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Monday, 6 December 1999
Page: 12866


Mr MURPHY (8:07 PM) —I speak tonight on the Crimes at Sea Bill 1999 . We know that this bill seeks to replace the existing Crimes at Sea Act 1979, which at present makes enforcing crimes committed at sea complicated and confusing. To some extent, the Crimes at Sea Bill will simplify the application of law enforcement in our seas. It is specifically designed to implement a national uniform scheme which ensures that the criminal laws of states, the Commonwealth and territories are applied in a cooperative manner.

Under this bill, state criminal laws are to apply where a crime is committed at sea within a distance of up to 12 nautical miles from the baseline of that state. In fact, the state has jurisdiction over any issue, not just criminal law, within its internal waters. For crimes committed beyond 12 nautical miles up to a distance of 200 nautical miles or the outer limit of the continental shelf, whichever is the greater distance, Commonwealth criminal law is to apply.

In addition, where certain criminal acts are committed outside the new scheme's coverage—that is, outside the continental shelf—the bill will apply the Jervis Bay territory criminal law to those acts. Jervis Bay territory criminal law will be able to be applied in three situations: (1) if a crime is committed on any Australian ship up to the point of the high seas or the territorial waters of any foreign country; (2) if a crime is committed by an Australian on a foreign ship who is not a member of the crew up to the point of high seas or the territorial waters of that country; and (3) if a crime has been committed on a foreign ship which first lands at an Australian port. It must be noted that Jervis Bay territory criminal law will not apply to an offence which occurs in the territorial waters of Norfolk Island covered by the Territorial Waters Act 1926 of Norfolk Island, or coastal seas in the territories of Christmas Island, the Cocos (Keeling) Islands, the Australian Antarctic Territory, Heard Island and the McDonald Islands, Ashmore and Cartier islands and the Coral Sea Islands territory, covered by the Commonwealth Acts Interpretation Act 1901.

It is also important to note that a charge for an offence that arises under Jervis Bay territory criminal law is not able to proceed unless the Attorney-General consents in writing to the hearing and determination of the charge. Before granting consent, the Attorney-General must take into account any views expressed by the government of a country other than Australia whose jurisdiction over the alleged offence is recognised under the principles of international law. Further, if the Attorney- General declines to grant consent, the court in which the suspect, the defender, has been charged must permanently stay proceedings on the charge. In these cases, the procedural rules for investigating and prosecuting offences will be the same as those applying to any other offence under Commonwealth law.

This arrangement and intergovernmental agreement will simplify the process of determining investigative procedures and jurisdictions to deal with offences effectively. It is important to have recorded in this House that crimes of a serious nature committed at sea such as theft, assault and murder are adequately covered by the bill.

I turn for a moment to the member for Hughes's comments in relation to part 4 of the bill when she spoke in this House on 25 November last. Part 4, as we know, deals with cooperation between Australia and Indonesia in the enforcement of criminal laws on any oil rig, or any criminal act committed which is associated with petroleum exploration and extraction within area A. The reason for my opposition to part 4 of the bill is that those sections pertaining to area A were formerly based on Australia's obligations under the Timor Gap Zone of Cooperation Treaty. Area A was determined in an agreement with Indonesia and Australia in 1989.

The government was prepared to shamelessly ask the Australian parliament to acknowledge and reaffirm Indonesia's sovereignty in the Timor Gap, until my colleague the member for Denison pointed out to the government the inappropriate nature of supporting this section of the legislation. I further note that it was only today that the foreign affairs minister told this House that Indonesia has confirmed that it is no longer a party to the Timor Gap treaty, meaning that part 4 must be amended if the legislation is to work at all. That is a good thing.

I wish to state that I categorically oppose part 4 and sections 7, 8 and 9 of the bill as they now are, in the light of recent international events between Indonesia and East Timor. The government's lack of sensitivity in tabling this bill for debate at a time of crisis in the newly independent East Timor and displayed throughout this bill is appalling. I find it extraordinary that, when the bill was originally introduced on 30 September 1999, a month after the ballot for independence in East Timor occurred, the member for Hughes would say in her speech:

The government decided to remove part 4 well before the unhelpful intervention of the member for Denison.

The member for Hughes has been ill advised. I do not blame the member for Hughes because she is quite a lovely lady; she also has a lovely husband, Bob. But I am not here to speak about that. Rather, I think she has been badly advised in this particular case. I will just go through, for the benefit of the House, a chronology of events I have been able to obtain from the shadow minister for justice and customs, the member for Denison, the Hon. Duncan Kerr.

