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Standing Committee on Social Policy and Legal Affairs
01/11/2012
Crimes committed at sea

LEWINS, Associate Professor Kate, Representative, Maritime Law Association of Australia and New Zealand

Committee met at 09:04

CHAIR ( Mr Perrett ): I now declare open this public hearing of the House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry into the arrangements surrounding crimes committed at sea. I would like to acknowledge the Ngunnawal and Ngambri people, the traditional custodians of this land, and pay our respect to the elders both past and present. The committee also acknowledges the present Aboriginal and Torres Strait Islander people who reside in the area and thanks them for their continued stewardship.

Please note that these meetings are formal proceedings of parliament. Everything said should be factual and honest. It could be considered a serious matter to attempt to mislead the committee. This hearing is open to the public and is being broadcast live. A transcript of what is said will be placed on the committee's website.

I now welcome Dr Kate Lewins to the hearing. Do you have any comments on the capacity in which you appear?

Dr Lewins : I am also an associate professor at Murdoch University in Perth, Western Australia.

CHAIR: We have a very early start and we do appreciate you appearing before us, Dr Lewins.

Dr Lewins : It is my pleasure.

CHAIR: We know how hard it is for you Perth people, the deputy chair being an MP from Perth—it is all a bit crazy.

Dr Lewins : Indeed.

CHAIR: Would you like to make an introductory statement before we proceed to questions?

Dr Lewins : I am happy to do so, if you would like. I believe the committee has had what I hope is the benefit of a set of submissions that I have produced already, but I am certainly happy to give a brief introduction.

CHAIR: Please do.

Dr Lewins : I would like to acknowledge and thank the committee for inviting me along today. I propose to address items a. and c. of your terms of reference, in particular dealing with the jurisdiction of a country over criminal acts beyond their physical landmass. This question is a complicated one at the best of times, but determining that same question of when a country has jurisdiction over criminal acts committed on board a foreign ship can be of confounding complexity, as I am sure the committee is already aware.

The reality is that there are many countries in international law—we call them states—that will have a potential entitlement to prosecute an accused who has committed a criminal act on board a ship. Principally, it is for the flag state to prosecute crimes on board ships registered in their country, but for many reasons that may not happen. Other countries, such as Australia, would want to ensure that they can enforce justice in relation to a crime, particularly a crime that has a connection with that state. In Australia, the primary act that seeks to claim jurisdiction over crimes at sea is our Crimes at Sea Act 2000, which implements an intergovernmental arrangement with the states.

In my view, the act and the scheme it implements could be improved a little so as to shore up and improve our claim of jurisdiction in cases where we are dealing with a foreign ship. It could deal explicitly the situation of a foreign ship within the adjacent area as defined in the act. Currently, it just says Australian criminal law will apply in the adjacent area, which is out to an imaginary line, 200 nautical miles out or thereabouts. But I believe that the application of this act to foreign ships beyond 24 nautical miles could actually be challenged on the basis that the current provisions are contrary to our obligations under the UN Convention on the Law of the Sea 1982, something I call UNCLOS for short. I think we can claim jurisdiction in certain instances over crimes on foreign ships in that zone, but we need to do it a bit more explicitly so as to neutralise any potential challenge that we might have to our jurisdiction in that zone. So we provide, under the Crimes at Sea Act, an extension to our criminal jurisdiction out to a particular line, and we also then extend jurisdiction to events even outside of that line, anywhere in the world, in certain circumstances.

In that respect I think the act is pretty good in terms of the reach that it extends and the recognition of the jurisdictional pegs that we use but I still think there are a couple of grounds that we could add to that. I think Australia could extend its jurisdiction to criminal acts occurring on outward voyages in certain circumstances and certainly criminal acts where Australians are the victim, not just the accused. At the moment it is predicated on the basis that we claim jurisdiction if one of our citizens has committed the act, and it is an internationally recognised principle that we maintain control, if you like, of our citizens, but it is now becoming more accepted to legislate to give jurisdiction where the citizen of a country or a state is, in fact, the victim as well. We do have a provision like that in the federal Criminal Code Act which was brought into effect after the Bali bombings. It is section 115. But it is not clear how that interacts with the Crimes at Sea Act—and I do go on in my paper about that interaction. So I think it would be wise to clarify how those two interact. Certainly it would be advantageous to give Australia the right to investigate and prosecute crimes where Australians are the victims in waters outside of Australian waters. That is all I propose to say about the Crimes at Sea Act for the moment, and I am sure that the committee will have questions about it.

