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Monday, 6 December 1999
Page: 12862


Ms JULIE BISHOP (6:21 PM) —Australia has one of the longest and most isolated coastlines in the world. With 37,000 kilometres of coastline and nine million square kilometres of ocean within our jurisdiction, there is a myriad issues to be considered and covered by legislation—matters of border protection, coastal surveillance, fisheries, illegal immigration, customs, quarantine, defence and the like. These issues are of particular concern to Western Australia with our vast coastline, a sparsely populated coastline, and where the majority of unauthor ised sea landings occur, where the majority of unauthorised arrivals occur and where the incidence of both has increased dramatically over the past decade.

Given the recent initiatives of this government in relation to illegal immigration, one could assume that the impetus for the Crimes at Sea Bill 1999 is the current incidence of people smuggling and illegal entry, as well as the difficulties we face in enforcing laws over foreign ships outside our coastal waters. In fact, it is part of an overall approach to ensure that our maritime enforcement legislation implements fully the powers available under international law, including the maritime investigatory powers and enforcement powers against both Australian ships and vessels registered under the law of a foreign country. This bill will replace the Crimes at Sea Act 1979. Under that act, we already have legislative provisions that deal with crimes at sea, together with complementary state legislation in most states which apply state criminal law to Australian ships, Australian citizens and foreign ships in connection with crimes committed at sea.

This bill seeks to enact the Commonwealth elements of a new cooperative scheme agreed to by the Commonwealth, the states and the Northern Territory to provide a regime of criminal law applicable in Australia's coastal seas and, in certain circumstances, beyond the coastal seas. While it is true that the increasing incidence of people smuggling in recent times has highlighted the importance of a requirement for efficient and effective legal regimes to govern the seas around Australia's coastline, this bill is necessary to fix the defects in the existing regime governing crimes at sea. It is timely that it comes as part of a number of important measures that the government has introduced in relation to coastal surveillance, illegal immigration and illegal entry vessels.

To digress for a moment, on the last occasion that this bill was before the House the previous speakers from the opposition benches ignored the fact that the government had foreshadowed an amendment to the bill prior to the commencement of the debate. That amendment was to omit part 4 of the bill and the reference to the Australian-Indonesian zone of cooperation. If one had listened to the remarks of the member for Denison in particular, one could have been forgiven for assuming that he had not been made aware of the foreshadowed amendments. Given the sensitivities of the Timor Gap Treaty and the issue under international law of the successor party to the rights of Indonesia under the treaty pending the emergence of East Timor as an independent nation, it was a particularly disappointing piece of political posturing by the opposition. It was fortuitous that the timing of the debate was such that the member for Hughes was able to indicate to the House before the debate was adjourned that the government had responsibly, sensibly and appropriately foreshadowed an amendment to omit part 4 of the bill.

The existing legal regime in relation to Australia's jurisdiction over its seas is complex. Ambiguities and anomalies abound, and currently there are inconsistencies between various state laws and Commonwealth laws as they might apply to customs and migration issues and crimes at sea. Perhaps one of the more interesting aspects of my research into this bill concerns the various sources of power for Australia's maritime jurisdiction—somewhat complex but interesting. The original source of power in Australia to cover crimes at sea was derived from the British Admiralty jurisdiction, the Territorial Waters Jurisdiction Act 1878, which gave jurisdiction over persons on British ships anywhere, including jurisdiction over foreign subjects on board British ships. This jurisdiction was incorporated into the Australian colonies, but its limitations were—self-evidently perhaps—that the jurisdiction was attached to the concept of a British ship, which all Australian ships were considered to be for the purposes of the act.

This anomaly gave rise to numerous judicial statements. Perhaps the most notable is that of Chief Justice Barwick in the case Reg. v. Bull in 1974, reported in the Commonwealth Law Reports 131 at 203, where he said:

It is anomalous that the distinction between the jurisdiction of the Admiral in respect of the high seas, and that of the courts of law, should be maintained as it is at present. It is highly incon venient that in a matter of criminal jurisdiction complexities disclosed in this case should remain. It is also inappropriate at this time that, on the one hand, the power of a court of Australia to try extra territorial offences should be derived by imperial legislation, and on the other hand that such a court should have jurisdiction to try persons for imperial offences committed anywhere on high seas, or where the Admiral has jurisdiction.

