Victorian Consolidated Legislation

Crimes at Sea Act 1999 - SCHEDULE 1

THE COOPERATIVE SCHEME PART 1-PRELIMINARY
1. Definitions

(1) In this scheme- "adjacent area" for a State has the meaning given by
clause 14 of this Schedule; "Area A of the Zone of Cooperation" has the same
meaning as in the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990
(Commonwealth); "Australian ship" means-

   (a)  a ship registered in Australia; or

   (b)  a ship that operates, or is controlled, from a base in Australia and
        is not registered under the law of another country; or

   (c)  a ship that belongs to an arm of the Defence Force; "baseline" for a
        State has the meaning given by clause 15 of this Schedule; "foreign
        ship" means a ship other than an Australian ship; "indictable offence"
        means an offence for which a charge may be laid by indictment or an
        equivalent process (whether that is the only, or an optional, way to
        lay a charge of the offence); "inner adjacent area" for a State means
        the parts of the adjacent area for the State that are-

   (a)  on the landward side of the baseline for the State; and

   (b)  on the seaward side, but within 12 nautical miles from, the baseline
        for the State; "intergovernmental agreement" means the agreement
        entered into under clause 5 of this Schedule;

"law of criminal investigation, procedure and evidence" means law (including
unwritten law) about-

   (a)  the investigation of offences (including coronial inquiry); or

   (b)  immunity from prosecution and undertakings about the use of evidence;
        or

   (c)  the arrest and custody of offenders or suspected offenders; or

   (d)  bail; or

   (e)  the laying of charges; or

   (f)  the capacity to plead to a charge, or to stand trial on a charge; or

   (g)  the classification of offences as indictable or summary offences (and
        sub-classification within those classes); or

   (h)  procedures for dealing with a charge of a summary offence; or

   (i)  procedures for dealing with a charge of an indictable offence
        (including preliminary examination of the charge); or

   (j)  procedures for sentencing offenders and the punishment of offenders;
        or

   (k)  the hearing and determination of appeals in criminal proceedings; or

   (l)  the rules of evidence; or

   (m)  other subjects declared by regulation to be within the ambit of the
        law of criminal investigation, procedure and evidence; or

   (n)  the interpretation of laws of the kinds mentioned above; "maritime
        offence" means an offence against a law that applies in the adjacent
        area for a State under this scheme; "offence" means an indictable or
        summary offence; "outer adjacent area" for a State means the part of
        the adjacent area for the State that is outside the inner adjacent
        area for the State; "participating State Minister" means a Minister
        responsible for administering a State Act that gives effect to this
        scheme; "ship" means a vessel or boat of any description and includes-

   (a)  a floating structure; and

   (b)  a hovercraft or similar craft; "State" includes the Northern
        Territory; "substantive criminal law" means law (including unwritten
        law)-

   (a)  creating offences or imposing criminal liability for offences; or

   (b)  dealing with capacity to incur criminal liability; or

   (c)  providing a defence or for reduction of the degree of criminal
        liability; or

   (d)  providing for the confiscation of property used in, or derived from,
        the commission of an offence; or

   (e)  providing for the payment of compensation for injury, loss or damage
        resulting from the commission of an offence, or the restitution of
        property obtained through the commission of an offence; or

   (f)  dealing with other subjects declared by regulation to be within the
        ambit of the substantive criminal law of a State; or

   (g)  providing for the interpretation of laws of the kinds mentioned above;
        "summary offence" means any offence other than an indictable offence.

(2) The law of criminal investigation, procedure and evidence of the
Commonwealth includes provisions of State law on the relevant subjects applied
under the Judiciary Act 1903 (Commonwealth).

PART 2-APPLICATION OF STATE CRIMINAL LAW TO ADJACENT AREA
2. Application of State criminal law to adjacent area

(1) The substantive criminal law of a State, as in force from time to time,
applies, by force of the law of the State, throughout the inner adjacent area
for the State.