I want to move now to the regulatory point. As I have said in my paper, I do believe that Australia is entitled to impose certain regulations on ships that visit its ports, and to this extent I respectfully disagree with the government response to the recommendations coming out of the coroner's report into the death of Dianne Brimble. I view the ability to regulate as stemming from the fact that we are allowing these vessels into our ports and we have an entitlement then—a sovereign entitlement—to dictate the terms of that entry. Of course we want to encourage cruise ships as it is a big industry and cruising is something that our citizens enjoy, so one has to bear in mind the views of the cruise ships' people and ensure that regulate in a measured fashion. But I do not believe that measured regulations would interfere with our obligation to allow innocent passage through territorial waters, which I think is a slightly different point.

I would certainly like to see regulation in terms of a number of different aspects. I would like to see regulations regarding notification of crimes, both on voyages to and from an Australian port and whether or not they are in international waters or Australian adjacent areas, and also notification whether it is an Australian flagged vessel or a foreign vessel in those circumstances. There are reporting obligations in the new Navigation Act 2012, which will be coming into force, hopefully, early next year. But I think even those could be amplified in the case of cruise ships. There is also room to impose regulations on matters such as dealing with crime scenes, recquiring training in victim treatment and support or proof of training in victim treatment and support. Obviously, these are improvements that P&O will be able to advise the committee on. They have made a lot of improvements in that respect and that would be a useful starting point.

The other useful thing to bear in mind would be to keep our regulations, if we were to impose any, in step with those that are being discussed in Europe and also welcomed by the cruise industry in Europe. There was a statement issued in April to that effect. So this is not something that Australia is considering on its own. It is not just Australia following the US in considering it if we wish to. It is, in fact, the start, if you like, of a global push to recognise that these situations can happen, that we have massive ships with thousands of people on board and that, in effect, the people on board do not have instant access to consular officials. I think that is important to bear in mind. When we travel overseas we have access to consular officials from our own country. We have no such access on board a ship.

Finally, I am hopeful that any reform or regulation of the cruise ship industry could also include enacting a passenger liability scheme and something along the lines of that enshrined in the Athens convention 1974 and subsequent updating in protocols to that which have increased the monetary limits under that. I think the need for reform there has been brought into sharp relief by the fact that the Costa Concordia tragedy happened earlier this year, and that exposed the very small risk—because cruising is a very safe activity—but the nonetheless real risk of maritime tragedy when one cruise ship carries many thousands of people.

The legal rights of Australians are woefully unprotected in relation to their rights to civil remedies against cruise ships. Cruise ship lines carry passengers according to their own conditions of carriage, and that may require people to sue in overseas countries; it may require them to sue in a place that does not have English as an official language. It may also restrict their rights to damages and injuries to an amount as little as one-tenth of what the protocols would entitle someone to recover.

So I think whilst there are some concerns about the latest protocol and insurance under the latest protocol, as I have outlined in some of my research there are workarounds for that. I think it is really important for Australian cruise ship passengers that they are offered that civil protection as well as the criminal protections that we are talking about today.

In closing, I would just like to pay my respects the Brimble family. I hope they see this inquiry as a sign that some good is going to come from the tragic death of Dianne Brimble over 10 years ago now, and also give credit to P&O for taking the many steps they clearly have done to better secure the safety of their passengers, which is admirable. I thank the committee for the opportunity to appear today.

CHAIR: Thank you, Dr Lewins. I just want to take you to your last point, about the $80,000 payable. Could you unpack the history of that? Is there some insurance or re-insurance history?

Dr Lewins : It is not a history so much. The insurance aspect has come about in the latest protocol. But if I take you right back, in 1974 there was a convention adopted that basically provided for the situations in which a cruise ship passenger could sue the provider of that service in the event that they were injured—or their estate could sue if they died—and the circumstances in which the cruise ship would be liable. In exchange for that—

CHAIR: Sorry, perhaps I could interrupt. Just to be clear, was it passengers only? Not employees?

