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Wednesday, 17 September 2003
Page: 20399


Mr CIOBO (10:39 AM) —I am very pleased to speak to the Crimes (Overseas) Amendment Bill 2003. As we have heard from the opposition spokesman, this is a bill to extend the operation of the Australian Criminal Code to extraterritorial operation, such that Australians who are serving overseas in various aspects and in various ways will be subject to Australia's criminal jurisdiction. In particular—


Mr Organ —Mr Deputy Speaker, I rise on a point of order. Pursuant to standing order 270, I move:

That further proceedings be conducted in the House.


The DEPUTY SPEAKER (Mr Hawker)—I had called the member for Moncrieff, who was next on the speakers list. The member for Cunningham is listed to speak following him.


Mr Organ —But under standing order 270, I have moved that further proceedings be conducted in the House.


The DEPUTY SPEAKER —I will give the call to the member to Moncrieff, because he has started his speech. As soon as he has concluded, the member for Cunningham will be called.


Mr CIOBO —This amendment bill serves to ensure that certain criminal laws that apply currently in the Jervis Bay territory apply to Australian citizens and residents serving overseas under arrangements made between the Commonwealth and the United Nations. However, this law does not extend to Australians who may serve overseas in any other capacity—for example, Australians within the AFP, the Department of Foreign Affairs and Trade or any other government departments who may be posted overseas on other duties.

We heard the opposition spokesman raise the fact that in September 1999 the Joint Standing Committee on Foreign Affairs, Defence and Trade presented to parliament a report that indicated that there was in fact a jurisdictional gap, a legislative lacuna, which resulted in Australian non-military personnel who were serving overseas—for example, civilian personnel in the Bougainville peace monitoring group—not being covered. As a consequence this bill operates to close that legislative lacuna so that there will be criminal laws that apply to Australian personnel overseas.

We have also sought to include the Iraq and Solomon Islands operations. The amendments aim to ensure that Australian civilians who work under an immunity understanding—for example, Australians who are currently serving in the Solomon Islands—will be protected by the extension of Australian criminal law to their activities. Without this extension, Australian personnel who are accused of crimes whilst deployed could find themselves subject to the jurisdiction of local courts in the country in which they are serving. Under the proposed amendments contained in this bill, Australia would retain primary criminal jurisdiction over its personnel. It was also decided that the legislation should be extended to include any relevant arrangements and agreements so that more informal situations would similarly be covered by the amendments.

In essence, the bill before the Main Committee today extends Australia's criminal jurisdiction to cover those Australians serving overseas in the following situations: people who are serving overseas under arrangements or agreements between the Commonwealth and the United Nations, or indeed an organ of the United Nations; and people who may have diplomatic or consular immunities or immunities that have been granted to a person due to their relationship with an international organisation, to the extent of the immunities that have been granted. It also will exist between the Commonwealth and a foreign state where immunities have been granted to those persons, again to the extent of the immunities that have been granted. The bill also serves to capture those persons serving overseas under prescribed arrangements or agreements between the Commonwealth and the United Nations, or indeed an organ of the United Nations, or between the Commonwealth and a foreign state. Finally, it also serves to capture those persons serving overseas in a prescribed foreign country or a prescribed part of a foreign country.

There is contained as part of this bill a regulation-making power. The regulations that are provided for may be regulations that prescribe an agreement or arrangement, or a foreign country or a part of a foreign country and can serve to limit the extension of Australian criminal jurisdiction to a category or indeed to a category of persons. This type of exception is important to take into account the fact that there may be particular activities that serve to be excluded from such jurisdictional extension of the Criminal Code.

The bill also excludes acts or omissions done by members of the Australian Secret Intelligence Service and the Defence Signals Directorate, for example. There is no particular cloak-and-dagger reason for this exclusion. Rather, it is simply because those people serving in either DSD or ASIS who are serving in the proper performance of their functions in the operation of the act are in fact already covered by the Intelligence Services Act 2001. So I would not like there to be a scare campaign put forward by certain members because there is an exception, an exclusion, for acts done in the ordinary course of the operations of ASIS or DSD. It should be noted that those particular acts, provided they comply with the proper performance of their functions, as I said, are already captured by the Intelligence Services Act 2001. Indeed, further to that, the operation of the act also does not apply to members of the Australian Defence Force. Again, in a similar vein, this is because Australian criminal jurisdiction already applies to those personnel under the Defence Force Discipline Act 1982.

So in essence this bill provides for the protection of Australian personnel who serve in mainly humanitarian and security operations overseas. It provides a clear basis for Australia to claim jurisdiction and demand the return to Australia of those personnel who may be accused of serious crimes overseas—thus saving Australians from being dealt with by foreign criminal justice and prison systems. I cannot emphasise this point enough. The fact is that Australians serving overseas should enjoy the rights and responsibilities that apply to Australians who remain within the bounds of Australia. We certainly recognise that there are unfortunately many countries that are subject to questionable regimes with questionable criminal law jurisdictions. The very last thing I and indeed the government would like to see is Australians being subjected to what may be trumped up charges, a trumped up system and a trumped up conclusion to any type of trial—or indeed a summary trial—that may occur in an overseas jurisdiction. Australia increasingly is playing an important and pivotal role in our local international community in South-East Asia. There are in fact some countries that I would say fall into this category—that is, those types of country that I have just been talking about.

If Australia is to continue its role of providing for peace and humanitarian relief in international jurisdictions, we need to be able to do that with the full knowledge that there is safety for these Australians—that is, the safety that comes from Australians knowing that they can serve in their required capacity internationally and be subjected to the same safeguards as ordinary Australians. Of course, to a lesser extent this should then allay what I would say are unfounded fears that certain people may have about the operation of the International Criminal Court. Whilst I would highlight that I would not ever see the International Criminal Court having jurisdiction over the activities of Australians abroad, this is nonetheless a safeguard that should serve to reinforce the fact that Australia retains primary jurisdiction and retains the primary right to deal with those who may breach Australian criminal law internationally.

The final way in which the bill assures and assists Australians is by making sure that Australians will not be immune from prosecution if they operate under some form of immunity overseas and can be brought to justice in Australia. Again, this is essentially a notion of goodwill to those foreign countries in which we do operate, to say that if there is an Australian who misbehaves or in some way breaches the criminal code of this country they will be subject to prosecution back in Australia, even though they may have immunity internationally. So it serves as a poignant reminder to those Australians abroad that, at the same time as they enjoy the liberties that apply to all Australians here at home, they are also subject to those responsibilities that go with being a good and decent person when they are abroad—thus curtailing any improper thoughts or motives that may exist in the minds of less scrupulous Australians who are overseas and who may happen to enjoy immunity.

All in all, this is a very good bill. I am pleased to see that the opposition is supporting the bill. I am pleased that Australians can know that they will continue to be ambassadors for their country internationally and that they will continue to be subject to the rights and responsibilities that flow from a good, liberal democracy like Australia. In a very direct way, this bill serves as a reminder and serves to showcase that we are a very responsible international citizen and that we expect the same of Australians abroad.