On 30 September 1999, the Attorney-General introduced the bill into this House; that was one month after the East Timor ballot. On 15 October, the opposition drafted its amendments to oppose part 4 of the bill. About 18 October, Senator Vanstone's office advised the opposition of the government's proposed amendments and provided a confidential copy which described the amendments as having arisen `because OPC have identified a number of minor language differences between the Commonwealth bill and corresponding legislation in the model state legislation'. Those amendments did not touch the Timor Gap issue.

Then, on 21 October, the bill was scheduled for debate. However, the House adjourned until 22 November without debate on the bill having resumed. On 11 November, we received a draft weekly program for this House which listed the bill for debate on Wednesday, 24 November. On the morning of 23 November, Senator Vanstone's office contacted the office of the member for Denison to see if the opposition had any problem with the bill. In the afternoon, the opposition indicated to Senator Vanstone's office that, yes, we had problems with part 4 and that we would be moving amendments to oppose same.

Later on the evening of the 23rd, Senator Vanstone's office delivered an advance copy of unrelated bills to be introduced into the House the next morning. Duncan Kerr's office asked what was the minister's view regarding part 4. I want to make this quite clear: the government indicated that there may be a government amendment to omit provisions in part 4 and that drafting was in progress. The opposition insisted that it was still opposing part 4 and that it would be pressing on with the amendment to that effect.

Duncan Kerr's office had a clear understanding that it would hear from Senator Vanstone's office the next morning to put their heads together and discuss this. The opposition also asked further whether the bill would remain listed for debate and suggested it may be sensible to delay its consideration until the new year. The government replied that it remained listed for debate and that there was a slim chance it would come back on Wednesday but more likely Thursday of that week.

On Wednesday, 24 November at about 1.30 p.m., having not heard from Senator Vanstone's office, the shadow minister was quite entitled to hold a doorstop interview and then put out a press release about this matter. For the benefit of the House, I will read that press release:

"The Howard Government has again displayed an astounding level of bad timing and political and diplomatic insensitivity in respect of East Timor," Duncan Kerr, [Shadow] Minister for Justice and Customs, said today.

It continues:

The Crimes at Sea Bill, which the Government introduced in the Parliament on 30 September—a month after East Timor's ballot, was listed for debate this week.

The timing of the introduction of this legislation has meant that the Shadow Ministry has had no choice but to oppose a significant part of the Bill which, based on Australia's obligations under the Timor Gap Zone of Cooperation Treaty, provides for cooperation between Australia and Indonesia in the enforcement of criminal law in the Timor Gap.

By introducing this legislation when it did, and then listing it for debate, the Government is asking the Australian Parliament to acknowledge and re-affirm Indonesia's sovereignty in the Timor Gap.

This is extraordinary given that Indonesia has formally renounced control of East Timor.

That the Government introduced this Bill during East Timor's struggle for independence is hard enough to fathom. It almost defies belief that now, when Minister Vanstone has had almost two months to realise the possible ramifications of the Bill, is listed for debate today without amendment.

My office asked the Minister to reconsider the timing of debate on this Bill. In good faith and in Australia's best interest, we pointed out to the Minister that it is not appropriate to be passing legislation which could be cited as an Australian acknowledgment of a continuing Indonesian claim to parts of the Timor Gap.

Minister Vanstone neither accepted this advice in the spirit it was given, nor was able to understand the political and diplomatic sensitivities involved.

The Government has demonstrated that it is sloppy, politically insensitive and just plain dopey if it really expects the Australian Parliament, at this point in time, to pass legislation which would reaffirm Australian recognition of Indonesian sovereignty in the Timor Gap.

This can only be described as a first-rate stuff-up. It is bound to embarrass Prime Minister Howard when he visits East Timor this weekend."

Mr Slipper interjecting


Mr MURPHY —The member for Fisher, the Parliamentary Secretary to the Minister for Finance and Administration, who is at the table, is obviously not listening to what I am saying. I am just setting the record straight for this House. The member for Hughes—it was no fault of hers—had the foreshadowed amendments stuck under her nose when she was speaking on Thursday, 25 November. I was in the chamber and I think it was by the Chief Government Whip. That was only after the member for Denison had made it quite plain that we on this side of the House were not going to cooperate unless something was done in relation to part 4 of the bill.