Dr Lewins : No. Employees are dealt with differently. Seafarers have their own regime in the event that they are injured in, effectively, their workplace. So this is passengers only, where they have contracted and paid for their passage. It covers things like ferries across the channel as well as cruise ship lines. So, this convention was brought about in the 1970s. At the time it actually came into force, the quantum limits were already woefully inadequate, and there has been a series of protocols that have upped the limits for claims. Basically—and this is a recipe that is quite familiar in maritime law—it was agreed with the industry that in exchange for caps on the liability they would be bound by these sorts of conventions; they would put their rubber stamp on it and approve it, if you like. So there was this sort of quid pro quo. The quantum started out being a special drawing rights figure—last time I looked at it, it was about A$80,000. That would be a cap under the 1974 limits for any injuries that have been sustained at sea as a result of the negligence of the ship.

The protocols have increased since then, and the most recent one has a figure that far exceeds that, by about 10-fold, as a limit. The new 2002 protocol also has introduced a slightly different liability framework whereby if the accident is because of a maritime peril—something like the Costa Concordia or some error in navigation, such as that the ship has sunk or run onto rocks—then effectively the liability is strict. So there is a slightly different framework that has been put in place, and the quantum is higher under the 2002 one.

The quantum under the 2002 one, per passenger, when taken in combination with these enormous cruise ships that now carry up to 6,000 passengers, can mean that the risk, if you like, of the payout for one tragedy on one of these enormous ships was so enormous that there were concerns amongst the insurance fraternity that it may in fact almost be uninsurable. There were also requirements that the cruise ship lines carry certain forms of insurance and, without going into the nitty-gritty of that, it was those concerns that have plagued to some extent the 2002 protocol. Having said that, the EU looks like it is keen to have all its member states sign up. They did set a timeframe of the end of this year for that to happen. If that is the case, then the 2002 protocol will come into force upon the EU, because they have so many member states.

Australia has never signed up to any of the Athens conventions. In Australia we often find that the cruise ship lines—not all of them but most of them—would incorporate in their contractual terms the 1974 version of the Athens convention. Therefore that brings in the 1974 quantum limits, which is how we get to be roughly $80,000 per person limit, and I think the committee would recognise that that would be woefully inadequate if you are talking about someone who might have spinal injuries or brain damage.

CHAIR: So they contractually sign up for that?

Dr Lewins : That is right. The cruise ship lines build that into their contractual terms and conditions, and obviously there are arguments at law about whether they have properly incorporated it and there are various other arguments that passengers can use. But it is there to start with, and often the cruise ship line's own terms will contain the bits of the convention that suit them particularly the liability limits, but then they will modify the bits that do not suit them to make it even worse for passengers.

For example, the Athens convention contains a two-year limitation of liability on personal injury claims. That is already shorter than what we are used to in Australia and it is the case that some plaintiffs have missed out because that limitation has been missed. The Athens convention has a two-year limitation and it is not uncommon for cruise ship lines to wind that back in the terms and conditions to only one year, and because they are not bound by a convention that is in force in Australia, they are able to do that in Australia.

Mr NEUMANN: Dr Lewins, you talk about the Kerry act in the United States: what has been the consequences of that and what are the implications for us if we go down that path?

Dr Lewins : Again, it is probably a bit hard for me to say what the consequences have been—and I think this is the telling point: the cruise industry there has been supportive of it. That is about all I can tell you; I have not had any dealings with the US in that regard other than the research that I have been able to do. Certainly the industry is approving of it. I would imagine that it would take some time, and there must be some sort of mechanism to allow cruise ships to get into a point of compliance with the act particularly with things like heightening of ships rails and so forth, which are quite structural.

In terms of Australia and the implications for us, I think the US is in a position of having a huge chunk of the global cruising market and so they are able to talk to the cruise ship lines from a real position of economic strength. The cruise ships need US approval and they need to use US ports. Our industry here is a little bit more nascent and I think that it is appropriate for us to be a little bit more measured in the regulations that we contemplate bringing in. By that I mean for things that are structural, like ships' rails and so forth, maybe we do not have the economic clout to do that and maybe we might take the view that that is something that would offend some of the provisions of UNCLOS. It is perhaps taking that step too far.