Chief Justice Barwick acknowledged that there was room for a more specific investiture of state courts with a jurisdiction to try federal offences committed on the high seas. Such judicial comments, together with other issues arising at the time, led to new Commonwealth legislation. A separate Australian nationality and registration scheme was implemented under the Shipping Registration Act 1981 which overcame the concept of the British ship, but the anomaly still remained. The substantive criminal law, applicable under the Admiralty jurisdiction, was English law, with the curious result that offences committed off the shores of the Australian states had to be laid under British legislation, not the criminal laws of the relevant states.

There were also diverging views about the common law and its application to the territorial or extraterritorial seas. Over time, the issues of jurisdiction over crimes at sea increased amid the growing interest in the exploitation of offshore natural resources and the exercise of exploration and mining rights offshore under international law. International law recognised sovereignty, sovereign rights and certain powers over offshore waters, but there was uncertainty as to how the powers could be exercised in Australia as the issue of sovereignty had not been resolved as between the Commonwealth and the states. So we had international law recognising Australian sovereignty over internal waters and territorial seas and sovereign rights over the continental shelf.

Commonwealth legislation emerged in the 1970s to address the complexities and conflicts in the state and Commonwealth laws. The Seas and Submerged Lands Act 1973 asserted `for the Commonwealth, territorial sovereignty over the territorial sea and sovereign rights over the continental shelf'. The Petroleum (Submerged Lands) Act extended Commonwealth control over offshore petroleum exploration and extraction by extending the limits over the adjacent areas. So, while the states arguably retained their extraterritorial jurisdiction under common law, negotiations commenced between the Commonwealth and the states as to their powers and responsibilities, and these negotiations resulted in the Crimes at Sea Act 1979. This attempted to overcome the defects in the Admiralty jurisdiction and the ambiguity surrounding the common law. No doubt the Commonwealth was prompted by the various judicial comments regarding the source of power, which Barwick had described as `inappropriate' and the Privy Council later described as `surprising'.

Sitting suspended from 6.30 p.m. to 8.00 p.m.


Ms JULIE BISHOP —Before the dinner break I was reminding the House of the forerunner to the Crimes at Sea Bill 1999 : the Crimes at Sea Act 1979. With complementary state legislation, that act formally applied state criminal law to the limit of the territorial sea and, beyond that limit, to the limit of the adjacent area for foreign ships en route to Australia. The act also extended the jurisdiction to crimes of piracy and crimes pertaining to exploration of the continental shelf.

The Crimes at Sea Act 1979 focused on acts by Australian citizens, acts aboard Australian ships and acts aboard foreign ships outside the territorial sea where the offender entered Australia. However, the Crimes at Sea Act has proven to be somewhat complicated and confusing. First, the identification of jurisdiction has been difficult. The law to be applied to foreign ships depended on the ship's first port of call in Australia. The law to be applied to Australian ships depended on their registration, regardless of where the offences occurred. This led to potentially anomalous results. For example, an offence committed on an Australian ship registered in Victoria would have to be tried under the law in that state, regardless of whether the offence occurred elsewhere—such as off the coast of Western Australia.

Secondly, the complementary state legislation introduced at the same time as the Crimes at Sea Act 1979 was considered to be invalid because it was inconsistent with the imperial legislation that I referred to earlier—the Territorial Waters Jurisdiction Act 1878. We of course remember that the states did not acquire a power to enact laws overriding imperial legislation until the passage of the Australia Act 1986. So the overall existing scheme under the Crimes at Sea Act 1979 was, and is, inconvenient for law enforcement. This is essentially because the law that applies to a crime at sea depends upon the state with which the vessel is connected and that is usually the state in which the vessel is registered. This body of law is `carried', if you like, by the vessel. So, even if a state has no relationship with the place at which an offence occurs, that law must be applied.

