is foreseen
as a result of this Bill.
Fundamental legislative principles
The Bill does not breach any fundamental legislative principles.
It is noted that clause 4 in the schedule does contain an evidentiary
presumption as to the locus of an offence, which operates in the absence of
proof to the contrary. Although this would cast an obligation upon an
accused person to prove the contrary, the matter is essentially procedural in
nature, is an approach necessitated by the nature of the subject matter and is
similar to the approach followed in section 16 of the current Crimes at Sea
Act 1979 (Cwlth).
Consultation
Consultation occurred with: the current and, during his term, the former
Director of Public Prosecutions; the Queensland Police Service; the
Department of the Premier and Cabinet; Queensland Treasury; Queensland
Transport; the Department of Primary Industries; the Environmental
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Crimes at Sea
Protection Agency; and the Department of Natural Resources. The
Commonwealth Attorney-General's Department was also consulted.
Crown Law provided comments as well as advice on aspects of the scheme.
It is noted again that the scheme is an initiative of SCAG. The Special
Committee of Solicitors-General and national Parliamentary Counsel's
Committee were also involved in the development of the legislation. The
Australian Police Ministers Council also considered the proposal.
NOTES ON PROVISIONS
Clause 1 sets out the short title of the Act.
Clause 2 states that the Act will commence on a day to be fixed by
proclamation.
Clause 3 defines the terms "cooperative scheme" and
"intergovernmental agreement". The cooperative scheme can be found in
the schedule.
Clause 4 gives the cooperative scheme, contained in the schedule, the
force of law to the extent that the State is able to achieve this. The
Commonwealth, the other States and the Northern Territory will also give
effect to the scheme to the extent that their respective legislative
competencies permit.
Clause 5 classifies offences, other than offences arising under the law of
this State, for the purpose of the cooperative scheme.
Clause 6 provides for the publication of the intergovernmental agreement
contemplated by the scheme.
Clause 7 provides that the scheme does not affect section 15 of the
Crimes (Aviation) Act 1991 (Cwlth). A provision to this effect is also
contained in section 8 of the Crimes at Sea Act 2000 (Cwlth).
Clause 8 provides for the making of regulations by the Governor in
Council under the Act, but not for the purposes of the cooperative scheme
contained in the schedule.
Clause 9 omits section 14A of the Criminal Code.
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Crimes at Sea
Clause 10 is a transitional provision, indicating the applicable law in
certain situations.
SCHEDULE
THE COOPERATIVE SCHEME
PART 1--PRELIMINARY
Schedule, clause 1 inserts the definitions to be used in the schedule.
PART 2--APPLICATION OF STATE CRIMINAL LAW
TO ADJACENT AREA
Schedule, clause 2 provides for the application of a State's substantive
criminal law in the adjacent area for the State, including whether that law
applies by force of the law of the State or of the Commonwealth. The
provision contains examples to illustrate the concepts it describes.
Schedule, clause 3 provides for the application of a State's laws of
criminal investigation, procedure and evidence. Further definitions are
contained in the provision, together with examples to illustrate what is
described.
Schedule, clause 4 provides for an evidentiary presumption about the
locus of an offence.
PART 3--THE INTERGOVERNMENTAL
AGREEMENT
Schedule, clause 5 allows for the Commonwealth Attorney-General and
participating State Ministers to enter into an intergovernmental agreement
about the division of responsibility for administering and enforcing the law
relating to maritime offences.
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Crimes at Sea
Schedule, clause 6 provides for the effect of the intergovernmental
agreement, including in relation to court proceedings.
PART 4--LIMITATIONS AND EXCLUSIONS
Schedule, clause 7 requires the Commonwealth Attorney-General's
consent for prosecutions involving offences committed on or from foreign
ships in certain circumstances and contains provisions related to that
requirement.
Schedule, clause 8 relates to the extraterritorial operation of State law.
Schedule, clause 9 states that the cooperative scheme does not apply to
State and Commonwealth law excluded from its ambit by regulation.
Schedule, clause 10 provides that the cooperative scheme does not apply
to "Area A of the Zone of Cooperation". That term is defined in clause 1 of
the schedule.
PART 5--MISCELLANEOUS
Schedule, clause 11 states that the Acts Interpretation Act 1901 (Cwlth)
applies to the scheme contained in the schedule in the same way as to a
Commonwealth Act. This is to help ensure the scheme is interpreted
consistently in the various jurisdictions.
Schedule, clause 12 provides for the making of regulations by the
Governor-General in relation to the scheme.
PART 6--ADJACENT AREAS
Schedule, clause 13 defines the terms "baseline of Australia's territorial
sea", "continental shelf" and "territorial sea" for part 6.
Schedule, clause 14 provides for the "adjacent area" of each of the States
and the Northern Territory.
Schedule, clause 15 defines the term "baseline".
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Crimes at Sea
Schedule, clause 16 provides for an indicative map of Australia showing
the various areas that are relevant to the scheme. It is made clear that the
map is intended to be indicative only and that the provisions of the Act are
to prevail in the event of any inconsistency.
APPENDIX 1
INDICATIVE MAP
The appendix contains the indicative map of Australia referred to in
clause 16 of the schedule.
© State of Queensland 2000