(2) The provisions of the substantive criminal law of a State, as in force
from time to time, apply, by force of the law of the Commonwealth, throughout
the outer adjacent area for the State.

(3) However, this clause does not -

   (a)  apply to a substantive criminal law that is incapable of applying in
        an adjacent area or is limited by its express terms to a place within
        the area of a State; or Example: A law making it an offence to drive a
        motor vehicle at a speed exceeding a prescribed limit on a road could
        not apply in an adjacent area because of the inherent localising
        elements of the offence. The scheme does not therefore purport to
        extend the application of such a law to the adjacent area.

   (b)  give a legal effect to a provision of a substantive criminal law that
        the provision does not have within the area of the State. Example: If
        the effect of a provision of the substantive criminal law of a State
        is limited under section 109 of the Constitution within the area of
        the State, the effect is similarly limited in the outer adjacent area
        for the State even though the provision applies in the outer adjacent
        area under the legislative authority of the Commonwealth.
3. Application of laws of criminal investigation, procedure and evidence

(1) In this clause- "act" includes an omission; "area of administrative
responsibility" for a particular State is-

   (a)  the area of the State; and

   (b)  the inner adjacent area for the State; and

   (c)  other parts of the adjacent area in which the State has, under the
        intergovernmental agreement, responsibility (which may be either
        exclusive or concurrent) for administering criminal justice;
        "authority" includes an agent or official; "Commonwealth judicial
        proceeding" means-

   (a)  a judicial proceeding related to a maritime offence-

   (i)  initiated by an authority of the Commonwealth; or

   (ii) for the conduct of which an authority of the Commonwealth has assumed
        responsibility; or

   (b)  a judicial proceeding about an investigation, procedure or act by an
        authority of the Commonwealth in relation to a maritime offence;
        "judicial proceeding" means-

   (a)  a proceeding in a court (whether between parties or not) or a
        proceeding incidental to or connected with a proceeding in a court; or

   (b)  the laying of a charge; or

   (c)  the preliminary examination of a charge of an indictable offence or a
        proceeding incidental to or connected with the preliminary examination
        of a charge of an indictable offence; "preliminary examination" of a
        charge of an indictable offence means a proceeding to decide whether
        the defendant should be committed for trial or, if the defendant
        pleads guilty to the charge, to commit the defendant for sentence or
        trial; "State judicial proceeding" means-

   (a)  a judicial proceeding related to a maritime offence-

   (i)  initiated by an authority of a State; or

   (ii) for the conduct of which an authority of a State has assumed
        responsibility; or

   (b)  a judicial proceeding about an investigation, procedure or act by an
        authority of a State in relation to a maritime offence.

(2) The laws of criminal investigation, procedure and evidence of the
Commonwealth and the States apply to maritime offences as follows-

   (a)  the law of the Commonwealth applies to investigations, procedures and
        acts (other than judicial proceedings) by authorities of the
        Commonwealth; and

   (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; and

   (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
        Constitution) irrespective of whether-

   (i)  the maritime offence arises under the law of the State in which the
        proceeding was commenced or another State; or

   (ii) the substantive criminal law against which the offence was committed
        applies in the relevant part of the adjacent area under the law of the
        State in which the proceeding was commenced, another State or the
        Commonwealth. Example 1: Suppose that a person is charged by a State
        authority with a maritime offence on the assumption that the offence
        was committed in the inner adjacent area for the State but the court
        is satisfied in the course of the proceedings that the acts alleged
        against the defendant took place in the outer adjacent area for the
        State. In this case, the court could continue with the proceedings
        under the procedural laws of the State. However, the court could not
        (for example) convict the defendant on the basis of a majority verdict
        of a jury (because to do so would be contrary to the Commonwealth
        Constitution-see Cheatle v The Queen (1993) 177 CLR 541). Example 2:
        Suppose that a person is charged by a State authority in a South
        Australian court with a maritime offence alleged to have been
        committed in the adjacent area for Western Australia. For the purposes
        of the proceedings, the offence would be classified as a major
        indictable, minor indictable or summary offence according to the South
        Australian rules and not by reference to its classification under the
        law of Western Australia or the Commonwealth.