But I do think that there are things we can implement. We can implement the requirements about how to deal with medical emergencies, notification, perhaps advising passengers of what to do in certain circumstances and CCTV would obviously be an enormous boon for any authorities investigating something that is happening on board. Those sorts of things would form a measured response that Australia could justify.

Mr NEUMANN: You say that the EU is keen to adopt elements of the Kerry act. Is it the EU as a whole or individual countries?

Dr Lewins : It has been discussed by the EU as a whole. I was working off a press release that the cruise lines association over there put out saying that they had been working with EU representatives and the IMO, the International Maritime Organization, in regard to adopting guidelines essentially about the sorts of things that we are talking about now: notification, cooperation between law enforcement bodies of different countries and all that sort of stuff. It is a conversation that is happening elsewhere as well. It is not as if we are alone in the wilderness in that respect.

Mrs MOYLAN: I note that the United States is not a signatory to UNCLOS. Is that your understanding? Is that correct?

Dr Lewins : Yes, that is true, although they do take the view that UNCLOS represents, if you like, customary law and therefore they abide by it in that respect.

Mrs MOYLAN: Would Australia being a signatory to UNCLOS present any particular legal difficulties then if Australia was then to go down the route of a similar act as the Kerry act?

Dr Lewins : That is where my concerns about making regulations that have something to do with ships' structures comes into play, because, under UNCLOS, coastal states should not be regulating on matters of that nature. The article is in my paper. However, it does also provide that, where ships are proceedings into inland waters, the coastal state is able to make regulations about it. Effectively, once a ship visits the port, we have an entitlement to require it to adhere to our laws. That is the jurisdictional peg. The entitlement comes from doing that. It would be great for the committee to have input from all sorts of different lawyers on these sorts of points—public international lawyers, criminal lawyers and all sorts of people would undoubtedly have a view on that. But it seems to me that UNCLOS allows us to do that.

That is also why the US act is very much predicated on voyages to and from its country. That is where your jurisdictional entitlement comes from in international law—that you are going to suffer an effect in your jurisdiction as a result of a crime outside of your territory but also, once they are within your territory, that you have certain entitlements to expect them to do things. Notification is a classic example of that. AMSA already requires ships that are steaming for Australian ports to give certain information. I do not think it would be particularly hard to build into that a requirement that they notify of any serious crimes that may have happened on the inward coming voyage, for example, and then on the outward going voyage. Some of that is covered under the Navigation Act, but the way that even the new navigation act is worded potentially restricts that notification to within only our territorial sea. I can understand the conservatism that leads to that point but, when we are talking about cruise ships with thousands of people on board and many of them Australian citizens, I think we are probably entitled to up the ante a little bit.

Mrs MOYLAN: Thank you very much.

Dr Lewins : A pleasure.

CHAIR: Dr Lewins, just on that point—and I think you mentioned it in your opening comment—you said outgoing voyages as well from Sydney, shall we say, irrespective of their final destination. Is that right?

Dr Lewins : Yes.

CHAIR: I do not know the cruise industry, but could that be to Los Angeles or what?

Dr Lewins : There are two different types of cruises that operate. There is one that is effectively a liner cruise, where the vessel follows a series of lines and goes around all the different countries. Things like the Queen Mary and the QE2 generally operate that sort of a liner operation. Then there are cruises that, generally, either finish up at the same port or travel between a series of ports. Our South Pacific cruises would be a classic example of that—you go out and you come back to Australia. Or, you might go out from Australia and head to Singapore, and the same vessel might pick up another set of passengers in Singapore and come back to Australia. They are the sorts of cruises that might happen.

What concerns me about some of the legislation that we have in place is that it applies to inward-coming voyages, and that is grasping onto a particular jurisdictional peg that says the next port has jurisdiction to deal with any crime that might have happened. That is eminently sensible. If you can imagine back 100 years, in the olden days, you would have to deal with the consequences of that crime in the next port. You might have a body that needs to be taken to the morgue, and the police need to get involved and so forth. So there is a clear reason the inward-coming voyages are covered in international law. Outward going is slightly different because that will be someone else's inward-coming voyage.

