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Monday, 6 December 1999
Page: 12870

Ms GAMBARO (8:27 PM) —I would also like to mention the bipartisan support that has been shown. The previous speaker, the member for Lowe, was quite correct to acknowledge that support. It is a rare thing, but it has been happening in the last few days. Tonight, though, I speak on the Crimes at Sea Bill 1999 , which was introduced on 30 September. The bill seeks to extend the criminal jurisdiction of the Australian states beyond Australian coastal waters to the limits of the continental shelf and beyond so as to provide a legal basis for more effective control over crimes at sea. It will give effect to a cooperative scheme developed by the Commonwealth and state and territory governments over crimes at sea within the adjacent area and to a complementary regime developed by the Commonwealth government over crimes at sea beyond the adjacent area. A regime agreed to by the Commonwealth and Indonesian governments for dealing with crimes at sea within area A of the Timor Gap—as the previous speaker alluded to—has also been considered.

There is some background to this crimes at sea legislation, and it is important to highlight some of that background. The Commonwealth already had some legislation in place with crimes at sea in the Crimes at Sea Act 1979. It also had complementary legislation in most states, which applies state criminal law to Australian ships, Australian citizens and foreign ships in respect of crimes committed at sea. However, the legislative regime does have defects and was the target of a report by the Australian Law Reform Commission nearly a decade ago. The defects were examined in the context of a discussion of Australia's jurisdiction over crimes at sea.

People-smuggling has increased in recent times, which probably has been the catalyst for this bill being brought to the attention of the House. It is an insidious thing. One has to look at people-smuggling in its contextual scenery. We may think we have a difficult problem. Recently I spoke to some members and officials of the Italian government who complained to me that they had 1,000 people smuggling from Albania to Italy. So, in the scheme of things, they thought that we had a relatively small problem. I guess we should be happy that our problem is not as extensive. Nevertheless, it is not something that should be ignored, and there has been an increase in people-smuggling.

Sea landings and unauthorised arrivals in Australia have been particularly noticeable since those first landings on 12 April 1999 when an undetected landing went as far as the east coast of Australia. This has led to a number of positive things emerging, including a coastal surveillance task force. It reported in June 1999. It noted that current maritime enforcement legislation does not fully implement the powers available under international law. On 27 June 1999 the Prime Minister indicated that the government would implement all the recommendations in the report and announced a commitment of $124 million over four years to strengthen Australia's capacity to detect and detain these illegal arrivals.

International people-smuggling has become a hot topic, not just for Australia but for many countries. It has received the attention of various international bodies and people, including the General Assembly, the Secretary-General, the Economic and Social Council and the International Maritime Organisation. It is the subject of a proposed protocol to a draft international convention on the control of transnational organised crime. The common theme here is that nation states are being urged to look at their own domestic legislative powers to establish jurisdiction over people-smuggling offences and to focus that more carefully.

In relation to jurisdiction over crimes at sea, it is very important to note that a distinction should be drawn between Australia's prescriptive jurisdiction and its enforcement jurisdiction. This prescriptive jurisdiction is where common law gives the Commonwealth and the states power to enact laws having an extraterritorial effect. The Constitution also gives the Commonwealth a power to enact laws with respect to matters that are external to Australia. Whether or not these laws are enforced, though, is yet another issue. Enforcement jurisdiction looks at international law which gives Australia a physical jurisdiction to enforce its laws within a prescribed distance of its coast arising out of its territorial sovereignty and sovereign rights. This has been recognised in international law. It also recognises a personal jurisdiction to enforce laws upon its own citizens or ships arising out of the nexus between a sovereign nation and its citizens.

A distinction needs to be made among the various jurisdictional zones recognised under domestic and international law. This guide is given by the United Nations Convention on the Law of the Sea. A number of speakers have spoken about that here today. Internal waters are waters on the landward side of the territorial baseline. There are also territorial seas, which are waters within 12-nauticalmiles of the territorial baseline. The contiguous zone is waters from 12 to 24 nautical miles. There are a number of exclusive economic zones, which are waters behind 12 nautical miles and within 200 nautical miles of the territorial baseline. The continental shelf is the seabed and subsoil up to 350 nautical miles or as agreed between two state parties to the United Nations Convention on the Law of the Sea.

These particular regions did not always exist in international law and they were not always reflected in domestic law. At common law it was widely thought that the territorial sea was limited to three nautical miles, and it was not until 1990 that Australia formally incorporated the 12-nautical-mile limit into domestic law. Much of our law is very historical and deals with things such as Admiralty jurisdiction which goes as far back as 1878 and deals with British ships and their jurisdiction over foreign subjects on board British ships. Common law also has a large part to play in the development of this legislation. The first view was that Australian states have power to enact laws having an extraterritorial effect.

I have to say that it is a good thing that we are looking at this legislation, particularly Australia's enforcement jurisdiction with full sovereignty to the limit of internal waters and a much more restrictive sovereignty to the limits of territorial water. It is very important that we look at sovereign rights, which may be exercised to the edge of the contiguous zone, and the smaller set of rights applying to the edge of the exclusive economic zone which is reduced further within the continental shelf and the non-existent high seas. Within the territorial sea, enforcement is subject to the right of innocent passage and foreign ships often have the right to passage through territorial water that is not prejudicial to the peace, good order or security of the coastal state. The state may exercise its criminal jurisdiction to arrest people or investigate crimes on board these ships passing through territorial seas where the consequences of the crime extend to the state, where the crime is of a kind to disturb the peace of the country or the good order of the territorial sea or if such measures are necessary for the suppression of illicit trade in narcotic drugs or substances. It may also exercise complete criminal jurisdiction over foreign ships passing through territorial seas after leaving internal waters. It also can exercise a complete jurisdiction over foreign ships in respect of crimes committed beyond the territorial sea but only after the vessel has entered internal waters.

It is important also to note that the government has signalled a desire to achieve bipartisan support. A number of speakers from the other side have also spoken about the bipartisan support for the whole of this package and the legislation for coastal surveillance. It is a problem that we, as a total government, have to deal with, and it is a problem that will not ease. In fact, its severity over a number of months and years has been increasing.

The opposition has shown that it supports the package. It has been critical of some of the previous aspects of the package, but I understand now that it is happy with some of the amendments it has made. I am pleased that this legislation will give effect to a cooperative scheme developed by federal, state and territory governments over crimes at sea. I am happy that it also has a complementary regime developed by the Commonwealth government over crimes at sea beyond the adjacent area. It is also a regime that has been agreed by the Commonwealth and Indonesian governments for dealing with crimes at sea within area A or the Timor Gap.

The perceived need for this bill originates with the recent spate of people-smuggling, as I have said, and we need to keep focused on that. On top of this, it is good to see that the recommendations of the coastal surveillance task force, which was established by the Prime Minister in April, will continue to be followed through. The task force has also noted that current maritime enforcement legislation does not fully implement the powers available under international law. It is therefore recommended that comprehensive amendments be introduced to the legislation to further strengthen the maritime, investigatory and enforcement powers against both Australian and foreign flag vessels. This is essentially what this bill seeks to do and it well enable us to better intercept and police people-smuggling. I commend the bill to the House.