The existing scheme has also proven increasingly inconvenient for law enforcement with the increasing traffic on the seas and around our coast because the unfamiliar law of one state must be applied by the law enforcement agency of another state that is investigating the matter. It is also increasingly ineffective due to an absence of intergovernmental arrangements settling the responsibility for enforcement action. Under the proposed new scheme, the applicable law would therefore be determined on the basis of geography. A single body of law will apply in each sea area of the states and the Northern Territory out to 200 miles or the continental shelf—whichever is greater. This body of law will apply as state law to 12 nautical miles and be applied as Commonwealth law beyond that point.

The underlying simplicity of the new choice of law rule based upon geography ensures that much of the ambiguity and complexity of the existing scheme is removed. In my example, where a crime—or alleged crime—is committed off the coast of Western Australia, the police investigating it will do so according to Western Australian laws and procedures and not those of the state under which the ship was registered, as is currently the case. If the offences are both a state offence and a Commonwealth offence, the investigating authority will follow the more stringent regime or procedures.

The key issue for this legislation is the power to enforce criminal laws. The source of Australia's enforcement jurisdiction can be found in the United Nations Convention on the Law of the Sea. This convention came into force in November 1994 and follows the principle of customary international law that each country has jurisdiction over ships that sail by its flag. So every country may exercise powers over its own ships anywhere in the world, except in the territorial sea of another country.

The convention does provide exceptions, depending on the maritime zone a ship is in. I think it is useful in the context of considering the enforcement aspects of this bill to take into account those exceptions to the basic principle of international law, particularly as the member for Throsby is so concerned about the extent of our enforcement powers and how this fits with the regime to be introduced. Under this convention, Australia has full territorial sovereignty to the limits of the `internal waters'—meaning the enforcement jurisdiction is absolute. So Australia can enforce laws on any issue within its internal waters, including criminal law. For example, it can arrest any person or investigate any recognised crimes committed within the internal waters, that being the waters on the landward side of the territorial baseline—that is, the low-water line along the coast.

Under the convention, Australia has a more restricted sovereignty to the limits of the territorial sea—that is, the waters extending for 12 nautical miles from the territorial baseline. Within the territorial sea, enforcement is subject to the right of innocent passage. Australia can make laws relating to the innocent passage of foreign ships in terms of conservation, fisheries, customs and drug trafficking, but it can only arrest persons or investigate crimes on board these ships passing through the territorial sea where the consequence of the crime extends to Australia or where the crime is of a kind such as to disturb the peace of the country or the good order of the territorial sea or it is directed to the drug trade. Australia can exercise a complete criminal jurisdiction over foreign ships passing through the territorial seas after leaving the internal waters. It can also exercise a complete jurisdiction over foreign ships for crimes committed beyond the territorial sea—but only after the vessel has entered the internal waters.

Beyond the territorial sea, a state has certain sovereign rights which it may exercise to the contiguous zone. Within this zone, which extends from the 12-nautical-mile mark to 24 nautical miles from the territorial baseline, Australia can exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within Australia or our territorial seas or to punish infringement of these laws and regulations committed within Australia or our territorial sea. A smaller set of rights applies to the edge of the exclusive economic zone. That is 200 nautical miles from the territorial baseline where Australia can exercise a limited criminal jurisdiction while exercising sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone. We can exercise powers of arrest and detention of foreign vessels for violations of fisheries laws and regulations, but we cannot imprison persons without specific agreement with the flag state—that is, the ship's country of registration.

Altogether, with the new regime envisaged by this bill, our enforcement powers will be extensive. In summary, the centrepiece of the bill is a cooperative scheme which extends the criminal jurisdiction of the Australian states beyond the Australian coastal waters to the limits of the continental shelf and beyond so as to provide the legal basis for more effective control over crimes at sea. I commend this bill to the House.