I have carefully gone through that chronology for the benefit of the member for Fisher. If he wants to have a discussion about it, I will be more than happy to go along with him to Duncan Kerr's office and take him through it, because Senator Vanstone badly let down the government and badly let down the member for Hughes who innocently misrepresented the situation to the House. Duncan Kerr was quite within his rights to give a doorstop at 1.30 p.m. on Wednesday, the 24th when he had not heard anything more from Senator Vanstone's office about the foreshadowed amendment from this side of the House.

I am pleased to learn now that the government is moving that way and will be doing something about it, after the member for Denison brought it to the attention of the House. It will have the support of all of us on this side of the House. Enough said about that; I support the foreshadowed amendment to be moved by the member for Denison in terms of part 4.

I would now like to digress in the remaining minutes to discuss the current public scrutiny over the issue of people-smuggling and illegal arrivals in Australian territorial waters. I note that, in her speech on 30 September, the member for Murray talked about the increasing incidence of `people-smuggling' highlighting the importance of having an `effective legal regime to govern the seas around Australia's coastline'.

It is my opinion that the resolution of current issues faced by Australia, such as protecting and reducing illegal activities in our territorial waters, should include: firstly and most importantly, establishing an Australian coastguard; secondly, increasing funding for the Australian Customs Service; and, thirdly, creating one overarching piece of legislation written specifically to deal with the protection of our borders, our waters and our activities within this area.

The member for Murray should not be marketing this bill as a measure against people-smuggling. This is yet another case of the government using rank political opportunism to gather support for a bill that is fundamentally flawed in this respect. The difficulty with the argument of this bill as a measure against people-smuggling is that of transnational organised crime. While the bill encourages states to fully exercise their jurisdiction, the bill does not enable states to exceed their jurisdiction under the United Nations Convention on the Law of the Sea. Under this bill, states will be encouraged to exercise personal jurisdiction rather than the prescribed physical jurisdiction—which, I might add, is how the bill is supposed to operate—over any of their vessels engaged in people-smuggling.

The member for Murray might also wish to note that the application of this legislation to the case of people-smuggling will create only confusion because there are already measures in place in the Border Protection Legislation Amendment Bill 1999 , which was passed by this House on 22 November and was a debate that I participated in. Adequate amendments were made to the Customs Act and the Migration Act to deal with some of the problems faced in policing 11 million square kilometres of water.

I believe this bill displays a great deal of merit in that it simplifies the procedures and jurisdictions of courts over prescribed areas. The bill also clearly amends some defects in existing crimes at sea legislation. I believe that the bill represents a genuine attempt to meet the new challenges faced by state and federal authorities in fighting criminal activity on our territorial seas. As the member for Denison said in his speech in this House on 25 November, this is a complex issue, for which finding a solution has been problematic. Apart from part 4 as it now stands, I have no hesitation in supporting the bill. It seems obvious now that the government are going to make the appropriate amendments, and I will acknowledge that in the House—even for the benefit of the member for Fisher—because it is a good thing, and I am sure he agrees with it.


Mr Slipper —But we told Duncan Kerr earlier.


Mr MURPHY —You did not, actually.


Madam DEPUTY SPEAKER (Mrs Gash) —Order!


Mr MURPHY —Madam Deputy Speaker, the member for Fisher is quite wrong and he persists in interjecting. We can demonstrate quite clearly from the communication between Senator Vanstone's office and Duncan Kerr's office that, on this occasion, we are being misrepresented. I stand by Duncan Kerr's press release of 24 November because he was entitled to put that out when Senator Vanstone's office had failed to come back to him and to let us know that they shared our concerns about part 4 of the bill.

In conclusion, I want to congratulate the member for Denison. He has obviously done a terrific job in relation to that part of the bill that we had some concerns about, and the government, to its credit, has come to the party and will now, through the committee process, deal with this so that, when it comes back to the House, the appropriate amendments will be made and we will be able to get the outcome we on both sides of the House want. I salute the member for Denison for doing a good job on this one.


Mr Slipper —And the government!


Mr MURPHY —I will reluctantly congratulate the government on getting it right. It is a good thing that we can sometimes work together and get a good outcome for the benefit of all who are affected by this legislation. It has been very complex and difficult to deal with. As the member for Denison mentioned some time ago, its genesis goes way back, well before the government came in. (Time expired)