(3) This clause operates to the exclusion of any Commonwealth or State law
that is inconsistent with it.

(4) A Commonwealth or State law enacted or made after the commencement of this
clause is to be construed as having effect subject to this clause, unless the
law expressly overrides this clause.

(5) The Administrative Decisions (Judicial Review) Act 1977 (Commonwealth)
does not apply to a decision taken under a State law that applies to
investigations, procedures and acts by authorities of the State under
paragraph (b) of sub-clause (2).
4. Evidentiary presumption about the locus of an offence If, in proceedings
for a maritime offence, an alleged act, omission or state of affairs, that is
an element of the offence, is proved, an allegation in the information or
complaint that the act, omission or state of affairs happened in the adjacent
area, inner adjacent area or outer adjacent area for a particular State is
taken to be proved in the absence of proof to the contrary. PART 3-THE
INTERGOVERNMENTAL AGREEMENT
5. Intergovernmental agreement

(1) The Commonwealth Attorney-General, on behalf of the Commonwealth, and the
participating State Ministers may enter into an agreement providing for the
division of responsibility for administering and enforcing the law relating to
maritime offences.

(2) The intergovernmental agreement may provide for concurrent responsibility
in specified parts of the adjacent area.

6. Effect of the agreement

(1) A charge of a maritime offence must not be brought in a court contrary to
the intergovernmental agreement.

(2) If a charge of a maritime offence is brought in a court in contravention
of subclause (1), the court must, on application by the Commonwealth
Attorney-General or a participating State Minister, permanently stay the
proceedings in that court.

(3) However-

   (a)  a contravention of subclause (1) does not affect a court's
        jurisdiction; and

   (b)  if a charge of a maritime offence is brought in a court, the court
        will not (except on an application under subclause (2)) be concerned
        to enquire into whether the intergovernmental agreement has been
        complied with. PART 4-LIMITATIONS AND EXCLUSIONS
7. Commonwealth Attorney-General's consent required for certain prosecutions

(1) The Commonwealth Attorney-General's written consent is required before a
charge of a maritime offence can proceed to hearing or determination or, if
the offence is an indictable offence, to a preliminary examination in
committal proceedings, if-

   (a)  the offence is alleged to have been committed on or from a foreign
        ship; and

   (b)  the ship is registered under the law of a country other than
        Australia; and

   (c)  the country of registration has, under international law, jurisdiction
        over the alleged offence.

(2) Before granting such a consent, the Commonwealth Attorney-General must
take into account any views expressed by the government of the country of
registration.

(3) Even though the Commonwealth Attorney-General has not granted such a
consent, the absence of consent is not to prevent or delay-

   (a)  the arrest of the suspected offender or proceedings related to arrest
        (such as proceedings for the issue and execution of a warrant); or

   (b)  the laying of a charge against the suspected offender; or

   (c)  proceedings for the extradition to Australia of the suspected
        offender; or

   (d)  proceedings for remanding the suspected offender in custody or on
        bail.

(4) If the Commonwealth Attorney-General declines to grant consent, the court
in which the suspected offender has been charged with the offence must
permanently stay the proceedings.