If there are other reasons we could claim jurisdiction over things that happen on that outward voyage then I believe we should do so. We already claim it on the whether the accused is Australian—I say we should also claim it if the victim is Australian. This notion that we can claim jurisdiction over criminal acts where an Australian is the victim anywhere in the world has been controversial in the past, but we are suitably deferential to the overriding right of the flag state to deal with things. It is a useful second stage. In fact, it becomes the de facto first stage because so often the flag state is not in a position to deal with criminal acts on board its many ships. Most cruise ships are actually registered in flag-of-convenience types of countries.

CHAIR: So, not in London? Not in the UK?

Dr Lewins : Very rarely. The Bahamas. Bermuda.

CHAIR: This might be outside your area of expertise but, in terms of the economic benefits to Australia, and leaving aside where the vessel is flagged in the cruise industry, if you have a liner cruise and 6,000 Americans turn up at Sydney, they spend money in Sydney, and that is obviously of benefit to Australia.

Dr Lewins : Absolutely. The cruise ship industry—and there are figures available on the web from the cruise ship industry body in Australia—represents millions of dollars of economic benefit to New South Wales alone. Many millions of dollars.

CHAIR: But if 6,000 Australians go to Singapore that is not a benefit to Australia, obviously.

Dr Lewins : It still is, because the cruise ship line, in visiting Australia, has to take on provisions in Australia. It takes on its fuel. It takes on all the food to feed those people. It employs the stevedores and the people alongside. There is a whole industry that hangs off the cruise ship line.

Dr STONE: You mentioned the fact that it would be a great improvement if the notification of crime at sea was made mandatory. I am wondering who they would be notifying? The Federal Police? If there were a crime, a theft or worse, out in the Pacific somewhere, is it a case of the most senior officer on the ship notifying the Australian Federal Police or the last port they were at in a state in Australia?

Dr Lewins : It depends. This is where the Crimes at Sea Act and the scheme of arrangement there comes into place. In fact, the law that applies out to our limits is state law by reason of the scheme of arrangement that is in place. For instance, the New South Wales Police were involved in the Brimble incident.

So it is usually the state law. I would suggest, though, that all of this could be wrapped up and the initial point of contact might be, for example, AMSA, to whom ships have to report when there have been deaths or injuries on board in our territorial waters. Certainly, it would qualify under that as well. That would be something that the various authorities would work out between themselves as to how they want to have that line of authority work.

Dr STONE: This includes international waters?

Dr Lewins : No, not at the moment.

Dr STONE: No, but your recommendation is, I believe, for international waters as well.

Dr Lewins : Yes, if it is incoming to an Australian port or if it is outgoing; that is what I would like to see. Then, in those cases, it would be for us to determine, if there is an Australian victim. Particularly on an outward voyage, we would need to have other jurisdictional grounds to claim that.

Dr STONE: Clearly there is a lot of work to do in that particular area?

Dr Lewins : I believe there are improvements that we can make.

Dr STONE: In relation to the Athens convention, who pays? Where does the indemnity dollar come from?

Dr Lewins : Basically the ship's lines arrange insurance through what they call 'protection and indemnity clubs', and those protection and indemnity clubs are effectively giant insurers and they pay any claims at the end of the day.

Dr STONE: So it is not embedded in the cruise ticket? You pay an extra levy or whatever if the ship happens to be part of an Athens convention—

Dr Lewins : Not specifically, no. Although, I guess one would expect that it is embedded; one of their operating costs is to have that insurance.

Dr STONE: Finally, in the case of this whole cruise business, are we always aware as a nation who is onboard these ships? Are we happy that there is proper regulation of the actual passengers and their nationalities?

Dr Lewins : I would expect that it is the same as when you hop on a plane. Customs deal with passports and everything at the terminal, and, as you leave, records are kept by the Australian authorities as to who embarked at that point.

Dr STONE: But a lot of our cruises do not require passports to their destinations, because they are in the Pacific and wherever, so I am just reflecting on that.

Dr Lewins : Certainly to go to New Zealand you do not need a passport, but from what I understand—and again this is perhaps something that would be better asked of people in the actual industry—they have to provide manifests of who is on board, at the very least, and I am sure they have to go through some sort of quarantine.

Dr STONE: And their nationality?

Dr Lewins : Yes, I would imagine so. It would be extraordinary if they did not have to.