(5) In any proceedings, an apparently genuine document purporting to be a copy
of a written consent granted by the Commonwealth Attorney-General in
accordance with this clause will be accepted, in the absence of proof to the
contrary, as proof of such consent.
8. Non-exclusion of consistent extraterritorial legislative schemes This
scheme does not exclude the extraterritorial operation of State law to the
extent that the State law is capable of operating extraterritorially
consistently with the scheme.
9. Exclusion of certain laws from ambit of this scheme This scheme does not
apply to State and Commonwealth laws excluded by regulation from the ambit of
the scheme.
10. Non-application of scheme to Area A of the Zone of Cooperation This scheme
does not apply to Area A of the Zone of Cooperation. PART 5-MISCELLANEOUS
11. Interpretation The Acts Interpretation Act 1901 (Commonwealth) applies to
this scheme in the same way as to a Commonwealth Act.
12. Regulations

(1) The Governor-General may make regulations prescribing matters-

   (a)  required or permitted by this scheme to be prescribed; or

   (b)  necessary or convenient to be prescribed for carrying out or giving
        effect to this scheme.

(2) However, a regulation affecting the operation of this scheme in relation
to the inner adjacent area for a State may only be made with the agreement of
the participating State Minister for the relevant State. PART 6-ADJACENT AREAS
13. Definitions In this Part - "baseline of Australia's territorial sea" means
the baseline from which the breadth of the territorial sea is to be measured
under section 7 of the Seas and Submerged Lands Act 1973 (Commonwealth);
"continental shelf" has the same meaning as in the
Seas and Submerged Lands Act 1973 (Commonwealth); "territorial sea" has the
same meaning as in the Seas and Submerged Lands Act 1973 (Commonwealth).
14. Adjacent areas

(1) The "adjacent area" for New South Wales, Victoria, South Australia or
Tasmania is so much of the area described in Schedule 2 to the Petroleum
(Submerged Lands) Act 1967 (Commonwealth) in relation to that State as is
within the outer limits of the continental shelf and includes the space above
and below that area.

(2) The "adjacent area" for Queensland is-

   (a)  so much of the area described in Schedule 2 to the Petroleum
        (Submerged Lands) Act 1967 (Commonwealth) in relation to Queensland as
        is within the outer limits of the continental shelf; and

   (b)  the Coral Sea area (within the meaning of subsection (7) of section 5A
        of the Petroleum (Submerged Lands) Act 1967 (Commonwealth)) other than
        the territorial sea within the Coral Sea area; and

   (c)  the areas within the outer limits of the territorial sea adjacent to
        certain islands of Queensland as determined by proclamation on 4
        February 1983 under section 7 of the Seas and Submerged Lands Act 1973
        (Commonwealth); and

   (d)  the space above and below the areas described in paragraphs (a), (b)
        and (c).

(3) The "adjacent area" for Western Australia is so much of the area described
in Schedule 2 to the Petroleum (Submerged Lands) Act 1967 (Commonwealth) in
relation to Western Australia as-

   (a)  is within the outer limits of the continental shelf; and

   (b)  is not within Area A of the Zone of Cooperation- and includes the
        space above and below that area.

(4) The "adjacent area" for the Northern Territory is-

   (a)  so much of the area described in Schedule 2 to the Petroleum
        (Submerged Lands) Act 1967 (Commonwealth) in relation to the Northern
        Territory as-

   (i)  is within the outer limits of the continental shelf; and

   (ii) is not within Area A of the Zone of Cooperation; and

   (b)  the adjacent area for the Territory of Ashmore and Cartier Islands
        (within the meaning of subsection (3) of section 5A of the Petroleum
        (Submerged Lands) Act 1967 (Commonwealth)) other than the territorial
        sea within that area; and

   (c)  the space above and below the areas described in paragraphs (a) and
        (b).

(5) However, the "adjacent area" for a State does not include any area inside
the limits of any State or Territory.
15. Baselines The "baseline" for a State is the part of the baseline of
Australia's territorial sea from which the part of the territorial sea that is
within the adjacent area for that State is measured.
16. Indicative map

(1) A map showing the various areas that are relevant to this scheme appears
in Appendix 1 to this scheme.

(2) The map is intended to be indicative only. The provisions of this scheme
and of the body of this Act prevail over the map if there is any
inconsistency. Appendix 1-Indicative map

---------------