CHAIR: Dr Lewins, I just want to take you back to the Athens convention. If you said the standard practice was for cruise operators in Australia to write a contract that has terms less than that in the Athens convention, do you think we should be enacting a signing up to the Athens convention for a start?

Dr Lewins : I absolutely think that we should have some sort of Athens protection in place. The problems that have beset the 2002 protocol have been a bit unfortunate, I think, and they have muddied the waters. But exactly how we go about doing it is a matter of detail. We can enact the Athens convention as legislation without actually signing up to the precise wording of the 2002 protocol, if we feel that is something that is not viable because of the insurance concerns, but we can still put in place that high quantum limit—the right to sue in Australia, the basic liability provisions and the time frame—by adopting all of that in Athens. In fact Canada has done this. They have not signed or ratified the Athens convention but they have implemented in their marine liability act a version of it basically word for word. They have also extended it not only to national voyages but to voyages within the country, which I think is something Australia should think about as well.

So certainly I believe that we should put in place, whether by legislation itself or by ratification and subsequent legislation, some form of protective regime for Australians. In fact, I have been banging on about it for quite some time now!

Dr STONE: Dr Lewins, why wouldn't Canada have signed the Athens convention if they virtually, as you suggest, followed it verbatim?

Dr Lewins : Because there are some liberties that you can take, I guess, if you do not actually sign the convention. In fact, this is not uncommon with the Athens convention and others. Although I think the number of signatories to the Athens convention is about 40, there are about another 40 countries—and I have not looked at that for a while, but there are certainly a significant number of other countries—who have merely enacted it rather than ratified it. They do that to give themselves a bit of wiggle room in exactly how they implement it in their own country. For example, to get around the insurance requirement, you might choose not to implement that part in your localised legislation.

Dr STONE: Okay.

CHAIR: Dr Lewins, I am not sure if it is in the Athens convention or the later protocols, but I was wondering if you could comment on the standards, background checks or oversight in terms of crew. In Queensland, we have something called a blue card, where if you are dealing with children you will be subject to a background check. Could you comment on that?

Dr Lewins : Sure. That is certainly not something that is in the Athens convention. It would be something that deals more with employment issues on cruise ships—and this has become a bit of a live point in the US. I have to say I am no great expert on it because I have not come to it from the employment side, but I think it is something that one might want to include in regulations. We too in Western Australia have a working-with-children check. That sort of thing could be required for people who are going to have contact with children on board cruise ships, for example.

CHAIR: A lot of children go on these cruises, I assume?

Dr Lewins : They do, yes.

CHAIR: Okay.

Mr NEUMANN: Are there any figures on that, Dr Lewins, do you know?

Dr Lewins : About the number of children?

Mr NEUMANN: Yes.

Dr Lewins : Not that I am aware of. Again, I have not specifically focused on breaking down passenger numbers to that level. As I said, there is quite specific data on the Australian cruise ship industry's website as to how many passengers are carried, and their destinations, per year. That might inform the committee.

Mr NEUMANN: But you don't have a demographic breakdown—like, 'There's a greater percentage of people between the ages of 18 and 30,' or over 65?

Dr Lewins : Not that I have to hand, no.

Mr NEUMANN: Okay.

Dr STONE: Dr Lewins, if someone dies on board a ship, what happens to their remains? Are they required to be brought back to the country where they got on the ship? How does that work?

Dr Lewins : That is a good question, and again I would only be guessing in telling you what those arrangements would be. I am sure that the committee will be hearing from members of industry who could give you a much clearer idea of that. Certainly, the modern cruise ship is equipped with a full emergency suite and a morgue, so I would imagine that arrangements would be made in accordance with the wishes of the next of kin.

Dr STONE: Thanks.

CHAIR: Thank you very much, Dr Lewins. That was fantastic. We might make contact with you later down the track if we have some other queries.

Dr Lewins : I would be more than happy, should that be the case. I hope I have been of some assistance to the committee. Best of luck and best wishes for the rest of your inquiry.

CHAIR: Thank you very much. I now declare this public hearing closed, and thank you again for your attendance today, Dr Lewins.

Dr Lewins : It was my pleasure. All the best.

Resolved (on motion by Dr Stone):

That this committee authorises publication, including publication on the parliamentary database, of the transcript of the evidence given before it at public hearing this day.

Committee adjourned at 0 9:44